Appeals were made against orders for periodical payments made against high earning husbands. The argument was that if the case of White had decided that capital should be distributed equally, the same should apply also to income.
Held: The distinction between capital and income awards is no longer conclusive, having arisen in part from historical causes. Once each party had been put in a position to satisfy their reasonable income needs, the balance of available income could be divided between the parties: ‘The statute is a flexible code designed to enable the court to achieve a fair outcome. Periodical payments are one part of that code. The principle of the clean break is now, in my judgment, contained in section 25A. If, in exceptional cases such as the present, periodical payments can be used to enable a payee to accumulate capital and thus facilitate a termination of financial obligations within a reasonable time, such a use seems to me fair and square within the statutory objective. ‘ In Parlour, the wife had supported her husband in a way which had facilitated his continued high earnings, and she should be allowed an excess income to build up capital over the next four years, whilst her husban would still have a high income. The appeal was also allowed in McFarlane.
Judges:
Lord Justice Thorpe Lord Justice Latham Lord Justice Wall
Citations:
[2004] EWCA (Civ) 872, Times 09-Jul-2004, [2004] 2 FCR 657, [2005] Fam 171
Links:
Statutes:
Matrimonial Causes Act 1973 25
Jurisdiction:
England and Wales
Citing:
Cited – de Lasala v de Lasala PC 4-Apr-1979
No Revisiting of Capital Claim after Compromise
(Hong Kong) Where capital claims are compromised in a once-for-all court order they cannot be revisited or reissued in the absence of a substantial mistake. Capital orders are ‘once-for-all orders’. The legal effect of the order derives not from the . .
Cited – Cornick v Cornick (No 2) CA 2-Jan-1995
The court considered the boundary of its power in ordering periodical payments: ‘I do not believe that Hale J erred in her approach in principle to this case, and I reject the submission which Mr Mostyn has made that there was a delimiting factor . .
Cited – Pearce v Pearce CA 28-Jul-2003
The financial claims on divorce had been settled by a compromise recorded in a court order. The order included periodical payments to the former wife. After she suffered financial losses, she sought an increase, and the former husband sought an . .
Cited – White v White HL 26-Oct-2000
The couple going through the divorce each had substantial farms and wished to continue farming. It had been a long marriage.
Held: Where a division of the assets of a family would satisfy the reasonable needs of either party on an ancillary . .
Cited – Campbell v Campbell 1988
Thorpe J said: ‘It has never been the custom in ancillary relief litigation to look with scrupulous care at the budget items of the prospective payer. Of course, it is incumbent on the judge to cross check to ensure that the adjudication that meets . .
Cited – G v G (Maintenance Pending Suit: Costs) FD 2003
The court considered the argument that a wife’s maintenance pending suit should be limited to her reasonable needs: ‘I do not accept that argument for the following reasons. The purpose of the 1970 Act was to change statutory provisions that were . .
Cited – Minton v Minton HL 1979
Establishing Clean Break on Divorce
The House set out the principles for establishing a ‘clean break’ financial settlement on a divorce. Once a capital claim in a divorce has been given effect in a court order, the court does not have jurisdiction to vary it. Lord Scarman said: ‘Once . .
Cited – Cornick v Cornick (No 3) FD 2001
The court considered its powers when being asked to vary a lump sum provision at the same time as a variation of maintenance.
Held: ‘section 31(7B) clearly introduces a wide discretionary power to be exercised by applying the words of the . .
Cited – A v A (Maintenance Pending Suit: Provision for Legal Fees) FD 15-Nov-2000
An application for maintenance pending suit could properly be made, to include payment on account of the legal costs of pursuing the action. Such legal expense were of a recurring, and income type nature. Maintenance was not confined to the day to . .
Cited – N v N (Financial Provision: Sale of Company) FD 2001
The nature of the family assets may be taken into account when considering how they are to be divided in ancillary relief proceedings on divorce, where these are businesses which will be crippled or lose much of their value, if disposed of . .
Cited – G v G (Financial Provision Equal Division) FD 2-Jul-2002
The family assets were in the region of andpound;8.5M. The wife sought a half share. The husband proposed that she should have 40%. The husband had built the family fortune through exceptional hard work and astute business acumen in the field of . .
Cited – Wachtel v Wachtel CA 8-Feb-1973
The court described the 1969 and 1970 Acts as ‘a reforming statute designed to facilitate the granting of ancillary relief in cases where marriages have been dissolved . . We regard the provisions of sections 2,3, 4 and 5 of the Act of 1970 as . .
Cited – Doherty v Doherty CA 1976
The court avoided technicality when considering the distinction between lump sum and property adjustment orders: ‘Whether it is right, or not, to accept counsel for the husband’s submission that a clear distinction should be drawn between notices of . .
Cited – Trippas v Trippas CA 1973
The court emphasised the flexibility of the statutes providing for ancillary relief. . .
Cited – Martin v Martin CA 10-Mar-1977
The court urged caution in a judge using his own experience of the property market by way of judicial notice: ‘[W]herever it is to be argued that the wife could find alternative accommodation for herself out of her share of the equity, whatever that . .
Appeal from – J v J FD 23-Jan-2004
Ancillary relief. . .
Cited by:
Cited – Sorrell v Sorrell FD 29-Jul-2005
The parties contested ancillary relief on their divorce. The marriage had been very long, and the assets were very substantial. The husband contended that these assets represented an exceptional contribution on his part.
Held: In this case an . .
Appeal from – Miller v Miller; McFarlane v McFarlane HL 24-May-2006
Fairness on Division of Family Capital
The House faced the question of how to achieve fairness in the division of property following a divorce. In the one case there were substantial assets but a short marriage, and in the other a high income, but low capital.
Held: The 1973 Act . .
Lists of cited by and citing cases may be incomplete.
Family
Updated: 11 June 2022; Ref: scu.198584
