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Cite as: [2005] EWCA Civ 1013, [2006] 1 FLR 1074

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Neutral Citation Number: [2005] EWCA Civ 1013


Royal Courts of Justice
London, WC2A 2LL
5 July 2005

B e f o r e :





(Computer-Aided Transcript of the Stenograph Notes of
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MR A ADEREMI (instructed by Messrs Osibanjo Ete & Co) appeared on behalf of the Appellant
MR TIM SCOTT QC (instructed by Divorce & Family Law Practice) appeared on behalf of the Respondent



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  1. LORD JUSTICE THORPE: On 19 February 2003 Nneka Mercy Moses-Taiga filed a petition here and in London for the dissolution of her marriage to Moses Taiga. She pleaded a customary marriage in Nigeria on 22 December 1993 and she pleaded jurisdiction on the grounds of habitual residence. She founded her petition on the ground that the irretrievable breakdown was demonstrated by conduct on the part of the husband with which she could not reasonably be expected to live. She prayed for all forms of relief, including residence order in respect of the twin children of the marriage and, as one would expect, all forms of ancillary relief, including a property adjustment order in relation to a string of properties in Greater London.
  2. The answer settled by leading and junior counsel instructed by Withers put everything in issue. The marriage was denied; the court's jurisdiction was denied; the conduct asserted in the petition was denied. That answer was filed on 6 May and Mr Timothy Scott QC, who appears for the respondent, today informs us that he filed and settled a reply so that the pleadings were closed prior to the first listing on notice, which seems to have been a listing before Mr Anelay QC sitting as a Deputy High Court Judge on 13 June 2003.
  3. There had been prior to that a hearing of an application without notice for a freezing order in relation to the husband's extensive assets both in this jurisdiction and worldwide. Of even greater importance there had been a hearing before District Judge Black in the Principal Registry on 20 May 2003. On the basis of an undertaking from the wife the district judge ordered interim maintenance pending suit at the rate of 300,000 per annum from the date of the wife's application, namely 28 April 2003. The monthly payments of 25,000 were to be divided as to 10,000 to the wife for her living expenses and 15,000 per month to her solicitors to cover their running costs of the proceedings in this jurisdiction. The district judge finally provided that her interim order was to be reconsidered by a judge of the division on a date to be fixed.
  4. The undertaking that preceded the order is in curious language:
  5. "... upon the Petitioner undertaking to the court to abide by any order that the court may make in respect of that part of the Order for maintenance pending suit provided by paragraph 1(b) of the Order below."

    As my Lord has observed during the course of argument, that undertaking is almost incomprehensible. If the court has jurisdiction to make a later order in respect of paragraph 1 of the order below, an undertaking by the petitioner to abide by it seems completely pointless. And if the court lacks the power to make a subsequent order, then it is hard to see what value the undertaking would have to the husband. Mr Scott, who did not appear at that stage, has advanced two theories as to what the drafters of that undertaking were seeking to achieve, but neither of those theories is in itself particularly plausible or convincing. So to my mind I can see not a lot of point or purpose of the inclusion of the undertaking in the order, and certainly it seems to me of scant value to the husband whose interests it was presumably intended to safeguard.

  6. Before Mr Anelay the husband sought to vary or discharge the freezing order that had been made without notice, and the wife sought directions in the suit which, as I have already observed, was at the stage of completed proceedings. The order made by Mr Anelay was to have a very significant influence on subsequent events. Mr Scott (who did appear at that hearing) argued that all the issues before the court, (namely whether there was a valid marriage; whether or not the court had jurisdiction; if it did whether it should defer to Nigeria; if it did not whether the wife had made out her conduct case) should be decided at one single trial.
  7. Mr Singleton QC who had settled the answer made a conventional submission that the husband was entitled to the trial of a preliminary issue, certainly on the challenge to jurisdiction. Mr Scott's submission succeeded and the resultant direction made by Mr Anelay was:
  8. "The trial of the divorce suit, including any jurisdictional and other issues ancillary thereto, and also including the Respondent's application for a stay of the suit, be set down for hearing forthwith on the first open date after 1st January 2004, subject to counsels' availability. Time estimate 10 days. Such date to be fixed by counsels' clerks in consultation with the Clerk of the Rules."

    The foreseeable consequence of that direction was that the order of the district judge for maintenance pending suit would subsist for more than a year, given that the application to the Clerk of the Rules was for a ten-day fixture subject to counsel's availability.

