Each month we will share a round-up of key cases, with links to full information and an overview of key learnings. This month’s case updates have been taken directly from Lexis.
Villiers v Villiers [2022] EWCA Civ 772
https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWCA/Civ/2022/772.html&query=(villiers)
Court of Appeal, Civil Division, allowing the wife’s appeal, held that the judge had erred in his approach to the wife’s application to a financial provision order under s27 of the Matrimonial Causes Act 1973 by holding that the court’s discretion had depended on the wife showing that the respondent husband had failed to provide reasonable maintenance at the date of the application, that the duration of any order could not extend beyond the date of a foreign divorce, and that the common law duty of a husband to maintain his wife influenced the court when exercising its discretion.
The appellant wife (the wife) and respondent husband (the husband) were married and had one child. The wife started divorce proceedings in England. The husband commenced divorce proceedings in Scotland and the wife’s petition was stayed under the Domicile and Matrimonial Proceedings Act 1973 (DMPA 1973). The wife issued an application for a financial provision order under s 27 of the Matrimonial Causes Act 1973 (MCA 1973) asserting that the husband had refused to pay her any maintenance, including child maintenance. The judge dismissed the wife’s application. He held, first, that in exercising its discretion under s 27, the common law duty of a husband to maintain his wife should influence the court. Second, the judge held that 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. Further, the judge held that the wife’s petition would be dismissed because she had failed to establish the condition precedent for the purposes of s 27 that in the period prior to her application the husband had failed to provide her with reasonable maintenance. The wife appealed. She submitted that the judge had misdirected himself as to the meaning and effect of MCA 1973 s 27 in respect of the condition precedent and in respect of the appropriate duration of a periodical payments order and was wrong to conclude that the incidents of the husband’s duty under common law to maintain his wife had remained relevant to the manner in which the court exercised its powers under MCA 1973 s 27. Consideration was given to the Domestic Proceedings and Magistrates’ Courts Act 1978 (DPMCA 1978).
Issues and decisions
- Whether the judge erred in holding that the court’s exercise of its discretionary powers under MCA 1973 s 27 depended on the nature and extent of the husband’s common law duty to maintain his wife.
Any continuing connections that there might have been between the provisions of MCA 1973 s 27 and the old common law duty came to an end with the DPMCA 1978. As a result, after 1978, and contrary to the judge’s view, it was clear that the common law duty was no longer the foundation on which all of the legislation was built and that it no longer had any relevance to the manner in which the court exercised its jurisdiction under MCA 1973 s 27 (see [105], [107] of the judgment). - Whether the judge erred in holding that the court’s discretion did not allow a maintenance order to have effect after a foreign divorce. It was not an exorbitant exercise of the court’s jurisdiction to make, nor would it require exceptional circumstances to justify making, such an order after a foreign divorce. The judge’s approach amounted to an unreasonable fetter on the court’s discretionary powers. The jurisdiction to make maintenance orders was not necessarily connected to divorce proceedings, nor did maintenance necessarily have to be determined by the courts dealing with the divorce. Accordingly, MCA 1973 s 27 provided the court with an open discretion. When exercising the discretion, the duration of an order under s 27 depended on the court’s determination as to what was the fair outcome having regard to all the circumstances of the case. Those circumstances included the fact that there were divorce proceedings in another jurisdiction but that fact did not mandate the approach proposed by the judge (see [116], [123], [125] of the judgment).
- Whether the judge erred in holding that there was a condition precedent for the purposes of MCA 1973 s 27 that in the period prior to an application the spouse had failed to provide reasonable maintenance.
The court had to determine whether the respondent had failed to provide reasonable maintenance at the date of the hearing. The wording of MCA 1973 s 27 did not support the conclusion that that had to have occurred prior to the date of the application. Rather, the structure and purpose of s 27 supported the date of the hearing as being the relevant date (see [129] of the judgment). In the circumstances, the appeal would be allowed (see [144] of the judgment).
Decision of Mostyn J [2022] 1 FLR 513 Reversed.
