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Mills v. Mills - (18 Jul 2018)

In matrimonial disputes, a spouse may have an obligation to make provision for the payment of other expenses; but an obligation to duplicate it in circumstances is most improbable


In facts of present case, Mr Mills (“the husband” notwithstanding his divorce from Mrs Mills, “the wife”, in 2002) appeals against an order for upwards variation of an order for periodical payments against him in favour of the wife. The order for variation was made by the Court of Appeal. By that order, the Court of Appeal allowed the wife’s appeal against the dismissal of her application to vary the order for periodical payments by Judge Everall QC (“the judge”) in the Central Family Court in London on 9 June 2015. Question raised in present appeal is whether, in light of the fact that provision had already been made for the wife’s housing needs in the capital settlement, the Court of Appeal had been entitled to interfere with the judge’s determination not to make full allowance for her need to pay rent in the continuing order for periodical payments.

Section 31(7) of the Matrimonial Causes Act 1973 provides that, in exercising the powers conferred by this section, the Court shall have regard to all the circumstances of the case, [which] shall include any change in any of the matters to which the Court was required to have regard, when making the order to which the application relates, and in the case of a periodical payments order made on or after the grant of a decree of divorce, the Court shall consider whether in all the circumstances and after having regard to any such change, it would be appropriate to vary the order so that payments under the order are required to be made, only for such further period as will in the opinion of the court be sufficient to enable the party in whose favour the order was made to adjust without undue hardship to the termination of those payments.

Unfortunately the husband’s advisers considered that, the terms of the limited grant of permission could in some way prove broad enough to enable them to make submissions at the hearing along the wider lines of his impermissible challenge to the Court of Appeal’s refusal to grant him permission to appeal to it. So at an early stage of the hearing the court had to re-emphasise the limited ambit of its inquiry in this particular case. The Court of Appeal erred in saying that, the judge had given no reason for declining to increase the order for periodical payments so as to enable the wife to meet all her basic needs. The judge gave a clear reason.

By its terms that question asks only whether a Court would be “entitled”, rather than obliged, in the circumstances there identified to decline to require the husband to fund payment of the rent. Its reference to the Court’s entitlement to do so serves to respect the wide discretion conferred upon it by Section 31(1) and (7) of the Act in determining an application for variation of an order for periodical payments. But, the Court of Appeal has expressed itself in forceful terms; and a Court would need to give very good reasons for requiring a spouse to fund payment of the other spouse’s rent in the circumstances identified by the question. A spouse may well have an obligation to make provision for the other; but an obligation to duplicate it in such circumstances is most improbable. The judge was clearly entitled to decline to vary the order for periodical payments so as to require the husband to pay all of the wife’s rent. The order of the Court of Appeal is set aside.


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