Villiers v Villiers

Factual and Procedural Background

The appeal concerns an order made by Mrs Justice Parker on 8 July 2016 requiring the Appellant ("the husband") to pay interim periodical maintenance payments and a legal fees allowance to the Appellee ("the wife"). The dispute centers on the application of Council Regulation (EC) No 4/2009 ("the EU Regulation") and the Civil Jurisdiction and Judgments (Maintenance) Regulations 2011 ("the 2011 Maintenance Regulations") to jurisdictional conflicts within the United Kingdom.

The core issue was whether England or Scotland had jurisdiction over maintenance proceedings where divorce proceedings were ongoing in Scotland but no financial provision claim had been made there. The wife initiated maintenance proceedings in England under section 27 of the Matrimonial Causes Act 1973 ("s27 MCA 1973"). The husband challenged jurisdiction, arguing that the English court should stay or dismiss the maintenance proceedings either because the Scottish and English proceedings were "related actions" under Article 13 of the EU Regulation or on the grounds of forum non conveniens, given Scotland was the first seised and more convenient forum.

The parties married in 1994, lived in Scotland throughout their marriage, and separated in 2012 when the wife and their adult child moved to England. The wife issued a divorce petition in England in 2013 but it was stayed and later dismissed by consent, accepting that Scotland was the proper jurisdiction for divorce. The husband filed for divorce in Scotland without making any financial claims. The wife then applied for interim maintenance in England under s27 MCA 1973. The husband's jurisdictional challenge was heard alongside the wife's application for interim maintenance.

The Scottish divorce proceedings were active but stayed for over two years pending resolution of the jurisdictional dispute. The wife had not made any financial provision application within the Scottish proceedings. The English court considered whether the English maintenance proceedings should be stayed or dismissed in favor of the Scottish proceedings.

Legal Issues Presented

1. Whether the English court has jurisdiction to hear the wife's maintenance application under s27 MCA 1973 despite ongoing Scottish divorce proceedings without financial claims.
2. Whether the English maintenance proceedings should be stayed or dismissed under Article 13 of the EU Regulation as "related actions" to the Scottish proceedings.
3. Whether the English court has a residual discretion to stay the proceedings on the grounds of forum non conveniens despite the EU Regulation.
4. Whether the duration of the interim maintenance order should be limited to the dissolution of the marriage.
5. Whether the judge erred in applying the test for interim maintenance under s27(5) MCA 1973.
6. Whether the judge erred in finding that the husband had access to funds through trusts to meet maintenance payments.
7. Whether the costs allowance order was properly made given procedural deficiencies and lack of evidence.

Arguments of the Parties

Appellant's Arguments

• The English maintenance proceedings should be stayed because the Scottish proceedings, being first seised, were "related actions" under Article 13 of the EU Regulation.
• Alternatively, the English court should exercise its residual discretion to stay the proceedings on forum non conveniens grounds, favoring Scotland as the more appropriate forum.
• The judge erred in not limiting the duration of the maintenance order to the dissolution of the marriage.
• The judge applied the wrong test for interim maintenance under s27(5) MCA 1973 by interpreting "immediate need" as not requiring urgency.
• The judge wrongly found that the husband had access to funds via trusts to pay maintenance, lacking sufficient evidence for such a finding.
• The costs allowance order was improperly made without a costs budget or evidence negating the wife's brother's continued support.

