Mary Patricia Mutch v James Mutch
| Jurisdiction | England & Wales |
| Judge | Lady Justice Black,Norris J,Lord Justice McFarlane |
| Judgment Date | 13 April 2016 |
| Neutral Citation | [2016] EWCA Civ 370 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B6/2014/3557 |
| Date | 13 April 2016 |
[2016] EWCA Civ 370
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MANCHESTER COUNTY COURT AND FAMILY COURT
HIS HONOUR JUDGE BOOTH
CH08D00861
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Black
Lord Justice McFarlane
and
Mr Justice Norris
Case No: B6/2014/3557
Mr Julian Shaw (instructed by Hillyer McKeown LLP) for the Appellant
The Respondent appeared in person and was not represented
Hearing dates: 17 th March 2016
This is an appeal in financial remedy proceedings from an order made by His Honour Judge Booth on 8 October 2014. The appellant is Mrs Mutch and the respondent is her former husband, Mr Mutch. At the end of the appeal hearing, we announced our decision to allow the appeal, for reasons which would be given later in writing. This judgment is intended to set out my reasons for determining that the appeal should be allowed. As we dealt with issues of costs at the hearing and explained immediately why we made the order that we did in that respect, it will not cover that aspect of the case.
In order to explain the nature of the order that Judge Booth made on 8 October 2014, I need to go back to an earlier stage in the financial proceedings that took place consequent upon the parties' separation and divorce. Although I assume that decree absolute has now been granted, I will refer to the parties in this judgment as husband and wife because it will make it more straightforward to understand; I hope they will forgive me for doing so.
On 2 July 2012, Judge Booth made an order at the conclusion of the final hearing of the wife's application for financial orders. It provided for the former matrimonial home and a Spanish apartment to become the property of the wife, albeit that the intention was that the former matrimonial home would be sold imminently. A pension sharing order was made in the wife's favour in respect of the husband's rights under his pension arrangement with a particular company pension scheme, providing for 50% of the husband's CETV to be transferred to the wife; no date was specified by which this particular order had to be carried into effect. There was provision for the husband to make certain periodical payments to the wife which were, in part, linked to the outgoings in relation to the former matrimonial home. The provision was contained in paragraph 3 of Judge Booth's order and read as follows:
"3. During the parties' joint lives and pending completion of the sale of the former matrimonial home or further order of the court, the husband shall pay periodical payments to the wife as provided for below:
(i) the following outgoings, bills or liabilities in respect of the former matrimonial home:
[ outgoings listed]
(ii) the property charges in respect of the Spanish apartment, and
(iii) £1,200 per calendar month payable monthly in advance."
Paragraph 3.1 provided for the method of payment by the husband of certain of the sums concerned.
Paragraphs 3.2 and 3.3 are important. Paragraph 3.2 set the intended end date for the periodical payments but paragraph 3.3 provided for liberty to apply for further directions in relation to them in certain circumstances. They read as follows:
"3.2 The order for periodical payments as provided for above shall end on the first to occur of:
a. the death or remarriage of the wife
b. completion of the sale of the former matrimonial home
c. further order of the court.
3.3 In the event that the sale of the former matrimonial home as provided for above has not been completed by the 4 th November 2012 AND in default of agreement between the parties as to the continuation of any order for periodical payments as provided for above, there be liberty to either party to apply to His Honour Judge A Booth (to whom the matter is reserved) for further directions in respect of the order for periodical payments set out in paragraph 3 (i) – (iii)."
Paragraph 4 provided:
"Save as provided for above and upon implementation and the carrying into effect of the terms of the Order, the husband's and the wife's claims for financial provision; [ sic] pension sharing and property adjustment orders shall stand dismissed and neither the husband nor the wife shall be entitled to make any further application in relation to the marriage under the Matrimonial Causes Act 1973 S.23(1)(a) or (b)."
Paragraph 7 provided:
"There be liberty to either party to apply to His Honour Judge A Booth …. for further directions as to the implementation and timing of the terms of this order."
The husband failed to comply with the provisions of the order. The wife therefore sought in October 2012 to bring the matter back to court. The document by which she launched her application appears to be the document, dated 22 October 2012, which is at B5 in the appeal bundle. It reads:
"TAKE NOTICE that the Applicant intends to apply to His Honour Judge Booth …. on the [ blank] day of [ blank] 2012 for further Directions under the Liberty to Apply Provision of the Order made by this Honourable Court on the 2 nd July 2012 – Estimated Length of Hearing: 30 minutes."
We have been provided with a copy of a witness statement, also dated 22 October 2012, made by the wife's solicitor, which was expressed to be "in support of the wife's application for directions pursuant to the liberty to apply provision set out in the [July 2012] order". In the statement, it was said that the husband had cancelled his payments in respect of the outgoings itemised in paragraph 3.1 of the order and failed to pay the £1,200 per month required. He was said also to have taken no steps to co-operate with the trustee of the company pension fund with a view to the implementation of the pension sharing order in the wife's favour. The wife's solicitor invited the court to "make orders to enforce the payment of the spousal maintenance including an order requiring Mr Mutch to pay the arrears under the order to Mrs Mutch forthwith". In addition, he argued that the former matrimonial home was going to be sold for £70,000 less than had been contemplated in July and continued:
"in the light of the very real drop in the wife's capital (which is all she will have to live on until she is able to draw down from her pension) the Court is invited not to terminate Mrs Mutch's spousal maintenance immediately upon completion of the sale but to vary the sum downwards so as to provide some on-going measure of financial support to reflect the fact that the basis upon which the Court constructed its careful overall package of financial remedy for Mrs Mutch has been significantly undermined by the loss of £70, 000 or 12% of the value of the property." [ emphasis added]
As far as the pension sharing order was concerned, he said that the wife was severely disadvantaged by the failure to implement it and invited the court to give such directions as were necessary to ensure that it would be implemented, with a penal notice imposed.
The parties returned to court on 23 November 2012, the wife represented and the husband in person. By then, the former matrimonial home had been sold, on 5 November 2012, but there had been no progress on the pension front. An order was made by consent which begins with this recital:
"UPON HEARING Counsel for the Wife and the Husband in person at the hearing of the Wife's application for directions and enforcement of maintenance arrears and for a variation of the order for spousal maintenance and for directions with regard to the implementation of the pension sharing order both contained in the Final Order made in the financial remedy claim dated 4 th July 2012;"
The order made provision for the husband to pay £8,000, in instalments, in full and final satisfaction of all arrears of maintenance accrued to the date of it, inclusive of interest and the costs of and occasioned by the application. Paragraph 2 of the order read:
"2. As from 1 st December 2012, and during the parties' joint lives and pending the trigger event as defined in paragraph 2.1 of the order below or further order of the Court, the Husband shall pay periodical payments to the Wife of £1,000 per calendar month payable monthly in advance, the first payment falling due on the...
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...of the order "based on an application made prior to its expiry". That view was followed by Lady Justice Black in the recent decision of Mutch v Mutch [2016] EWCA Civ. 370 at para.18, where she said: "Provided, however, that an application is made prior to the term of the periodical payments......