Strand, London, WC2A 2LL
B e f o r e :
| EMMA MARY JANE VILLIERS
|- and -
|CHARLES ALASTAIR HYDE VILLIERS
for the Applicant
Michael Horton & Alexander Laing (by direct access) for the Respondent
Hearing dates: 1-5 March 2021
Crown Copyright ©
Mr Justice Mostyn:
"95. The husband is aged 57 and the wife is aged 61. They married in England in 1994. From 1995 until their separation in 2012 they lived in Dumbarton, which lies north west of Glasgow. There was a child of the marriage, now adult. Upon separation, the wife came to live south of the border, now in London, and she has become habitually resident in England. The habitual residence of the husband continues to be in Scotland.
96. In 2013 the wife issued a petition for divorce in England. In 2014 the husband lodged a writ for divorce in Scotland. Since they had last resided together in Scotland and had by then been habitually resident there for at least a year, the English court was obliged to stay the wife's petition: section 5(6) of, and paragraph 8(1) of Schedule 1 to, the Domicile and Matrimonial Proceedings Act 1973 ("the DMPA"). In January 2015, after it had been stayed, her petition was by consent dismissed. But thereupon the wife issued an application in England under section 27 of the Matrimonial Causes Act 1973 ("the MCA"). Such applications are rare."
i) Schedule 6 to the Civil Jurisdiction and Judgments (Maintenance) Regulations 2011 (SI 2011 No. 1484) ("Schedule 6") imported in modified form the jurisdictional and other legal rules in Council Regulation (EC) No 4/2009 ("the Maintenance Regulation") to intra-UK jurisdictional disputes.
ii) There was no scope for the operation of a forum non conveniens discretion in the context of the legislative scheme of Schedule 6; it was not preserved by section 49 of the Civil Jurisdiction and Judgments Act 1982. Therefore the English courts had no discretion to stay the s.27 application on the grounds of forum non conveniens.
iii) Nor could the wife's application be stayed under article 13 of the Maintenance Regulation (as imported by Schedule 6) as a "related action". The fundamental object of the mandatory rule of jurisdiction in article 3 of the Maintenance Regulation was to afford special protection for a maintenance creditor by giving her the right to choose the jurisdiction in which to bring a claim for maintenance. Interpreting article 13 of the Maintenance Regulation in the light of that object, "related actions" in article 13 referred primarily to maintenance claims of the kind to which the Maintenance Regulation applied and any extension of the concept of "related actions" beyond this was confined to cases where there was a risk of irreconcilable judgments. In the present case, there was no relevant connection between the wife's English maintenance claim under section 27 of the Matrimonial Causes Act 1973 and the husband's Scottish proceedings concerning marital status, and thus no risk of irreconcilable judgments. Therefore, the two sets of proceedings were not "related actions" for the purposes of article 13 of the Maintenance Regulation, as applied by Schedule 6 and, accordingly, the court had no jurisdiction to stay the wife's application for maintenance.
"The wife's claim is not predicated on the result of the proceeding in Scotland, so there is no requirement that the two proceedings be heard and determined together to avoid the risk of irreconcilable judgments. An award of maintenance to the wife is in no way incapable of being reconciled with an order for divorce issued by the Scottish court."
Yet, in October 2020, a mere three months after this judgment, the wife applied in the Scottish divorce proceedings for payment to her by the husband of a capital sum of £1 million (plus interest at 8% from 12 August 2012). Meanwhile, she has pressed on with her s.27 maintenance claim before me. In these proceedings she sought a lump sum by way of capitalised "maintenance" (in its widest sense) of £3.15m together with an indemnity in respect of marital debts amounting to £936,000, although this was substantially scaled back by the time Mr Cayford QC came to make his final submissions. Plainly, the risk of duplicative, and therefore irreconcilable, judgments is now significant.
i) the wife's application and the husband's divorce writ in Scotland were "related actions" when a normal meaning of that phrase was applied to it;
ii) as such there was power under article 13(1) and (2) of the Maintenance Regulation to stay, or decline jurisdiction in relation to, the wife's s.27 application; and
iii) even if he were wrong and a narrow meaning to the phrase "related actions" was in fact the correct interpretation, then there was available nonetheless the general common law power to stay proceedings in favour of a more appropriate forum explicitly preserved by section 49 of the Civil Jurisdiction and Judgments Act 1982 (and s.49(3) of the Senior Courts Act 1981).
