G v G (Periodical Payments: Jurisdiction to Vary)
| Jurisdiction | England & Wales |
| Judgment Date | 1997 |
| Date | 1997 |
| Year | 1997 |
| Court | Court of Appeal (Civil Division) |
WARD AND POTTER, L JJ
Financial provision – order for periodical payments for specified term – application to vary order and extend term after specified term had come to an end – whether court had jurisdiction to entertain the application.
Financial provision – periodical payments for child – whether court could order both payments to the child and payments to a parent for the child.
The husband and wife married in 1968. They had two children, a son born in 1974 and a daughter born in 1976. The wife gave up her profession as a speech therapist in 1974 to look after the family. She returned to work in 1982 but was only able to earn a small income. The husband's financial position improved and by 1996 he was earning over £100,000 a year.
The parties were divorced. In October 1989 claims for ancillary relief were determined by way of a consent order which provided for a deferred clean break, with the matrimonial home being conveyed to the wife free of mortgage. In addition to periodical payments to each of the children in the sum of £2,500 a year, the wife received a lump sum of £5,000, together with periodical payments of £14,000 a year, limited in time by remarriage, cohabitation, or the younger child, the daughter, attaining 18 years of age (on 14 November 1994). The order was thus limited to a maximum term of five years. Payments to the son ceased in 1992.
In May 1994, the husband advised the wife that he was not prepared to support her beyond November 1994. By this time, the wife's anticipated earning capacity was no more than £2,000 a year. When the daughter attained 18 years, all payments by the husband to the wife ceased. On 1 December 1994, the wife applied to vary the periodical payments for the daughter, as she remained in full-time education, and also applied to extend her own order while the child remained in full-time education, or until the wife remarried or cohabited for a period of six months.
On 7 November 1995, following a number of interim orders, the wife's order was varied by a district judge to provide that the husband pay the sum of £17,000 a year from 1 November 1995 until 31 July 1996. For the following two years, the order would reduce in amount, being finally reduced to a nominal sum from 31 July 1998. The claim to extend the periodical payments for the daughter was dismissed.
Both parties were aggrieved. The father appealed, initially against the imposition of the nominal order from July 1998, and, later, on the basis that the court did not have jurisdiction to make any order in favour of the wife. The wife also appealed, arguing that a more generous, backdated, order should have been made in her favour, and that an order
for the child should have been maintained.
The appeal was heard in the High Court on 29 February 1996. The husband's appeal as to jurisdiction was allowed, as the wife's application was made after the original consent order came to an end on the eighteenth birthday of the younger child. The wife's appeal as to the continuation of the order for the daughter was allowed and, having taken into account and recorded the husband's undertaking to pay £270 a month directly to the daughter, ordered that the husband should pay £7,500 a year to the wife for the daughter until she ceased full-time education. The husband was ordered to pay the wife's costs on an indemnity basis.
The wife appealed against the dismissal of her claim for periodical payments; and the husband appealed against the continuation of the order for the daughter and the order for costs.
Held – dismissing the appeals: (1) An order came to an end not only when it was expressly dismissed, but also when it ceased or was discharged, or after the husband had complied with all his obligations. That being the case, there had been no continuing order capable of variation or discharge under s 31 of the Matrimonial Causes Act 1973. Consistency demanded that when the term specified in the order expired, whatever the term was, the order expired with it. The words "or further order", as included in the consent order, had to be given their usual meaning. It was not possible to construe out of those words the meaning that only the obligation to pay came to an end, leaving the order comatose but capable of being brought back to life by an application to vary. If this were not so, an application to vary could be made years after the event, which would fly in the face of the spirit of a clean break, even a deferred clean break, which was acceptable. Unless there was a specific direction contained in the order under s 28(1A) of the Act, an order could be extended beyond the term specified in the order only provided that the application was made before the term expired.
(2) By s 23(1) of the 1973 Act the court had power not only to make any one or more of the orders provided in paras (a) to (f) but also to make any one or more orders within a paragraph. Consequently, there was power to make an order for payments to the child and also an order for payments to the parent for the child. On the facts of the present case the Judge had rightly found that the husband was a wealthy man who could afford to meet the daughter's financial needs throughout her university course. The case had always been presented as one where the husband had the means to pay whatever was expected of him. It was unnecessary for the Judge to consider a minute breakdown of the household expenditure.
