What do English Family Lawyers need to know about Scots Law and Brexit?

Morton Fraser Partner Lucia Clark
Lucia Clark
16 December 2020
Resolution Magazine

We are all well aware that from the start of 2021, we need to get used to an entirely new regime for dealing with international family cases involving the remaining 27 EU States.  However, what may be less obvious is that this change will also affect how some intra-UK family law cases work, in particular between the English and Scottish Courts. 

Some of this will change how intra-UK family law cases operate for the better (in my view at least); some things will stay the same; and there is also the prospect of potential further change in the future.  This article is intended to be a brief but useful summary of the main jurisdictional issues which English family lawyers should be aware of when dealing with a case that has links to Scotland.

Changes to jurisdiction for divorce

From the start of 2021 onwards, the grounds of jurisdiction for divorce and related financial matters will be different in Scotland compared to in England.  In England, Westminster has replicated most of the grounds of jurisdiction from the Brussels IIR regulation, adding the ground of English domicile of either of the spouses.  The Scottish Government has taken a different approach.  The relevant Scottish statutory instrument is the snappily titled "Jurisdiction and Judgments (Family, Civil Partnership & Marriage (Same Sex Couples)) (EU Exit) (Scotland) (Amendment etc) Regulations 2019" (which I will refer to as the "JJ Scotland Regulations").  Schedule 1, paragraph 1 of these Regulations notes that the Scottish Court will have jurisdiction for divorce if either of the parties to the marriage is (a) domiciled in Scotland on the date when the action has begun; or (b) habitually resident in Scotland throughout the period of one year ending with that date.  This is a revival of the old grounds of jurisdiction prior to the EU regime, and does give rise to the question as to what definition of "habitual residence" the Scottish Courts will look to - will it be the European derived definition, which we have all become used to, or will it hark back to the older definition set out in Scottish case law?   Section 10 of the Domicile and Matrimonial Proceedings Act 1973 makes clear that where the Scottish court has jurisdiction for divorce, jurisdiction for all ancillary financial matters follows along. 

The second thing to note is that there will be no change to how conflicts of jurisdiction for divorce will be dealt with between England and Scotland.  The Domicile and Matrimonial Proceedings Act 1973 will continue to regulate these.  This Act basically gives precedence to the last place that the couple lived together, whether England or Scotland.  The detail of this rule is set out in Schedule 1, para 8 and Schedule 3, para 8  of the 1973 Act, as follows:

  • The spouse seeking to deal with the divorce (and finances) in the place they last lived together must be able to issue divorce proceedings in that place (and so have both grounds of divorce and jurisdiction to do so);
  • One of the spouses must have been habitually resident in that place for a year before they separated;
  • The challenging spouse then applies for an obligatory stay (or in Scottish terminology, a sist) of the proceedings in the other jurisdiction.  
  • In England, the application must be "before the beginning of trial", which is likely to be interpreted as before decree nisi. 

Provided the conditions are met, the Court has no option but to grant this stay, which is usually dealt with quickly and by way of paperwork. 

Changes to jurisdiction for maintenance

Turning to standalone proceedings for spousal maintenance, we again have a difference in jurisdiction between England and Scotland.  The Jurisdiction, Judgments and Applicable Law (Amendment) (EU Exit) Regulations 2020 sets out the basis of jurisdiction for section 27 ("failure to maintain") applications in England, amending this into the Matrimonial Clauses Act 1973.  The same Regulations then set out the basis for a stand-alone action for maintenance (called "aliment" in terms of Scots law) by amending the Civil Jurisdiction and Judgments Act 1982.  This will provide that the basis of jurisdiction for such a claim in the Scottish Courts is either where the defender is domiciled; or where the maintenance creditor is either domiciled or habitually resident; or if the matter is ancillary to proceedings concerning the status of a person (e.g. divorce), the Court which has jurisdiction to entertain those proceedings. 

