Grocholewska-mullins v Mullins
| Jurisdiction | England & Wales |
| Judge | Lord Justice Patten |
| Judgment Date | 26 July 2013 |
| Neutral Citation | [2013] EWCA Civ 1121 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B6/2013/1296 |
| Date | 26 July 2013 |
[2013] EWCA Civ 1121
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PRINCIPAL REGISTRY OF THE FAMILY DIVISION
(HIS HONOUR JUDGE HOROWITZ QC)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Patten
Case No: B6/2013/1296
Mr Oriel Hinds (instructed by the Direct Access Scheme) appeared on behalf of the Appellant.
The Respondent did not appear and was not represented.
(As Approved)
This is an application by the wife in these proceedings for permission to appeal against an order of HHJ Horowitz QC made after a hearing in the Principal Registry of the Family Division on 19 and 20 November 2012 on an application by the wife for the variation of an order for periodical payments of £12,000 a year which had been made by District Judge Malik on 9 June 2011. The exercise which HHJ Horowitz carried out and which is not in dispute as part of this application was to vary the order for periodical payments by making a capital commutation not previously possible so as to achieve a clean break between the parties. There is a considerable history to these proceedings which I do not intend this morning to recite in detail, but which is set out in the judge's judgment. For the purposes of today, it is enough to record that at the time of their separation and the petition for divorce which took place in 1992 there were insufficient assets to enable the court to make a clean break order. That was complicated by the fact that at the time the children of the marriage were all infants so that the judge had, in addition to making an order for provision in favour of the wife, to deal with the education and maintenance of the children. However, by 2011 all the children had grown up. The husband had ceased to have to pay their school fees and maintenance and the only remaining issues were as to what form the provision should continue to take as between husband and wife. The original order for ancillary relief so far as the wife was concerned which was an order made by District Judge Robinson was that she should receive £50,000 in the form of a capital sum and periodical payments until death or remarriage in the sum of £24,000 per year.
The husband made an application for the periodical payments order to be varied and that was matched by a corresponding application by the wife for their increase. In June 2011 District Judge Malik, after a two-day hearing, reduced the periodical payments to the wife to £12,000 a year, not as I understand it because he took the view that her income needs had significantly changed, but rather because he accepted evidence to indicate that she was cohabiting with an Italian doctor who either did or could be expected to contribute to those financial needs. It was therefore on that basis that the payments were halved. Permission to appeal against the District Judge's order was refused by Peter Jackson J. But in January 2012 the wife, then acting in person on 13 January, issued a further application for a variation of the payment order. The husband made a strike out application which was dismissed. What HHJ Horowitz was left with, as I have already indicated, was to be treated as a section 31(7) application to include the making of a clean break capital commutation order bringing these ancillary proceedings to an end.
The wife does not, as part of this application for permission to appeal, challenge the making of that order in principle; these parties have now been divorced for more than 20 years and it is clearly in their interests, and indeed in everybody else's, that this hostility which has continued for so long should be brought to an end. But the issue is whether the way that the judge did that complies with the guidelines laid down by this court in Pearce v Pearce [2004] 1 WLR 68 and in the other authorities dealing with the exercise of the section 31(7) power. What the judge held was that the husband's financial fortunes had improved considerably since the breakup of the marriage despite having become bankrupt and having entered into a composition with his creditors. The husband was in due course able to restart a business which, by the time of the application in front of HHJ Horowitz, he was able to sell. It is the capital that was and is to be released on that sale that has provided the means for making a clean break order.
In order to calculate what the amount to pay should be, the judge went through the history of the matter since the divorce, considered the evidence relating to the financial...
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Upper Tribunal (Immigration and asylum chamber), 2014-08-06, IA/31183/2013
...has gone on to consider this matter under Article 8 and has provided a detailed and thorough analysis. I acknowledge that MF Nigeria [2013] EWCA Civ 1121 confirms that the new Rules are a complete code and consequently if an appeal is to be allowed under Article 8 it is necessary that excep......
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Grocholewska-Mullins v Mullins
...2 That hearing was conducted by Patten LJ, to whom I am indebted for a careful resume of the issues in this case, which is reported at [2013] EWCA Civ 1121. I do not propose to recite the contents of that judgment here. 3 The order complained of was a variation of a previously existing peri......