A former husband’s application to change a spousal maintenance agreement should not be struck out, the High Court has ruled.
The case concerned a former couple who married in 1992 after living together for a number of years. The wife had two children from her previous marriage. In the Central Family Court at the Royal Courts of Justice in London, Mrs Justice Parker noted:
“The marriage broke down fairly soon after its celebration, the parties separated, and the wife eventually brought what are now termed financial remedy proceedings. The husband continued to maintain the wife after the separation.”
The wife’s children remained on good terms with her former husband. They are all now adults and work in his businesses.
Eventually, in 1999, a settlement was agreed. This specified that the former husband would continue to pay maintenance until his ex-wife either remarried or a further court order was made, as specified by the 1973 Matrimonial Causes Act. If she did remarry, the payments would continue under the terms of the settlement, but they could no longer be enforced by court order under the 1973 Act.
The agreement stated:
“…in the event of the Petitioner’s remarriage and notwithstanding the provisions of clause 1 of the operative part of the order below, the Respondent will continue to pay or cause to be paid to the Petitioner during their joint lives periodical payments at the rate in force immediately prior to the Petitioner’s remarriage; such payments to continue both to be paid as aforesaid monthly in advance in favour of an account nominated by the Petitioner….”
The man continued to make payments “without demur” for 16 years, before suddenly ceasing to pay in September last year.
The wife’s solicitors wrote a letter indicating plans to begin court proceedings in the Queen’s Bench Division of the High Court, on the basis that the maintenance payments constituted a “civil debt”
These had originally been agreed in lieu of a lump sum payment, that would have been calculated on the basis of the woman’s expected lifespan without taking into account possible remarriage.
The husband’s solicitors then made a sudden application to change (“vary”) the maintenance payments agreement. The wife countered by arguing that he had no reasonable cause to do so.
Mrs Justice Parker explained:
“She says that there is no jurisdiction to entertain such an application. The husband disagrees and says that the payment is based on the agreement to make ongoing provision which he is entitled to apply to vary.”
The Judge continued:
“[The wife] says the husband cannot seek to vary the [original maintenance] order, as it has come to an end [due to her remarriage], or seek to vary the original agreement…Therefore, there is no power to vary because there is now no power to make an order in her favour after her re-marriage and the arrangement is part of the court order.”
She applied to have the husband’s applications struck out (dismissed by the court).
The husband’s legal team set out a number of reasons for his unwillingness to continue paying, including the suggestion that it had been partly dependent on the ability of his businesses to continue generating the funds.
“Most importantly for the purposes of this application is his case that he needs now to have access to the funds represented by the obligation to make periodical payments to support his relationship with his present wife; and his case that the wife and her husband J are now financially sound and do not need the payments so that continuation of the order is unfair.”
The wife disputed his claims of “financial constraint”, but the Judge rejected her argument that his application should be struck out, instead ruling that it could proceed to a further hearing.
The ruling T v R can be read here.