"In the Spiliada case  AC 460 the House of Lords, in squarely adopting the Scottish principle as part of English common law, defined the basis of it to be to permit a stay "where the court is satisfied that there is some other available forum, having competent jurisdiction, which is the appropriate forum for the trial of the action, i e in which the case may be tried more suitably for the interests of all the parties and the ends of justice": Lord Goff of Chieveley, at p 476."
"The narrowness of the English ground, which persisted for 90 years, betrayed a degree of arrogance that proceedings in England were intrinsically better than proceedings elsewhere, exemplified by comments by Lord Denning MR in the Court of Appeal in The Atlantic Star  QB 364, 381–382".
Failure to provide reasonable maintenance
The common law duty to maintain
"At common law a husband was under a duty to provide his wife not with money, but with necessaries. This duty was not directly enforceable by the wife by action against her husband, but was recognised by her implied authority to pledge his credit for necessaries, an authority which could not be withdrawn if they were living apart in circumstances which entitled the wife to refuse to live with him, and the husband did not provide her with sufficient funds to enable her to maintain herself. But her right to pledge her husband's credit for necessaries was an inadequate remedy for the separated wife whose husband's credit was not pledgeworthy. That is why the Summary Jurisdiction (Married Women) Act was passed in 1895."
"For the purpose of proceedings on an application under this section adultery which has been condoned shall not be capable of being revived, and any presumption of condonation which arises from the continuance or resumption of marital intercourse may be rebutted by evidence sufficient to negative the necessary intent."
Reform of s.27; abrogation of the common law fault rule
Duration of the common law duty to maintain
"Her marriage has been finally dissolved upon her petition. The Legislature has invested the matrimonial Courts in such a case with powers to make such provision for the future maintenance of the wife as the Court may think reasonable. Some powers were given by the Matrimonial Causes Act of 1857. They have been extended by the Acts of 1866 and 1907, and are now contained in ss. 190–192 of the Judicature Act of 1925. The necessity for such provisions is obvious. While the marriage tie exists the husband is under a legal obligation to maintain his wife. The duty can be enforced by the wife, who can pledge his credit for necessaries as an agent of necessity, if, while she lives apart from him with his consent, he either fails to pay her an agreed allowance or fails to make her any allowance at all; or, if she lives apart from him under a decree for separation, he fails to pay the alimony ordered by the Court. But the duty of the husband is also a public obligation, and can be enforced against him by the State under the Vagrancy Acts and under the Poor Relief Acts. When the marriage is dissolved the duty to maintain arising out of the marriage tie disappears. In the absence of any statutory enactment the former wife would be left without any provision for her maintenance other than recourse to the poor law authorities."
It is clear that Lord Atkin considered that post-divorce maintenance should be dealt with in ancillary relief proceedings, that is to say in proceedings for relief ancillary to the divorce.
Maintenance orders surviving divorce
"On the face of it, it seems anomalous that a woman who has obtained an order for maintenance as a wife, such maintenance to be provided by her husband, when she has put an end to the relation of husband and wife may still say that the order for the maintenance of the wife by the husband subsists. It is not because it seems anomalous that that may not be the result of the statutory provision, and neither is it conclusive to show that it is contrary to common sense."
His ratio was expressed thus:
"When this Act was passed in 1895 a woman who added to desertion a grievance of her husband's adultery might proceed for a divorce. One must assume that the authors of this Act and the Legislature which enacted it were aware of that elementary fact. They took the view which this appellant took, that such an order once made and while the parties are alive is not got rid of except by an order of the Court of summary jurisdiction, and that an application must be made. On the whole, I think the appellant was right in his original view that he must go to a Court of summary jurisdiction to get rid of this order, although there had been a decree absolute for divorce, and it seems to me to follow from that that if there were not the statutory grounds of discharge of the husband from his obligation under the order, then before the appellant could succeed he must satisfy the magistrate that justice required that the order should be altered, varied or discharged. He failed to so satisfy the magistrate. I entirely agree with the reasons upon which the magistrate founded that view. The magistrate thought it was a very convenient thing that this order should subsist and that a Court, which was close at hand to the parties, should be able to give the wife assistance if she needed it, or give the husband relief if he was entitled to it."
