Under a consent order the wife had received a substantial lump sum on the basis that she would use half of it in discharging a mortgage on her home. In the event she had repaid only part of the mortgage debt and had invested in a non-income-bearing bond the sum which she had thus elected not to apply to full clearance of the mortgage. When, later, a judge came to capitalise her right to continuing periodical payments, he included in his calculation of her need the amount of interest payable by her in respect of the residual mortgage debt. The Court of Appeal held that the inclusion had been wrong.
Thorpe LJ said:
’12. . . It seems to me little more than common sense that if a recipient of a lump sum twice the size of the mortgage on the final matrimonial home elects to hold back capital made available for the mortgage discharge in order to invest in a bond that bears no income, she cannot look to the payer thereafter for indemnity or contribution to the continuing mortgage interest payments. That seems to me to be an absolutely self-evident point.’
L
Lewison LJ said: ‘the need to pay the mortgage at all arose from her own choice not to apply . . the lump sum in discharging the existing mortgage . . The financial consequences of her investment choice are her responsibility. It is wrong in principle for the husband to have to continue to fund the mortgage.’
[2012] EWCA Civ 532, [2013] 2 FLR 1070
Bailii
England and Wales
Cited by:
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.460361
