IN THE MATTER OF COUNCIL REGULATION (EC) NO 4/2009 OF 18 DECEMBER 2008
(THE EUROPEAN MAINTENANCE REGULATION
Strand, London, WC2A 2LL
B e f o r e :
| Re: V
"European Maintenance Regulation"
Mr V (H) (Respondent to the Wife's application, Applicant for stay) In Person
Hearing dates: 22 & 24 July 2015
Crown Copyright ©
Mrs Justice Parker DBE:
Relevance of jurisdiction to the parties' dispute
The marital history
i) It asserts that there were no proceedings elsewhere: which H knew to be untrue when H in fact acknowledged the England and Wales proceedings the same day. H asserts that this is because in Scotland a petition lapses if no action is taken for a year . That is not the law in England.
ii) H had no capacity to issue the writ as an undischarged bankrupt, and the writ would not have been issued by the Sheriff if H's bankruptcy had been known. (H denies this)
iii) It fails to comply with Scottish Rules as to jurisdiction in respect of the habitual residence of H and W. (H denies this)
iv) Personal service was a requirement and was never effected (W also relies on a purported conversation with an official at the Sheriff Court in support of these contentions).
The Scottish proceedings
i) Challenge the jurisdiction of the court;
ii) Oppose any claim made or order sought;
iii) Make any claim or seek any order."
The domestic and Brussels law as to jurisdiction
'Financial Provision in case of neglect to maintain
27 Financial provision orders etc in case of neglect by party to marriage to maintain other party or child of the family
' 27. Either party to a marriage may apply to the court for an order under this section on the ground that the other party to the marriage …-
Has failed to provide reasonable maintenance for the applicant, or
Has failed to provide, or make a proper contribution towards reasonable maintenance for a child of the family.
(2) the court may not entertain an application under this section unless it has jurisdiction to do so by virtue of the Maintenance Regulation and Schedule 6 to the Civil Jurisdiction and Judgments Maintenance Regulations 2011 (CJJMR 2011).
a) The defendant is habitually resident;
b) The creditor (i.e. person claiming maintenance) is habitually resident;
c) The court under its own law has jurisdiction to entertain proceedings concerning the status of a person if the matter relating to maintenance is ancillary to those proceedings, unless that jurisdiction is based solely on the nationality of one of the parties;
d) Is not relevant as it concerns jurisdiction founded on applications concerning parental responsibility.
"(i) Article 3 applies as if-
(a) the references in Article 3(a) and (b) to the court for the place where the defendant or creditor is habitually resident were references to the part of the United Kingdom in which the defendant, or the creditor, as the case may be, is habitually resident."
W's case about H's presentation
Scottish law, expert evidence, and when the court was first seised
"The English Action was raised at a time when there were no live issues relating to maintenance in any courts elsewhere in the UK. Even if the proceedings warranted in Dumbarton in October 2014 were entirely competent those proceedings did not include any claims for maintenance."
i) H had been aware of this issue since May. He knew that it was relied upon, as was obvious from his presentation. Although the court had not given permission for its introduction that fact did not cause any injustice to H.
ii) It was open to me to waive compliance with Rule 25 FPR 2010 pursuant to Rule 4.1 FPR 2010, on the basis that a formal application would be made by W to issue an application.
iii) H had not sought her attendance at the hearing or to challenge her view on any specific ground other general proposition that the Scottish jurisdiction was invoked by the issue of the writ because the divorce could not be granted without financial issues being dealt with.
i) In the event that the expert evidence of Rachael Kelsey of Sheehan Kelsey Oswald contained in her letter to Penningtons Manches dated 28 May 2015 was filed out of time, permission for that evidence to be filed out of time.
ii) Permission is given to the Applicant to rely on the expert evidence of Rachael Kelsey of Sheehan Kelsey Oswald contained in her letter to Penningtons Manches dated 28 May 2015.
iii) Permission is given to the Respondent to ask Rachael Kelsey the questions set out in Appendix A of this order. Rachael Kelsey is to respond in writing to these questions by 4pm on 31 July 2015.
"If, as you say, the writ of 22/10/14 did not raise the question of maintenance, what precise wording would be necessary to do so?"
In the Initial Writ warranted 22 October 2010 at the instance of H, he asks he court to make two orders which are contained within the two numbered craves. The first crave seeks decree of divorce and the second crave seeks an award of expenses against W.
Had H wished to ask the court to make any financial orders, he would have required to include appropriately worded crave(s) a separate plea-in-law and one or more articles of condescendence.
There are a number of financial orders which could constitute "maintenance" for the purposes of the Maintenance Regulation. The most obvious example of an order that would have constituted "maintenance" would have been an application for interim aliment (which is financial support prior to divorce). There is no mandatory form of words. I illustrate below a conventional form of words that could have been used had H wanted to seek interim aliment.
