Moore v Moore

A maintenance pending suit order made during divorce proceedings does not automatically fall away retrospectively when the petition is withdrawn or dismissed for want of jurisdiction. The order remains effective until discharged, and arrears remain enforceable. Payments made under it are not ordinarily refundable merely because the proceedings later fail, subject to any special circumstance. Any power to vary the order, remit arrears or order repayment is discretionary. Where jurisdiction is challenged, the hearing should be expedited to minimise the risk of legally irrecoverable payments. A payer’s failure to pursue the challenge or seek variation does not justify relief from liability. This approach, applied from Moses-Taiga v Taiga [2005] EWCA Civ 1013, was affirmed.

The parties, a Nigerian husband and a wife of Nigerian origin, married in Lagos in 1994. After the marriage broke down, the wife withdrew divorce proceedings in Lagos and issued a petition in England. The husband challenged jurisdiction and sought a discretionary stay.

A maintenance pending suit order was made by Wood J on 14 December 2006. The husband did not pay the ordered sums and did not secure an expedited determination of his jurisdiction challenge. At the hearing before Bodey J in July 2008, the wife withdrew her English petition. Bodey J held that the withdrawal did not extinguish the accrued liability and refused to remit the arrears. The central issue on appeal was whether the order was automatically discharged ab initio, making the arrears unenforceable, and whether the arrears should be remitted.

1. Disposition. Permission to appeal was granted, but the appeal was dismissed. Wall LJ would have refused permission; alternatively, he would also have dismissed the appeal. The operative order was therefore that the application was granted and the appeal dismissed.
2. Continuing effect of the order. A maintenance pending suit order made during pending divorce proceedings is a short-term cash-flow order, but remains valid until discharged. The subsequent withdrawal or dismissal of the petition, including for want of jurisdiction, does not automatically discharge the order ab initio or make sums ordered under it unenforceable. Thorpe LJ adopted Bodey J’s reasoning, and Coleridge J regarded the result as clear from Moses-Taiga v Taiga [2005] EWCA Civ 1013.
3. Paid and unpaid sums. Where maintenance pending suit has been paid before the proceedings fail, repayment will not ordinarily be ordered absent a special circumstance. By parity of reasoning, unpaid maintenance due in breach of the order does not become unenforceable merely because the payee withdraws or fails in the proceedings. To hold otherwise would reward wilful breach and create an incentive not to comply. The husband had neither paid the order nor applied for downward variation.
4. Delay and discretionary powers. The jurisdiction challenge should have been determined expeditiously, as emphasised in Moses-Taiga. The husband’s failure to pursue expedition supplied no answer to the alleged injustice. The discretionary powers under sections 31 and 33 of the Matrimonial Causes Act 1973 required proper process and provided no basis for appellate intervention. Castano v Brown did not assist because there was no finding that the English petition was abusive; strategic conduct was not, without more, abuse. Board v Board concerned sums actually paid and was not directly applicable to the unpaid arrears, while the observation relied on from Vermont v Vermont was not part of that judgment’s ratio. Bodey J’s refusal to remit the arrears was therefore upheld.

• Court of Appeal (Civil Division): In [2009] EWCA Civ 1427, permission to appeal was granted and the appeal was dismissed.
• Principal Registry of the Family Division, Bodey J: Held that withdrawal of the wife’s petition did not extinguish the husband’s liability for maintenance pending suit arrears and refused to remit them.