Appellee's Arguments

• The English court has jurisdiction under the 2011 Maintenance Regulations and s27 MCA 1973 to make maintenance orders independently of the Scottish divorce proceedings.
• The Scottish divorce proceedings do not constitute a financial claim and are not "related actions" under Article 13; thus, no stay is appropriate.
• The EU Regulation and the 2011 Maintenance Regulations supersede any residual forum non conveniens discretion previously recognized under domestic law.
• The interim maintenance order was properly made as the wife was in continuing need due to the husband's failure to provide reasonable maintenance.
• The judge was entitled to find on the evidence that the husband had access to trust funds likely to be advanced to meet maintenance obligations.
• The costs allowance order, despite procedural shortcomings, was a reasonable interim measure given the wife's financial position and the husband's access to funds.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Farrell v Long (ECJ) [1997] QB 242	Policy that maintenance applicants, as the weaker party, are entitled to alternative jurisdictional bases under Article 5(2).	Supported the policy basis for allowing the wife to choose jurisdiction under the EU Regulation.
Moore v Moore [2007] 2 FLR 339; EWCA Civ 361	Definition of related actions under Article 13 and distinction between maintenance claims and capital/property division.	Held that divorce proceedings without maintenance claims are not related actions to separate maintenance claims.
N v N [2012] EWHC 4282; [2014] 1 FLR 1399	Application of Article 13 to related actions and the court's discretion to stay or dismiss.	Found actions related and dismissed English maintenance proceedings as a device to circumvent first seised court.
Wermuth v Wermuth [2003] EWCA Civ 50; [2003] 1 WLR 942	Strict application of Article 12 Lis Pendens and rejection of forum conveniens in jurisdictional conflicts.	Held that maintenance pending suit did not fall within Article 12 and stressed deference to the first seised court.
Sarrio SA v Kuwait Investment Authority [1999] 1 AC 32	Interpretation of "related actions" under Article 13(3) requiring a broad common-sense approach.	Supported a wide test for relatedness to avoid irreconcilable judgments.
Nomura International plc v Banca Monte Dei Paschi Di Siena SpA [2013] EWHC 3187; [2014] 1 WLR 1584	Application of Article 13(3) related actions test and exercise of discretion to stay proceedings.	Adopted a broad common sense approach to relatedness but exercised discretion to refuse stay.
Agbaje v Agbaje [2010] UKSC 13	Interpretation of s16 MFPA 1984 and its distinction from forum non conveniens.	Confirmed that s16 does not impose a forum non conveniens test but considers appropriateness of venue.
Thomas v Thomas [1995] 2 FLR 668	Principles governing whether trust funds are available for maintenance payments.	Applied in assessing husband's access to trust funds for interim maintenance payments.
Whaley v Whaley [2007] EWCA Civ 617; [2012] FLR 735	Clarified the test for likelihood of trustees advancing funds for maintenance.	Held that the likelihood of trustees advancing funds is to be assessed on balance of probabilities, not certainty.
Charman v Charman [2005] EWCA Civ 1606	Further authority on inclusion of trust assets as financial resources.	Supported the view that trustees’ likely advances count towards available resources.

Court's Reasoning and Analysis

The court began by clarifying that jurisdiction in maintenance disputes within the UK is governed exclusively by the 2011 Maintenance Regulations, which incorporate the EU Regulation, superseding previous domestic provisions such as sections 16 and 49 of the Civil Jurisdiction and Judgments Act 1982. The court rejected the appellant’s argument that residual domestic discretion, including forum non conveniens, survived.

Applying Article 12 (Lis Pendens), the court found that the Scottish divorce proceedings did not include any claim for maintenance and therefore did not engage the mandatory stay provisions. The court then considered Article 13 (Related Actions), concluding that the Scottish divorce proceedings (relating only to status) and the English maintenance proceedings were not "related actions" since the former contained no financial claims. The court relied heavily on the precedent from Moore v Moore, which held that separate proceedings for status and maintenance are not related for the purposes of Article 13.

The court rejected the appellant’s reliance on the decision in N v N, finding it was wrongly decided and distinguished by facts and legal context. The court emphasized that the EU Regulation permits a party to choose among available jurisdictions and that this choice cannot be thwarted by invoking forum shopping objections or residual common law discretion.

Regarding the interim maintenance order, the court upheld the judge’s interpretation of "immediate need" as "current" rather than requiring urgency, consistent with prior authority. It found that the wife was in continuing need due to the husband's failure to provide maintenance and that reliance on third-party support (her brother) was insufficient to discharge the husband’s obligation.

On the issue of the husband's access to trust funds, the court accepted the judge’s conclusion that the trustees were likely to advance funds in the foreseeable future, based on evidence including prior advances and correspondence, applying the test from Whaley v Whaley and Thomas v Thomas.

Finally, although the costs allowance order was procedurally deficient, the court accepted it as a reasonable interim discretionary decision given the wife’s financial position and the husband’s access to funds. The court cautioned that this should not be seen as condoning procedural shortcomings.

Holding and Implications

The court DISMISSED THE APPEAL on all grounds.

The English court retains jurisdiction to hear the wife's maintenance application under s27 MCA 1973 despite ongoing Scottish divorce proceedings without financial claims. The Scottish and English proceedings are not "related actions" under Article 13 of the EU Regulation, and there is no residual forum non conveniens discretion to stay the English proceedings. The interim maintenance and costs allowance orders were properly made on the evidence and legal principles.

This decision confirms the exclusive application of the 2011 Maintenance Regulations and the EU Regulation to intra UK maintenance jurisdictional disputes, eliminating residual domestic discretion such as forum non conveniens in this context. It clarifies that maintenance claims and divorce/status proceedings without financial claims are distinct for jurisdictional purposes under Article 13. No new precedent was established beyond the application of existing principles.