  9. The fixture which was in fact obtained was a fixture to commence before Bennet J on 14 June 2004. It is not uncommon nowadays for parties to have to wait for up to a year to obtain a ten-day fixture in the Family Division and the risk of that is much compounded if the fixture is subject to counsels' availability.
  10. The direction made by the district judge for a review of her interim order by a judge of the Division led to a hearing before Singer J on 4 December 2003.
  11. Before I come to that hearing I record the fact that the husband changed his legal team to Messrs Osibanjo (taking over from Withers) in October 2003 and instructed fresh counsel, who raised a fresh and further objection to the wife's progress to relief in London. He took a point as to the status of marriage that was founded upon provisions of Nigerian law. So he made a further application to the Family Division for a review of Mr Anelay's order. That came before Hughes J who understandably, given he was sitting in November 2003, determined that the arrangements directed by Mr Anelay should stand.
  12. Thus when the issue came before Singer J his review was important because whatever he decided was likely to endure for at least a further six months. He dismissed the husband's application to discharge the maintenance pending suit order, alternatively to reduce it to a minimal amount, and he granted the petitioner's application for upward variation. The increase was substantial - from 25,000 per month to 39,000 per month. That was divided as to 14,000 to the wife for her living expenses and 25,000 to her solicitors to cover their mounting litigation costs. Singer J founded these increases on two considerations. The first is that the interim disclosure applications sought by the wife had uncovered funds held under sophisticated arrangements and apparently worth about 7 million or US $7 million. The judge was also impressed by the mounting scale of the litigation and thus the mounting need of the wife's solicitors were they to be properly funded, and by that I mean able to present the wife's case without having to give her credit.
  13. The case returned to Singer J on 5 March 2004 essentially on an application by the wife for him to consider arrears that had developed since his prior adjudication. In the interim the husband had continued to meet the order of the district judge but not the uplift ordered by Singer J. Accordingly there were by 5 March substantial arrears, and Singer J ordered them to be paid within 14 days and further ordered the husband to pay a sum of 350,000 to cover future payments, that money to be put into court within a certain time and if not, outstanding applications from the husband to stand dismissed.
  14. That brought several notices of appeal challenging the money orders and also a later order made by Bennett J debarring the husband unless he met specific provisions. I must briefly refer to the grounds of appeal of Osibanjo & Co, dated 19 March 2004. Paragraph 1 of the grounds states that the order of 4 December 2003 was wrong in law and made in breach of Article 1 of the First Protocol to the European Convention on Human Rights, in that: (i) where the appellant's case is that he is not married to the respondent, the court lacks jurisdiction to entertain the respondent's permission: (ii) he is not the father of the children in respect of whom the quantum of the maintenance pending suit was affected: (iii) that England is not the appropriate forum for dealing with the issues: any payment of maintenance pending suit will not be recoverable if the appellant's case succeeds: and (iv) the court made the orders without ensuring that the respondent's undertaking to return the maintenance pending suit, in the event that it became recoverable, was fortified.
  15. Paragraph 3 of the grounds states:
  16. "In principle, the amount ordered for the Respondent's legal costs are manifestly excessive when at the moment the issue before the courts are as follows:
    i. The validity of the marriage
    ii. Jurisdiction of the court
    iii.Stay of proceedings
    iv. Paternity of the children."
  17. When the case came before this court on 14 June, the very date that it should have been before Bennett J to resolve all outstanding issues, the court emphasised that in cases such as this where there is a challenge to jurisdiction it is imperative that that challenge be swiftly listed and determined to avoid the extenuation of the pending suit period, an extenuation that inevitably risks injustice to the payer should he succeed in his challenge to jurisdiction. Effectively what this court did on 14 June was to impose a stay on that proportion of Singer J's December order that exceeded the total of 25,000 a month. So effectively the court restored the overall liability set by the district judge but altered the allocation, saying that the wife's aliment should remain at 14,000 a month, but the monthly payment to her solicitors should reduce to 11,000 a month. On that basis, given the fact that the husband had not complied with the provisions of Singer J's order of 15 March and given the intervening change of circumstances, the issue as to the validity of Singer J's order for immediate payment of 350,000 (a large proportion of which was anticipation of future payments) evaporated. The court simply ordered a sum to be paid into the solicitors' joint account to await the outcome of what was thought would be the relatively early disposal of all the issues directed for trial by Mr Anelay. In the event, Bennett J was simply informed on 14 June of the outcome of the permission applications. We had granted the husband's permission application in relation to the maintenance pending suit orders but said that the resulting appeal should not be pursued until after the determination of the trial of the challenge to jurisdiction in the Family Division.
