The High Court has dismissed a mother’s appeal against a clean break divorce settlement which, she claimed, had failed to take into account the fact that she might struggle to find work.
In Matthews v Matthews, the couple began living together in 2006, and then eventually got married in 2009 “after various separations and reconciliations”. They went on to have two children, now aged six and three.
At the Court of Appeal, Lord Justice Tomlinson noted:
“The marriage was unfortunately not a happy one. The parties separated in February 2010, that is to say, therefore, within eight months of their having been married, and they were divorced in 2012.”
The husband was a plumber and the wife worked in the financial sector. She was made redundant in 2012 and began working on a freelance basis.
The couple’s divorce proceedings came before Mr Justice Mostyn in April last year. The judge analysed the couple’s finances and debts “with considerable care”. He divided their four properties and ordered the husband to make a lump sum payment of £10,000 to the wife, along with child support payments of £156 per child until they reached the age of 17 or had completed full time secondary education.
The judge declined to order maintenance for the wife, saying “there is no reason for this as I have found that the wife has a higher earning capacity than the husband.”
The wife appealed this decision.
Lord Justice Tomlinson explained:
“The purpose of that, as put to the judge, was in order to deal with the vicissitudes of life and, in particular, the possibility that the wife might not be in a position to secure permanent employment for the balance of the children’s minority, having regard to the fact that she would find it difficult to secure employment in the banking sector because of her impaired credit rating and the consequent need, therefore, to look to the insurance sector for less remunerative work.”
“The wife appeals against that determination of the judge in relation to nominal spousal maintenance and the grounds of appeal for which permission has been given is that the judge was wrong to dismiss the application for nominal spousal maintenance in circumstances where the appellant has two dependent children living with her of the ages that I have indicated. On this appeal the wife has been represented by Mr John Buck and his submission is, quite simply, that the judge was wrong in principle to decide that there should here be a clean break. In particular, Mr Buck submits that the judge failed to take into account that the wife might struggle to obtain full-time work and he should have found that there is a significant risk that, because of her need to look for work only in the insurance sector, as opposed to the banking sector, she might be without work for substantial periods of time.”
But, the Lord Justice dismissed the appeal, saying it was clear that Mr Justice Mostyn had properly assessed the wife’s earning capacity. He noted:
“…it seems to me that the judge has indeed taken into account in his overall assessment the circumstance that the wife is not necessarily in a position to obtain full-time employment in the banking sector. As I have already indicated, the evidence before the judge was that, in her post at the bank, she earned £43,000 per annum. That was until February 2012. The evidence before the judge was also that, over the last 12-month period before the hearing — the last 12-month period for which there were accurate records — she had earned in the region of £23,000 per annum net, which in fact she had managed to earn in only six months out of the 12, since she had unfortunately been unemployed for six months of that financial year. It seems to me that, when the judge made his explicit finding that the wife’s earning capacity was around £40,000 per annum gross, he was evidently taking into account all of those considerations to which Mr Buck has referred, since it is obvious that, if the wife had been able to continue to secure full-time employment in the banking sector, her earnings could be expected to be by now quite substantially in excess of £40,000 per annum and probably a little in excess of the £43,000 which was the amount that she earned in the year up to February 2012.”
The judge added:
“Bearing in mind that the precarious nature of her ability to obtain employment and the extent to which she was handicapped by an adverse credit rating were put in the forefront of the argument before the judge and featured in the evidence given by the wife, not only her written evidence but also her oral evidence, it is, I think, inconceivable that this experienced judge can have overlooked the point that was being made on her behalf and, as I have already indicated, it is in my judgment inherent in the judge’s finding as to her earning capacity — and I underline the word capacity — that the judge had these circumstances well in mind.”
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