"In Kirk v. Kirk the wife, after obtaining a maintenance order from an English court, later obtained upon her own invocation of the jurisdiction a decree of divorce in Scotland, in which country the parties had at all times been domiciled. There were no children of the marriage. The Divisional Court, after directing an inquiry as to the (innocent) wife's rights in Scotland to the proper officer of the Court of Session, took the view that in all the circumstances of the case it would be more convenient and appropriate that all financial questions between the wife and husband should be decided by the Scottish court; but they expressly stated (in my view rightly) that the fact that the divorce had been obtained in a foreign country did not necessarily require that the court's discretion under section 7 of the  Act must be exercised by discharging the original order. It is clear that the matter of convenience wears a very different aspect where the foreign court is at Edinburgh and not (say) in Germany or the United States of America.
And if, according to the terms of the statute, the discretion survives and was intended to survive the cesser of the marriage status, it must in my judgment follow that it is immaterial whether that cesser has been brought about by an English or a foreign decree; though I do not, of course, doubt that the proved incidents of the foreign decree, so far as relevant to questions of maintenance (including convenience), will be matters proper to be taken into account in the exercise of the discretion."
"A court of summary jurisdiction… may, on the application of the married woman or of her husband, and upon cause being shown upon fresh evidence to the satisfaction of the court at any time, alter, vary, or discharge any such order, and may upon any such application from time to time increase or diminish the amount of any weekly payment ordered to be made …"
Discretion to allow maintenance to continue after divorce
i) where a maintenance order has been made, and where there has later been a valid foreign divorce in a friendly state, or in another part of the British Islands, by ordering the discharge of the maintenance order; or
ii) where, as here, there is a maintenance application pending and it is known that there will in the future be a valid divorce pronounced in a friendly state, or in another part of the British Islands, by disposing of the claim for maintenance in such a way that it covers only the period up to the date of the foreign divorce.
That would be the normal way for the discretion to be exercised. There might be, however, exceptional circumstances which would justify a disposition which allowed maintenance provision to endure, or take effect, after the foreign divorce.
i) Section 25A and 28(1A) of the Matrimonial Causes Act 1973 do not apply in a s.27 case. In a s.27 case there is no duty on the court to consider whether it would be appropriate to exercise its powers such that the financial obligations of each party towards the other will be terminated as soon as the court considers just and reasonable. It cannot impose an immediate clean break under s.25A(3), or a non-extendable term of maintenance under ss.25A(2) and 28(1A). Where there has been a domestic divorce this duty should be applied by the Financial Remedies Court in proceedings ancillary to the divorce. The Financial Remedies Court should not in earlier proceedings under s.27 tie the hands of that court in later proceedings post-divorce.
ii) As mentioned above, if the marriage is to be dissolved by a foreign court then the parties have their rights to financial provision in accordance with the law of that jurisdiction. If, however, the result of the exercise of those rights is demonstrably unjust then the aggrieved party can, provided that she can establish jurisdiction, apply for relief under Part III of the Matrimonial and Family Proceedings Act 1984. The fear of Lord Evershed MR that a wife, habitually resident here, may be left unprovided for following a foreign divorce is now met by this safety-net.
iii) If the marriage is to be dissolved by a court in another part of the British Islands then by s.27 of the 1984 Act there can be no application for relief in England and Wales under Part III of that Act. However, it can be safely assumed that there is a right to apply for post-divorce maintenance in the British jurisdiction dealing with the divorce and that it will be fairly adjudged. That post-divorce maintenance should be dealt with in the divorce jurisdiction is implicit in para 11 of Schedule 1 to the Domicile and Matrimonial Proceedings Act 1973. Under para 11(2)(b) where an English or Welsh divorce suit is stayed under para 8 in favour of another part of the British Islands then any order for maintenance pending suit or other interim maintenance order will generally come to an end three months after the stay takes effect. I agree with Mr Horton that it would be highly anomalous, in circumstances where the wife's English petition has been first stayed and then dismissed under the provisions of para 8, that she could obtain an order of longer duration under s.27 than she could have done within the stayed, and then dismissed, divorce proceedings.
