Flavell v Flavell

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
Judgment Date03 Oct 1996
Judgment citation (vLex)[1996] EWCA Civ J1003-9
Docket NumberCCFMI 96/0416/F

[1996] EWCA Civ J1003-9





Royal Courts of Justice


London WC2


Lord Justice Beldam

Lord Justice Ward

CCFMI 96/0416/F

Maurice Raymond Flavell
Ann Flavell

MR. M BERKIN (Instructed by Sutherland & Co., Southampton) appeared on behalf of the Appellant

MR. M HOSFORD-TANNER (Instructed by Hart Brown & Co., Surrey) appeared on behalf of the Respondent


Thursday 3 October 1996


I will ask Lord Justice Ward to give the first judgment.


This appeal concerns the approach the Court is to take to those orders for periodical payments following divorce which impose a term on the basis that, by the end of that term, the receiving party will have been able to adjust without undue hardship to the termination of financial dependence upon the paying party.


The material facts are these. The parties married in December 1970. They have two boys, born in 1973 and 1975, both of them now being independent. They separated in 1988 after some 18 years of marriage or thereabouts. Their marriage was dissolved by decree absolute granted in 1992. Following the dissolution of their marriage, the wife's claims were disposed of by the District Judge on 27 August 1993. After a contested hearing he made an order to this effect. First, he ordered that their matrimonial home in Hindhead, which was in their joint names, should be sold on a date after 1 July 1994 and that the net proceeds of sale be divided as to 60 per cent thereof to the wife and 40 per cent to the husband. The relevant order, for present purposes, is his order that the husband should make periodical payments to the wife, at the rate of £450 per month, from the last day of August 1993 until 8 August 1995. Effectively, he was imposing a term of two years. There was an order for periodical payments for the younger boy, but that has now ceased to operate because of his having completed his education. The order also provided that:

"Save as aforesaid [the respective claims of the parties] for maintenance pending suit periodical payments secured periodical payments lump sum and property adjustment Orders do stand dismissed and neither party shall be entitled to make any further application in relation to the marriage under the Matrimonial Causes Act 1973 Sections 23(1)(a) or (b)."


The wife was unhappy with that order—one imagines that part of it which imposed the term of two years—and she was minded to appeal against it. That appeal did not proceed, perhaps because the husband sought clarification of the order and invited the District Judge to add to the provision for periodical payments a direction that the wife would not be entitled to apply for an extension of the term. The District Judge rejected that request, indicating quite clearly that this was not a slip but was his deliberate intention.


Following that order, which had been made upon a basis that this lady who was by profession an architectural technician would make serious efforts to achieve independence, she did what was required of her and obtained part-time term employment as a sales assistant to kitchen designers, her architectural skills complementing her abilities as a sales person. That income, together with a modest investment income on capital of about £36,000 not being sufficient to meet her need, she applied to vary the order and to extend the term. That application came before the deputy District Judge who on 22 September 1995 made a modest adjustment, extending the term of periodical payments for a further six months, primarily on the basis that, within that time the matrimonial home (which it had been difficult to sell) would in fact be sold and that further capital would be released to the parties, and especially to her, from which she could derive further support. The wife appealed that order. Her appeal was heard by his Honour Judge Shawcross who handed down a written judgment on 18 December. He ordered that the appeal be allowed and he ordered that the part of the order of August 1993 providing for termination of the periodical payments on 8 February 1996 be deleted. There would be no provision for termination. He did, however, reduce the amount of the periodical payments from £450 per month to £250 per month. The husband now appeals against that order to this Court.


Mr. Berkin, who appears on behalf of the Appellant, submits that on an application to vary the Court does not have the jurisdiction to entertain the application unless the Applicant can show exceptional circumstances, or at least a material change in position. Only if that is shown does the Court go on to exercise its discretion and, having considered all the circumstances, make whatever order is appropriate.


In judging that submission it is necessary to consider the statutory framework. By the amendment to the Matrimonial Causes Act 1973, which was affected by the Matrimonial and Family Proceedings Act 1984, section 25A was introduced. That required in subsection (1) that the court was obliged to consider whether it would be appropriate so to exercise its powers to grant ancillary relief

"…..that the financial obligations of each party towards the other will be terminated as soon after the grant of the decree as the court considered just and reasonable."


It provided in the second subsection, relevantly for this purpose, that where the Court decides to order periodical payments, then

"The court shall in particular consider whether it would be appropriate to require those payments to be made or secured only for such term as would in the opinion of the court be sufficient to enable the party in whose favour the order is made to adjust without undue hardship to the termination of his or her financial dependence on the other party. "


Subsection (3) provides that:

"…..if the court considers that no continuing obligation should be imposed on either party to make….. periodical payments….., then the court may dismiss the application with a direction that the applicant shall not be entitled to make any further application…..[for such orders]."


The 1984 Act also introduced section 28(1A). That is highly material. It provides that, where an order for periodical payments is being made, then:

"…..the court may direct that that party shall not be entitled to apply under section 31 below for the extension of the term specified in the order."


Applying those sections to what happened in 1993, it is plain that the view of the Court was at that time that this wife could adjust without undue hardship to the termination of her financial dependence on her former husband. Consequently it made the two year term, but, and significantly, it did not make the direction under section 28(1A).


The power to vary is contained in section 31. Subsection (1) provides:

"Where the court has made an order to which this section applies,"


and there is no dispute, of course, that this is such an order,

"then, subject to the provisions of this section [and of section 28(1A) above] the court shall have power to vary or discharge the order or to suspend any provision thereof temporarily and to revive the operation of any provision so suspended."


Subsection (7) provides for the manner in which the Court is to proceed. That subsection reads:

"In exercising the powers conferred by this section the court shall have regard to all the circumstances of the case, first consideration being given to the welfare while a minor of any child of the family who has not attained the age of eighteen, and the circumstances of the case shall include any change in any of the matters to which the court was required to have regard when making the order to which the application relates, and —

(a) in the case of a periodical payments…..order made on or...

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