Ancillary relief – Divorce petitions – Enforcement

M v M: CA (Civ Div) (Lords Justice Thorpe, Wall, Mr Justice Coleridge): 21 October 2009

The appellant husband (H) appealed against an order requiring him to pay maintenance pending suit to his respondent wife (W) following the withdrawal of her divorce petition.

W had filed a divorce petition in Nigeria but had later withdrawn it. H had issued a divorce cross-petition in Nigeria and a decree nisi had been pronounced. W then filed a divorce petition in the English courts and an order for maintenance pending suit was made in her favour. H answered the petition and issued two summonses, one challenging the jurisdiction of the English courts and the other seeking a discretionary grant of stay, but neither was heard by the court. H was directed to apply for a listing of the application, but there was a nine-month delay before he did.

Consequently, the arrears and interest due under the order grew as did the numerous costs debts, owing to his failure to comply with them. In the interim, H had appealed against the order and it was discharged, but W obtained a substitute order for a lesser amount. By the time that the hearing to determine the jurisdiction issue arrived, W had withdrawn her English divorce petition, and the working day before the hearing H filed a draft summons and an affidavit seeking discharge of the order. Due to W’s concession, the only issue left to be determined was whether H was still bound in law to pay the sums due under the order, or whether the court should discharge it in accordance with his late request, ab initio, or remit the arrears.

The judge determined that, where maintenance pending suit had been paid pending a decision on jurisdiction or merits, the court would not order such payments to be refunded unless there were special circumstances, and neither would the order be discharged ab initio or become unenforceable. H submitted that, as a matter of law, W’s withdrawal of the divorce petition expunged his liability, both retrospectively and prospectively, under the order.

Held: The judge had given a full and impressive judgment and meticulously assessed all the details before him. He clearly and skilfully dealt with the submission advanced by H that the failure of a petitioner’s case on jurisdiction or merit would result in maintenance pending suit already paid becoming refundable, or the arrears becoming unenforceable. The judge cited Moses-Taiga v Taiga [2005] EWCA Civ 1013, (2006) 1 FLR 1074 as authority for the point that, on the failure of the petitioner’s case, monies already paid to the respondent would be irrecoverable, and by parity of reasoning, that monies wrongly unpaid, as in the present case, would remain enforceable, Moses-Taiga followed. To allow monies wrongly unpaid to become unenforceable would be to reward H, who had breached an order of the court. Further, the judge had correctly construed ‘irrecoverable’ as per Thorpe LJ in Moses-Taiga to mean irrecoverable in law and not monies being irrecoverable in the practical sense, as advanced by H, Moses-Taiga followed.

Appeal dismissed.

Arfan Khan (instructed by CT Emezie) for the appellant; Graham Crosthwaite (instructed by Crowther) for the respondent.