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Maintenance

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  • The question for the court was under what circumstances a long-term nominal spousal maintenance order should be converted into a substantive order, and whether this could happen as a consequence of the financial difficulties arising from the lockdown. Such orders had been made most often in London and the south-east, where the children lived primarily with a parent who was able to support himself or herself, as in this case, but where the children were still young and things could change dramatically during their minority. The youngest child in this case was now 14. The former wife had applied for the court to convert a nominal order made in 2012 into a substantive order, as a short-term measure until she was once again self-sufficient. She argued that this should be treated as an ordinary variation application. After discussing the potential incompatibility of such nominal orders with clean break legislative changes, DDJ David Hodson decided that it was not appropriate to convert the nominal order into a substantive order, and dismissed the application. A nominal order was only to be converted if there had been a significant change in circumstances. Losing a job due to the pandemic could not, he said, be ascribed to relationship generated disadvantage. Asked to dismiss the spousal maintenance order altogether, he declined to do so but said he would be surprised if circumstances ever justified bringing it back to court. Judgment, 14/05/2021, free
  • Part III of the Matrimonial and Family Proceedings Act 1984 provided for the making of an application for financial relief following an overseas divorce. By s 13, no application could be made without the leave of the court, and by s 13(1), no leave was to be granted unless the court considered that there were substantial grounds for making such an application. In this case, the wife appealed against a 2019 order of Cohen J, where he had set aside his own ex parte order for leave and on re-consideration of her application had refused to grant leave. The Court of Appeal considered the proper approach to an application made for the grant of leave and to any subsequent application to set aside an ex parte order for leave. In King LJ's view, there had been no basis for the judge to conclude that he had not properly considered the legislative purpose of Part III: the alleviation of the adverse consequences of no, or no adequate, financial provision being made by a foreign court in a situation where there were substantial connections with England. Rather, having heard argument on both sides, he had regretted granting leave. David Richards and Moylan LJJ agreed. The wife's appeal against the order setting aside leave for her to make an application for financial relief was allowed. It was therefore unnecessary to consider whether the judge had been wrong in refusing leave when he reconsidered the application. As to the impact of Brexit upon s 16(3), there were likely to be few if any cases outstanding to which it would apply and future Part III applications would be considered without reference to the Maintenance Regulation. Judgment, 14/05/2021, free
  • An application by the former wife for a financial remedy order in respect of the parties’ only child, a six-year-old girl. The issue was to what extent the court should exercise its jurisdiction under section 23 of the Matrimonial Causes Act 1973 to impose conditions on the release to the parties of a frozen fund of some £3.74 million, the fund having derived from the settlement of a medical negligence claim launched on behalf of their daughter. In Roberts J's view, there had to be a formal mechanism for ensuring that the child continued to benefit from those funds. She rejected the idea of a section 89 disability trust. She made an order for child maintenance of £2,000 per month. A sum of £150,000 from the father's share of the settlement monies would be set aside as a secured maintenance fund, with the father being entitled to draw down against that fund for the child maintenance payments. £900,000 of the settlement monies could be used by the father towards purchasing a property of his own, with a charge on the property in the child's name for that amount. The mother would be permitted to use settlement monies to redeem her existing mortgage. As a condition of the release of these funds, each parent would be required to purchase life insurance with the daughter as beneficiary. Judgment, 08/08/2020, free
  • The couple had been separated since 2012 and divorced since 2014. They had two children, aged 13 and 15. The husband was in very substantial breach of his financial obligations under a previous order, to the extent of £2.6m. The husband claimed that he was insolvent and could be made bankrupt by any one of his many creditors. In HHJ Hess's view, the husband was asking her to re-open the overall quantum of a lump sum by instalments which had been part of a consent order which had been intended to be a final package. Since he was a substantial cause of his own problems, she could not regard those problems as rendering it unjust to hold him to the original order. Despite his current difficulties, the order would not be discharged by bankruptcy proceedings or by time limitation, so the former wife might one day be able to enforce it. The capital order was varied to adopt a new, agreed figure, and the child periodical payments order was varied in accordance with an agreement reached between the parties. Judgment, 08/08/2020, free
  • The financial remedies proceedings arising out of a divorce. The husband was a litigant in person. HHJ Hess ordered a spousal periodical payments order of £1,138 pcm, rising to £1,300 pcm in 2021, and £1,500 pcm in 2027, to continue until the death of either party, the wife's 60th birthday, or her remarriage. Top-up orders were made for the benefit of the children, and child periodical payment orders for the gap between secondary and tertiary education. The parties would each retain a 50% share in the family home. Pension sharing orders would provide equal incomes for the parties at a specified time in the future. Neither party had been entirely successful or entirely unsuccessful, and so there was no order for costs. Judgment, 04/06/2020, free

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