IN THE FAMILY COURT, FINANCIAL REMEDIES COURT

SITTING AT THE CENTRAL FAMILY COURT

FD12D00471

 

Date: 9 January 2021

Before:

 

Deputy District Judge David Hodson

 

B E T W E E N

 

AJC,  applicant and former wife

 

And

 

PJP, respondent and former husband

 

Mr Nicholas Daniels (instructed by Direct Access) for the applicant former wife
Ms Anita Mehta (instructed by Direct Access) for the respondent former husband

 

Reserved Judgement of Deputy District Judge David Hodson

9 January 2021 (amended for publication)

Judge David Hodson:

 

Introduction

 

1.             Under what circumstances should a long-term nominal spousal maintenance order be activated, become a substantive order?  Specifically should this be as a consequence of the financial difficulties arising from the lockdown?  It is an area in which there is relatively little judicial guidance.  In any event what is the role for R9.20.1 preliminary, case management hearings on the consideration of the merits of this sort of issue?

 

2.             This is a reserved judgement following a hearing on the morning of Tuesday 5 January 2021. 

 

3.             English family law has a rather curious order, more in the way of a device, which I’m not sure features in any other jurisdiction to any extent.  The nominal spousal maintenance order.  It’s a spousal maintenance order.  But it is not for any amount.  Unless and until it is made into an order of any substance, nothing is paid.  It only exists as a mark that in principle spousal maintenance is appropriate but on quantum it is inappropriate.  Or at least that was the history.  It creates much ill feeling from the paying party who feels the sword of Damocles is permanently hanging over them.  The number of instances where this nominal order is converted into an order of substance is very rare in my experience as both a practitioner and deputy and I refer to this more below.  There is limited judicial authority and only one was directly referred to me on this distinctive provision.  The primary cases we looked at during the hearing were in the context where there was either no order made at the time of the divorce and the application for a substantive order was many years later (classically Vince v Wyatt (2015) UKSC 14) or a substantive order was made and then subsequently varied up or down as happens often.  I consider it is an order which hasn’t kept up with changes in clean break requirements.  I believe it is an order which has had little examination over the years as to its merits and appropriateness.  It may be a London centric type order and regional variations are always to be deprecated in a justice system.  It is also of vital topical importance given that I was being asked to convert a nominal order into a substantive order as a consequence of the financial impact of the lockdown.

 

4.             I referred to English family law having this order but as I understand it, and data doesn’t exist to make this anything more than anecdotal, it is more precisely south-east England and particularly London.  Anecdotal reports from practitioners are that these nominal orders are not often made further out of London.  Moreover I do wonder if they are now less prevailing than a decade ago, especially in the context of some discussion about the future of spousal maintenance through possible parliamentary reform.

 

5.             So in what sort of circumstance would they be made and then generally might it be expected they would be converted? 

 

6.             I consider they are made, as here, where the children are living primarily with one parent who is able to support themselves on their income but the children are still relatively young and things may change dramatically during their minority.  It’s rare in my experience for nominal spousal maintenance to exist outside of childcare responsibilities and beyond those years.  Moreover most practitioners have known of cases where there is no nominal spousal maintenance order of any form where the primary caring parent has his or her own self-sufficiency income.  These nominal orders are certainly not made in every such case.  As I say, I think they are now being made less often.  They also have a gender bias in my experience and in only a few cases have I seen fathers with primary caring responsibilities have a nominal maintenance order although I have seen some cases in which both parents have a nominal maintenance order against the other.

 

7.             When are they expected to be converted into a substantive order?  I was given one leading case.  But that was very different to here.  In North (2007) EWCA 760, a wife had had a good capital settlement with a nominal order made in 1981.  She spent her settlement.  She lived a very good life but then ran out of money so she came back in 2004, more than 20 years later, asking for variation of the nominal order.  At the time of the application for a variation, she was living in Vaucluse, probably the most expensive part of Sydney.  She said in terms her money had run out and could she have a capital sum.  In the meantime the husband had been giving her support beyond legal obligations.  At first instance at the PRFD she received a capital sum in excess of £200,000.  The husband’s appeal was dismissed by Charles J but leave to appeal further was given by Lord Justice Wilson as he then was and heard by Lord Justice Thorpe.  He said