"Such an approach is no longer acceptable in this country, though it bears a close resemblance to the principles applicable here not so very long ago. But it is evidently still acceptable in a highly civilised country with which this country has very close ties of friendship, not least nowadays through our common membership of the European Community; and I find it impossible to conclude that, objectively speaking, justice would not be done if the wife was compelled to pursue her remedy for financial provision under such a regime in the courts of a country which provide, most plainly, the natural forum for the resolution of this matrimonial dispute. "
I repeat, this is not to introduce a stay on the grounds of forum conveniens by the back door. Rather it is to exercise the discretion exactly in the way that Lord Evershed MR propounded. It is to exercise the substantive discretion by taking into account the convenience and appropriateness of matters being dealt with in the foreign court. And when so doing the court should have regard to the geographic and cultural proximity of the foreign court and to the principle of comity. In my judgment, it would amount to an exorbitant extraterritorial exercise of jurisdiction to allow a maintenance order to have effect after a foreign divorce save in exceptional circumstances.
"Although Hodson L.J. was dealing with a case in which the court disposed of a variation order for maintenance which had itself been made before the divorce, I think, on balance, support is to be found in his observations for the view that a discretion remains to make an order for maintenance under section 27 of the Matrimonial Causes Act 1973 in the proceedings started before the divorce of the parties, even though before the order is made the parties were divorced by a decree in a foreign jurisdiction."
"Can it properly be held that a husband has wilfully neglected to maintain the applicant, when a competent court in the jurisdiction within which he resides has divorced him, and another competent court then has found that he is not obliged to comply with an interim order requiring him to do so? In my judgment, upon the whole of the facts in this case, including the two aspects mentioned, such a finding is open to this court. Wood v Wood  P 254 clearly indicates that every relevant circumstance must be taken into account in reaching a decision. My findings show that this wife is entitled to, and is in dire need of, financial support from her husband, who at all material times has had the appropriate means for providing it. He is well aware that the court which granted the decree of divorce did not deal with the wife's financial provision. He has made no periodical payment to her since October 1973. Having regard to all the circumstances, I am satisfied that the justice of the case requires that I should exercise the power to make an order for maintenance under section 27 of the Matrimonial Causes Act 1973."
The financial history
59 – 88 Omitted
The divorce litigation
" The material relied on by W satisfies me that H has access through the trustees to substantial funds from his late grandmother's and mother's estates, and outright to his mother's estate which appears to have liquidity. H relies on the fact that he has met his share of the joint debts. He is to be expected to approach the trustees to access these funds: see Thomas v Thomas (above). H has already persuaded the trustees to provide a trust fund of over £324,000 to the parties' daughter. In 2010 H wrote to W's brother thanking him of his loan of £100,000 stating that he hoped to repay it within 2 years not less than £100,000 from his grandmother's estate. I do not have direct evidence, but am informed that W's brother, a creditor in H's insolvency, has been told by Mr Bain the administrator that H is seeking a capital advance from the trustees to pay the debt. I record that H denies that he has access to any such sums. I also accept that H was adjudged bankrupt in 2013. He states that he paid his share of the joint debts from his mother's estate.
 I do not consider that I can in any way trim W's expenses further even on an interim basis and I am satisfied that H has the ability to access funds to satisfy this claim.
 I make an order in favour of W for interim maintenance of £2,500 per month backdated to the date of this issue of her application, namely 15 January 2015, payable monthly in advance, arrears to be paid within 6 weeks.
 If it transpires that the sum is over-generous it can be revisited at a further hearing and readjusted.
 H must pay W's costs of this application. I am asked to direct summary assessment in the sum of £19, 636.10. This has been a complex case which has required the assistance of specialist counsel and W is entitled to her costs including the costs of the hearing before Deputy District Judge Bassett-Cross. I assess costs at the claimed amount, which does not seem unreasonable from what I know of this litigation. Mr Scott tells me and I accept that W is instructing the Oxford branch of Penningtons Manches, inevitably less costly than the office in London.
 In order to make an order for a legal services (funding) order I require to be satisfied that W cannot reasonably procure legal advice and representation by any other means (see Lord Wilson of Culworth in Vince v Wyatt (Nos 1 and 2)  UKSC 14,  1 WLR 1228, sub nom Wyatt v Vince  1 FLR 972, at  onwards). She is not able to claim capital so there is nothing to charge. I see no realistic basis upon which she can borrow from a commercial lender. The only question is whether her brother will continue to lend to her. This matter requires to be adjudicated on at the next hearing. In the meantime this case will continue, I am sure, to be hard fought. W shall be paid £3,000 per month for legal funding until the next hearing. If at that hearing the court finds that she can obtain funding then it will also be in position to adjust the payments to take account of any overpayment."
