The Matrimonial Causes Act 1973 is the main piece of legislation for all divorce and financial proceedings. Under the Act there are many ways in which a spouse can apply for maintenance, for example periodic payments, which are paid yearly or monthly after a divorce for an amount of time the court see fit, or maintenance pending suit, which means the spouse will receive payments that are paid to the spouse whilst they are waiting for the divorce to be finalised. The payments can go towards legal fees, or bills, until a final order has been made.
Section 27 of the Matrimonial Causes Act
Section 27 is one of the pieces of legislation that provides for financial relief during divorce proceedings. Section 27 allows a spouse to apply to the court for a financial order if they believe that their spouse has failed to provide reasonable maintenance to them or a child of the family. To bring an application to the court under section 27, one of the spouses must either live in England or Wales or have lived in England and Wales one year before the application is applied for.
Maintenance Applications where Divorce is Overseas
Recently the court of appeal looked at an appeal for maintenance under this section in the case of Villiers v Villiers [2020].
To bring an application to the court under section 27 of the Matrimonial Causes Act either spouse must believe that England is their permanent home or live in England. There must also be evidence that the spouse with whom the application is against has failed to provide reasonable maintenance for either the spouse or a child of the family.
In the case of Villiers v Villiers, the couple were married in England. The wife applied for divorce in England and the husband applied for a writ for divorce in Scotland. The wife accepted this, and the divorce would continue in Scotland. The wife moved back to England. Upon moving back to England, the wife applied for maintenance under section 27 Matrimonial Causes Act. The Husband applied for the wife’s application to be dismissed due to the English courts not having the relevant jurisdiction to hear the application.
In the family court, Justice Mostyn held that the wife to the proceedings is not entitled to maintenance under section 27, as the two years prior to her application she has not been able to show that the husband failed to provide her with reasonable maintenance. Justice Mostyn held that the general belief that a husband should provide for his wife is the “foundation to which all legislation is built on” and should influence the court’s decision. He also stated that an order made under section 27 should not extend beyond “a valid divorce in a friendly state, or in another part of the British islands”.
The court of appeal found that the court was wrong for three reasons.
- The relevant date to assess the application under Section 27 should be the date of the hearing and not the date the application was made,
- The general principle that the husband has a duty to provide for his wife is outdated and no longer should have any relevance to applications made under section 27 Matrimonial causes act,
- Jurisdiction of divorce proceedings is separate to jurisdiction of any maintenance proceedings.
The court of appeal allowed the wife’s appeal to dismiss the decision made by Justice Mostyn in the family court. The court of appeal determined that the wife is entitled to bring an application to the English courts if she feels that it will be more beneficial for her to do so.
The case of Villiers v Villiers is beneficial to future cases because it has clarified what powers English courts hold, when making orders under the matrimonial causes act 1973. If either spouse is living in England or believes that England is their permanent home a financial application can be made to the English courts.
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