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Supreme Court considers maintenance law

By 25 November 2020divorce, financial

The Supreme Court has dismissed an appeal against a ruling that the English courts had the authority to order him to pay maintenance to his ex-wife.

The couple had married in England in 1994 before moving to Scotland. When they separated in 2012 the wife returned to England. The following year she filed for divorce in the English courts. But when the husband filed his own petition in 2014, the divorce was officially allocated to the Scottish courts because the couple had lived north of the border throughout their marriage. The wife agreed to drop her own divorce petition and instead applied for maintenance under Section 27 of the Matrimonial Causes Act 1973. This covers the enforcement of maintenance when the wealthier party has been reluctant to pay, stating:

“Either party to a marriage may apply to the court for an order under this section on the ground that the other party to the marriage (in this section referred to as the respondent)—

(a)has failed to provide reasonable maintenance for the applicant, or

(b)has failed to provide, or to make a proper contribution towards, reasonable maintenance for any child of the family.”

The soon-to-be-former husband applied to have this application dismissed on the grounds that the English courts did not have the legal authority (jurisdiction) to hear her application. His claim was dismissed and he was ordered to begin payments. After a further unsuccessful challenge in the Court of Appeal, he took his case all the way to the Supreme Court, insisting that, under EU law, the English courts did not have the power to order maintenance payments given that his place of residence was Scotland.

Justices dismissed his case, but only by a majority of three to two. Delivering the lead judgement, Lord Sales considered a number of complex legal points concerning EU law – in particular European Council Regulation No 4/2009, on “jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations”. As the name suggests, this governs the payment of maintenance across borders within the EU and it is commonly referred to more simply as the ‘Maintenance Regulation’.

Amongst other claims, the husband had argued that section 27 did not grant the English courts the authority to make maintenance orders within the UK itself, and that his divorce proceedings in the Scottish courts qualified as a “related action” under Article 13 of the Maintenance Regulation. This states that:

“1. Where related actions are pending in the courts of different Member States, any court other than the court first seised [the court in which proceedings were first launched] may stay its proceedings.

  1. Where these actions are pending at first instance, any court other than the court first seised may also, on the application of one of the parties, decline jurisdiction if the court first seised has jurisdiction over the actions in question and its law permits the consolidation thereof.
  2. For the purposes of this Article, actions are deemed to be related where they are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings.”

Article 13 corresponds with Schedule 6 of UK legislation the Civil Jurisdiction and Judgments (Maintenance) Regulations 2011, which brought the EU regulation into English law. Schedule 6 concerns “Allocation within the United Kingdom of jurisdiction relating to maintenance matters”.

The husband insisted that section 27 could only apply in cases involving more than one member state and so governed both by Schedule 6 of the UK regulations and the Maintenance Application. But Lord Sales rejected this claim, saying that the two pieces of legislation were only listed in the Section 27 in order to refer to both international and intra-state disputes. It was not necessary for them both to apply to a particular case.

Further, said Lord Justice Sales, the husband’s divorce petition did not in fact qualify as a related action under Article 13, therefore the English courts had had no power to withdraw from the case. This was the case because the word “actions” in the legislation meant those maintenance claims which it governed, not any other kind of legal proceeding, such as a divorce.

Lord Justice Wilson disagreed on the issue of Article 13, believing that the English and Scottish proceedings were in fact related actions and so the English courts should have withdrawn. As a result, Lord Wilson noted in a dissenting ruling, he would have allowed the husband’s appeal if his view had received majority backing. Former Supreme Court President Lady Hale endorsed this interpretation

Read the full ruling here.

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