The rush to court; forum shopping
Although Scotland and England have many laws in common, one of the areas where we are apart is the law regulating maintenance awards between spouses.
In general, maintenance awards made by the English courts are more generous than Scottish awards; and in some cases the difference can be measured in hundreds of thousands of pounds. As a result of this, there are occasions where upon the breakdown of a marriage one spouse will try to manipulate circumstances so that maintenance awards are made in the country that favours them most. This is known as forum shopping.
The laws regarding competing actions for maintenance are not straight forward, but one of the most important factors is the country in whose courts the claim for maintenance was first made.
The Scottish husband and the English wife who live in Scotland
There are no implications here if the marriage is a happy one, but if the marriage breaks down the financial outcome can be quite different depending on where the spouses end up. If both the husband and wife remain in Scotland, then Scots law applies to the question of maintenance.
However, if upon breakdown of the marriage, the wife moves back to England she can almost immediately raise maintenance proceedings there. This is because the law allows her to raise proceedings in the country of her habitual residence.
Habitual residence can be established very quickly if she is returning to her home town to live there permanently. This is the case even if the couple had married in Scotland and spent their whole married life prior to separation here.
What can the husband do to counter his wife’s English maintenance application?
A husband who is in work will find it hard to raise stand-alone maintenance proceedings against his wife in Scotland. In these circumstances the only way he can counter his wife’s potential maintenance claim in England is to raise a divorce action in Scotland in which he seeks one or more financial orders which fall within the definition of “maintenance orders”. Maintenance orders are set out in the legislation which regulates jurisdiction. This advice always pre-supposes he can find grounds for divorce. If he cannot, there may be little he can do to prevent his wife making a maintenance claim in England.
The rules for jurisdiction were meant to give the parties certainly as to which country would have jurisdiction to deal with a maintenance claim. Instead they encourage forum shopping. Rather than allowing parties to come to a negotiated settlement upon divorce, the rules of jurisdiction in maintenance cases encourage early litigation, so that one spouse can secure a financial advantage over the other one.
Certainty resulting in conflict
The laws of jurisdiction upon the breakdown of a marriage are complicated and there can be many serious financial consequences if the other spouse can raise proceedings in the wrong jurisdiction. Anyone who, either themselves, or through their spouse, has a connection with another country, be it England or elsewhere, should always seek early specialist family law advice if they think their marriage could be in difficulty.