F v F (Maintenance pending suit)

• Jurisdiction: Jamaica
• Judgment Date: 22 July 2011
• Date: 22 July 2011
• Docket Number: Divorce Jurisdiction 2010 No. 222
• Court: Supreme Court (Jamaica)

In The Supreme Court of Bermuda

Divorce Jurisdiction 2010 No. 222

BETWEEN:

F

Petitioner

and

F

Respondent

Mrs G Marshall for the Petitioner

Mr D Kessaram for the Respondent

The following cases were referred to in the judgment:

Offord v OffordFLR (1982) 3 FLR 309

Murray v MurrayUNK [2002] EWHC 317 Fam

Thomas v ThomasFLR [1995] 2 FLR 668

Moses-Taiga v TaigaUNK [2005] EWCA Civ 1013

Currey v CurreyUNK [2006] EWCA Civ 1338

Re G (Maintenance pending suit)FLR [2007] 1 FLR 1674

Abstract:

Maintenance pending suit - Wealthy parties - Value of assets affected by recession - Award of legal costs - Reasonable living expenses

RULING of Kawaley, J

Introductory

1. The present vigorously contested application brought by the Petitioner/Wife for maintenance pending suit against the Respondent/Husband takes place against a background in which (a) the Husband, who made his fortune after marrying the "stay at home" Wife, has formed a new relationship with a woman half his age, and (b) both his liquidity and the value of the family assets have been compromised by litigation pending in Canada.

2. The Petition was presented on November 22, 2010. The Notice of Application for Interim Ancillary relief was filed on April 5, 2011. It was supported by the Wife's First Affidavit sworn on March 11, 2011 but filed on April 5, 2011 when the Registrar gave directions for the filing of evidence in response. On May 3, 2011, the Husband issued an application for an extension of time for filing his evidence, which application was listed for hearing on May 10, 2011. At the May 10, 2011 hearing before the Registrar, the Wife sought and obtained an order that the Husband pay $60,000 per month by way of interim maintenance. He had been paying $20,000 on a voluntary basis until then. On May 17, 2011, Wade-Miller J heard an appeal against this interim order and on June 17, 2011 she set it aside on natural justice grounds. The Registrar quite properly decided to set down the inter partes hearing of the Wife's interim ancillary relief application before a judge.

3. The evidence was supplemented by the First Affidavit of the Husband dated May 13, 2011, the First Ziehl Affidavit (sworn on the same date by an accountant employed by the group companies which is owned by various trusts of which the parties are both beneficiaries) and by the Fourth Affidavit of the Wife sworn on June 22, 2011. The Wife's First Affidavit was 22 pages with 69 pages of exhibits. The Husband's First Affidavit ran to 90 pages. The Wife's Fourth Affidavit ran to 135 pages with 145 pages of exhibits. Beyond the perimeters of the battlefield on which the ancillary relief application is being fought out, legal skirmishes concerning discovery, changing the situs of certain trusts and the wife's unauthorised acquisition of certain documents belonging to the Husband from the former matrimonial home, have also broken out.

4. Despite having heard an application for maintenance pending suit which lasted two days, I must remind myself that this application is not the final ancillary relief application but the sort of enquiry which is ordinarily dealt with by the Registrar in a comparatively summary manner. That said, the cases cited by counsel demonstrate that such applications can occasionally be fully argued and raise points of general principle.

Applicable legal principles

5. The Court's jurisdiction to grant interim ancillary relief arises under the following provisions of the Matrimonial Causes Act 1974:

"Maintenance pending suit

26 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."

6. Mrs. Marshall for the Wife referred the Court to authorities in respect of the following key three principles upon which she relied. Firstly, since section 26 of our Act is derived from section 22 of the Matrimonial Causes Act 1973 (England & Wales), counsel emphasised the breadth of the Court's discretion as explained by French J in Offord v OffordFLR(1982) 3 FLR 309 (transcript, page 4):

"Maintenance pending suit…is governed by s. 22 of the 1973 Act which gives the court as wide and unfettered discretion as can well be imagined. It provides that the court may order such periodical payments until the hearing as 'the court thinks reasonable', reasonable, that is to say, in the light of the means and needs of the parties and any other relevant circumstances."

7. Mr. Kessaram did not challenge this proposition which I accept governs the present application.

8. The second principle relied upon by Mrs. Marshall was that articulated by Charles J in Murray v Murray[2002] EWHC 317 (Fam) at paragraph 57 where he held:

"Here the husband relies on changes of circumstances and in my judgment before he can assert with force that I have to accept that change he must in performance of his duty to give full and frank disclosure of them and thus a clear and full explanation…" While this approach may be justified in many cases, in the instant case the key facts upon which the Husband relies are not...