G v G
| Jurisdiction | England & Wales |
| Judgment Date | 17 January 2002 |
| Neutral Citation | [2002] EWHC 306 (Fam) |
| Court | Family Division |
| Date | 17 January 2002 |
[2002] EWHC 306 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand
London
WC2A 2LL
Mr Justice Charles
Sears Tooth for the Applicant
Stephenson Harwood for the Respondent
Introduction
In reliance on the decision of Holman J in A v A (Maintenance pending suit: Provision for legal fees) [2001] 1FLR 377 and [2001] FCR 226 the wife (who is the Applicant) asked that an element in respect her legal costs of the ancillary relief proceedings should be included within the award. The husband (who the Respondent) has invited me to hold that A v A was wrongly decided and thus that the court does not have jurisdiction to include that element within the award.
The issue whether I have jurisdiction to include within an award of maintenance pending suit an element to cover the wife's legal costs of the ancillary relief proceedings is one which relates to the construction and application of s 22 MCA 1973 and it is not affected by the facts of the case. I shall deal with it first.
The extent of the court's jurisdiction under s. 22 MCA 1973
The husband through leading and junior counsel has mounted a full scale attack on the decision in A v A. I say at once that I reject that attack. In my judgment A v A is correctly decided both for the reasons set out therein by Holman J and for the additional reasons set out below. Those additional reasons deal primarily with points raised in argument before me which are not raised and dealt with in A v A.
The statutory expression "maintenance pending suit" included in s 22 MCA 1973 is effectively defined within the section itself. The section is in the following terms:
"On a petition for divorce, nullity of marriage or judicial separation, the court may make an order for maintenance pending suit, that is to say, an order requiring either party to the marriage to make to the other such periodical payments for his or her maintenance and for such term, being a term beginning not earlier than the date of the presentation of the petition and ending with the date of the determination of the suit, as the court thinks reasonable"
Thus the periodical payments must be for the " maintenance" of a party to the marriage.
The central point in the argument advanced on behalf of the husband is that Holman J was wrong in A v A to treat "maintenance" as an elastic word because, it was argued, having regard to its use at common law and in earlier legislation that the word "maintenance" was not used by Parliament in the MCA 1973 as a flexible word as to its purpose or, in any event, the elasticity of its meaning in the MCA 1973 as to the purpose of payments covered thereby does not extend to include a payment of, or towards, the legal costs of the ancillary relief proceedings. It was also argued, and I accept, that it is important not to muddle to provide elasticity to the meaning of the word "maintenance" through the word "reasonable".
It was however accepted that "maintenance" was a sufficiently elastic concept to allow for flexibility as to quantum.
Various lines of argument were advanced relating to the history to the MCA 1973. I set these out later in this judgment.
An essential point in the arguments advanced was that "maintenance" had a fixed meaning as to purpose prior to its use in sections 1 and 6 of the Matrimonial Proceedings and Property Act 1970 (the 1970 Act) and thus its use in sections 22 and 27 of the MCA 1973.
Brief background to the 1970 Act and the MCA 1973.
There is an account of this in the speech of Lord Nicholls in White v White [2000] 2FLR 981 at 987B/G. As appears therefrom, the 1970 Act was preceded by a report of the Law Commission prepared in 1969 under the Chairmanship of Scarman J (see Family Law —Report on Financial Provision in Matrimonial Proceedings, Law Com No 25) (the Report). As appears from the speech of Lord Nicholls in White v White, and that Report itself, it was to the effect that an overall rationalisation of the court's powers was needed urgently.
In argument in this case I was also referred to a working paper of the Law Commission which is referred to in the Report and which prior to the completion and publication of the Report, was circulated for comment and criticism only.
The preamble to the 1970 Act makes clear that it was an Act to make fresh provision for empowering the court in matrimonial proceedings to make orders. As Lord Nicholls said in White v White in 1970 the existing statutory provisions were outdated and inadequate and the 1970 Act made a fresh start (see 987C and 987G).
I pause to comment that in my judgment this general purpose and nature of the 1970 Act is relevant to, and in my view does not form a good platform for, the arguments advanced on behalf of the husband that the extent and meaning of the word "maintenance" as used in the 1970 Act is limited to the extent and meaning of the old common law duty of a husband to maintain his wife. This is so even if as argued on behalf of the husband that the term "maintenance" as used in relevant statutes prior to the 1970 Act was given that meaning by the courts.
