In this guest blog Director Rachael Kelsey and Associate John West both family law experts at SKO Family Law Specialists  in Scotland consider whether to bring maintenance applications and divorce proceedings in Scotland or in England & Wales.

It is now over a year since the UK voted to leave the European Union and negotiations about the terms of Brexit are underway.  Significant questions remain unanswered, including the impact on international family law practice.  Key questions regarding post-Brexit domestic family law practice also arise, as highlighted by an ongoing case in England & Wales. Before that, however, a brief recap on jurisdiction.

The rules for allocation of jurisdiction for divorce proceedings within the United Kingdom derive from the Domicile and Matrimonial Proceedings Act 1973. In short, in the event of competing divorce actions in, say, Scotland and England & Wales, jurisdiction will lie with the courts where the parties last resided together, not necessarily in the place where an action was first raised. (In contrast with the situation if the competing actions were, say, between France and England & Wales, where jurisdiction would lie with the courts first seized as per Brussels II bis (Council Regulation (EC) No 2201/2003)).

The rules for allocation of jurisdiction for maintenance proceedings are different. Instead of the 1973 Act, we turn to the Maintenance Regulation (Council Regulation (EC) No. 4/2009). The Maintenance Regulation came into force in the UK in 2011, but crucially, unlike Brussels II bis, we chose to apply it intra-UK as well as, obviously, being bound to apply it intra-EU (as per the Civil Jurisdiction and Judgments (Maintenance) Regulations 2011 (SI 2011/1484)), so jurisdiction intra-UK is subject to the ‘first past the post’ rules.

The case of Re V (European Maintenance Regulation) [2016] EWHC 668 (Fam) sharply focuses the difference in how jurisdiction for divorce and maintenance is allocated intra-UK and is the first reported decision about these issues (although we are aware of a number of other ongoing cases where similar issues arise).

In that case, the Wife’s position was that the courts in England & Wales had jurisdiction to determine maintenance as she was habitually resident there (and thus satisfied the jurisdiction requirements of Article 3 of the Maintenance Regulation). The Husband argued that the English & Welsh courts should decline to entertain the Wife’s application for maintenance on the basis that jurisdiction for divorce had already been seized by the Scottish courts (as that was the jurisdiction in which the couple last resided together). Importantly, the Husband was only asking the Scottish courts to grant divorce; he was not seeking any financial orders.

Mrs Justice Parker held that even though jurisdiction for divorce had been seized in Scotland, she was entitled to make orders concerning maintenance in England & Wales as jurisdiction had been seized there. Accordingly, as per the judgment issued on 23 March 2016, Mrs Justice Parker made orders in respect of interim maintenance (in this case, orders under section 27 of the Matrimonial Causes Act 1973), an order for costs of the application, and a legal services (funding) order in the Wife’s favour.

The Husband has recently been given permission to appeal Mrs Justice Parker’s decision to the Court of Appeal which, it is understood, will be heard by three Judges. It is one to keep an eye out for…

In the meantime, this case underlines again that now is the time to be thinking about and engaging in what domestic family law practice should be post-Brexit. Does the current jurisdictional framework in respect of intra-UK divorce and maintenance work? Does it work for families? Does it encourage just resolution of disputes between parties? Does it encourage mediation and other dispute resolution, or push people to litigate? Does it encourage ‘forum shopping’? Should we continue to allocate jurisdiction for divorce on the basis of where the couple last resided together? Should this be the same jurisdictional basis for maintenance? Or should we bring jurisdiction for maintenance in line with the rules for divorce? Or something else entirely? Whatever we do, we need to recognise that legal complexity is rarely good for relationships. This may be a peculiarly Scottish approach (we appreciate that English & Welsh lawyers are often greater fans of discretion than we Scots, who do favour certainty), but surely this is the opportunity to review the 1973 Act and bring divorce jurisdiction, as the only anomaly, into line. If we introduce first past the post for intra-UK divorce too, we will avoid the expense and uncertainty of these bifurcated proceedings and the difficulties that arise from our very different legal systems. While the dream of reciprocity with our continental European family post-Brexit may be illusory, such an approach would make it more, rather than less, likely that we can craft a workable set of arrangements for our clients in the years to come.

With thanks to Rachael Kelsey and John West of SKO Family Law Specialists.

Rachael Kelsey is a founding Director of SKO Family Law Specialists.  She is one of only 3 ranked solicitors in Scotland in the current edition of the Legal 500 – the only woman and person under 50. She is accredited as a Specialist in Family Law and as a Family Mediator by the Law Society of Scotland and is Secretary of the International Academy of Family Lawyers (IAFL). Rachael has been recognised for many years as a first tier ‘Ranked Lawyer’ in both Chambers & Partners and The Legal 500. Contact Rachael at E: rachael.kelsey@sko-family.co.uk or Tel: +44 (0) 131 243 2583.

John West is an Associate with SKO Family Law Specialists. He sits on the Board of the University of Edinburgh’s Free Legal Advice Centre, having been the first Student Director of the Centre. He is a member of the Law Society of Scotland Civil Justice Committee and is one of the four solicitors on the Court of Session Family Actions Users Group. John also tutors on the undergraduate LLB degree Family Law course at the University of Edinburgh. Contact John at E: john.west@sko-family.co.uk or Tel: +44 (0) 131 243 2583.

At Family Law in Partnership our experienced international divorce lawyers specialise in all aspects of international divorce including advice on which jurisdiction is best to use for divorce proceedings. For help and advice contact any of our specialist international family lawyers at E: hello@flip.co.uk or T: 020 7420 5000 or take a look at our international family law experience.