Villiers v Villiers- ‘Victory for Villains?’

When going through a divorce, one of the most challenging areas is agreeing on finances and maintenance. This is what often causes a row and animosity during divorce, the husband may argue that he worked through out the marriage and provided, therefore should have the most maintenance. However, the wife may argue that she had to stop working to raise their children therefore should be entitled to more maintenance.

What is maintenance?

There are two types of maintenance: spousal and child maintenance.

Spousal maintenance is paid by one spouse to another, generally by periodic payments- this is governed by S23 Matrimonial Causes Act 1973– the spouses needs are a starting point to deciding maintenance, but the court will then consider other factors such as the jobs they have, the children, contribution to the home and surplus. The factors could be found in S25 of the Matrimonial Causes Act 1973. Overall, the courts have discretion and fairness when it comes to deciding maintenance, the main factor they do consider though is the welfare of the children.

Child Maintenance is separate to the above, this is when one parent pays maintenance to the other parent for the maintenance of their child. Usually it is decided between both parties, but if it cannot be decided then parents can utilise ‘Child Maintenance Service’ which calculates it for them. They would then collect it from one parent and give it to the other parent at the designated time.

But, one thing to note is that in different jurisdictions the emphasis on maintenance varies which could complicate the situation. What would happen if one of the parties lived in a different jurisdiction? How will the maintenance be decided?

Villiers v Villiers [2020]

In Villiers v Villiers, the couple had originally lived in Scotland and started off their divorce proceedings in Scotland however there was a delay when it came to the financial application. At that time the wife was residing in England so had filed her maintenance application from there instead. This was a smart move because England’s maintenance is lenient and substantial in comparison to Scotland.

The husband took this up to the Supreme Court, disputing that England’s courts should not be deciding the maintenance. His argument was that if they had lived in Scotland and he had issued proceedings from there then England should not be deciding the maintenance thereafter the divorce.

The Supreme Court’s judgement

Unfortunately, the husband was unsuccessful because of the wide interpretation of the EU Maintenance Regulations. This allows financial claims (in this context, only allowed for maintenance) to be decided by England even if the divorce proceedings are from different jurisdictions.

Not all happy endings

It is to be considered that the wife used the ‘EU Maintenance Regulations’ to allow her maintenance to be decided by England, however following Brexit this may alter- the results of this would be apparent after 30^th December 2020. True change (if any) will be apparent next year.