  18. The loss of the fixture before Bennett J resulted in another five months of delay, the case being listed in front of Charles J towards the end of the year. He heard the case over five days in November, then three days in December. His reserved judgment, a monumental judgment running to some 145 pages, was handed down on a date in February 2005. That accordingly cleared the way for the determination of the husband's appeal against the three maintenance pending suit orders.
  19. The appeal was on 14 May fixed for hearing today, 5 July. The substantial bundles prepared for the Court of Appeal for the hearing on 14 June 2004, and for a subsequent hearing in this court in September which it is unnecessary for me to further record, needed to be condensed to a single core bundle to provide the court with the material necessary to dispose of the money appeals and no more. Unfortunately, the delivery of a focused core bundle was not achieved until 1 July and the supplemental skeleton argument from the appellant did not come in until yesterday, 4 July. Mr Scott's supplemental skeleton argument for the wife was received on 17 June. Those dates show how lax has been the presentation of the husband's appeal.
  20. Now, I want to make it plain that it is difficult to attach any criticism to Mr Aderemi who has appeared today to argue the appeal. Previous counsel had been Mr Everall QC, leading Mr Umezuriuike. Mr Aderemi was only instructed on 22 June, but he was on the point of departure on professional business to Nigeria on the 25th. He did not return until 30 June and so had very little time in which to write and file his skeleton argument. However there is no doubt at all that the lax approach of the appellant's solicitors to the preparation of this appeal has put Mr Scott in difficulties. He did not know what case he was going to have to meet until very late on. It has put us in difficulty because we have not been able to prepare the case in advance as we would have wished to have done. It has put Deputy Master di Mambro to very great inconvenience. She had to spend two and a half hours of her precious time yesterday making good the deficiencies in the focussed core bundle.
  21. What stands out from Mr Aderemi's supplemental skeleton argument is that for the first time he, on behalf of his client, challenges the powers of the court to order maintenance pending suit under section 22 where there is a preliminary issue as to the court's jurisdiction. He accepts that he has no authority in support of that proposition. He accepts that the point was never run in front of the district judge or in front of Singer J on either occasion. He accepts that it was not a point taken in the grounds of appeal, and it was not a point taken by Mr Everall in his skeleton argument of 26 May 2004 in support of the permission application. He accepts that it is a point taken for the first time yesterday in his skeleton argument. Against that background it seems to me that the point can be relatively shortly disposed of.
  22. Mr Scott has drawn our attention to the classic authority, namely Rayden & Jackson on Divorce and Family Matters 17th Edition page 604 where paragraph 21.3 states:
  23. "The court may in its discretion award maintenance pending suit to a wife notwithstanding that the husband is raising a question as to the court's jurisdiction to entertain the suit: once the court decides, if it does, that it has no jurisdiction to hear a particular suit, any prior order as to maintenance pending suit will forthwith cease to be of effect and no order for maintenance pending suit may thereafter be made in respect of that suit which itself has ceased to be of effect. An order may, however, be made even if it is clear that the marriage in question is void."
  24. The authorities cited by Rayden for that proposition are first the case of Cammell V Cammell [1965] P 467, then a number of other cases, including O'Brien v O'Brien (unreported) and the old case of Ronalds v Ronalds (1875) LR 3 P & D 259. We have looked briefly at those cases. I myself do not find the first cited case of Cammell v Cammell particularly helpful because there Scarman J was considering an application for financial provisions for a child under the terms of section 26 of the Matrimonial Causes Act 1950. For me the case that more directly supports the Rayden text is the case of Ronalds which, although briefly reported, is clearly directly in point. In Ronalds, the wife had petitioned for dissolution on the ground of adultery and cruelty. The husband had filed an answer contesting the court's jurisdiction on the ground that he had not and never had had an English domicile. The wife had filed a petition for alimony. The husband had applied for an order to stay all further proceedings as to alimony until the question of jurisdiction had been determined. The Judge Ordinary in a short judgment said:
  25. "I have no doubt of the power of the Court to allot alimony pending the determination of a question of jurisdiction, but it is a matter of discretion whether it shall be allotted in any particular case. In this case, as it appears that there is a substantial question of domicile to be decided, and as it cannot be determined for several months, the wife is entitled to alimony. I therefore reject the application, and the proceedings for alimony must take the usual course."