The preamble to the MCA 1973 says that it is an Act to consolidate certain enactments relating to matrimonial proceedings (and other Acts). Those enactments include the 1970 Act.
The main focus of the arguments before me related to sections 22 and 27 of the MCA 1973. Section 22 MCA 1973 replaced s 1 of the 1970 Act and s 27 MCA 1973 replaced s 6 of the 1970 Act.
Amendments, and proposed amendments, to sections 22 and 27 of MCA 1973
Section 66(3) and Schedule 10 to the Family Law Act 1996 repeals s. 22 MCA 1973 but that repeal has not yet taken effect. If and when that change comes into effect it will empower the court to make an award of lump sum. At present, and thus under s. 22 MCA 1973 the court cannot award an interim lump sum (see Bolsom v Bolsom (1983) 4 FLR 21).
Amendments were made to s 27(3) MCA 1973 firstly by the Domestic Proceedings and Magistrates' Court Act 1978 s 63(2) (as from 1 February 1981) and later by the Matrimonial and Family Proceedings Act 1984 s 4 (as from 12 October 1984). These amendments introduced provisions directing the court as to what it was to take into account in deciding whether or not a respondent had failed to provide "reasonable maintenance" for an applicant. I was not taken to any Parliamentary material, or reports, relating to these amendments.
The preamble to the Domestic Proceedings and Magistrates' Courts Act 1978 (which introduced these amendments) provides that it is an Act to make fresh provision for matrimonial proceedings in Magistrates' Courts and to amend enactments relating to other proceedings. Section 1 provides that:
"1 Either party to a marriage may apply to the Magistrates' Court for an order under s 2 of this Act on the grounds that the other party to the marriage:
(a) has failed to provide reasonable maintenance for the applicant……"
Section 2 of the Domestic Proceedings and Magistrates' Courts Act 1978 provides that where an applicant satisfies the court of any ground mentioned in s. 1 the court may make a number of defined orders including an order for periodical payments and an order for a lump sum (up to a specified maximum of £500 or such larger amount as the Lord Chancellor may from time to time by order fix) and s. 3 thereof provides that in deciding whether or not to exercise its powers (and thus whether s 1 is satisfied and the manner in which it should exercise its powers) the Magistrates' court is to have regard to all the circumstances and then a number of listed factors which mirror 25(2) of the MCA 1973.
The above mentioned amendments to s. 27 MCA 1973 therefore link s. 27 MCA 1973 to (a) s. 25(2) MCA 1973 which was one of the sections at the heart of the decision in White v White, and (b) s. 1 of the Domestic Proceedings and Magistrates' Courts Act 1978.
The argument advanced by the husband that is not covered in A v A.
The first stage of the argument advanced by the husband was by reference to s 27 of the MCA 1973. As originally enacted s. 27 MCA 1973 replaced, and was in the same terms as, s. 6 of the 1970 Act. As originally enacted s. 27(1)(a) provided as follows:
"(1) Either party to a marriage may apply to the court for an order under this section on the ground that the other party to the marriage (in this section referred to as the respondent) -
(a) being the husband has wilfully neglected-
(i) to provide reasonable maintenance for the applicant or
(ii) to provide, or to make proper contribution towards, reasonable maintenance for any child of the family to whom this section applies;
(b) being the wife, has wilfully neglected to provide, or to make a proper contribution towards, reasonable maintenance —
(i) for the applicant in the case where, by reason of the impairment of the applicant's earning capacity through age, illness or disability of mind or body and having regard to any resources of the applicant and the respondent respectively which are, or should properly be made, available for the purpose, it is reasonable in all the circumstances to expect the respondent so to provide or contribute, or
(ii) for any child of the family to whom this section applies.
In its present form (as introduced from 1 February 1981 by the Domestic Proceedings and Magistrates' Courts Act 1978 s 63(1)) s 27(1) MCA 1973 provides:
"(1) Either party to a marriage may apply to the court for an order under this section on the ground that the other party to the marriage (in this section referred to as the respondent) -
(a) has failed to provide reasonable maintenance for the applicant, or
(b) has failed to provide, or to...
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