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 order finalising the arrangements.
Held: The judge should have restricted himself to capitalisation of the increased periodical payments order and abstained from the addition of a substantial uplift. He should not have allowed the wife to discharge her mortgage at the husband’s expense, which violates the principle that capital claims once compromised could not be revisited. There is simply no power or discretion to embark on further adjustment of capital to reflect the outcome of unwise or unfortunate investment on one side or prudent or lucky investment on the other.
Thorpe LJ said: ‘Both as a matter of principle and as a matter of good practice, in my opinion the judge had to decide three questions in the following sequence. First he had to decide what variation to make in the order for periodical payments agreed in 1997. An increase was inevitable given inflation and the husband’s overall increased prosperity despite the decline in his income. The judge’s second task was to fix the date from which the increased order was to commence. That would dispose of the past and present account between the parties. Then, and only then, should he have moved to the future, substituting a capital payment calculated in accordance with the Duxbury tables for the income stream that he was terminating.
Of course I do not seek to put the trial judge in a straitjacket. He exercises a broad discretion at the first stage. Equally at the third stage he exercises a discretion, albeit a narrower one, in departing from the mathematics of the Duxbury tables to reflect special factors which individual cases will regularly generate.’
The President, Lord Justice Thorpe, And Lord Justice Mantell
[2003] EWCA Civ 1054, Times 01-Sep-2003, [2003] 3 FLR 1144, [2004] 1 WLR 68
Bailii
Matrimonial Causes Act 1973 31(7B)
England and Wales
Citing:
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 – 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 – S v S FD 1986
Both parties sought a variation of a maintenance order. The former husband sought to be allowed to pay a sufficient capital sum to his former wife to commute the payment in her favour.
Held: Provided the sum could be paid and the result would . .
Cited – Brooks v Brooks HL 29-Jun-1995
A director’s pension scheme could be treated as a post-nuptial marriage settlement where the director was the only scheme member. It was thus a matrimonial asset capable of variation by a court in ancillary relief proceedings in a divorce. The court . .
Cited – Harris v Harris CA 1-Jul-2001
The first instance court had acceded to the husband’s application for downward variation of the wife’s periodical payments to andpound;9,000 per annum and to the wife’s application substituting a lump sum of andpound;120,000 for the future . .
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 – White v White CA 19-May-2003
The parties to the marriage owned a property which they had extended. The relationship deteriorated, and the mother sought an order under the 1996 Act. The mother left the home, and the father cared for the children. He sought orders under the 1989 . .
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 by:
Cited – McFarlane v McFarlane; Parlour v Parlour CA 7-Jul-2004
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 . .
Cited – North v North CA 25-Jul-2007
The husband appealed a consent order for payment of pounds 202,000 to commute a varied nominal maintenance order. The original order had been made many years before. In the meantime, the former husband had grown wealthy, and she had suffered . .
Cited – Dixon v Marchant CA 24-Jan-2008
The parties had only recently settled their ancillary relief proceedings by consent when the former wife remarried. The former husband sought the setting aside of the order. The wife had denied the relationship. The judge had found the conditions in . .
Cited – Vaughan v Vaughan CA 31-Mar-2010
H had been paying maintenance to W for many years after the divorce. W now appealed against an order revoking the arrangement without providing a capital sum to replace it. H’s health had declined, and also his earnings.
Held: W’s appeal . .
Cited – NG v SG FD 9-Dec-2011
The court considered what to do when it was said that a party to ancillary relief proceedings on divorce had failed to make proper disclosure of his assets. H appealed against an award of a capital sum in such proceedimngs.
Held:
Held: . .
Cited – Mills v Mills SC 18-Jul-2018
The Court was asked: ‘In circumstances in which at the time of a divorce a spouse, say a wife, is awarded capital which enables her to purchase a home but later she exhausts the capital by entry into a series of unwise transactions and so develops a . .
Lists of cited by and citing cases may be incomplete.
Updated: 31 July 2021; Ref: scu.184907
