Rachael Kelsey

Villiers v Villiers, the first intra-UK Maintenance Regulation case to be heard by the Supreme Court, has grown constitutional arms and legs and the Lord Chancellor has been given permission to intervene. Apparently, this is the first time in 200 years that the government have intervened in a financial family law case.

Sir James Eadie QC appeared for the government given that one of the grounds of appeal was that the regulations (or part of them) that deal with maintenance claims intra-UK were ultra vires and beyond the scope of the powers granted to make secondary legislation in terms of the European Communities Act 1972.

The short summary is that Mr Villiers raised divorce proceedings in Scotland, where the couple last lived before they separated and Mrs Villiers raised proceedings in London for financial support. The Scottish action has been sisted pending determination the English proceedings. Mrs Villiers was successful in obtaining interim orders for support at first instance in the High Court, which decision was upheld by the Court of Appeal. The Supreme Court allowed a restricted appeal and the hearing this week focused on four grounds.

Most of the time was taken up with three of those four grounds, which deal with the way that the law relating to maintenance was changed in 2011. The Maintenance Regulation (MR) came into force in the UK in 2011. Our domestic regime was amended to bring it into line with the MR, and deal with the practicalities. Before the MR, maintenance in family cases came within the scope of the Brussels I convention and the domesticated provisions in the Civil Jurisdiction and Judgments Act 1982.

What happened in 2011 was that maintenance was stripped out of the 1982 act and a separate regime created in terms of the Civil Jurisdiction and Judgments (Maintenance) Regulations 2011 (CJJMR). That separate regime in the CJJMR didn’t just import the MR provisions in extra-UK cases, but also changed the regime intra-UK.

Mr Villiers is arguing in the Supreme Court that when the domestic law was changed intra-UK that the courts retained a residual power to sist or stay proceedings in favour of those in another part of the UK, on forum non conveniens grounds. The counter argument is that there was a comprehensive regime brought in by the CJJMR that did not expressly retain any such power, which would be inconsistent with the ‘first past the post’ regime in the MR.

If unsuccessful on that ground, Mr Villiers is asking the court to declare that the CJJMR (or part of the regulations) was ultra vires. The final ground that was focused on was an alternative to the forum non conveniens ground, in which Mr Villiers argues that the English court should stay their proceedings in favour of the Scottish action, on the basis that there was a risk of irreconcilable judgments if both actions were to be determined.

The elephant in the room during the hearing was, of course, Brexit. In the event of a ‘no deal’ Schedule 6 of the CJJMR, which deals with the intra-UK provisions, is to be repealed by the Jurisdiction and Judgments (Family) (Amendment etc.) (EU Exit) Regulations 2019. Whether we will have a ‘no deal’ exit on 29th January 2020 remains to be seen, but it seems unlikely that we will have judgment before then – a judgment which will be the last family law matter determined by Lady Hale, the last case in which Sir James Eadie QC appears before her and, who knows, possibly the last family matter to be determined by Lord Wilson, who also is to retire shortly.

I often think of family law as a bit of a three-dimensional jigsaw puzzle at the best of times, but it is usually peoples’ lives that are the most significant moving parts, not the law. I need a lie down. And it’s not even election day yet.

Rachael Kelsey and John West have acted for Mrs Villiers in the Scottish proceedings from the outset. The video catch up of the hearings can be found here.