Moses-Taiga v Taiga

The court may order maintenance pending suit under section 22 of the Matrimonial Causes Act 1973 while the respondent disputes jurisdiction or denies that a valid marriage exists. The power sustains access to justice until the preliminary issue is determined.

In an exceptional case, maintenance may include reasonable provision for the applicant’s continuing litigation costs. The trial judge’s discretion is the principal safeguard against injustice.

Where jurisdiction or forum conveniens is disputed, the preliminary issue must receive the highest case-management priority. This keeps interim liability to a minimum and reduces the risk of irrecoverable payments.

The wife petitioned for divorce and ancillary relief. The husband denied the marriage, jurisdiction, paternity and the substantive allegations. District Judge Black awarded maintenance pending suit, including monthly funding for the wife’s solicitors. Singer J later increased the award and made further provision for arrears and future payments.

The husband appealed the maintenance orders. He argued principally that section 22 of the Matrimonial Causes Act 1973 conferred no power while jurisdiction or the existence of the marriage remained disputed. He also challenged the inclusion of litigation costs and relied on article 1 of the First Protocol to the European Convention on Human Rights.

Before the appeal was determined, Charles J upheld English jurisdiction but granted a forum conveniens stay in favour of Nigeria. The central questions were whether section 22 operated pending resolution of the preliminary challenges and whether maintenance could include litigation funding.

1. Appeal dismissed. Section 22 of the Matrimonial Causes Act 1973 empowered the court to award maintenance pending suit even though the respondent challenged jurisdiction or denied that any valid marriage existed. Lord Justice Thorpe held that the purpose of interim maintenance was to sustain the petitioner pending determination of the suit. The risk of unjustified and irrecoverable payments had to be balanced against the risk that an impecunious petitioner would otherwise be denied access to justice.

2. Ronalds v Ronalds was a direct illustration of the established jurisdiction to award alimony while a substantial jurisdictional question remained unresolved. Lord Justice Dyson preferred to base the conclusion on the statutory language. The words permitting an order on a petition for divorce, nullity or judicial separation did not support the proposed restriction. Because the power expressly extended to nullity petitions, “either party to the marriage” included a party to a relationship ultimately found invalid.

3. In exceptional cases, section 22 could be construed to include funding for the applicant’s continuing litigation costs. Lord Justice Thorpe approved the pragmatic and progressive approach adopted in A and A and G and G. Modern funding conditions could otherwise leave an applicant without assets, security, public funding or another viable means of conducting substantial financial litigation. The jurisdiction remained exceptional, and the trial judge’s discretion was the dominant safeguard against injustice.

4. The article 1 First Protocol argument had little relevance. That provision did not undermine legitimate interim orders made within the court’s jurisdiction to sustain a party to family proceedings.

5. Where jurisdiction or forum conveniens raises a substantial preliminary issue, case management must give its determination the highest priority. Any preceding maintenance order should last for the minimum practicable period, reducing the payer’s exposure to irrecoverable and potentially unmerited payments.

6. No challenge was made to the judges’ discretionary assessment of quantum. The court therefore dismissed the appeal and summarily assessed the respondent’s costs at £10,840.55.

1. Court of Appeal (Civil Division): The husband’s appeal against the maintenance pending suit orders was dismissed: [2005] EWCA Civ 1013.

2. High Court, Family Division: Charles J upheld English jurisdiction but granted a forum conveniens stay so that the Nigerian courts could determine the validity of the marriage. The wife’s maintenance pending suit ended with that decision.

3. High Court, Family Division: Singer J refused to discharge or reduce the interim maintenance, increased it from £25,000 to £39,000 monthly, and subsequently ordered payment of arrears and provision for future payments.

4. Principal Registry: District Judge Black ordered maintenance pending suit of £300,000 annually, divided between the wife’s living expenses and her solicitors’ continuing costs.