T v T

• Jurisdiction: Bermuda
• Judgment Date: 17 April 2014
• Date: 17 April 2014
• Docket Number: Divorce Jurisdiction 2013 No 135
• Court: Supreme Court (Bermuda)

[2014] Bda LR 41

In The Supreme Court of Bermuda

Divorce Jurisdiction 2013 No 135

Between:

T

Petitioner

and

T

Respondent

Ms G Marshall for the Petitioner

Mr R De Silva for the Respondent

The following cases were referred to in the judgment:

T v TBDLR [2007] Bda LR 7

F v F (Maintenance Pending Suit)BDLR [2011] Bda LR 43

TL v MLUNK [2005] EWHC 2860 (Fam)

Currey v CurreyUNK [2006] EWCA Civ 1338

C v C (Maintenance Pending Suit: Legal Costs)FLR [2006] 2 FLR 1207

Ancillary relief — Appeal against order for maintenance pending suit — Periodical payments to wife — Full and frank disclosure

RULING of Hellman J

Introduction

1. This is an appeal by the Respondent/Husband (‘H’) against an order for maintenance pending suit made by the Registrar on 7^th January 2014. She ordered that H make interim periodical payments to the Petitioner/Wife (‘W’) in the sum of $9,000 per month.

2. 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 CJ in T v TBDLR[2007] Bda LR 7 at para 3.

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.’

4. 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)BDLR[2011] Bda LR 43 at paras 6 and 8.

5. A helpful summary of the relevant principles, cited in the Eighth Edition of Jackson's Matrimonial Finance and Taxation1, was given by Nicholas Mostyn QC (as he then was), sitting as a Deputy High Court Judge, in TL v MLUNK[2005] EWHC 2860 (Fam), [2006] 1 FCR 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)UNK

[1996] 2 FCR 397, [1995] 2 FLR 45, G v G (maintenance pending suit; legal costs)UNK[2002] EWHC 306 (Fam), [2002] 3 FCR 339, [2003] 2 FLR 71 and M v M (maintenance pending suit)UNK[2002] EWHC 317 (Fam), [2002] FLR 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.’

6. An issue in the present case is whether the court should make...