Emma Mary Jane Villiers v Charles Alastair Hyde Villiers

The majority held that, in an application under section 27 of the Matrimonial Causes Act 1973, the court assesses whether reasonable maintenance has been provided at the date of the final hearing. It must consider all the circumstances, including the section 25(2) factors, and is not confined to failures occurring before the application. The statutory reforms severed section 27 from the former common-law duty of a husband to maintain his wife. The court has a broad discretion over the duration of an order. A subsequent foreign divorce does not presumptively end a maintenance order, and forum conveniens considerations cannot indirectly restrict jurisdiction already established. A judge raising a dispositive legal point at the final hearing must give the parties a fair opportunity to respond.

The parties married in 1994, lived in Scotland and separated in 2012. The wife moved to England and issued an application under section 27 of the Matrimonial Causes Act 1973 in January 2015, while divorce proceedings were also pursued in Scotland. The Supreme Court had previously rejected the husband’s jurisdictional challenge. Mostyn J dismissed the maintenance application on the basis of an alleged pre-application condition, while indicating that he would otherwise have ordered £10,000 per year until the Scottish divorce. He also discharged interim maintenance and costs orders. The appeal concerned the relevant date, the continuing relevance of the common-law duty to maintain, the duration of any order, and whether the wife’s lump-sum claim should be adjourned.

The High Court decision is reported at [2021] EWFC 23.

Majority: Moylan LJ, with Coulson LJ agreeing.

1. The appeal was allowed. The judge had erred in dismissing the application on the basis that the wife had to prove a failure to provide reasonable maintenance during a period before the application. Section 27(3) required consideration of all the circumstances, including the section 25(2) factors, both when deciding whether maintenance had failed and when deciding what order to make. The relevant assessment was at the hearing, not confined to the application date.
2. The 1978 reforms had materially reformulated section 27. They removed the former requirement of wilful neglect and repealed section 27(8). The common-law duty of a husband to maintain his wife was no longer the foundation of section 27 and did not inform its exercise. McFarlane v McFarlane; Parlour v Parlour and G v G supported that construction.
3. Sections 27 and 28 gave the court a broad discretion as to the amount and duration of an order. Sections 28(1) and 28(2) expressly contemplated an order continuing after a subsequent dissolution. A foreign divorce did not create a presumption that maintenance must end, nor were exceptional circumstances required. The existence of Scottish divorce proceedings was merely one circumstance. The court could not use duration to introduce forum conveniens indirectly or to cede financial jurisdiction to Scotland.
4. The judge had acted with procedural unfairness by raising the decisive point at the final hearing without allowing the wife to amend, issue a fresh application, or seek an adjournment. The case should therefore not have been dismissed on that basis.
5. As neither party sought a rehearing, the Court of Appeal re-exercised the discretion. It ordered periodical payments of £10,000 per year until further order or the wife’s earlier remarriage. The wife’s lump-sum application was adjourned because the husband’s non-disclosure and the inadequately investigated trust under his father’s will prevented a fair determination and made retention of the power necessary for a possible future clean break.

Arnold LJ agreed that the process was procedurally unfair and agreed with the maintenance order. He dissented on statutory construction, considering that section 27 required a failure before the application date. He also considered that the Court of Appeal lacked a proper basis to adjourn a lump-sum application which had not been sought below.

1. Supreme Court. In an earlier jurisdiction appeal in the same dispute, the husband’s appeal was dismissed and no forum non conveniens discretion was recognised: [2021] AC 838.
2. Court of Appeal. An earlier appeal concerning interim maintenance and costs had been dismissed: [2019] Fam 138.
3. High Court, Family Division. Mostyn J dismissed the wife’s section 27 application and indicated that he would otherwise have ordered £10,000 per year until the Scottish divorce: [2021] EWFC 23.
4. Court of Appeal (Civil Division). The present appeal was allowed and the court substituted its own maintenance order, adjourned the lump-sum application, and rejected the proposed limitation to the Scottish divorce.