Looking then at conflicts of jurisdiction for maintenance, it is hoped that going forward this will be considerably simplified from the current complex and convoluted position.  The current law is that the EU Maintenance Regulation was applied between different parts of the UK, in terms of the Civil Jurisdiction and Judgments (Maintenance) Regulations 2011.  This gave rise to the rather messy case of Villiers v Villiers [2020] UKSC 30, where the Supreme Court, by a majority judgment, determined that although the Scottish Court was dealing with divorce and division of assets, it was appropriate for the English Court to resolve the issue of spousal maintenance.  This is an outcome which, as Lord Wilson's dissenting judgment states, means there would be "untrammelled licence given to a wife to go forum shopping".   At a minimum, the judgment increases complexity, expense and stress for separating spouses with links to both Scotland and England. 

Going forward, the basis for determining conflicts of jurisdiction for maintenance between England and Scotland will be forum non conveniens - the most appropriate forum test.  This should give scope to recognise that, in most cases, it would make sense for division of assets and spousal maintenance to be dealt with in the same Court.  However, in my view, greater certainty and simplicity would result from simply applying the same 1973 Act test (the last place the couple lived together) to the issue of spousal maintenance, as well as to divorce and division of assets. 

Readers should note that all of the above is predicated on the UK not joining the Lugano Convention, or at least if it does join, that Convention not being applied between the different constituent parts of the UK.

Further change needed?

There are other issues relating to intra-UK jurisdiction and conflicts which do seem ripe for review.  Resolution, along with others, has provided views for a Ministry of Justice consultation into how intra-UK family law jurisdiction, recognition and enforcement might be improved.  It may be that further (long needed) change comes out of that consultation. 

For the meantime, I would note there are two quite unsatisfactory areas for recognition, enforcement and variation in particular.  These relate to variation and enforcement of maintenance, and of Child Arrangement Orders.

In relation to maintenance, this is dealt with between England and Scotland via the Maintenance Orders Act 1950.  This is legislation that's been in place for some 70 years, designed to deal with quite a different family law environment than we operate in today.  Enforcement routes and options vary depending upon whether one is seeking to do so between lower Courts or between higher Courts, for no discernible reason.  If one is seeking to enforce an English spousal maintenance Order in Scotland, then if seeking to do so via a Scottish Sheriff Court, it would be possible for the Order to be varied at that Sheriff Court.  Given the considerable differences between how the English and Scottish courts deal with maintenance, this does not seem the most effective route for dealing with variation, which in my view should ordinarily remain with the originating court.  Another helpful improvement may be for English maintenance orders to be directly enforceable in Scotland, as if these were Scottish orders (and vice versa).

Saving the worst for last, the Family Law Act 1986 is something of an indecipherable mess.  There are a number of problems which frequently arise with the operation of this Act.  One difficult area is variation of orders, when the child has moved between the UK jurisdictions.  In such a case, if jurisdiction was originally with the English court and arising from the parents' divorce being dealt with there, then the English court would keep jurisdiction until the child reaches 18, regardless of where in the UK he/she has moved to in the meantime, even if habitual residence is firmly established in that new place.  The same applies where jurisdiction starts in Scotland and the child then moves to England (although with the different end point of when the child reaches 16).  Properly, this situation requires an application to the court which dealt with the divorce to authorise transfer to the court of the child's current habitual residence, which is more complex and costly than the process needs to be.  It can also cause confusion and delay in cases where urgent action is needed.   

On enforcement, only certain "Part 1" orders in relation to children can be enforced between the English and Scottish courts.  This means that an order for "return" (rather than a child arrangements order, or for residence/contact) cannot be registered for enforcement.  It is also not possible to directly enforce an order for delivery of a child's passport.

In summary, there are a number of traps for the unwary in dealing with family law cases which cross the English/Scottish border.  Brexit should simplify some of these, by removing EU mechanisms which did not work well in the intra-UK context.  However, we are then left with old, pre-EU law, some of which now urgently needs streamlined and updated.  Until then, hopefully this guide assists those dealing with the occasional family law foray over Hadrian's Wall. 

First published in the Resolution Magazine


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