    The wife's application for alimony, given the date of the report, 1875, must, it seems to me, have had a statutory foundation, either being brought under the terms of Matrimonial Causes Act 1857 or perhaps a replacement statute such as the 1866 Matrimonial Causes Act. Therefore, in my judgment, Ronalds is a direct illustration of a point which has been universally recognised - that is, that the whole purpose of alimony pending suit is to sustain the petitioner pending the court's determination. There is manifestly a risk of unjustified and irrecoverable payments, but that has to be balanced against the risk of a denial of access to justice for the petitioner, if she has not the means to sustain herself and the litigation pending its determination.

  26. So despite Mr Aderemi's valiant effort to advance this first ground, it seems to me to be unsustainable. I suspect the absence of any authority other than that of Ronalds v Ronalds only illustrates the tendency for propositions of universal acceptance to be difficult to support by reference to authority.
  27. Mr Aderemi's second submission is that even if there is jurisdiction no order should be made where the existence of the marriage is in issue. That he endeavours to suggest is a matter of public policy. I can only say that I found that submission completely unconvincing. I would not draw a distinction between the nature of the challenge to jurisdiction whether it be, as also here, that the husband asserts no marriage, or whether if, as here, he asserts that the wife has no residential qualifications.
  28. Mr Aderemi's third principal submission is to challenge the foundation of the inclusion of legal costs in the quantification of the alimony pending suit. He suggests that the decisions of Holman J in A and A [2001] 1 FLR 377, and the decision of Charles J in G and G [2003] 1FLR 71 are wrongly decided. He relies on my judgment in Wermuth v Wermuth [2003] 1 FLR 1029, in which I abstained from any endorsement of those first instance decisions.
  29. Mr Scott in his supplemental skeleton says that the first instance decisions have effectively been endorsed by the judgments in McFarlane and Parlour [2004] 2 FLR 893 where at paragraph 99 I said:
  30. "Thus there can be no doubt of the court's power to order periodical payments to reflect more that the recipient's mere aliment, provided that all the section 25(2) criteria, all the circumstances of the case and overall fairness so require."

    That paragraph follows paragraphs 94 to 96 in which I recorded the first instance development.

