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(Family Division; Bodey J; 11 July 2008)
In proceedings in which maintenance pending suit had actually been paid, pending a decision as to jurisdiction or merits, the court had no power to order such payments to be refunded should the payee fail at trial; in the alternative the court would not exercise any such power unless there was some special circumstance. By parity of reasoning, if maintenance pending suit had been unpaid in breach of an order, there was no question of its becoming unenforceable, nor of the order being discharged ab initio so as to eliminate the arrears, merely because of the wife's discontinuance or failure in the proceedings. Therefore, notwithstanding the wife's decision to discontinue her English divorce petition, after a Nigerian court had granted the husband a Nigerian divorce, the husband was still required to pay the wife the arrears of maintenance pending suit. The court had the power to enforce maintenance pending suit by way of a charging order; Wicks v Wicks was to do with the substantive powers of the court pending a decree nisi, not with the use of a charging order as a means of enforcement.
The Red Book is the acknowledged authority on practice and procedure