Emma Mary Jane Villiers v Charles Alastair Hyde Villiers

The Court of Appeal allowed the wife's appeal against Mostyn J's dismissal of her application under section 27 of the Matrimonial Causes Act 1973. The court held that the judge was wrong to treat as decisive a requirement that any failure to provide reasonable maintenance must have occurred prior to the date of the s.27 application; the statutory test in s.27(3) requires the court to have regard to all the circumstances (including the matters in s.25(2)) when deciding both whether a respondent has failed to provide reasonable maintenance and what order to make, which is to be assessed at the date of the hearing. The judge's late-introduced 'condition precedent' and his reliance on an enduring common‑law duty to maintain and forum‑conveniens considerations were held to be misplaced. The court remade the maintenance decision, ordering periodical payments at the rate Mostyn J said he would have made (£10,000 per annum) until further order or the wife's earlier remarriage, and (by majority) adjourned the wife's lump‑sum claim for further consideration.

Background and procedural history:

• The wife issued a section 27 application on 13 January 2015 alleging the husband had failed to provide reasonable maintenance. The proceedings were protracted because of the husband's applications to stay and appeals, including a Court of Appeal decision ([2019] Fam 138) and a Supreme Court judgment (Villiers v Villiers [2021] AC 838) addressing jurisdiction. The final hearing before Mostyn J was held 1–4 March 2021 and his published judgment dismissed the wife's s.27 application; that decision was then appealed to the Court of Appeal.

Nature of the claim / relief sought:

• The wife sought financial provision under s.27 MCA 1973: periodical payments and a substantial lump sum. The husband resisted and contended he had no meaningful income and denied the factual basis for an award.

Issues framed by the court on appeal:

• Whether the judge was correct to treat a past failure (prior to the date of application) as a condition precedent to the court making an order under s.27;
• whether and to what extent the historic common‑law duty of a husband to maintain his wife should influence the exercise of the court's discretion under s.27 and whether a maintenance order should normally be limited so as not to survive a foreign divorce;
• whether the judge's exercise of fact finding on the husband's trust interests and the availability of trustee funds was adequate; and
• whether the wife's lump sum claim should be adjourned.

Court's reasoning (concise):

• The court concluded that s.27(3) requires consideration of all relevant circumstances, including the s.25(2) matters, when deciding both whether there has been a failure to provide reasonable maintenance and what order to make. That assessment is to be made at the date of the hearing; the judge was wrong to treat the issue as confined to the period prior to the application, and it was procedurally unfair to raise that point for the first time at the final hearing.
• The Court of Appeal rejected the judge's view that the old common‑law duty to maintain should control the modern statutory exercise under s.27. The 1978 reforms and later developments re‑cast the statutory scheme so that historic common‑law incidents do not govern the contemporary s.27 inquiry. Likewise, jurisdictional and comity considerations did not justify a general rule that s.27 orders should cease at a foreign divorce; maintenance and divorce are distinct matters and Parliament provided the court with discretion about duration (see s.28).
• In the circumstances of this case, and given that the judge had indicated the order he would have made on the facts he found, the Court of Appeal (Moylan LJ and Coulson LJ) made an order for periodical payments at £10,000 per annum until further order or the wife's earlier remarriage. The court (by majority) adjourned the wife's lump‑sum application for further consideration because of deficiencies in disclosure and outstanding questions about the husband's interests under his father's will trust.

Subsidiary findings and practical outcome:

• The Court criticised the husband's non‑compliance with disclosure orders. The judge's narrower factual focus (to certain trusts) was queried; the trustees' letter about the father's estate did not provide a sufficient evidential basis to exclude that asset. The court therefore preserved the wife's claim to seek capital relief later.

Appeal allowed. The judge was wrong to require that the failure to provide reasonable maintenance be established solely as at the date of the s.27 application; s.27(3) requires the court to consider all circumstances (including s.25(2) matters) up to the hearing. The judge was also wrong to treat the historic common‑law duty to maintain as governing the modern statutory discretion or to impose a general rule that s.27 orders should not survive a foreign divorce. On the facts and in the interests of finality, the Court made a periodical payments order of £10,000 per annum until further order or the wife's earlier remarriage and (by majority) adjourned the lump sum claim for further consideration because of deficient disclosure and unresolved trust issues.

Proceedings began with the wife's s.27 application issued 13 January 2015. Parker J made an interim maintenance order on 8 July 2016 (see reported material before appeal). The husband unsuccessfully challenged aspects of interim relief on appeal ([2019] Fam 138). The Supreme Court considered the jurisdiction issue in Villiers v Villiers (Secretary of State for Justice intervening) [2021] AC 838, dismissing the husband's appeal on forum grounds. The substantive final hearing was before Mostyn J (reported [2021] EWFC 23, [2022] 1 FLR 513), who dismissed the s.27 claim; this Court allowed the wife's appeal ([2022] EWCA Civ 772).