  31. In construing section 22 as embracing the applicant's need for cash to finance the continuing litigation, and at least implicitly approving that practice, Mr Aderemi has quite rightly said that my observations in McFarlane were, strictly speaking, obiter. I accept that that is the correct classification. Nonetheless, the passage is a pretty clear indication of where I stand on this issue. In short, it seems to me that the progressive construction that the judges have adopted in the Family Division is both pragmatic and sensible. I accept that at the date of the advent of the Matrimonial Proceedings and Property Act 1970 (1 January 1971) no judge of the Division would have so construed section 22, particularly because one of the provisions of the 1970 Act was to remove the wife's agency of necessity and with it her opportunity to seek security for the costs of future litigation. But times have moved on. In the 1970s a petitioner who had no assets and whose only prospect of affluence lay in the outcome of her application for ancillary relief could easily find specialist solicitors who would pursue her claim on legal aid. That world has long since gone. In those days a number of the leading specialist ancillary relief firms could, as a matter of public duty, take on an admittedly small number of legally-aided cases. Leading firms that would not take legally-aided clients invariably had an arrangement to pass such cases to highly competent firms that would do legal aid. All those support systems have disappeared. The modern reality is that the highly specialist solicitors and counsel necessary for the conduct of big money cases will no longer do publicly-funded work. So if the applicant has no assets, can give no security for borrowings, cannot guarantee an outcome that would enable her to enter into an arrangement such as that which was upheld in Sears Tooth v Payne Hicks Beach, then there is no source of funding of the litigation other than the approach to the court for a maintenance pending suit that will include a substantial element to fund the cost of the litigation. Obviously in all these cases the dominant safeguard against injustice is the discretion of the trial judge, and it will only be in cases that are demonstrated to be exceptional that the court will consider exercising the jurisdiction. But I am in no doubt that in such exceptional cases section 22 can in modern times be construed to extend that far.
  32. Mr Aderemi has sought to argue that the form of the orders made by Singer J were by definition orders for interim lump sum payment, or lump sum payment by instalments, none of which are within the ambit of section 22. That argument if it had any foundation went only to the second order, the order of 5 March 2004, and that is not an order which it is necessary for us to review today, given the extent to which it has been overtaken by first, the husband's disregard of the order, and second, the variations introduced by this court on 14 June.
  33. Mr Aderemi sought towards the end of his submissions to advance the Article 1 Protocol 1 argument. It is, in my judgment, of little relevance to the orders which we review. It is an exceptional provision which cannot possibly bear upon legitimate orders made within this jurisdiction for the legitimate purpose of sustaining a litigant in family proceedings.
  34. I would only add two points for completeness. The first is to record that the outcome of the hearing before Charles J was a success for the wife on the issue of jurisdiction, but a success for the husband on the forum conveniens point. Accordingly Charles J deferred to the Nigerian courts to decide the question of the validity of the marriage. The order for maintenance pending suit to the wife therefore concluded with his judgment of 9 March 2005. The position of the children is, however, secured. DNA testing has established their paternity, and an order under section 15 of the Children Act 1989 has been made in the sum of 5,000 per month to each.
  35. That leads me to my last point, a point that cannot be overemphasised or too often stated. The present case is exceptional. Its most exceptional characteristic is the extraordinary duration between the application for alimony pending suit, 28 April 2003, and the grant of a forum conveniens stay on 5 March 2005. That is a period of very nearly 24 months and it is a direct result of the order of Anelay J of 14 June 2003, and then perhaps the later order of Hughes J of November 2003. But the earlier order was not appealed by the husband. Hughes J's order was the subject of a permission application but it was not pursued. In any future case it is of great importance that the trial of the preliminary issue should be prioritised so that, if it is preceded by a maintenance pending suit order, the duration of that order is kept to a minimum to ensure that the payer is not put at risk of having to advance irrecoverable and unmerited monies.
  36. Charles J made the same observation at paragraph 313 of his judgment. For any future litigation, where there are substantial issues either as to jurisdiction or forum conveniens or both, case management by district judges and judges of the division must ensure the highest priority for the dispatch of the preliminary issues.
  37. All that said, I would finally record that the arguments addressed on behalf of the appellant have all been arguments of principle. We have not been asked to review critically the quantum of the orders or the exercise of the judicial discretion. Indeed in relation to the order of the district judge we have not even seen her judgment. We do have the judgments of Singer J, but no submissions have been addressed criticising the discretionary quantification of the monthly payments either to the wife or to her solicitors.
  38. For all those reasons I would dismiss this appeal.
  39. LORD JUSTICE DYSON: I agree.
  40. Mr Aderemi submits that the court has no jurisdiction to grant maintenance pending suit under section 22 of the Matrimonial Causes Act 1973 in a case where the respondent to a divorce petition challenges the court's jurisdiction whether on the grounds of lack of domicile, habitual residence or otherwise. He has been unable to cite any authority in support of this submission. The question raised by Mr Ederemi is one of statutory interpretation. Section 22 provides:
  41. "On a petition for divorce, nullity of marriage or judicial separation, the court may make an order for maintenance pending suit, that is to say, an order requiring either party to the marriage to make to the other such periodical payments for his or her maintenance and for such term, being a term beginning not earlier than the date of the presentation of the petition and ending with the date of the determination of the suit, as the court thinks reasonable."

    If one reads no further than the words "on a petition for divorce ... the court may make an order for maintenance pending suit" it is difficult to see why the words should not mean exactly what they say. So why should section 22 be interpreted so as to restrict the power of the court in the way suggested by Mr Aderemi? I can see nothing in the language to support his submission where the challenge to jurisdiction is based on the contention that the condition of domicile or habitual residence has not been satisfied.

  42. At first blush an argument that section 22 does not apply where the respondent denies the existence of the marriage might seem promising. The section provides that an order for maintenance pending suit is "an order requiring either party to the marriage..." (emphasis added) If there is in truth no marriage, how can this power be exercised? But it is important to note that the statute provides that the power can be exercised on a petition for nullity of marriage as well as on a petition for divorce. It follows that the phrase "either party to the marriage" includes a party to a relationship which the court ultimately decides was not a valid marriage at all. In my judgment, therefore, the court has jurisdiction to grant maintenance pending suit under section 22 where the respondent challenges this court's jurisdiction for whatever reason.
  43. Mr Tim Scott QC drew our attention to paragraph 21.3 of Volume 1 Rayden on Divorce 17th Edition, to which my Lord has already referred. A number of authorities are cited in support of this passage. In my view the only authority which is reasonably in point is Ronalds v Ronalds which my Lord has already mentioned. I put it in this rather cautious way because we were not shown the relevant statutory provision which it is to be assumed the judge was applying in Ronalds. The judge himself made no reference to statute. I would, therefore, prefer to base my decision on the language of section 22 itself without recourse to authority.
  44. For these reasons as well as those given by my Lord, I would reject the grounds of appeal based on jurisdiction. I have nothing to add in relation to the other grounds of appeal. It follows that I, too, would dismiss this appeal.
  45. (Appeal dismissed; summary assessment of the successful respondent's costs in that sum of 10,840.55).

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