CC v NC

When jurisdiction to entertain divorce proceedings is disputed, the court may still award maintenance pending suit. It should assess the apparent strength of the jurisdictional case and act cautiously where the claim appears likely to fail. Caution is not required where another jurisdictional basis is reasonably or strongly arguable. The court should then assess the applicant’s budget by reference to reasonable need, available accommodation and benefits offered by the respondent. Expenditure may be disallowed where it is unnecessary or unreasonable, but the court should not impose a generalised reduction merely because jurisdiction is contested.

The applicant wife, aged 70, applied for maintenance pending suit after presenting a divorce petition in England and Wales. The respondent husband had issued competing divorce proceedings in Austria. The wife relied on several jurisdictional bases under Article 3 of the Brussels 2 regulation no. 2201/2003, including her own habitual residence, the husband’s habitual residence and the parties’ last joint habitual residence.

The husband argued that the wife’s jurisdictional case was weak and that the court should therefore make a conservative award. The application required the court to determine how the disputed jurisdictional prospects should affect maintenance pending suit and what level of annual maintenance was reasonable.

1. Jurisdictional uncertainty. The court had power to award maintenance pending suit although jurisdiction to pronounce the divorce decree was challenged. The strength of the jurisdictional case was a relevant consideration. Where jurisdiction appeared unlikely to exist, the court should act very cautiously.
2. Application to the competing bases. The wife’s reliance on her own habitual residence was provisionally weak and more likely than not to fail. However, her case based on the husband’s habitual residence and the parties’ last habitual residence in England and Wales was reasonably arguable, possibly strongly so. The court therefore declined to discount the maintenance claim or proceed conservatively merely because one jurisdictional ground was weak.
3. Assessment of need. The court assessed the wife’s budget item by item. It disallowed the proposed London rental and associated costs because she had access to the jointly owned London residence and the husband undertook to avoid using the principal bedroom when there. It also excluded health insurance and a separate car because the husband would pay those expenses directly or provide use of the jointly owned car. Certain claims for clothing, restaurants, holidays and European flights were reduced, but the court rejected the contention that holidays should predominantly be taken at the French property.
4. Order. The reduced annual budget was £170,000. The husband was able to meet it. Maintenance pending suit was ordered at £14,166 per month, payable in advance from 1 February 2014, with arrears to be discharged promptly.