G v G (Maintenance Pending Suit: Legal Costs)
| Jurisdiction | England & Wales |
| Judgment Date | 2002 |
| Date | 2002 |
| Court | Family Division |
Husband and wife – Financial provision – Maintenance pending suit – Statutory construction – Legal costs – Wife seeking award for legal costs of ancillary relief proceedings – Husband challenging court’s jurisdiction to include award in maintenance pending suit – Whether court having jurisdiction – Matrimonial Causes Act 1973, ss 22, 27.
The applicant wife applied to the court under s 22 of the Matrimonial Causes Act 1973 for maintenance pending suit in ancillary relief proceedings. She asked for an element in respect of her legal costs of those proceedings to be included within the award. The respondent husband argued that, having regard to its use at common law and in earlier legislation, the word ‘maintenance’ was not used by Parliament in ss 22 and 27 of the 1973 Act as a flexible word as to its purpose, or that in any event, the meaning of the word under the Act as to the purpose of the payments did not extend to include a payment of, or towards, the legal costs of the ancillary relief proceedings. Furthermore, the husband asserted that since, at the current stage of the proceedings, the court was unable to come to a final conclusion on the extent, nature and value of his assets, it had to accept his assertions as to his means contained in his affidavit and questionnaire, unless the wife could demonstrate that the husband’s evidence was wrong or partly wrong.
Held – (1) The meaning and extent of the word ‘maintenance’ and thus the purpose in respect of which it could be awarded under s 22 of the 1973 Act was not governed or limited by either: (i) the common law duty of a husband to maintain his wife or the cases on the legislation that preceded ss 22 and 27; or (ii) statutes and decisions relating to the use of the word in other contexts so as to exclude from the range of expenditure that could be included therein a payment in and towards the costs of ancillary relief proceedings. What was or was not within the range of the meaning of the word ‘maintenance’ was something that had to be judged from time to time having regard both to general circumstances and the circumstances and context of the particular case. The word as contained in ss 22 and 27 fell to be construed in the overall context of the Act and having regard to the overall purpose of the Act, which was to promote and provide a fair result between husband and wife. On that approach, the word maintenance had a wide enough meaning to include a payment to meet the costs of the ancillary relief proceedings with the result that the court had jurisdiction to include such a payment in an award of maintenance pending suit under s 22. That power was a discretionary one which had to be exercised with
a view to promoting fairness between husband and wife. Fairness was a ‘two way street’ and therefore the power to include an element in respect of the costs of the ancillary relief proceedings had to be exercised having regard to the positions of both the husband and the wife and thus to the possibility that such an order could or would be unfair to the paying party as well as to the advantages and disadvantages to the other party that would flow from the making or refusal of the order; A v A (maintenance pending suit: provision for legal costs) [2001] 1 FCR 226 applied.
(2) On an application for maintenance pending suit, where there was a dispute as to means of the paying party, it was important to consider the extent of the compliance by the paying party with his or her duty to make full and frank disclosure, and the force of the points made by the applicant in the light of the disclosure made by the paying party and other evidence as to, for example, the lifestyle and spending of that party. In the instant case, the husband had a duty to provide a full and frank explanation of his means, supported by the disclosure of relevant documents. If he failed to do so he could avoid or minimise any unfairness or financial difficulty that might flow from the court not accepting his assertions as to his means by providing a full, frank and particularised account of his financial history and present position, supported by documents under his control, and then apply for a variation. Moreover, it would be unfair and oppressive to the wife if the court proceeded on the basis of the husband’s assertions as to the extent of his present means. Accordingly, the husband’s submission that the court had to proceed on the basis that his assertion as to his present capital and income was correct would be rejected; Baker v Baker[1996] 1 FCR 567 and F v F (maintenance pending suit) (1983) 4 FLR 382 applied.
Cases referred to in judgmentA v A (maintenance pending suit: provision for legal costs) [2001] 1 FCR 226, [2001] 1 WLR 605, [2001] 1 FLR 377.