32. Once within the territory of discretion, the court's over arching objective is a fair result. There are of course two faces to fairness. The order must be fair both to the applicant in need and to the respondent who must pay. In any application under Section 31 the applicant's needs are likely to be the dominant or magnetic factor. But it does not follow that the respondent is inevitably responsible financially for any established needs. He is not an insurer against all hazards nor, when fairness is the measure, is he necessarily liable for needs created by the applicant's financial mismanagement, extravagance or irresponsibility. The prodigal former wife cannot hope to turn to a former husband in pursuit of a legal remedy, whatever may be her hope that he might out of charity come to her rescue.

33. Thus in the present case the wife's failure to utilise her earning potential, her subsequent abandonment of the secure financial future provided for her by the husband, her choice of a more hazardous future in Australia, together with her lifestyle choices in Australia, were all productive of needs which she had generated and for which the husband should not as a matter of fairness be held responsible in law. Even the applicant's subjective sense of fairness should surely not encourage her to expect that someone from whom she was divorced so many years ago should be required in law to compensate her for the financial consequences of ill-advised choices.

34. However I would not necessarily, as the District Judge appeared to do, put the wife's investment losses into the same category. Whilst it can of course be said that stock exchange investments are less secure than ground rents, they are a more conventional form of capital investment and carry the prospect of capital appreciation to offset the erosion of inflation. Thus even had the wife been content to remain in Sheffield she might reasonably have decided to exchange the ground rents for a stock exchange portfolio. The consequential loss seems to me more the outcome of hazard and therefore to be characterised as misfortune rather than mismanagement.

 

8.             I don’t know of any other English leading case law along the lines of the one before me.  Anecdotal practice is conversion into a substantive order only if there is a major and dramatic change in circumstances of childcare and ability of one parent to look after the children.  It is invariably children centred.  Obvious examples often given by practitioners are major physical or mental illness leading to inability to support oneself which would have an impact on the children.  Perhaps a little like the carers allowance under Sch 1 CA.  Again very children orientated.  This is not in my experience provision to protect a spouse for many years in their own right.  That is also a clash with the clean break imperative.  But I remind myself that the child support assessment takes no regard for the income of the parent with whom the children are primarily residing so in that regard the child support assessment wouldn’t change if the parent on a multi-million pound income suddenly went on welfare benefits.  If it was court ordered child maintenance which would take account of the income of both parties, an application for variation would be fully justified if the income of the parent looking after the child ended.  So why the spousal maintenance being held alive?

 

9.             I don’t know when nominal maintenance orders first arrived.  I started practice in 1976, working as an assistant solicitor partly in family law from 1978 and I remember them then.  Crucially as North above shows, I believe they predate the 1984 clean break legislative changes.  This has strong relevance because they are in some ways quite incompatible.  This potential incompatibility has been strong in the case before me.  How can it be said that the 1984 duty to bring about a clean break as soon as possible after the divorce with the duty to endeavour to become as self-sufficient as reasonably soon as possible be consistent with moderately long-term nominal spousal maintenance.  In this case the term would be about 15 years, from mid 40s into early 60s.  I believe this is one of the strong conundrums and perplexities of this distinctive order.

 

10.         Moreover and returning to the circumstances in which the nominal order is converted to a substantive order, should there be any connection with the paying party?  If none, then events outside the control of the paying party may cause a nominal order to become a substantive order many years after the final divorce settlement.  Is this what was really intended when these orders were created and specifically when this provision was incorporated into the final financial order here?  The strong emphasis in case law now is that variations should be linked in some ways to the paying party or at least to the marital disadvantage.  I refer to the comments by Lord Justice Thorpe in North as above, clause 32.  I return to this

 

11.         Moreover and specifically in January 2021, at a hearing the day after the Prime Minister announced the third national lockdown which has caused so much economic hardship to so many, is the pandemic a justifiable basis of converting a nominal maintenance order, which has been nominal for about eight years, into a substantive order?  If it is, then family justice should be expecting many more such applications.  I’m fully aware there are some judicial policy issues to be sorted out regarding setting aside financial orders as a consequence of the pandemic but are we also introducing the conversion of nominal orders into this mix?

