Moylan LJ, Coulson LJ and Arnold LJ.

Appeal concerning an order by Mostyn J dismissing W’s application under s 27 of MCA 1973. Case provides useful content on the interpretation and application of s 27. It was concluded that W’s application had been wrongly dismissed as the judge had incorrectly determined the issue of whether H had failed to provide reasonable maintenance solely with reference to the period prior to the date of the application, rather than up to the date of the hearing. This approach was unsupported by the wording of s 27, and it was wrong as a matter of procedural fairness to decide the application on that basis. The judge made clear there was no such condition precedent. Also, a husband’s common law duty to maintain his wife does not influence the court’s exercise of its discretionary powers under s 27.

In respect of the duration of maintenance orders, it was concluded that it would not be an exorbitant exercise of the court’s jurisdiction to make a maintenance order under s 27, nor would exceptional circumstances be required to justify making such an order beyond the divorce. The only statutory limit imposed by s 28(2) is that an order ceases when the applicant remarries. An approach to the contrary would amount to an unreasonable fetter on the court’s discretionary powers. In the circumstances, the maintenance order was made in favour of W. Finally, W’s application for a lump sum was adjourned as the court was unable to fairly and properly determine her application given H’s failure to comply with his disclosure obligations. It was also noted that the court should retain the power to order a lump sum on any application to vary or discharge the maintenance order, which the judge proposed should be made.