Villiers: Wife fails to clear s.27 condition precedent hurdle

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Like so many of his rulings Mostyn J's judgment in Villiers v Villiers was notable for many things (just as the case itself was notable for many things, most of them bad): scholarly, brilliantly argued, highly opinionated, and sprinkled with words that have the reader reaching for their dictionary (English or Latin) - much, no doubt, to the embarrassment of the transparency brigade.

Here, I am just going to concentrate upon the central deciding issue: the condition precedent in s.27(1)(a) MCA. It is a simple point, but a hurdle that the wife, despite six years of (no doubt) expensive legal advice, failed to clear.

After an outline of the sad history of the litigation and the fascinating history of the law on the duty to maintain Mostyn J finally, at paragraph 54, comes to the point:

"In order to exercise my powers the wife has to satisfy me as a condition precedent that in the period prior to her application on 13 January 2015 the husband failed to provide her with reasonable maintenance: see s.27(1)(a). That is the first question I have to decide."

Mostyn J concluded that the condition meant 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."

So what matters led Mostyn J to decide these matters? Good question.

The accurate answer is: we don’t know, as the relevant paragraphs of the judgment have, for reasons unexplained, been omitted. Mostyn J simply tells us that he "therefore" reached the conclusion that the condition precedent was not satisfied in this case. 

However, we had previously been told that a primary source of the husband’s income prior to the application was certain family trusts, and that a “central issue” was whether the trustees would provide the husband with the funds to meet the wife’s claim. Presumably, he concluded that they would not, and that this was therefore a ‘can’t pay’ case. Accordingly, the condition precedent was not satisfied, and the wife’s claim was therefore dismissed.

Before I end I have to say that I'm not sure quite what practical value the above is to the average High Street family lawyer. In my 25-odd years practising I never came across s.27, and was not aware of anyone who did. I suppose it's rather like in chess learning how to mate the opponent's lone king with just knight and bishop - an ending you are likely to come across perhaps once in a lifetime of playing. The problem, of course, is that when you do get it, you forget what you learned. Still, at least lawyers can consult the book whilst they are playing the game...

You can read the full judgment here. If you are not a lawyer, make sure you have a dictionary by your side...