Moore v Moore

Factual and Procedural Background

The appellant husband, of Nigerian nationality and born in Nigeria, and the respondent wife, of Nigerian origin but born in London, began their relationship in the United States in 1989 and married in Lagos on 3 December 1994. By 2001, their marriage was in difficulty and irretrievably broke down in August 2002. The wife initially filed a divorce petition in Lagos in November 2002 but withdrew it in February 2006, leaving the husband's cross-petition active. Subsequently, the wife filed a petition in the current jurisdiction in March 2006, prompting the husband to respond with an answer, a jurisdiction challenge, and an application for a discretionary stay under the Domicile and Matrimonial Proceedings Act 1977.

Maintenance pending suit orders were made and varied between June and December 2006, with the husband challenging these orders unsuccessfully. In April 2008, a judge declared the husband the beneficial owner of a North London property, the sole asset available in the jurisdiction for enforcement of maintenance and costs orders. The husband was granted a decree nisi on his cross-petition in May 2008, which the wife appealed in June 2008.

The husband's summonses seeking expedited hearings on jurisdiction and stay were delayed, resulting in prolonged maintenance pending suit payments accumulating arrears and interest. The jurisdiction challenge hearing occurred in July 2008, during which the wife conceded she would not proceed further in the jurisdiction and withdrew her petition. The central issue became whether the husband remained liable for arrears under the maintenance pending suit order despite the withdrawal.

Subsequent judgments confirmed the husband's liability for arrears. The husband applied for permission to appeal the order but was refused a stay of execution and advised to consider carefully whether to proceed. Despite warnings, the husband pursued further legal steps, including an application for security for costs, which was granted and eventually paid. New counsel for the husband advanced several legal arguments contesting the maintenance pending suit order and arrears liability.

Legal Issues Presented

1. Whether a Maintenance Pending Suit Order is automatically discharged ab initio, rendering sums due under it unenforceable, if the underlying divorce petition is withdrawn or dismissed for want of jurisdiction.
2. Whether the husband's liability for arrears under the Maintenance Pending Suit Order should be remitted or discharged following the wife's withdrawal of her petition.
3. Whether the issue of the petition in the jurisdiction was abusive, thus affecting the enforceability of maintenance orders.
4. Whether payments made under a Maintenance Pending Suit Order must be reimbursed if the petition is withdrawn or dismissed.
5. The exercise of the court's discretion under statutory powers to remit or vary maintenance pending suit arrears.

Arguments of the Parties

Appellant's Arguments

• The husband’s counsel argued that withdrawal of the petition expunges the payer's liability under the Maintenance Pending Suit Order retrospectively as well as prospectively, discharging all liabilities arising thereunder.
• It was contended that the issue of the petition in the jurisdiction was abusive, and thus any benefits gained should be reversed, citing authority from the House of Lords.
• It was submitted that if the payer complied with the maintenance order, the payee must reimburse all sums recovered upon withdrawal or dismissal of the petition.
• The husband relied on statutory discretionary powers under the Matrimonial Causes Act 1973 to remit arrears, arguing the court should exercise these powers in his favour.
• Arguments were made distinguishing existing case law and challenging the basis of the maintenance pending suit order and its enforceability after withdrawal.

Respondent's Arguments

• The wife’s position was that withdrawal of the petition does not discharge the husband’s liability for maintenance arrears accrued under a valid court order.
• It was submitted that allowing discharge ab initio would incentivize non-compliance with maintenance orders and undermine enforcement.
• The wife contended that there was no finding of abusiveness in the issue of the petition and that the court’s jurisdiction was properly exercised.
• She emphasized the importance of expediting jurisdictional challenges to minimize the duration of maintenance pending suit orders and associated risks.
• The wife relied on established case law affirming the enforceability of maintenance pending suit orders until properly discharged or varied by the court.

Table of Precedents Cited

Court's Reasoning and Analysis

The court carefully reviewed the chronology and legal context, emphasizing that maintenance pending suit orders are designed to address short-term financial needs during divorce proceedings and remain valid until expressly discharged. The withdrawal of the wife’s petition did not extinguish the husband's liability for arrears accrued under the order. The court rejected submissions that withdrawal operates retrospectively to discharge liabilities, noting the absence of authority supporting such a bold proposition within family law.

The court highlighted public policy considerations, particularly that discharging the order ab initio would reward non-compliance and undermine the enforcement of maintenance orders. The court stressed the importance of expediting jurisdictional challenges to minimize the duration and financial impact of maintenance pending suit orders, a principle underscored in the leading case of Moses-Taiga.

Arguments that the petition was abusively issued were dismissed due to lack of any judicial finding of abusiveness. The court also rejected the husband's arguments for reimbursement of unpaid sums, relying on established case law that payments under maintenance orders benefit the payee unless special circumstances exist.

Discretionary powers to remit arrears were acknowledged but found inapplicable because the husband had not pursued the necessary procedural steps and no special circumstances justified remission. The court found the reasoning in the lower court’s judgment comprehensive and compelling, leaving no room for appellate interference.

Holding and Implications

The court’s final decision was to DISMISS THE APPEAL.

The husband remains liable for all arrears under the Maintenance Pending Suit Order despite the withdrawal of the wife’s petition. The order is enforceable and not discharged ab initio. The court emphasized that failure to comply with maintenance orders will not be excused by subsequent procedural developments such as withdrawal of proceedings. This decision reinforces the enforceability of maintenance pending suit orders and underscores the necessity of expeditious handling of jurisdictional challenges to avoid undue financial prejudice. No new precedent was set beyond reaffirming existing principles as applied to the facts of this case.