T v T
| Jurisdiction | Bermuda |
| Judge | Hellman, J. |
| Judgment Date | 17 April 2014 |
| Docket Number | 135 of 2013 |
| Court | Supreme Court (Bermuda) |
| Date | 17 April 2014 |
Supreme Court
Hellman, J.
135 of 2013
Ms Georgia Marshall, Marshall Diel & Myers Limited, for the petitioner.
Mr. Ray De Silva, Moniz & George, for the respondent.
Family Law - Husband and wife — Divorce — Appeal by the respondent husband against an order for maintenance pending suit — Whether the court should make provision in any periodical payment for a contribution toward the wife's on-going legal costs — Section 26 Matrimonial Causes Act.
This is an appeal by the respondent/Husband (“H”) against an order for maintenance pending suit made by the Registrar on 7th January 2014. She ordered that H make interim periodical payments to the petitioner/Wife (“W”) in the sum of $9,000 per month.
The appeal is governed by Order 58 of the Rules of the Supreme Court, 1985 (“RSC”), which deals with appeals from the Registrar, and which is applied by reason of Rule 3 of the Matrimonial Causes Rules 1974. The appeal is by way of rehearing. See the ruling of Ground, C.J. in T v. T [2007] Bda L.R. 7 at para 3.
Jurisdiction to make an order for maintenance pending suit is conferred by section 26 of the Matrimonial Causes Act, 1974 (“the MCA”). This provides:
“On a petition for divorce … 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 … as the court thinks reasonable.”
Section 26 of the MCA is in the same terms as section 22 of the Matrimonial Causes Act, 1973 in England and Wales. The Bermuda courts have previously drawn on the case law from that jurisdiction when construing section 26. See T v. T at para 4 and the judgment of Kawaley, J. (as he then was) in F v. F (Maintenance Pending Suit) [2011] Bda L.R. 43 at paras 6 and 8.
A helpful summary of the relevant principles, cited in the Eighth Edition of Jackson's Matrimonial Finance and Taxation [2008. There is a Ninth Edition (2012), but it was not available at court], was given by Nicholas Mostyn QC (as he then was), sitting as a Deputy High Court Judge, in TL v. ML [2005] E.W.H.C. 2860 (Fam), [2006] 1 F.C.R. 465.
“[123] The leading cases as to the principles to be applied on an application for maintenance pending suit are F v. F (ancillary relief: substantial assets) [1996] 2 F.C.R. 397, [1995] 2 F.L.R. 45, G v. G (maintenance pending suit; legal costs) [2002] E.W.H.C. 306 (Fam), [2002] 3 F.C.R. 339, [2003] 2 F.L.R. 71 and M v. M (maintenance pending suit) [2002] E.W.H.C. 317 (Fam), [2002] F.L.R. 123.
[124] From these cases I derive the following principles.
(i) The sole criterion to be applied in determining the application is ‘reasonableness’ (s. 22 of the Matrimonial Causes Act, 1973), which, to my mind, is synonymous with ‘fairness’.
(ii) A very important factor in determining fairness is the marital standard of living (F v. F). This is not to say that the exercise is merely to replicate that standard (M v. M).
(iv) Where the affidavit … is obviously deficient the court should not hesitate to make robust assumptions about his ability to pay. The court is not confined to the mere say-so of the payer as to the extent of his income or resources ( G v. G, M v. M). In such a situation the court should err in favour of the payee.”
An issue in the present case is whether the court should make provision in any periodical payment for a contribution towards W's on-going legal costs. The question was considered by Kawaley, J. in F v. F at paras 9–10. He cited with approval paras 17–20 of the judgment of Wilson, L.J. (as he then was) in Currey v. Currey [2006] E.W.C.A. Civ. 1338; [2007] 2 Costs L.R. 227. Wilson, L.J. summarised the position at para 20:
“In my view the initial, overarching enquiry is into whether the applicant for a costs allowance can demonstrate that she cannot Reasonably procure legal advice and representation by any other means. Thus, to the extent that she has assets, the applicant has to demonstrate that they cannot reasonably be deployed, whether directly or as the means of raising a loan, in funding legal services. Furthermore, … she has also to demonstrate that she cannot reasonably procure legal services by the offer of a charge upon ultimate capital recovery.” [Emphasis in original.]
In so ruling, Wilson, L.J. rejected the proposition that the wife need show exceptional circumstances. Ms Marshall, who appeared for W, referred me to C v. C (Maintenance Pending Suit: Legal Costs) [2006] 2 F.L.R. 1207, Fam D, in which the now discredited “exceptional circumstances” test was applied. Hedley, J. found at para 14 that the exceptional circumstances which justified him adding a costs component to maintenance pending suit included the facts that the vast bulk of the assets were under the control of one party and there was a need for an investigation of them. I accept that those facts might be relevant in considering whether it was reasonable for a wife to procure legal advice and representation from her own resources.
As to the facts of the present case, H is a businessman who runs a cleaning company. W was throughout the marriage a homemaker. The couple lived an affluent lifestyle. I accept Ms Marshall's submissions that on the face of it that lifestyle did not come to an end until after W served a petition for divorce on 30th September 2013.
W's estimated monthly expenditure is $6,464. (I have deducted the monthly expense of keeping a dog from the figure supplied by W as the dog has sadly been put down.) This figure does not include rent as W used the capital from her share of the sale of the matrimonial home (see below) to pay her annual rent of $36,000 (expiring on 30th September 2014) and her outstanding legal fees. I accept that in the context of the marital standard of living these expenses are reasonable. W also seeks $5,000 per month towards her on-going legal fees. I accept that this amount, too, is reasonable.
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