The Charman question
"Nevertheless we agree with both counsel that, before he attributed all the assets of Dragon to the husband, the judge had to be satisfied that, if so requested by the husband, Codan would be likely to advance them to him:"
"E.3 Treatment of financial assistance from third parties under s.7(1)(a).
36. In every case where third party assistance is involved, there are two critical evidential questions for the court to consider:-
(1) What is the extent of the financial assistance provided by the third party to the husband or wife?
(2) What is the likelihood of such financial assistance continuing in the foreseeable future?
37. It goes without saying that in the fact finding exercise, the court must look at the reality of the situation and have regard to matters of substance and not just form. In looking at reality, the court can take into account not only what a party actually has, but also what might reasonably be made available to him or her if a request for assistance were to be made. …
38. In addition, in looking at what may occur in the foreseeable future, past conduct is often a useful guide: see SR v CR (Ancillary Relief: Family Trusts)  2 FLR 1083, at 1091 (para 27).
39. Having ascertained the extent of the financial assistance provided by the third party and then finding on the evidence on a balance of probabilities that there is a likelihood of the continuation of such financial assistance in the foreseeable future, the court is then in a position in law first to take this into account in the identification of the financial resources of the parties and secondly, in determining the appropriate ancillary relief to be granted. This is an approach that is entirely consistent with the court's duty under s 7(1) of the MPPO. Needless to say, the outcome in any given case is inevitably fact-sensitive.
E.4 Judicious encouragement
40. So far, the approach set out in section E.3 is, I would suggest, non-controversial. To what extent is it then permissible for the court to frame its orders in such a way so as to encourage third parties to provide or continue to provide financial assistance to the husband or wife (as the case maybe) for the purpose of enabling his or her ancillary relief obligations to be met? Here, the position becomes more problematic and controversial, and this has in my view led to some confusion among judges and practitioners. I am here referring to the concept of "judicious encouragement".
41. To start with, the term itself is ambiguous. If one starts from the premise that save in exceptional circumstances , court orders can only apply to parties to a litigation and not non-parties, it is difficult to see where the concept of "judicious encouragement" fits as a matter of principle. Courts make orders that are intended to bind and if necessary, to be enforced. It is difficult to conceive of a situation where an order of the court merely "encourages" compliance, and all the more so in relation to a non-party.
42. The origin of the term "judicious encouragement" is the judgment of Waite LJ in the decision of the English Court of Appeal in Thomas v Thomas  2 FLR 668, where, at 670F-671A, it is said:-
"But certain principles emerge from the authorities. One is that the court is not obliged to limit its orders exclusively to resources of capital or income which are shown actually to exist. The availability of unidentified resources may, for example, be inferred from a spouse's expenditure or style of living, or from his inability or unwillingness to allow the complexity of his affairs to be penetrated with the precision necessary to ascertain his actual wealth or the degree of liquidity of his assets. Another is that where a spouse enjoys access to wealth but no absolute entitlement to it (as in the case, for example, of a beneficiary under a discretionary trust or someone who is dependent on the generosity of a relative), the court will not act in direct invasion of the rights of, or usurp the discretion exercisable by, a third party. Nor will it put upon a third party undue pressure to act in a way which will enhance the means of the maintaining spouse. This does not, however, mean that the court acts in total disregard of the potential availability of wealth from sources owned or administered by others. There will be occasions when it becomes permissible for a judge deliberately to frame his orders in a form which affords judicious encouragement to third parties to provide the maintaining spouse with the means to comply with the court's view of the justice of the case. There are bound to be instances where the boundary between improper pressure and judicious encouragement proves to be a fine one, and it will require attention to the particular circumstances of each case to see whether it has been crossed." (emphasis added)
43. The italicized words appear to introduce a principle to the effect that a court may somehow frame its orders in a way that will encourage third parties to provide financial assistance sufficient to enable a spouse to meet his or her ancillary relief obligations in accordance with the court's view of the justice of the matter.
44. It is this concept that in my view has caused unnecessary confusion among judges and practitioners. If this was intended to be a statement of principle, it appears at first sight simply to ignore:-
(1) The statutory requirement contained in s 7(1)(a) of MPPO that only assets or financial resources which a party "has or is likely to have in the foreseeable future" should be taken into account. It is difficult to see how a third party who is "encouraged" (albeit in a judicious way) comfortably fits into this rubric.
(2) The point made in para 41 above in relation to court orders affecting non-parties.
