KG v NB
| Jurisdiction | England & Wales |
| Judge | Willans |
| Judgment Date | 28 September 2023 |
| Neutral Citation | [2023] EWFC 160 |
| Court | Family Court |
| Docket Number | Case No: BV18D04882 |
[2023] EWFC 160
HIS HONOUR JUDGE Willans
Case No: BV18D04882
IN THE FAMILY COURT AT BRENTFORD
Alexandra Road,
Brentford, TW8 OJJ
Thomas Haggie (instructed by Weightmans LLP) for the Applicant
Matt Warmoth (instructed by Carter Lemon Camerons LLP) for the Respondent
Hearing dates: 15 September 2023
Introduction
All references [ ] are to the final hearing bundle pagination
The applicant applies to the Court to vary a periodical payments term found in a consent order dated 26 March 2019 (“the 2019 order”) [22] under which he is liable to pay to the respondent maintenance each month at the rate of £1,500 per month until 28 March 2027 when it will reduce to £1,250 per month and then to 28 March 2036 when the obligation will terminate with a clean break and a section 28 bar preventing any extension to the term. The logic for such change is argued to relate to (a) the respondent's relationship with a cohabitee and (b) to a purported earning capacity on the part of the respondent beyond that accepted by her. The applicant argues the maintenance should be reduced immediately to £625 per month (backdated to the date of the application with a repayment of sums overpaid to date) and then should end in 3 years' time. He originally argued for a reduction to £500 per month but has recalculated the same in the light of a separate reduction in child support (see below). He originally argued that the clean break should be brought forward from 2036 to 2026 but now accepts a clean break should not be brought forward. The respondent disagrees with the applicant and argues for the continuation of the existing order save that she will give credit for any benefits received after the date of the hearing. I have considered the papers contained within the hearing bundle; the live evidence of the parties and the respondent's fiancee (“the cohabitee”) and the submissions made by counsel for each party. Within this judgment I will not deal with every piece of evidence or reference every argument made but I have kept it all in mind when reaching this judgment.
Background
It is not possible or necessary to provide a full summary of the circumstances leading to the 2019 order. It is more helpful to summarise its key components which I note as follows:-
▪ It left the respondent in occupation of the former matrimonial home (“the property”) with the two children of the marriage (now aged 17 and 15) until June 2020 when the property would be sold and from the sale proceeds some liabilities would be settled and a replacement property purchased with a sale price up to £500,000 supported by a joint mortgage between the parties of up to £250,000. Until the new property was purchased the applicant was to be responsible for the mortgage costs. The respondent was to be responsible for the mortgage costs on the replacement property.
▪ The replacement property was to be held on trust for sale until the first of a series of triggering events with the most likely earliest event being the youngest child leaving secondary education (likely in summer 2026). On the triggering event the property would be sold and after normal costs of the balance 70% would go to the respondent and 30% to the applicant.
▪ The applicant would pay maintenance as set out in §1 above. The applicant whilst responsible for the mortgage would be entitled to deduct such payments from his maintenance (and CMS payments if required) obligation.
▪ The applicant would pay child maintenance to the respondent at the rate of £975 per month (in line with CMS provisions).
In December 2021, the parties returned to Court and reached consent terms varying the previous terms (“the 2021 order”) [30]. Once again, I do not need to detail the background surrounding this development but observe the key terms of the 2021 were as follows:-
▪ The respondent was to remain in the the property and it would not be sold as previously agreed. To achieve this the cohabitee provided a lump sum of £271,618 which both reduced the mortgage to £250,000 and met identified liabilities which had been expected to be paid on sale.
▪ The trust for sale was modified with the same triggering events (therefore likely sale by summer 2026) but with the proceeds being distributed after costs as to repayment of the £271,618 to the cohabitee before a distribution of the balance 70/30 to the parties as previously agreed.
▪ The maintenance terms (and all other terms other than those specifically varied) would remain in force.
It seems agreed the applicant had since about April 2021 been corresponding on the issue of varying the maintenance levels. It seems agreed the respondent was not open to this suggestion. Plainly the maintenance was not varied as part of the 2021 order. In April 2022, the applicant made this application [35]. Remarkably this is the first time on which the parties have been before the Court. As such it has taken the best part of 18 months for their application to come to final hearing. This is a particular shame given the issues are relatively narrow and the facts far from complex. Previously the Court approved directions agreed by the parties on paper and a listed hearing had to be vacated due to judicial availability. The applicant has applied for the appointment of an expert (occupational health physician) to provide an opinion on the employability of the respondent. This was refused by the Court on a paper consideration requested by the parties [65].
The key issues
The parties identify the following matters which have been developed in live evidence / submissions:-
▪ When considering a change of circumstances is the Court required to view this from the perspective of the 2019 or 2021 order?
▪ Does the respondent have an improved earning capacity when compared to the date of the consent order and if so, can the Court quantify this and how, if at all, should this affect the maintenance award?
▪ To what extent should the maintenance award be recalculated in the light of the role of the cohabitee and having regard to his resources? Can he or should he contribute more to the family economy? What impact, if any, should this have on the maintenance award?
▪ Taking a longer-term view can the Court assess a future time when the maintenance needs will further change? In particular to what extent can the Court predict the likely circumstances when the property comes to be sold in the summer of 2026?
▪ The ability of the applicant to meet the existing maintenance award?
The Legal Principles
The power to vary an existing order is found in section 31(1) and (2) MCA 1973.
In exercising the powers provided under the section the Court shall under section 31(7)
…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 or secured periodical payments order made on or after the grant of a decree of divorce or nullity of marriage [making of a divorce or nullity of marriage order], the court shall consider whether in all the circumstances and after having regard to any such change it would be appropriate to vary the order so that payments under the order are required to be made or secured only for such further period as will in the opinion of the court be sufficient (in the light of any proposed exercise by the court, where the marriage has been dissolved, of its powers under subsection (7B) below) to enable the party in whose favour the order was made to adjust without undue hardship to the termination of those payments .
In summary therefore the Court should have regard to all the circumstances of the case and this will include any change in circumstances to which the Court would originally have had regard since the making of the Order. The Court should in all cases consider whether a clean break can be affected without causing undue hardship to the receiving party. There is separate provision which permits the Court to order a capitalised lump sum or other appropriate transfer to enable such a clean break (section 31(7B)). The discretion exercised in such cases has been described as almost ‘unfettered,’ however the principles which governed an original consent order should not be interfered with. In assessing the variation, the Court should have regard to the original award which may provide ‘an appropriate cross check if not a starting point.’
I have been taken to three authorities considering cohabitation as a change in circumstances:-
▪ In Atkinson v Atkinson [1988] Fam 93: At first instance the Court had determined that cohabitation was only relevant as far as it reduced the wife's needs. On the facts the maintenance was reduced to reflect the ability of a cohabitee to obtain better paid employment. On appeal Waterhouse J. considered ‘settled cohabitation’ did not equate to marriage but did amount to a change in circumstance. He also concluded that a decision not to marry for the purposes of maintaining maintenance would be conduct as found within section 25(2)(g) of the MCA. However, he made clear there was no statutory requirement for cohabitation to be given decisive weight and noted that this would impose an ‘unjustified fetter on the freedom of the [party] to lead her own life as she chooses following divorce.’
▪ In Fleming v Fleming [2003] EWCA Civ 1841: The Court observed that Atkinson remained sound law notwithstanding social changes. In assessing the impact of cohabitation, the Court should have regard to the overall circumstances, including its financial consequences and...
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