Aburn v Aburn
| Jurisdiction | England & Wales |
| Judge | Lord Justice McFarlane,Lord Justice Vos,Lord Justice Simon |
| Judgment Date | 04 February 2016 |
| Neutral Citation | [2016] EWCA Civ 72 |
| Docket Number | Case No: B6/2015/1086 |
| Court | Court of Appeal (Civil Division) |
| Date | 04 February 2016 |
[2016] EWCA Civ 72
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM DARTFORD FAMILY COURT
HHJ Scarratt
DA12D0772
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice McFarlane
Lord Justice Vos
and
Lord Justice Simon
Case No: B6/2015/1086
Mr Mark Love (instructed by Hitchman and Co.) for the Appellant
Mr Simon Johnson (instructed by Patrick Lawrence Solicitors) for the Respondent
Hearing date: 27 th January 2016
This appeal is a second appeal arising from financial provision orders made following divorce proceedings in the Family Court at Dartford. The narrow issue before this court relates to one element in the initial order made by a deputy district judge providing for an automatic increase in the level of periodical payments payable to the wife following the date upon which the youngest child ceased privately funded secondary education.
Background
Given the narrow compass of this appeal, it is not necessary to rehearse the background details of the parties or their finances to any great degree. The husband is a general practitioner and the wife is a qualified nurse and midwife. They met in l991 and were married in August 1992. In order to avoid confusion I will state the ages of the parties and their children as at the date of the hearing before the deputy district judge who made the original order on 18 th August 2014. At that date the wife was 47 and the husband 54 years old. There are two children of the family, a boy, J, born December 1994 and therefore aged 19 at the date of the hearing and a girl, H, born February 2000 and so then aged 14.
The marriage lasted some 20 years before the wife issued her divorce petition on 25 th July 2012. Decree nisi was pronounced on 13 th February 2013.
At the hearing before Deputy District Judge Martynski on 18 th August 2014 both parties were represented by counsel and, effectively, all issues relating to capital and income were at large. The husband continued to be a partner in a local GP practice but the wife had not worked following the birth of the first child during the second year of the marriage. The matrimonial home was valued at around £500,000 and was effectively mortgage free. There was additional capital of approximately £80,000 together with the husband's capital share in the practice, payable on retirement, of around £235,000. Finally, each had a pension, his, understandably being of substantially greater value than hers.
So far as income is concerned once tax, superannuation and other deductions were made, the husband drew £84,900 per year from the practice. The deputy district judge recorded the husband's view that, because of forthcoming changes in the partnership, his income would reduce to around £78,000 per annum. The only income available to the wife amounted to child benefit of £1,066 per year.
Deputy District Judge's order
The basic elements of the deputy district judge's order were as follows:
a) The family home was to be sold with the net proceeds split so that 78% went to the wife and 22% to the husband;
b) Upon his retirement, the husband was to pay a lump sum to the wife equivalent to 50% of the payout he received from his GP practice;
c) The husband was to pay periodical payments to the wife of £1,000 per calendar month until the first of the following events occurred:
(i) Death of either party,
(ii) Wife's re-marriage, or
(iii) Further order;
d) The periodical payments were subject to an automatic upward variation in line with the retail prices index each year;
e) Upward variation of the wife's periodical payments upon the youngest child completing her secondary education (full terms set out below);
f) A pension sharing order;
g) Orders providing for a clean break (subject to the continuing periodical payments order).