45. The italicized words in Thomas were made without any discussion of principle. Certain authorities were cited to the Court of Appeal in that case and it is illuminating to see the summary of the effect of those cases contained in the judgment of Glidewell LJ in Thomas (it is to be noted there is no reference to "judicious encouragement" in this passage). At 677H-678D, it was said:-
"The judge also had, as we have, the guidance to be derived from the various authorities to which Waite LJ has referred. Those which are the most helpful in this case are, in my view, the decisions of this court in O'D v O'D  Fam 83, B v B (1982) 3 FLR 298 and Browne v Browne  1 FLR 291. From these authorities I derive the following principles:
(a) Where a husband can only raise further capital, or additional income, as the result of a decision made at the discretion of trustees, the court should not put improper pressure on the trustees to exercise that discretion for the benefit of the wife.
(b) The court should not, however, be 'misled by appearances'; it should 'look at the reality of the situation'.
(c) If on the balance of probability the evidence shows that, if trustees exercised their discretion to release more capital or income to a husband, the interests of the trust or of other beneficiaries would not be appreciably damaged, the court can assume that a genuine request for the exercise of such discretion would probably be met by a favourable response. In that situation if the court decides that it would be reasonable for a husband to seek to persuade trustees to release more capital or income to him to enable him to make proper financial provision for his children and his former wife, the court would not in so deciding be putting improper pressure on the trustees."
46. In my view, the judgment of Waite LJ did not introduce any new principle along the lines stated in para 43 above, whereby third parties can be "encouraged" to provide financial assistance depending on the justice of the case. None of the authorities identified in his judgment support such a view. Properly understood, in my judgment, the judgments of the Court of Appeal in that case applied the approach set out in section E.3 above: where third party financial assistance is involved, the court will first ascertain the answers to the two questions set out in para 36 above before determining the appropriate order for ancillary relief.
47. In Thomas, in the passage set out above, Waite LJ himself warned against any undue pressure being imposed on third parties. It was also said that the court would not act "in direct invasion of the rights of or usurp the discretion exercised by, a third party." Glidewell LJ also emphasized the point that the court ought not apply undue pressure. He also referred, crucially, to the need to have regard to the likelihood of third party assistance in the foreseeable future.
48. It is extremely unlikely that the Court of Appeal in Thomas was advocating a novel approach based on "judicious encouragement".
49. This is also the way in which it would appear the English courts since Thomas have consistently approached the question of third party financial assistance. While there have been references to "judicious encouragement" and to that part of the judgment of Waite LJ referred to above, the courts have concentrated on the necessity to find, on the evidence before them, not only that third parties have provided financial assistance to the husband or wife, but that it was likely this would continue in the foreseeable future.
50. If the true ambit of "judicious encouragement" is really no more than a restatement of the approach set out in section E.3 and in the previous paragraphs, I have no quarrel with that. However, if the term means a form of pressure on third parties to add to the relevant spouse's resources which, on the evidence, they would not do or are unlikely to do, I would for my part reject such a concept. It is an approach which is consistent neither with principle nor with the authorities. The approach of the courts should be that as set out in section E.3 above.
51. I have said earlier that the use of the term "judicious encouragement" has caused confusion among judges and practitioners alike. The Cases lodged in the present appeal indicate some confusion as to what exactly this concept means. This is not surprising when the courts in Hong Kong have themselves been unclear as to the meaning of that term. With respect to the judgments of the Court of Appeal, it appears the judges were not very sure as to the meaning either.
52. In my view, it is time to reiterate the approach that in the assessment of the financial resources of the parties to a marriage for the purposes of considering an application for ancillary relief under s 4 of the MPPO, the court is guided only by s 7(1), in particular sub-para (a) thereof. The term "judicious encouragement" does not call for a different approach when third party assistance is involved.
53. For my part, it would be better if the term "judicious encouragement" were no longer to be used."
108 - 126(x) Omitted
The condition precedent
"Either party to a marriage may apply to a 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".
The court has to be satisfied of this fact as a condition precedent before it can go on to make an award of maintenance. In making that factual determination the court is required by s.27(3) to have regard to all the circumstances of the case including the matters mentioned in section 25(2).
