TJB v RJB

A court may make declarations concerning the meaning or effect of an earlier order, but declaratory relief is discretionary. Declarations which merely repeat an existing order, or which may mislead a foreign enforcement court, should not be made.

An order providing for a lump sum as capitalised maintenance does not exhaust the court’s enforcement powers. The court retains its statutory power under Matrimonial Causes Act 1973, section 24A, to order the sale of property, including property abroad. Whether foreign proceedings engage the lis pendens provisions of the Lugano Convention is principally a matter for the foreign court and should not be presumed.

The husband applied for declarations concerning the construction and effect of a consent financial remedies order made on 2 March 2012. The order required payment of an £800,000 lump sum, provided for continuing periodical payments until payment in full, and contained a contingent mechanism for the sale of property in Switzerland following default in maintenance payments.

The lump sum remained substantially unpaid. The wife had begun enforcement proceedings in Switzerland. The husband sought declarations concerning the character of the lump sum under the Lugano Convention, the enforcement provisions contained in the 2012 order, and whether the English court remained first seised for the purposes of Article 27.

1. Application refused. None of the three declarations sought was made. Some merely repeated the terms of the 2012 order. Others risked being used to suggest that the English court had no further enforcement powers.
2. The 2012 order was designed to achieve a clean break. It imposed a positive obligation to pay the whole lump sum by 2 March 2014. The provision for continuing maintenance and the contingent sale mechanism did not give the husband an election whether to pay the lump sum.
3. The express provision for sale following specified maintenance arrears did not exhaust the court’s power under section 24A(1) of the Matrimonial Causes Act 1973. That power remained available “on making that order or at any time thereafter”. The court could order the sale of property anywhere in the world and retained other enforcement remedies, including garnishee relief, committal on proof to the criminal standard, and bankruptcy proceedings.
4. The existing declaration that the lump sum represented capitalised maintenance was sufficient. Applying Moore v Moore [2007] EWCA Civ 361, the purpose of the payment was decisive. This lump sum was intended to secure the wife’s support after periodical payments ended, rather than to divide matrimonial property.
5. The court accepted that there was an extant order for periodical payments and that the English court remained seised of the maintenance aspect of the proceedings. It did not, however, determine that the Swiss enforcement proceedings involved the same cause of action or that Article 27 of the Lugano Convention was engaged. Those questions were for the Swiss court.
6. The proposed declarations were therefore declined. The judgment also observed that an application under section 24A for an English order for sale might have assisted enforcement, but no such application had been made.