(3) On the issue of the costs, the Judge was entitled to take the view that the greater victory was obtained by the wife, and the order made was within the bounds of the proper exercise of discretion. The order for costs on an indemnity basis had not been sought, however, and the wife's costs would instead be taxed on a standard basis.
Per curiam: (1) To enable periodical payments to be made only for such term as would be sufficient to enable the recipient to adjust without undue hardship to the termination of her financial dependence on the other party was a worthy purpose of a matrimonial law which strived to enhance self-respect and self-sufficiency after divorce. "Look on the bright side" was an essential rubric for the good divorce lawyer, but not at the expense of looking out for potential lethal traps inherent in orders for a limited term of periodical payments. This unfortunate case signposted certain pitfalls of which the profession should make itself aware. These included the question of whether it was appropriate to limit the wife's periodical payments for five years or at all. Other pitfalls included the drafting of the periodical payments order: it did not provide that the order would stand dismissed upon the happening of an event, nor did it provide whether or not the parties intended s 28(1A)
of the 1973 Act to apply.
(2) The court had been presented with a great deal of irrelevant material which burdened the district judge's inquiry. This appeared to be in breach of the Practice Statement and Practice Direction of 26 July 1995. Practitioners were advised to note the Taxing Master's powers to disallow costs of unnecessary copying, and he would be invited to consider such a course in this case.
Statutory provisions referred to:Matrimonial and Family Proceedings Act 1984.
Matrimonial Causes Act 1973, ss 23, 25, 28 and 31.
Supreme Court of Judicature (Consolidation) Act 1925, s.190(2).
Cases referred to in judgment:Bennett v Bennett [1934] LJP 38.
Dipper v Dipper [1981] Fam 31; [1980] 3 WLR 626; [1980] 2 All ER 722.
Dufty v Dufty [1931] P 116.
Hall v Hall [1915] P 105.
Jessel v Jessel [1979] 1 WLR 1148; [1979] 3 All ER 645.
L v L [1962] P 101.
Minton v Minton [1979] AC 593; [1979] 2 WLR 31; [1979] 1 All ER 79.
Richardson v Richardson[1994] 1 FCR 53.
T v T (Periodical Payments Order) [1988] FCR 384.
Thompson v Thompson [1986] Fam 38; [1985] 3 WLR 17; [1985] 2 All ER 243.
Turk v Turk; Dufty v Dufty [1931] P 116.
Maureen Mullally and Seamus Kearney for the appellant.
Mark Evans, QC and Fiona Elder for the respondent.
LORD JUSTICE WARD.To enable periodical payments to be made only for such term as would be sufficient to allow the recipient to adjust without undue hardship to the termination of her financial dependence on the other party is a worthy purpose of a matrimonial law which strives to enhance self-respect and self-sufficiency after divorce. "Look on the bright side" is an essential rubric for the good divorce lawyer, but not at the expense of looking out for potential lethal traps inherent in orders for a limited term of periodical payments. This unfortunate case signposts certain pitfalls of which the profession should make itself aware.
Even though the marriage of the petitioner and the respondent has long been dissolved, I shall for the sake of convenience still refer to the parties merely as husband and wife. They married in 1968. The wife practised her profession as a speech therapist until a son was born in 1974. A daughter was born on 14 November 1976. In 1982 the wife began part-time employment as an elocution, speech and drama teacher and, although she did see some children with remedial problems, she was not in clinical practice. That work ceased in 1987. For his part, the husband had improved himself steadily throughout the marriage. There were periods when he undertook training or retraining partly sponsored by his employers but partly maintained by the wife's efforts. The family were dislocated from time to time in the course of the husband's employment. He was made redundant in
1987 and departed to America in December 1987 to make a new career for himself. In that he was successful. In July 1988 the wife returned to work, this time with estate agents, and she was so employed when, on 17 October 1989, the claims for ancillary relief were disposed of by order made by consent. The agreed arrangement effected a deferred clean break. The material elements of it were that the wife was to have conveyed...
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David Anthony Mann v Shelley Mann
...dicta of Lord Scarman in Minton v Minton [1979] 1 All ER 79 at 87 and of Ward LJ in G v G (periodical payments: jurisdiction to vary)[1997] 1 FCR 441 at 451 applied; Hamilton v Hamilton[2013] 2 FCR 343 considered. Cases referred toG v G (periodical payments: jurisdiction to vary)[1997] 1 FC......