 

12.         These were some of the background features in my thinking in circumstances where the former wife asked the court to convert the nominal order made in 2012 into a substantive order in early 2021 even though, she said, it would be relatively short-term until she could again be self-sufficient.  The nominal maintenance order as a financial emergency fund to call upon during hard times, perhaps unexpected exceptional hard times.  Is this the intention in law?

 

13.         As set out above, I decided that this was not appropriate in all the circumstances and dismissed the application

 

Background

 

14.         The former wife is 53 and the former husband is 57.  I don’t know details of the marriage but I gained the impression it was of reasonable length.  They separated in November 2011, decree absolute in November 2012 with a final financial order made 16 November 2012 by consent.  There are two children, a boy aged 17 and 18 in this coming September and a girl who is 14 ½.  Although initially living primarily with mother they have been living relatively equal time lives since an order in proceedings in September 2015.  They both attend private school of which more later.  In practice their son divides his time equally and the daughter tends to spend more nights per fortnight with the mother

 

15.         The final financial order provided in brief terms that the former wife would have 69% of the proceeds of sale of the family home, a pension share and the former husband retained his business interests.  She was able to purchase new accommodation and the former husband moved into rented accommodation for a number of years.  There was a nominal spousal maintenance order until the former husband is 65 or other order or remarriage or death in the usual way.  So he was about 49 when the order was made and it therefore had a maximum lifespan of about 15 years.  Moreover in eight years’ time their daughter will be 22 so this was a longer nominal spousal maintenance order than usual, and especially in circumstances where at the final settlement the wife, an airline pilot, was self-sufficient.  I observe the former wife had the far greater share of the proceeds of the family home, as would often happen if she is the primary carer, perhaps with a lower mortgage earning capacity and the need for rehousing.  The former husband kept his business which with some changes over the years is still his form of remuneration.  So I note that where the former wife seeks in this application to invade the business resources of the former husband she has already had her share of those resources originally in the final divorce settlement.  This double dipping can be an unattractive and unfair feature of some variation applications.

 

16.         A time came in 2015 when the former wife wanted the former husband to pay all of the school fees.  He said he couldn’t afford to do so.  The matter went for a three-day hearing before a judge in the Brighton family Court who decided that this family couldn’t afford private school fees and directed the children move into the state sector.  That was no doubt an alarming position for both parents but very probably the reality of their respective meagre available income.  Yet in a short period of time, the former wife disclosed that her father would be willing to pay half if the former husband paid the other half.  He did and this was the subsequent arrangement made.  It’s a pity this proposal wasn’t forthcoming about the family help before the substantial and expensive litigation.  It might have settled matters if she had suggested this outcome before everyone went to court.  On the former wife’s side a school fees fund has been set up from her family.  On the former husband’s side, he pays his share out of income.

 

17.         The former wife is a trained pilot and was very clear she had made over 100 commercial flights.  She had been working for Thomas Cook although she had had a period of sickness when her pay continued.  In 2019 she had been made redundant, and she received a redundancy payment which she put in the name of their now 14 year old daughter.  Nevertheless she secured other employment as a pilot at £65,000 per annum but this came to an end at the start of the pandemic.  She has been without work as very many in the airline industry when no planes have been flying during the lockdown.  She has been without income and claiming state benefits.  She said that once the pandemic ends and planes start flying again, she hopes to be employed and no longer dependent.  In other words she made it clear this was a short-term remedy.  Of course no one knows when the planes will once again be full and safe and it will hopefully be later this year.  So we may be looking at 12 months maximum.  Again I am duty-bound to ask the question: is this emergency funding to help at a time of global crisis the purpose of the nominal spousal maintenance order both generally and many years after the separation and divorce?

 

18.         So in summary she is receiving universal credit, child benefit and child support totalling about £2000 per month of which £900 is child support which will continue.  She claims an income need of about £3500, about £42,000 per annum net of tax which I observe is about £60,000 gross of tax, about the same as she says she would have received if working.