Crave: "to grant decree for payment by the Defender to the Pursuer of [amount of sum in words] £[figures] per [week/month] as interim aliment for the Pursuer, payable in advance and with interest thereon at the rate of 8% a year on each [weekly/monthly] payment from the due date until payment".
Plea-in-law: "The Defender owing an obligation of aliment to the Pursuer and the sum sued for by way of interim aliment by the Pursuer being reasonable having regard to the needs and resources of the parties, the earning capacities of the parties and all the circumstances, decree therefore should be granted as craved."
Article(s) of condescendence: There would require to be one or two distinct articles of condescendence which would narrate the factual basis upon which H sought to rely and which, if proved, would justify the order craved being made, with reference to the relevant statutory test, as set out in the plea-in-law.
"It is H case that a Scottish Decree in divorce is never issued without all financial aspects and claims (including maintenance) having been fully dealt with. Is that correct?"
No. Scots law provides that in an action for divorce, either party to the marriage may apply to the court for financial orders (section 8(1) Family Law (Scotland) Act 1985). It is for the party seeking orders to request them. Absent request the court will not enquire into the financial consequences of divorce being granted and no financial orders will be made.
It is important to understand that the Scottish courts do not have the kind of residual discretion that we perceive the English courts to have when it comes to seeking to "do justice as between the parties". There is no obligation on the court when granting divorce to enquire into whether the extinction of financial claims would be fair and/or whether that would result in a failure to meet either one of the parties' needs. It is for the party seeking financial provision to request it, and make out the relevant case. Scotland does not have a bifurcated process when it comes to divorce, that is to say, there is no equivalent to decree nisi and decree absolute. Financial claims must be dealt with at the same time as the divorce- the parties can make an application for financial provision "in an action for divorce" and the ability to make financial claims falls once decree of divorce has been granted2.
1Section 8(1) Family Law (Scotland) Act 1985:-
"In an action for divorce, either party to the marriage may apply to the court for one or more of the following orders -
(a)an order for the payment of a capital sum to him by the other party to the marriage;
(aa)an order for the transfer of property to him by the other party to the marriage;
(b)an order for the making of a periodical allowance to him by the other party to the marriage;
(baa)a pension sharing order.
(ba)an order under section 12A(2) or (3) of this Act;
(c)an incidental order within the meaning of section 14(2) of this Act.
2 Note the exception whereby financial provision can be sought following an overseas divorce contained in Part IV of the Matrimonial and Family Proceedings Act 1984 (which are the Scottish provisions replicated in Part III of the Act which applies in England and Wales) does not apply to divorces intra-UK (sections 27 and 30(i)).
"H states that he was advised to issue an Initial Writ and thereby enable W to crave all financial orders or claims that she wished. Why would that not engage the EU Maintenance Regulation?"
Because, as noted above, H is not asking the Scottish courts to make any determination about maintenance obligations arising from his marriage to W. That is to say that the warranting of an Initial Writ seeking divorce and expenses does not fall within the scope of the Maintenance Regulation.
"Did you imply in Money Box Live (Radio 4 on 22 April 2015) that the issuance of a decree of divorce in Scotland would ensure that maintenance obligations would be dealt with and fully addressed within the progress of the divorce? If that is your opinion, why?"
No, I did not imply that. Nor is that my opinion. A caller, D, addressed a question to the panel (timed at 24.41 on the recording that can be found at the BBC website at www.bbc.co.uk/programmes/bo5r3z41). She indicated that she and her husband had separated nearly 10 years ago and that decree nisi had been granted around eight years previously. Her query was about how finances since separation are viewed. The response that I gave, from a Scottish perspective, can be found at 26.20 of the recording. Given the limit on the time available in respect of this live broadcast my response extended to 22 seconds (26.20 – 26.42). In my response I indicated that Scots law was very different from English law; that we do not have the concept of decree nisi and decree absolute; that all financial matters must be dealt with at the same time as the divorce is finalised and that at the point that the decree of divorce is granted that one loses the ability to make financial claims. I have dealt with this above in greater detail than I had the ability to do on MBL. My response did not imply that the granting of decree of divorce would ensure that maintenance obligations would be dealt with and fully addressed within the progress of the report. My response was restricted to highlighting that financial claims would need to be made prior to divorce being granted.
i) the Scottish writ had now been served and his proceedings were first in time,
ii) making a number of assertions against the character of Miss Kelsey based on an interview with her and that she was unprofessional and stating that he had made a criminal complaint against her,
iii) asserting that an article by Miss Kelsey contradicted her advice to this court.
Further expert evidence
- A substantial loan in 2011 to H and W from W's brother of which H the previous year had personally promised early repayment on behalf of himself and W on the basis of his inheritance prospects which he hoped would be realised in two years.