Wife'speriodicalpayments
As I have indicated, the focus of this appeal is entirely upon the provision made with respect to the wife's periodical payments. The background to the point is that at the time of the hearing before the deputy district judge H was in the early stages of her secondary education at a private school. Both parties were in agreement that she should continue in private education until the end of her A level year in the summer of 2018, four years after the hearing before the deputy district judge. In his judgment and order, the judge set the rate for periodical payments at £1,000 per month, subject to an annual inflation increase, but he also provided for a further increase once H completed her secondary education. The relevant part of the order reads as follows:
"18. Variation of periodical payments upon the child of the family H completing her secondary education.
a) with effect from the payment due in accordance with paragraph 17 above [ordinary periodical payment order] in the month following the month in which the child of the family H completes her secondary education the periodical payments due from the respondent to the applicant shall be increased in accordance with the formula set out in sub-paragraph b) below;
b) the said periodical payments due each month shall be increased by a sum equivalent to 50% of the total private school fees and associated charges paid by the respondent in respect of the child H in the last completed school year of her secondary education, divided by 12."
It is against that provision that the husband now appeals to this court, having had an earlier appeal on this point dismissed, as I shall describe, at a hearing before HHJ Scarratt on 11 th March 2015. Permission to bring this second appeal was granted by Vos LJ on paper on 22 nd July 2015.
Before turning to the deputy district judge's decision as to the automatic increase in periodical payments upon H ceasing secondary education, it is necessary to describe his approach to the ordinary periodical payments order that he made.
The deputy district judge found that the wife was clearly capable of working and that it was entirely reasonable to expect her to do so. He accepted that her return to work may not be immediate and might have to be phased over time, developing from part time to full time employment. He assessed her general earning capacity to be £15,000 per year which should produce a net take home pay of £13,155 which, when added to child benefit, amounted to a monthly income figure of £1,185.
As I have indicated, the deputy district judge held that the wife was entitled to some 78% of the net proceeds of sale of the family home in order that she could purchase a suitable alternative home without a mortgage. The husband, despite his age, retained a mortgage potential which would enable him, on the judge's findings, to re-house himself adequately.
When turning to the topic of periodical payments, the deputy district judge took account of the impact of the capital provision stating:
"40. The decisions I have made regarding (wife's) earning capacity and the parties need for housing and the share of the proceeds of the sale of the family home, necessarily drives the figure for periodical payments."
He then rehearsed in headline terms the income and outgoings that each side had presented to the court. In his judgment the judge trimmed the wife's projected monthly outgoings of £2,979, by a reduction on clothes, holidays, presents and the current mortgage, to a figure of £2,427 from which he deducted her projected income figure based on earning potential of £1,185 per month leaving a sum of £1,242 to meet her needs.
The deputy district judge then explained the reasoning behind the £1,000 periodical payments order upon which he fixed in the following terms:
"43. If I then allow the same projected need figure to (husband) and deduct that from the balance of £3,540 set out above, we arrive at a figure of £1,113 that would be available to pay to (wife) in respect of periodical payments. I have rounded that figure to £1,000. This should be increased each year for inflation.
44. Looking at this another way in terms of total income, the figures fall out as follows:
Total joint income:
(Husband)
£6,900
(Wife)
£1,185
£8,085
Essential outgoings:
Mortgage
£1,260
School fees
£1,750
(Child J)
£ 350
______
£3,360
Balance £4,725 ÷ 2 + £2,362.50
On my calculations and awards, (husband) in fact ends up with more disposable income than (wife) (£2540 as against £2185). I keep this disparity bearing in mind (husband's) evidence regarding his anticipated fall in income from January 2015."
The topic of an automatic increase upon H ceasing secondary education is dealt with in one paragraph which immediately follows on from his description of the periodical payments order calculation:
"45. Given that school fees form such a large sum in relation to the parties' finances and given that these fees should only be payable for another 4 years or so, it is right that upon H ceasing full-time secondary schooling there should be provision for a review upon H completing her secondary schooling so that the resulting saving on education fees be split equally between the parties by way of an increase in Periodical Payments. I have not made a similar provision in terms of the money given to J given that it is a relatively small sum and given that in all likelihood, one or both children will continue to need financial support for many years to come."
Appeal to HHJ Scarratt
The husband appealed in respect of three points from the deputy district judge to a circuit judge, HHJ Scarratt. The appeal related to the following three...
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