 

19.         The former husband has worked in car sales and related work in the motor industry in various capacities and companies.  Car sales have also suffered during the pandemic with profits dramatically reduced.  It was said he had expanded or moved his operations into car body work and related.  If I had allowed the application to proceed, I was faced with a detailed two page questionnaire going into many of the arrangements he had made with his businesses.  I was told that changes he had made with various companies in November 2020 was subject to the section 37 presumption of intention to defeat claims.  Yet it became clear during the hearing that he had put this in place a couple of months before he had any intimation that his former wife was seeking to convert the nominal into a substantive order.  I worried that this questionnaire and allegations of attempts to defeat claims would involve quite a lot of litigation although I hasten to say this worry was not the reason for the decision but simply an observation and concern.

 

20.         We don’t have the more recent figures for his overall income although he said he had also suffered because of the long-term; very few haven’t.  We only have his figures to April 2020 and some suggestion that he would have monthly net of about £7900.  But he also had a substantial mortgage, having taken a relatively small proportion from the sale of the family home in the divorce settlement.  He had child support of about £900 and school fees of about £1900.  Certainly after the major calls on his income he had funds remaining.  But he said this was for his living expenses and it certainly wasn’t a huge amount

 

21.         However the former wife was seeking about £2000 per month, for herself, on top of about £900 per month child support.  This claim by her would leave him with no money for his own personal expenses on the information disclosed by him, and this was on pre-lockdown levels of income.  It was made clear that she had to seek this amount otherwise any lesser amount would be taken pound for pound by welfare benefits.  It seemed to me this was a substantial claim in the context of the background to the case

 

22.         What of their respective capital position?

 

23.         The former wife has a three-bedroom property worth perhaps £480,000 with a mortgage of about £117,000.  She has about £5000 left from the redundancy payment, in the name of her daughter, which she says she is using to discharge her legal fees.

 

24.         Controversially because of the element of disclosure, she received an inheritance when her father sadly died in November 2019.  Her share is 35%.  A good amount of the estate consists of a property in Wales.  It is empty and unlet.  I was told her sister will not agree to it being sold.  I found this highly indicative.  If the wife is in a position of real need as she was when she lost her job in about March, could she not have persuaded her sister to sell the property to help her need?  Perhaps the sister knows something we don’t know.  Perhaps this was a tactical family decision.  But it can be let and I was told an income of about £660 per month would be available.  But it hasn’t been let.  Of course we appreciate the distinctive position in Wales with higher rates of infection.  Nevertheless aspects of life have continued and properties are being let and made available for letting.  This would be especially so if income was desperately needed.  But of course any rental income will not change her position.  It will simply reduce her universal credit.  So perhaps there is a further reason why there has been no rush to let the property.  If she succeeds in obtaining a conversion to a substantive order which takes her off universal credit, it would have to be on the basis that there was an immediate credit given for rental when received.  

 

25.         The bigger concern is the level of disclosure.  This has been pushed forward by the former husband and it was he who obtained and disclosed the probate and the will.  He was the one who had to ask the questions whereas it should have been disclosed.  He says this is further evidence that she will not fully set out her circumstances and would take action to cover up the full position.  Nominal spousal maintenance is a creature of statute, not equity.  But family law is a creature of fairness and a search for fair solutions.  I record I was troubled by both the redundancy money going into the name of a child only then just in her teens and the lack of candour and openness regarding the available resources from the inheritance.

 

26.         It was said that in reality the former wife’s financial capital position was better than that of the former husband.  That might be right although we did not look more into his business.  If even on a variation of an existing order, the court would be looking at available resources but not necessarily on a comparative basis.

 

27.         The former husband has a property bought in 2016 for the same approximate value as the property now of the former wife.  But he has a large mortgage, an overdrawn bank account and no other savings.  He may well have some money in his business but he says that is earmarked for January 2021 tax.  He has raised funds from one business to purchase an interest in another business but this court is not going to take if it would therefore means he had no source of remuneration.  Some people have paid employment but some have to invest capital to have remuneration and this court will be very slow to take from that capital for family responsibilities if it would mean the remuneration would thereby end.

 

Should the application succeed?

