Emma Mary Jane Villiers v Charles Alastair Hyde Villiers

Hearing dates: 26 & 27 January 2022

Approved Judgment

This judgment was handed down by the Judge remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 10:30 on 10 ^th June 2022.

The wife appeals from the order of Mostyn J (“the Judge”) dismissing her application under s.27 of the Matrimonial Causes Act 1973 (“the MCA 1973”) following a hearing from 1 to 4 March 2021. The Judge went on to indicate that, if he had not dismissed the application, he would have made a maintenance order at the rate of £10,000 p.a. from the date of his order until, at [143], “the date of the decree of divorce” in Scotland.

The wife made her application as long ago as 13 January 2015. The next five years, until the Supreme Court's judgment of 1 July 2020, Villiers v Villiers (Secretary of State for Justice intervening) [2021] AC 838, were spent determining the husband's application that the wife's application should be stayed. The Supreme Court decided, at [41], that the wife had an “unfettered [entitlement] to choose to bring her claim in an English court on grounds of its convenience for her or because she believes that the law it will apply is more advantageous for her”; and, at [36], that there was “no scope whatever for the operation of a forum non conveniens discretion”.

Section 27 is a little used provision. This is not because it is complex but because of the availability of other routes by which the court has power to make a financial remedy order. These include a broad range of orders as can be seen from the definition of “financial remedy” in r.2.3 of the Family Proceedings Rules 2010 (“the FPR 2010”).

I set out the relevant parts of s.27 below but, in summary, a spouse can apply for an order “on the ground that the other party to the marriage … (a) has failed to provide reasonable maintenance for the applicant; or (b) has failed to provide, or make a proper contribution towards, reasonable maintenance for any child of the family”. A gateway is required because an application under section 27 is not connected to, or made within, other proceedings. It is a freestanding application. The court is required, by s.27(3), to “have regard to all the circumstances of the case including the matters … in section 25(2)” when deciding both (i) whether the respondent has failed to provide reasonable maintenance and (ii) what order, if any, to make. When an application is made in respect of a child, “first consideration shall be given to the welfare of the child while a minor”.

The determination of whether there has been a failure to provide reasonable maintenance and of what order to make are, in reality, two sides of the same coin. The determination of whether there has been such a failure requires the determination of what maintenance would be reasonable. The purpose of the section is also simple. It is about meeting the financial needs of a spouse and any child of the family and ensuring that the other spouse meets those needs when, and to the extent that, it is fair that they should be doing so.

In my view, this case could have been decided on a simple determination of the relevant facts at the date of the hearing. This is the required approach in respect of all other financial remedy applications and this was how it had been approached by the parties, including in their written submissions for the final hearing. This was, however, not what happened, as the Judge introduced a number of legal principles at that hearing, none of which had previously been raised by either of the parties or the court.

The Judge dismissed the wife's application because she had not established, what he described, at [54], as “a condition precedent”, namely that “in the period prior to her application on 13 January 2015 the husband failed to provide her with reasonable maintenance” (my emphasis). He later, at [132], determined that the relevant period was “the two-year period immediately prior to” the application. That the wife was required to establish a failure to provide reasonable maintenance prior to the date of her application was one of the points raised by the Judge at the hearing. In the previous six years neither party nor any judge had raised this point. Until then, the case had been addressed on the conventional approach taken in other financial remedy applications namely, as referred to above, that the court would determine the issues referred to in paragraph 4 above ((i) whether there had been a failure and (ii) what order to make) by reference to the relevant s.25 factors as at the date of the final hearing. This can be seen from the parties' evidence and their written submissions for that hearing which focused on the position at the date of the hearing. The wife contended that there had been a continuing failure to maintain while the husband contended that the wife had failed to establish this because he “ has had no income to make any meaningful contribution to W's need” (my emphasis).

The Judge raised a number of other issues which he considered significant to the manner in which the court should exercise its discretionary powers under s.27. The most prominent of these was his conclusion, at [41], that the common law duty of a husband to maintain his wife “should influence the exercise of the” court's discretionary powers under s.27 because it was “the foundation on which all of this legislation is built, and … save where specifically abrogated, its incidents remain relevant”. Again, this had not been raised by either party and, on this appeal, the husband did not seek to defend the Judge's view that this was a relevant consideration.

The significance the Judge attributed to the common law duty led to his conclusion, at [45], that, absent “exceptional circumstances”, the duration of an order under s.27 should not extend beyond “a valid foreign divorce in a friendly state, or in another part of the British Islands”. The Judge supported this conclusion by reference to other factors including, at [45], “principles of comity” as opposed to, what he described as, “the syndrome of chauvinism” and some other domestic statutory provisions such as sections 25A and 28(1A) of the MCA 1973. In the Judge's view, at [47], “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.”

For the reasons set out below, I have reached the clear conclusion, first, that the Judge was wrong to dismiss the wife's application. In summary, this is because the Judge was wrong to determine the issue of whether the husband “has failed to provide reasonable maintenance” by reference solely to the period prior to the date of the application rather than up to the date of the hearing. In my view, this is what s.27 provides and, alternatively, it was procedurally unfair for the Judge to decide the case on this basis when it was raised for the first time, by him, at the final hearing.

Secondly, in the absence of the Judge having made any order, and in circumstances where neither party is, understandably, seeking a rehearing, it is for this court to determine what award is fair under s.27. In my view, the best we can do in the circumstances is, as sought by the wife, to make an order for periodical payments at the rate which the Judge said he would have ordered but for his dismissal of the application. As for the duration of that order, again for the reasons set out below, I consider that the Judge's conclusions, as to the continuing influence and effect of a husband's common law duty to maintain and as to the other factors referred to by him, were wrong. The order should be until further order or the wife's earlier remarriage.

The wife also seeks the adjournment of her application for a lump sum. I have concluded, as set out below, that it would be fair to include such a provision.

All the lawyers are acting pro bono for the purposes of this appeal.

Background

The judgment below is reported at [2021] EWFC 23, [2022] 1 FLR 513. In the published version of the judgment, the Judge omitted those parts of it which dealt with the parties' “personal financial details”. He explained this decision as follows:

“[55] I therefore now turn to the facts. I will analyse the financial evidence, both historical and current, and will make my factual and computational findings. In the version of this judgment which I will make available for publication paragraphs 59 – 88, 108 – 126(x), 132 – 134 and 141 will be omitted. They contain personal financial details of both of the parties, extracted from them under compulsion, which are protected from public disclosure: Clibbery v Allan [2002] EWCA Civ 45, [2002] Fam 261 at [72] per Dame Elizabeth Butler-Sloss P.”

That approach reflects the fact that, pursuant to r.27.10 of the FPR 2010, financial remedy claims are invariably heard in private. The Court of Appeal takes a different approach to the disclosure of personal financial details because hearings are invariably in open court. Accordingly, when necessary, I refer to such details in this judgment without redaction.

The wife is now aged 63 and the husband is 59. They were in a...