Divorce and intra-UK jurisdiction disputes
Amy Scollan discusses the contrast between English and Scottish law on matrimonial settlements.
As a family solicitor, it doesn’t take very long until you find yourself dealing with an intra-UK jurisdiction dispute. They are more common than may be thought. This is because there are financial advantages to be had by securing one jurisdiction within the UK over another. In my experience, the most common intra-UK disputes are between spouses trying to secure Scottish law over English law, or vice versa.
In English law, the matrimonial courts have a very broad discretion to award maintenance for such a sum and term as is considered fair. The award of maintenance must aim to assist the recipient on the road to independent living. That said, the matrimonial courts quite commonly find that financial independence is impossible to achieve, especially when dealing with spouses who are aged 50 plus, who have not worked during the marriage. In such cases, a joint lives maintenance order will be made. In contrast, in Scottish law, maintenance cannot be awarded for a period greater than three years save for in exceptional circumstances.
Another difference is the treatment of inherited property. In Scottish law, ‘matrimonial property’ – which is to be divided equally – is made up of all property held by either party and jointly at the date of separation which has been acquired during the marriage. Therefore, inherited assets are excluded from division. On the other hand, under English law, inherited assets may be considered matrimonial property and distributed between spouses.
These differences in the law are stark and it is understandable why, if you consider yourself as having a long-term maintenance need, you would wish to divorce in England if you have the chance, and why, if you want to limit your maintenance obligations, you would wish to divorce in Scotland.
The divorce of Mr Charles and Mrs Emma Villiers has been in the press over the last few weeks. We are told that they lived in Scotland for 17 years before separating in 2012, when Mrs Villiers and their daughter moved to Notting Hill. Mr Villiers issued for divorce in Scotland in 2014, and Mrs Villiers subsequently applied in England for maintenance and received an award of £5,500 per month. Mrs Justice Parker said that she could see no reason why divorce could not proceed in one jurisdiction and maintenance in another. This was because Mrs Villiers was habitually resident in England at the time she issued an application.
Recently, Mr Villiers obtained permission to appeal the judgment. His counsel argued that if Mr Villiers’ appeal fails, more divorcees in Scotland may take up habitual residence in England to secure a maintenance order, thus undermining Scottish law. Habitual residence has no clear definition, and colloquially it means taking up a home with a long-term intention to remain in the jurisdiction, so indeed it could be established very quickly.
In my view, maintenance obligations form part of the overall matrimonial settlement, which courts all over the UK carve out with great care and balance. Therefore, maintenance obligations should not be able to be siphoned off and ruled on by a court in a different jurisdiction.
This article was originally published in Solicitors Journal and can be accessed here.