Divorce in Scotland and England – how different are the rules?

The recent case of Mr and Mrs Villiers (Villiers v Villiers [2020] UKSC 30) is a reminder that divorce law is different depending on where you live in the UK. Scotland and Northern Ireland have their own laws which are different to those in England and Wales.

Mr and Mrs Villiers lived in Scotland for virtually all their married life. Mrs Villiers moved to England when their marriage broke down, leaving her husband in Scotland. They each tried to divorce the other in their different countries, but it was held that Mr Villiers’s divorce petition in Scotland would proceed as they had last lived together in Scotland and Mrs Villiers’s English divorce petition was dismissed.

Mrs Villiers then applied for maintenance from the English court and Mr Villiers appealed, arguing that the English court had no jurisdiction to make a maintenance order in favour of his wife as the divorce was being dealt with in Scotland. He took his case all the way to the Supreme Court, but it was dismissed by a 3:2 majority in Mrs Villiers’s favour.

There are some complex rules which the judges looked at, including European regulations which will no longer apply after the Brexit transition period expires at 11pm on 31st December 2020, unless there is an extension period.

The English and Welsh courts are generally more favourable for spouses seeking maintenance than the Scottish courts. Consequently, Mrs Villiers engaged in some “forum shopping” and selected the English court to apply to for maintenance. It remains to be seen whether this will give the green light to other divorcing couples with a link to both Scotland and England / Wales to try their luck in whichever jurisdiction is more favourable to them.

If you are considering a divorce, it’s important to get family law advice and understand your options. For further information please contact Sarah French, family solicitor on 023 8071 8878 or email sarah.french@moorebarlow.com