 

28.         The former wife said that I should treat this as if it was an ordinary variation application.  No difference she said.  As if £800 per month increased to £900 per month or whatever may be the amounts.  Relatively marginal differences, whether up or down. 

 

29.         I disagree.  Of course the criteria of s31 must be considered on any variation and I have.  But in my assessment variation of a nominal order has intrinsically a huge difference.  A party receiving maintenance at a particular level knows it may go down if they themselves have increased income and may go up if e.g. the paying party is earning more and they can demonstrate need.  The paying party knows they are always at risk of having to pay more if the receiving party has a reduction in their income or if they themselves have much greater income.  It is a state of flux.  Some of us have argued that there should be in law an automatic indexation increase.  We are not there yet but it is included in many consent orders.  In the ordinary course of events when there is a spousal maintenance order, neither paying party nor receiving party are too surprised if the other seeks to review.  When a case is being settled or has settled, each party is advised of the opportunity to seek a variation or the risk the other may do so.  It is inherent in having provision of a periodic nature.  Indeed this anxiety about review is a strong encouragement to a capitalisation if possible and to a clean break wherever possible.

 

30.         I suggest it is wholly different with a nominal order converted into a substantive order of whatever amount.  First, I suggest it is only to be converted if there is a significant change in circumstances.  Not just e.g. 20% increase or decrease in income of either party.  But a significant change.  It is not something which either party necessarily expects to happen nor generally be a matter of anxiety on a month by month, year by year basis.  It’s there but not expected to be activated in most circumstances.  Secondly, it’s not budgeted.  The paying party in particular doesn’t bring it into account in their own budgeting.  If the paying party of a normal maintenance order has a good level of increase in income, they are if well advised inevitably going to build in the risk of an increase in spousal maintenance.  The child support calculator would expect an increase in child support with an increase in remuneration of the paying party.  This doesn’t happen with nominal provision.  So in my assessment the nominal maintenance order is an entirely different element of the budgeting and life planning of each party.  This has to be relevant in circumstances where the post-divorce landscape encourages parties to move on and not look back.  Thirdly, the mere fact that it is nowhere clearly specified for the public when the nominal will be converted into the substantial must only add to the uncertainty, precariousness and unsatisfactory nature of this provision.  Those appearing before the family courts of England and Wales are entitled to know the circumstances in which a particular payment requirement will come about.  By analogy, when will a Mesher kick in?  Fully set out in the terms of the order.  When will the nominal kick in?  Who knows!  This is wholly unsatisfactory.  This is not good for family law and the parties whether paying or receiving.

 

31.         But what of the recent trend for orders generally but specifically variations or reviews to be triggered by relationship generated disadvantage, keywords used by the Law Commission and by Baroness Hale.  I have carried out my own investigations.  My clear recollection is that Baroness Hale introduced this concept in, from memory, Miller and it has been much debated subsequently.  Particularly in the context of a variation application, as here, how much should the change in circumstances relate to the relationship and how much to the ordinary ups and downs of life?  There was many years ago an outrageous decision of Fleming (2003) EWCA 1841 in which the former wife asked for an increase in maintenance because she could no longer work as she was pregnant by another man, perhaps her then cohabitant or at least boyfriend.  She succeeded but against much adverse comment and I think the ratio of the decision has now been overturned.  The high watermark of the paying party paying for any change in circumstance of the receiving party.

 

32.         We then had North 2007 EWCA 760 as above.  It was made clear then that the former husband was not to be the insurer of the life choices of the former wife.  The Court of Appeal said that her failure to utilise her earning potential, her subsequent abandonment of the secure financial future provided for her by the husband and her lifestyle choices in Australia were matters which the husband could not be responsible for in law.

