The courts of England and Wales have acquired a certain reputation over the years as being the place to be for a spouse looking for ongoing maintenance from a wealthy partner.
There have been news reports this week about the case of Mr and Mrs Villiers which was before the Court of Appeal in London and where, it was claimed, England and Wales might become the “maintenance capital” of the UK.
Granting Spousal Support
The judgement is not currently available, but the case before the lower court in 2016 was only in relation to a temporary form of spousal support which is paid until divorce is granted. The same kind of support is available in Scotland as well. In that sense at least, there is no difference between the two jurisdictions. The difference for Mrs Villiers was in the fact that the judge in the English case took into account assets which were held in trust and which the court felt Mr Villiers would have access to and could use to pay ongoing support to her. In that aspect, the English court may have been more generous than a Scottish one would have been, but even this was only ever intended to be temporary.
The overall division of the parties’ assets is, according to the previous case and news reports, still being dealt with in Scotland. The European Union Maintenance Regulation, which in slightly changed form also applies to cases where there is a choice between being in Scotland and England, has made it clear that the division of assets and the question of ongoing support could be looked at by the courts of two different countries.
Where one person is looking for support, they can ask the courts of the country where they live to make that award for them. That may well be different from the court which deals with the divorce itself. The particular question which arose in this case was whether, if a divorce case has already begun in Scotland, does that mean that every question connected to it, including how much support has to be paid while the case is ongoing, also has to be dealt with here?
It seems that the Court of Appeal in England has decided that the person asking for ongoing support can decide where they apply. It may, therefore, be possible for one spouse to seek maintenance south of the border while the overall division of assets are being dealt with north of the border. Whether that support would ever be intended to go beyond divorce is unclear.
Seeking Legal Advice
It is possible to agree in advance of any separation which country would deal with questions about ongoing support. For anyone for whom recent news headlines have caused worry, consulting a solicitor about a prenuptial agreement, postnuptial agreement or indeed about advice in relation to a separation may well provide some comfort. We would be happy to provide such advice.
Contact a member of the Family Law Team today.