Spousal Maintenance across the UK borders – England v Scotland

The case is interesting because it raises the issue of competing jurisdictions within the UK; focussing particularly on the question of whether a claim for interim maintenance can be made in the court of England and Wales, when the divorce has already been issued in the Scottish court.

In the preceding appeal, the Court of Appeal decided that the divorce in Scotland and the financial application in England were not ‘related actions’ under Article 13 of the EU Maintenance Regulation and hence the application in England did not need to be stayed.

It found that the wife’s application under s27 of the Matrimonial Causes Act 1973 gave the English court power to order spousal maintenance in the absence of any divorce proceedings in the English court. Of note is the fact that the Scottish divorce petition did not include any associated claim for a financial order within the petition.

The case raises a number of interesting issues for divorcing couples with cross-UK residences, not least:

• Legal principles are not the same throughout the UK. Scotland has a different divorce regime to England and Wales;
• If one party applies for a divorce in Scotland, this doesn’t mean that the financial application must also be made in Scotland. This case raises the possibility that one country can deal with maintenance claims and the other can deal with the divorce;
• An divorcing individual should take great care to consider financial applications at the outset when applying for divorce. Don’t leave it to chance where you have an estranged spouse living in another jurisdiction.

For expert legal advice on cross-border divorce issues do not hesitate to contact Andrew Smith, Partner, on 01904 561403 or Andrew.smith@luptonfawcett.law or any of our expert family law team based at our offices in York, Leeds and Sheffield.