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LK v K (Brussels II Revised: maintenance pending suit) [2006] EWHC 153 (Fam)

Wife’s claim for maintenance pending suit in Brussels II Revised proceedings granted.

Family Division: Singer J (10 February 2006)

Summary
Wife's claim for maintenance pending suit in Brussels II Revised proceedings granted.

Background
The wife, born in Singapore, and the husband, born in France, married in France in 1996, and the wife applied for and was granted French nationality. The couple lived between London and Tokyo for varying periods dictated by the husband's work.

On 24 March 2005, the wife issued a divorce petition in London, the same day that the husband instituted divorce proceedings in Paris. By this present application, the wife contended that the UK courts had jurisdiction to hear the suit and should award her maintenance pending its conclusion on the basis that both she and her husband were habitually resident here on that date; however, the husband disputed the jurisdictional foundation of her claim, on the ground that the petition had been accepted at the Principal Registry without a marriage certificate, and permission for that omission had not been obtained pursuant to rule 2.6(2) of the Family Proceedings Rules 1991. The jurisdictional issue was due to be heard on 1 March 2006.

Following various hearings in the UK and in France, the position was that a judge in France determined that the English court became seised of the divorce proceedings earlier on the same day than the French court, and the French proceedings were stayed pursuant to the provisions of Council Regulation (EC) 2201/2003 (Brussels II Revised). That decision was subject to appeal in France, on a date scheduled to be after 1 March 2006.

It was argued for the husband that the judge in this case should predict the outcome of the French appeal and conclude that the appeal challenging the decision ceding priority to the UK court would, or was very likely to, succeed.

Findings
The judge considered that the approach advanced for the husband was a speculation too far, and he declined to follow that course: it was not right for a judge in the UK to second-guess what the decision of a foreign appellate court applying its own domestic law and procedure would be.

Since the French proceedings were stayed and the English proceedings were alive, the judge concluded that he had power to award maintenance pending suit at this stage; furthermore, the Court of Appeal decision in Moses-Taiga v Taiga [2005] EWCA Civ 1013 had extended the concept of maintenance to include provision for the legal costs of a party without the resources otherwise to meet them, or who would face other problems in funding them and thus in obtaining or continuing to receive legal advice and representation.

The judge referred to the potential injustice to the husband if he were ordered to fund the wife's litigation against him, and then proved his asserted case with the result that the English courts did not ultimately deal with the divorce; however, the balance of unfairness would fall more heavily on the wife than on the husband if the judge declined to make any order, and the wife could not be expected to continue the litigation in person, as would be the only likely outcome if no order were made.

As to the wife's failure to file the marriage certificate with her petition, the judge considered that it was a minor procedural irregularity that would not strike at the roots of the validity of all the steps taken thereafter.

Read the full text of the judgment here