The Team

Where will you apply for maintenance?
28/09/2018
Where will you apply for maintenance?
The recent case of Villiers v Villiers in the Court of Appeal in England gave pause for thought when considering how maintenance payments between spouses might be dealt with. The reason for this was that whilst Mr Villiers raised divorce proceedings in Scotland, his spouse raised proceedings for maintenance in England - and was successful in her application.

It has long been acknowledged that spousal maintenance payments in England are much more generous and, as we've seen in recent times, a spouse can return to court to seek adjustment of the amount awarded, sometimes many years after the divorce. The position in Scotland is very different with the view that some finality is required on divorce with a focus on a settlement generally reflecting three years' worth of payments by one spouse to the other.

In this recent case, whilst Mr & Mrs Villiers were married in 1994 and spent most of their married life in Scotland, on their separation in 2012, Mrs Villiers moved back to England. Mr Villiers raised divorce proceedings in Scotland whilst Mrs Villiers raised maintenance proceedings in England. There was then an argument as to whether the divorce proceedings in Scotland prevented the maintenance proceedings in England progressing.

The judgement in the Court of Appeal to Mr Villiers's challenge that the maintenance proceedings in England should be struck out because he had already raised divorce proceedings in Scotland failed. The court decided that the maintenance case raised by Mrs Villiers in England could proceed on the basis that whilst divorce proceedings had been raised in Scotland, they did not address any element of maintenance for Mrs Villiers and, that being the case, the question of maintenance could be properly dealt with elsewhere - in this case, in the courts in England.

Whether this case will establish a trend remains to be seen. There has been an indication that the person seeking maintenance should have valid reasons for moving to England from Scotland. In the Villiers case, Mrs Villiers was English and her family lived in England. Whilst she had lived in Scotland for most of her married life, on her separation from her husband it had seemed logical that she would return to England.

We will monitor this situation and if there appears to be a trend developing we will bring it to your attention.