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Villiers v Villiers (Rev1) [2022] EWCA Civ 772

The Court of Appeal allowed an appeal against the order of Mostyn J reported at [2021] EWFC 23, [2022] 1 FLR 513 refusing the wife’s application for maintenance under s27 Matrimonial Causes Act 1973 and substituted an order for the husband to pay £10000 p.a. until further order or the wife’s remarriage. The wife’s application for a lump sum was adjourned indefinitely.

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The wife had issued an application under s27 in 2015. The parties' disputes about the English court's jurisdiction to deal with the issues of the divorce and the wife's application finally reached the Supreme Court with judgment in July 2020; Villiers v Villiers [2020] UKSC 30, The Supreme Court remitted it the Family Court for a decision on the merits. The matter was listed before Mostyn J who on the first day of the hearing raised for the first time with the parties a series of propositions of law.

Firstly, whether an applicant under s27 had to prove a condition precedent, namely that prior to the commencement of the proceedings the other party to the marriage had failed to provide reasonable maintenance. The judge in due course decided that the relevant period was 2 years prior to the issue of the application. This meant that the court would need to consider information about the situation in 2013-2105. The Court of Appeal held that the test was simply for the court to consider what (at the date of the hearing) the applicant should be receiving by way of reasonable maintenance (having regard to need and ability to pa) and make orders which ensured that the maintenance was at that level. [para 6][Paras 128-133].[Paras 149-161]

Secondly the judge raised the relevance of the common law doctrine to maintain. The Court of Appeal held that the statutory provisions had rendered that doctrine irrelevant to the exercise of the statutory powers [Paras 105- 107]. The approach should be a simple one, consistent with the approach to other financial relief provisions.

Thirdly Mostyn J held that the order should not be made or continue beyond the date of divorce in another country (in this case Scotland). The Court of Appeal rejected that too. [para 103] [Paras 122-127][Paras 166-170]

Finally, the Court held that given the husband's failure to provide disclosure and the uncertainty as to whether the husband would receive monies from a family trust, the court decided that an adjournment of the application for a lump sum was appropriate. [Paras 142-143].[Paras 171-177]

The court also regarded the judge taking these points which were not taken by the points as procedurally unfair [para 161-164], permitting the husband to benefit from "forensic cheating" (not giving disclosure) [para 148] [Paras 211-2116]

Arnold LJ agreed that the appeal should be allowed and with the order for periodical payments but dissented on the condition precedent issue [Para 178] [paras 181] and the adjournment of the lump sum on the basis that it was not the subject of a ground of appeal or proper argument on behalf of the wife [paras 223-232]

Case summary by Nicholas O'Brien, Barrister, Coram Chambers

For full case, please see BAILII