Husband wins appeal in claim for overpaid maintenance

Divorce|Family Law|News|March 1st 2013

Chester County Court has granted an appeal against a judgment that courts do not have the authority to order the repayment of overpaid maintenance unless a legal order is in place.

G v P concerned a divorced couple. In July 2005, they reached a settlement in which they husband agreed to pay £950 per month in maintenance, up until she remarried or had cohabited for a period of six months. He also agreed to pay £750 per month in child support, until their daughter reached age of 17 or completed secondary education, whichever came first.

In June 2009 the wife remarried, but she did not tell her former husband until August, and by that time he had made two further maintenance payments. The husband then contacted his bank in order to cancel the monthly payments to her, leaving only the £750 monthly child support payments intact. However, instead, the bank mistakenly increased his monthly payments – from the previous monthly total of £1,700 (£950 + £750) to £1,750.

The husband did not notice this overpayment for almost two years, but it finally came to his attention in June 2011 when he rang his bank to cancel the child support payments. By that point, the wife had received an extra 22 payments of £1,000.

The husband went to court to recover the money, applying for the refund under two different clauses of the Matrimonial Causes Act 1973. These were section 38, “Orders for repayment in certain cases of sums paid after cessation of order by reason of remarriage, for the payments between June and August 2009; and section 33, “Orders for repayment in certain cases of sums paid under certain orders”, for the 22 excess payments between August 2009 and June 2011.

The wife agreed to pay the two payments claimed under section 38, while a court date was set for the 22 section 33 payments claimed.

At Crewe County Court, District Judge Pates considered the wording of section 33 and ruled on the basis of this that the courts only had jurisdiction to order the repayment of overpaid maintenance if there was a legal order for regular payments in force at the time.

The husband appealed.

Sitting at Chester Crown Court, Judge Kevin Barnett further considered the wording of section 33 as there was no existing guidance on how to interpret this part of the act. He concluded that the wording did not in fact require a legal order to be in place for the court to have the authority to order repayments.

The decision made by Judge Pates was set aside and the case sent to back to Crewe Crown Court for a possible further hearing, but Judge barnett also urged the former couple to reach an agreement:

“If there is…a further hearing the inevitable consequence is that the costs will escalate. That can only be avoided if the parties, as I would strongly urge them to do, are prepared to compromise and reach an agreement. It is in their respective interests to do so.”

Photo by Chester Paul Sgroi via Flickr under a Creative Commons licence

Author: Stowe Family Law

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