Villiers v Villiers [2021] EWFC 23 - s27 MCA - Mostyn J’s interpretation.

Many of Mostyn J’s judgements make valuable reading for the use of some English word that one didn’t know existed or had long forgotten, or contains a reference to a case that was admitted to the lexicon of authorities before most of us were probably born. 

So, on to the essence of this short article.

The 6 year old legal battle between this waring couple returned to the courts in front of Mostyn J after having detoured up to the Supreme Court in 2020.  The history is therefore too odious and lengthy to repeat. 

This short note deals with W’s application under s27 only (although other matters were before the court), and gives illuminating extracts from Mostyn J’s judgement concerning s27.

S27 MCA states:-

            ‘Either party to a marriage may apply to a court for an order under this section on the ground that the other party to the marriage has failed to provide reasonable maintenance for the applicant’ (or any child).

Mostyn J made the following comments:-

The court has to be satisfied of this fact as a condition precedent, before it can go on to make an award of maintenance. In making that factual determination the court is required by s.27(3) to have regard to all the circumstances of the case including the matters mentioned in section 25(2).

The requirement to make this preliminary factual determination must be interpreted purposively and not literally. The condition precedent would not be satisfied, say, on proof of a failure to have provided reasonable maintenance for a short period 10 years earlier. It must mean that in the period immediately prior to the application the respondent has failed to provide reasonable maintenance for the applicant. That period might be quite long, and the failure may be intermittent, but it must be proximate to the application.

The judge cited from Jackson's Matrimonial Finance (Lexis Nexis 10th Edition) at para 11.2:-

"A party to a marriage may not be maintaining the other party or any child of the family at the relevant standard because he cannot or because he will not. In the former situation he does not have the means and is not reasonably in a position to remedy the situation: in the latter situation he has the means, or refuses to obtain them when they are reasonably available to him, so that he fails to provide reasonable maintenance for the other party, and fails to provide or to make a proper contribution towards the reasonable maintenance for any child of the family. If there is such failure to maintain, relief on that basis may be sought and either party to a marriage may apply” - Jackson does not refer to any authority for this proposition, but of course it can now.

Referring to the above passage, Mostyn J said:- Its use of the present tense shows clearly that the court must be looking at the here and now, that is to say the period immediately preceding the application.

The criterion of reasonableness first requires the court in determining the preliminary factual criterion to consider what sum, if any, the respondent should have been expected to pay from his means to maintain the wife. It requires the court to determine initially whether the failure to pay maintenance was the result of 'won't pay' rather than 'can't pay'. If it is the former then the court moves to the second stage where the criterion of reasonableness plays a different role. Here it requires the court to make an evaluative assessment of what proportion of the respondent's means should go to the wife as maintenance having regard to the s.25(2) factors including, prominently, the marital standard of living, the length of the marriage, and the wife's own means.

The judge then referred to the 1951 case Scott v Scott P 245 and Hodson J’s judgement which concerned an application under the 1949 Law Reform Act, from which I draw the following:-

            ‘the word "reasonable" no doubt has to be interpreted against the background of the standard of life which he previously had maintained’

‘the maintenance does not become unreasonable when tested against the amount which a wife might obtain if she had succeeded in some proceedings which she     might have taken, or which she indeed might yet take’

Therefore, reasonable maintenance is to be judged by reference, first, to the respondent's ability to pay and, second, to the marital standard of living. What the applicant might succeed in obtaining on an application for ancillary relief is not a relevant metric.

The preliminary factual criterion is important. It is not a mere permission filter. The court cannot shrink from addressing it squarely.

In Villiers W, failed to reach the condition precedent.