LK v K

Where courts in different Member States are seised of related matrimonial proceedings, the English court should respect the operative decision of the foreign court on seisin and should not second-guess an appellate decision abroad. A pending jurisdictional dispute does not necessarily deprive the English court of power to award maintenance pending suit. The court may include an exceptional element for legal costs where the applicant lacks other means of funding representation and would otherwise be denied access to justice. Procedural non-compliance with a requirement concerning presentation of a petition does not automatically invalidate proceedings where the defect is minor and capable of retrospective regularisation.

The petitioner sought maintenance pending suit, including provision for her legal costs, while the English divorce proceedings were subject to a dispute about habitual residence and priority between the English and French courts. The French court had treated the English court as first seised and stayed the French proceedings under Brussels II Revised, but an appeal in France remained pending. The respondent argued that the English court should anticipate the French appeal, that the English petition was invalid because no marriage certificate had been filed as required by the Family Proceedings Rules 1991, and that maintenance could not be ordered while jurisdiction remained unresolved.

The central issues were whether the English court had power to make a maintenance order at that stage, whether the procedural defect invalidated the petition, and whether exceptional legal costs could form part of maintenance pending suit.

The court held that it had power to make an order for maintenance pending suit and ordered the respondent to pay maintenance referable to the petitioner’s legal costs at £20,000 per month from 21 September 2005, reducing to £7,500 per month from 21 March 2006, together with £5,500 per month for the petitioner’s living expenses from 21 December 2005. Costs of the application were reserved.

1. Comity and parallel proceedings. While the French court’s decision to stay its proceedings remained in force, the English court should proceed on the basis that the English court was first seised. It was not appropriate to predict the outcome of the French appeal or to act as an appellate court over the French judge. Article 19(1) of Brussels II Revised had, in the circumstances, spent its force. A contrary approach could produce an absurd situation in which each court waited for the other.
2. Procedural irregularity. Failure to file the marriage certificate required by rule 2.6(2) of the Family Proceedings Rules 1991 was a minor procedural irregularity. It did not invalidate the petition ab initio. The requirement was administrative in character and could, in an appropriate case, be dispensed with retrospectively. The subsequent acceptance and processing of the petition, without demur, supported that conclusion.
3. Maintenance and legal costs. The court applied Moses-Taiga v Taiga [2005] EWCA Civ 1013, accepting that maintenance under section 22 could exceptionally include a substantial contribution towards litigation costs. The discretion had to balance the risk of unjustified and irrecoverable payments against the risk that the applicant would lose access to justice. This was an exceptional case because the petitioner had no funds or other realistic source of litigation funding, and the respondent could meet the order without undue difficulty.
4. The maintenance award for living expenses was assessed prospectively and at a moderated level, having regard to the temporary and uncertain jurisdictional position and to expenditure which could reasonably be curtailed.