Moore v Moore

The judgment did not finally determine whether a maintenance pending suit order remains enforceable after the divorce proceedings supporting it are withdrawn. It recognised that the order may stand until discharged. An arguable challenge to the weight placed on authority may justify consideration by a full bench and adjournment of the application. The court may also warn of substantial costs and take account of the applicant’s conduct, including failure to pay under the order and responsibility for accumulated arrears.

The husband applied in complex matrimonial proceedings concerning a substantial maintenance pending suit order made by Wood J in 2006. The wife had withdrawn the divorce proceedings in this jurisdiction, which had provided the order’s foundation. Bodey J concluded that the order stood until discharged and remained enforceable. The husband sought a hearing on notice with an appeal to follow, arguing that the judge had attached too much weight to brief passages in Moses-Taiga v Taiga [2005] EWCA Civ 1013. The wife did not appear or make representations. The central issue was whether the proposed challenge raised an arguable point warranting consideration by a full bench.

Disposition. The application was adjourned. Lord Justice Thorpe did not finally determine the enforceability of the maintenance pending suit order or the correctness of the decision below.

1. Underlying issue. The root question was whether a substantial maintenance pending suit order remained fully enforceable when the divorce proceedings giving it foundation were withdrawn. Bodey J had concluded that the order stood until discharged and was enforceable. Thorpe considered that conclusion may well be correct in law.
2. Arguable point concerning authority. Thorpe was persuaded that there was an argument that Bodey J had attached too much weight to brief passages in Moses-Taiga v Taiga [2005] EWCA Civ 1013. That argument merited consideration by a full bench. Thorpe therefore could not say that the husband had no arguable point, but he made no final ruling on the authority or the merits.
3. Costs and conduct. The husband was warned that pursuing a further hearing involved substantial costs and could expose him to liability exceeding £20,000 if unsuccessful. The court also noted that he had paid nothing under the order and had contributed to the arrears by failing to seek an expedited hearing of his summons challenging jurisdiction.

• Court of Appeal (Civil Division): Lord Justice Thorpe adjourned the husband’s application after recognising an arguable issue warranting consideration by a full bench.
• Principal Registry Family Division (Mr Justice Bodey): concluded that the maintenance pending suit order stood until discharged and was enforceable.