"A party to a marriage may not be maintaining the other party or any child of the family at the relevant standard because he cannot or because he will not. In the former situation he does not have the means and is not reasonably in a position to remedy the situation: in the latter situation he has the means, or refuses to obtain them when they are reasonably available to him, so that he fails to provide reasonable maintenance for the other party, and fails to provide or to make a proper contribution towards the reasonable maintenance for any child of the family. If there is such failure to maintain, relief on that basis may be sought and either party to a marriage may apply"
No authority is cited in support of this statement but in my judgment it is plainly correct. Its use of the present tense shows clearly that the court must be looking at the here and now, that is to say the period immediately preceding the application. The criterion of reasonableness first requires the court in determining the preliminary factual criterion to consider what sum, if any, the respondent should have been expected to pay from his means to maintain the wife. It requires the court to determine initially whether the failure to pay maintenance was the result of 'won't pay' rather than 'can't pay'. If it is the former then the court moves to the second stage where the criterion of reasonableness plays a different role. Here it requires the court to make an evaluative assessment of what proportion of the respondent's means should go to the wife as maintenance having regard to the s.25(2) factors including, prominently, the marital standard of living, the length of the marriage, and the wife's own means.
"…the question of what is reasonable maintenance for the wife and children has to be considered, with reference to the husband's common law liability to maintain his wife and children, and the word "reasonable" no doubt has to be interpreted against the background of the standard of life which he previously had maintained. … It seems to me that, provided the existing state of affairs is that the husband is paying, and has been paying, what is prima facie reasonable maintenance for his wife and two children, as I find is the fact in this case, the maintenance does not become unreasonable when tested against the amount which a wife might obtain if she had succeeded in some proceedings which she might have taken, or which she indeed might yet take; because if the wife has left her husband because of his cruelty, of which she is complaining, she can take proceedings against him on the ground of that cruelty either for a judicial separation or for divorce. In those proceedings she is entitled to claim alimony pendente lite and, in the event of her succeeding in those proceedings, she is entitled to claim a permanent provision for herself whether by way of alimony or by way of maintenance. In the event of divorce, she is entitled to claim maintenance to be secured to her for her life as opposed to the period of joint lives, which appears to be the utmost that can be obtained under s. 5 of the Law Reform (Miscellaneous Provisions) Act 1949."
Therefore, reasonable maintenance is to be judged by reference, first, to the respondent's ability to pay and, second, to the marital standard of living. What the applicant might succeed in obtaining on an application for ancillary relief is not a relevant metric.
132 – 134 Omitted
Note 1 Regulation 4 of the Jurisdiction and Judgments (Family) (Amendment etc.) (EU Exit) Regulations 2019 (SI 2019 No. 519) revoked the Maintenance Regulation. Regulation 3 revoked the Brussels IIa Regulation. The Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations 2019 (SI 2019 No. 479) revoked the Brussels Ia Regulation and its predecessors as they applied in the UK and extinguished the effect of the Lugano Convention 2007 and the EU-Denmark Agreement in the UK. [Back] Note 2 The order of the deputy district judge purported to transfer the applications to the High Court. He did not have power to do so: see FPR r.27.19(3) & (4). Although the cases before Parker J, the Court of Appeal and the Supreme Court all assume that the applications were validly transferred to the High Court it is clear that they were not. I shall treat the deputy district judge’s invalid order as having allocated the applications to be heard within the Family Court at High Court Judge level pursuant to the Family Court (Composition and Distribution of Business) Rules 2014 (SI 2014/840), r.15(2). [Back]
Note 1 Regulation 4 of the Jurisdiction and Judgments (Family) (Amendment etc.) (EU Exit) Regulations 2019 (SI 2019 No. 519) revoked the Maintenance Regulation. Regulation 3 revoked the Brussels IIa Regulation. The Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations 2019 (SI 2019 No. 479) revoked the Brussels Ia Regulation and its predecessors as they applied in the UK and extinguished the effect of the Lugano Convention 2007 and the EU-Denmark Agreement in the UK. [Back]
Note 2 The order of the deputy district judge purported to transfer the applications to the High Court. He did not have power to do so: see FPR r.27.19(3) & (4). Although the cases before Parker J, the Court of Appeal and the Supreme Court all assume that the applications were validly transferred to the High Court it is clear that they were not. I shall treat the deputy district judge’s invalid order as having allocated the applications to be heard within the Family Court at High Court Judge level pursuant to the Family Court (Composition and Distribution of Business) Rules 2014 (SI 2014/840), r.15(2). [Back]