Airey v Ireland (1979) 2 EHRR 305, [1979] ECHR 6289/73, ECt HR.
Bacon (MC) Ltd, Re [1991] Ch 127, [1990] 3 WLR 646.
Baker v Baker[1996] 1 FCR 567, [1995] 2 FLR 829, CA.
Barras v Aberdeen Steam Trawling and Fishing Co Ltd [1933] AC 402, [1933] All ER Rep 52, HL.
Bolsom v Bolsom (1983) 4 FLR 21, CA.
C v Surrey CC[1994] 2 FCR 165, [1994] 1 FLR 111.
Calderbank v Calderbank [1976] Fam 93, [1975] 3 All ER 333, [1975] 3 WLR 586, CA.
Coombs v Coombs (1866) 1 LR PD 218.
Cross v Cross (1880) 43 LT 533.
Customs and Excise Comrs v Top Ten Promotions Ltd [1969] 3 All ER 39, [1969] 1 WLR 1163, HL.
F v F (divorce: annulment of bankruptcy order) [1994] 2 FCR 689, [1994] 1 FLR 359.
F v F (maintenance pending suit) (1983) 4 FLR 382.
Gaisberg v Storr [1950] 1 KB 107, [1949] 2 All ER 411, CA.
Jenkins v Livesey (formerly Jenkins) [1985] 1 AC 424, [1985] 1 All ER 106, [1985] 2 WLR 47; sub nom Livesey (formerly Jenkins) v Jenkins [1985] FLR 813, HL.
Lilley v Lilley [1960] P 158, [1959] 3 All ER 283, [1959] 3 WLR 306, CA.
London Corp v Cusack-Smith [1955] AC 337, [1955] 1 All ER 302, [1955] 2 WLR 363, HL.
R v Chard [1984] AC 279, [1983] 3 All ER 637, [1983] 3 WLR 835, HL.
Ridley v Ridley [1953] P 150, [1953] 1 All ER 798, [1953] 2 WLR 681.
Scott v Scott [1951] P 245, [1951] 1 All ER 216.
Taylor v National Assistance Board [1957] P 101, [1957] 1 All ER 183, [1957] 2 WLR 189, CA; affd [1958] AC 532, [1957] 3 All ER 703, [1958] 2 WLR 11, HL.
Watkins v Watkins [1896] P 222, CA.
White v White[2000] 3 FCR 555, [2001] 1 AC 596, [2001] 1 All ER 1, [2000] 3 WLR 1571, [2000] 2 FLR 981, HL.
ApplicationIn ancillary relief proceedings, the applicant wife applied for an element in respect of her legal costs to be included in an award of maintenance pending suit under s 22 of the Matrimonial Causes Act 1973. The facts are set out in the judgment.
CHARLES J. Introduction[1] I have before me an application under s 22 of the Matrimonial Causes Act 1973 (MCA 1973) for maintenance pending suit.
[2] In reliance on the decision of Holman J in A v A (maintenance pending suit: provision for legal costs) [2001] 1 FCR 226, [2001] 1 WLR 605 the wife (who is the applicant) asked that an element in respect of her legal costs of the ancillary relief proceedings should be included within the award. The husband (who is 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.
[3] 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 of the 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 of the MCA 1973[4] 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.
[5] The statutory expression ‘maintenance pending suit’ included in s 22 of the 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.
[6] 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’.
[7] It was however accepted that ‘maintenance’ was a sufficiently elastic concept to allow for flexibility as to quantum.
[8] Various lines of argument were advanced relating to the history of the MCA 1973. I set these out later in this judgment.
[9] An essential point in the arguments advanced was that ‘maintenance’ had a fixed meaning as to purpose prior to its use in ss 1 and 6 of the Matrimonial Proceedings and Property Act 1970 and thus its use in ss 22 and 27 of the MCA...
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