Richardson v Richardson (No 2)
| Jurisdiction | England & Wales |
| Judgment Date | 1994 |
| Date | 1994 |
| Court | Family Division |
Financial provision – consent order – wife agreeing to order for periodical payments for herself being limited to five years – wife applying for extension of period of those payments – factors to be taken into account.
The parties were married in 1970 and had two children. They were divorced in 1988 and an ancillary relief order was made under which, in addition to the payment of a capital sum to the wife and the making of provision for the children, the husband was ordered to make periodical payments of £8,000 a year to the wife for three years until 1 January 1991. It was further ordered that at the end of that three-year period, provided the husband had complied with the order, any claim by either party for financial provision would be dismissed. The order did not contain a provision under s 28(1A) of the Matrimonial Causes Act 1973 precluding the wife from making an application seeking to extend the period. Shortly before 1 January 1991 the wife made an application for an order extending the period for which periodical payments to her should be made and for a variation increasing the amount of those payments. As a preliminary point a district judge held that, in the absence of an express direction under s 28(1A) of the 1973 Act in the original order, the court had jurisdiction to hear and determine the wife's application. The district judge went on to deal with the merits of the wife's application. He ordered the husband to make increased periodical payments to the wife of £12,000 a year indefinitely.
The husband appealed on the preliminary point as to jurisdiction and the Judge dismissed his appeal: see Richardson v Richardson[1994] 1 FCR 53.
Both parties now appealed against the district judge's quantification of periodical payments for the wife.
The wife had no income other than what she received from the husband and the State and no pension prospects beyond the State pension. The husband had an earned income in excess of £100,000 a year and substantial pension rights.
The husband submitted that, adopting the principle stated in Edgar v Edgar [1980] 1 WLR 1410, the wife's claim for continuing periodical payments should be dismissed as the consent order had been properly and fairly arrived at with competent legal advice and should not be displaced in the absence of good and substantial grounds for concluding that an injustice would be done by holding the parties to the terms of their agreement. The wife
submitted that the financial arrangements agreed in 1988 had left her insecure and that no price had been paid in capital terms for the commutation of her continuing entitlement to income support; and that she should receive a third of the husband's income throughout their joint lives. That approach on present figures would produce a current order of £30,000 a year.
Held – allowing the cross-appeals: Although there was a startling discrepancy between the financial circumstances six years after the compromise leading to the consent order, this was largely due to the success the husband had made of his material life in the last six years and the failure the wife had made of hers. The only consideration which justified departure from the principle in Edgar v Edgar (above) was the responsibility which the wife undertook in 1988, and which she still discharged, for the children of the family. A balanced exercise of the court's discretion under s 31(7) of the Matrimonial Causes Act 1973 led to a conclusion somewhere between the two poles of a complete dismissal of the wife's application and her submission that she should receive a third of the husband's income. Section 31(7) required the court to have primary regard to children who had not attained the age of 18 and both children had now attained that age. The fact that the children were no longer minors was not decisive. What was decisive was the fact that they were still dependent as they were continuing to receive education. It would probably be five years before the younger child achieved independence. Further, in exercising its powers under s 31(7) it was incumbent upon the court to look for the possibility of terminating any continuing order for periodical payments provided that in the opinion of the court the termination would not result in undue hardship to the recipient. That was the statutory expression of the policy...
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Richardson v Richardson (No 2)
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