Under the maintenance jurisdiction rules applied in this 2020 case, could a wife seek maintenance in England while her husband’s divorce proceedings were pending in Scotland? The majority held that the English court could hear her application. The Scottish action sought divorce and did not include a claim for maintenance.
Facts and earlier decisions
The parties had lived together in Scotland. After separation the wife lived in England. The husband began divorce proceedings in Scotland without seeking a financial order, and the wife applied in England for maintenance under section 27 of the Matrimonial Causes Act 1973.
The husband asked the English court to stay or dismiss the application. Parker J held that the court had jurisdiction and ordered interim periodical payments. The Court of Appeal dismissed his appeal. He appealed to the Supreme Court on jurisdiction alone. The final determination of the section 27 application remained adjourned. The interim order was not stayed, but the husband did not comply with it.
Law Teacher writing support
Writing a law essay?
We choose a writer who is an expert in your area of law and qualified to at least the academic level you select. Most of our writers hold a master’s degree or PhD, have teaching experience, or both.
Send us your question and, if you wish, any marking criteria. We’ll write an essay to your instructions.
The jurisdictional scheme
Council Regulation (EC) No 4/2009, the Maintenance Regulation, governs jurisdiction in maintenance matters between member states. Article 3 gives the maintenance creditor a choice of courts, including the court for the place where the creditor is habitually resident. Articles 12 and 13 deal with proceedings involving the same cause of action and with related actions. Schedule 6 to the Civil Jurisdiction and Judgments (Maintenance) Regulations 2011 applies those rules, with modifications, to the allocation of jurisdiction between the parts of the United Kingdom. Section 27(2) of the 1973 Act, as amended, provides that the court may not entertain an application unless it has jurisdiction by virtue of the Maintenance Regulation and Schedule 6.
Majority reasoning
Lord Sales, with whom Lord Kerr agreed, held that all four issues should be resolved against the husband. Lady Black agreed on the points that determined the appeal.
An English court has jurisdiction under section 27 even where there is no element outside the United Kingdom. Section 27(2) covers inter-state cases governed by the Maintenance Regulation and intra-state cases governed by Schedule 6. Those instruments deal with different situations, so a reading that required both to apply to the same case would leave the subsection without practical effect.
There is no surviving discretion to stay the proceedings on the general ground of forum non conveniens. Schedule 6 was intended to introduce, for cases within the United Kingdom, the same clear and mandatory rules as the Maintenance Regulation uses between member states. As the Court of Justice held in relation to the Brussels Convention in Owusu v Jackson, and later in relation to the Maintenance Regulation in R v P, a national court cannot retain a wide discretion to send the claim elsewhere. Article 3 is mandatory and is designed to let the maintenance creditor, treated as the weaker party, choose the most convenient or advantageous of the listed courts. Section 49 of the Civil Jurisdiction and Judgments Act 1982 does not preserve the discretion, because maintenance jurisdiction has been removed from that Act and is governed by the separate 2011 regime. Lady Black added that this does not remove ordinary case-management powers, such as adjourning one claim so that the court can take account of a decision in another; a forum non conveniens stay is a distinct order.
Removing that discretion was within the Secretary of State’s powers under section 2(2) of the European Communities Act 1972. Schedule 6 deals with matters arising out of or related to the operation of the Maintenance Regulation in domestic law. One coherent set of rules for both international and intra-UK claims avoids uncertainty where people move between jurisdictions.
The Scottish divorce is not a related action under article 13 as applied by Schedule 6, so the English court cannot decline jurisdiction on that basis. The Regulation’s object is to protect the maintenance creditor’s choice. Articles 12 and 13 must be read in that light. The word “actions” refers primarily to maintenance claims. A proceeding concerned only with marital status is not sufficiently connected to a maintenance claim, and there is no risk of irreconcilable judgments: maintenance can be awarded whether or not the Scottish court dissolves the marriage, and an order under section 27 can survive divorce. Article 3(c), which allows a maintenance claim to be brought in the court hearing a status dispute, merely gives the creditor an extra option. It does not let the maintenance debtor force the claim into the divorce court by starting status proceedings. The Court of Appeal’s approach in Moore v Moore supported this conclusion. Moor J’s contrary decision in N v N was wrong.
Lady Black reached the same conclusion from the wording of article 13. Actions are related only where they are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments. Status proceedings and a maintenance claim create no such risk, and the Scottish court was not seised of maintenance. She accepted that family lawyers may find the possible fragmentation of financial issues unwelcome, but considered it a consequence of a scheme that treats maintenance separately and prioritises the creditor.
Dissent
Lord Wilson, with whom Lady Hale agreed, would have allowed the appeal. He considered the Scottish divorce and the English maintenance application to be related actions. Article 13 covers proceedings that do not involve the same cause of action and confers a power, not a duty, to stay or decline jurisdiction. Although the reference to irreconcilable judgments sits awkwardly with article 13(2), he preferred a broad common-sense reading, of the kind adopted in Sarrio SA v Kuwait Investment Authority, so as to give article 13(2) effect. The Scottish court was first seised, could entertain a maintenance claim by the wife before decree, and could consolidate the claims. He would have remitted the question whether to exercise that power to a judge of the Family Division. He regarded the majority’s examples of article 13 as unrealistic and did not accept that the creditor’s initial choice of court must continue to prevail once a rival action is pending. He also thought that, if article 13 were as narrow as the majority held, the common-law forum non conveniens discretion might still have been available; on his wider reading it was not.
Verdict: The Supreme Court dismissed the husband’s appeal by three votes to two. Under the rules applicable to these proceedings the English court had jurisdiction, and there was no basis for the stay sought. Entitlement to maintenance and its amount remained undecided.