 

33.         Another case in my awareness which I myself raised during the hearing was Mills (2018) UKSC 38.  Again this was conduct by the former wife who brought about her own financial downfall.  She had received a capital sum, as accommodation provision, invested well and did well.  Until a less successful investment left her in financial difficulty and she came back to seek provision against her former husband.  A narrow point only went to the Supreme Court.  But the central issue was that she should not be expecting her former husband to come to her aid through events occurring which had nothing to do with him and nothing to do with the relationship.  They upheld the first instance decision that the wife’s unwise decisions in relation to capital had increased her basic needs for rental and it was consequently unfair to expect the husband to meet those increased needs.  The Supreme Court referred to North.  It said that the cases of Pearce (2003) EWCA 1054 and Yates (2012) EWCA 532 were correctly decided.  There was a wide discretion in considering s31 MCA

 

34.         May I interject here to say that these cases where in circumstances of criticism of the conduct of the former wife, applicant.  I do not suggest under any circumstances by analogy there is similar criticism of the former wife in this case.  We are looking at these cases to draw out principles which should apply.  I believe it is important to say this

 

35.         We then have another crucial decision of SS v NS (2014) EWHC 4183 and in clause 46 Mr Justice Mostyn pulls together threads of very helpful guidance on spousal maintenance.  He draws attention to the fact that it is where evidence shows choices made during the marriage have generated hard future needs.  Where not causally connected to the marriage the award should be aimed at alleviating significant hardship.  A termination with transition to independence must be considered.  Provisions with which we are very familiar in the financial remedies court

 

36.         There is little in these guidelines on variation, and the case was about term orders.  On an application to discharge joint lives order, by analogy here an application to discharge a nominal maintenance order, an examination should be made of the original assumption that it was just too difficult to predict eventual independence.  From the little I know, I’m not sure that assumption was definitely in play then, in 2012.  It might have been.  The younger child, their daughter, would have been six.  Just at school.  Still a very young age in the perception of the family courts and the significant caring responsibilities of the primary residential parent.  I see why at the age of six a nominal maintenance order might have been appropriate.  But at the age of 14?  I don’t think the circumstances now are as anticipated by Mr Justice Mostyn in that reference in the seminal case

 

37.         This English family court is not bound by decisions in other jurisdictions.  But we are increasingly operating in a global family law community and sharing what we consider should be fair family justice.  This is especially so with our closer common-law friends.  This includes Singapore.  I found considerable help from their judicial authority and I set out a link to an excellent article by Kee Lay Lian of Rajan and Tann pertaining to a Singapore Court of Appeal decision of ATE v ATD (2016) SGCA 2 looking at whether a nominal order should be made.  When is it Appropriate to Order Nominal Maintenance? - Lexology

 

38.         I find this barely distinguishable from England.  The Court of Appeal sets out four applicable principles.  It is not to be automatically granted.  It’s not sufficient for a receiving party to say her situation in the future may change.  The precise facts and circumstances must be taken into account.  The purpose is preserving the standard of living of the receiving party, not long-term dependency, must take into account the duty to endeavour to be self-sufficient.  All of these are consistent with English law in my assessment.  The Court of Appeal then went through circumstances where nominal order was not ordered which again seemed perfectly reasonable to me.  In that case the court found the wife was perfectly able to look after herself and support herself.

 

39.         The Singapore Court of Appeal observed: the future is impossible to predict and that something untoward could happen is always possible.  The concluding words of the author on the case said: to ask for nominal maintenance order in order to be a general insurer against misfortune is not a justifiable basis, the emphasis being hers.

 

40.         It seems to me that I’m entitled both to consider the matter on the basis of English practice as I have above, the relatively limited English authority as above and on the basis of any related authority from similar jurisdictions and I do.

 

41.         Eight years on from the nominal maintenance order, by consent rather than judicially imposed, in circumstances where the youngest child is now 14 and where the recipient has been fully self-sufficient at the time of the divorce and subsequently and where the change in circumstance is the economic impact of the worldwide pandemic affecting so many billions, I am satisfied in law it is not appropriate and reasonable to convert the nominal spousal maintenance into a substantive order.  Of whatever amount and in this regard my views on the amount claimed and indeed necessary to claim to take off state benefits is irrelevant to the central point.  But for what it is worth, and as early neutral evaluation rather than a judgement, I don’t think the former wife would have succeeded in the quantum of her claim even if I had allowed it to go forward.  There was a threshold below which there was no point in having an order and I don’t think she would have achieved that relatively high level in the circumstances of this case.  But as I say that is no part of the judgement or my decision-making on this point of whether it should go further forward. 

 

42.         Misfortune or unexpected developments in life is the nature of life.  Life never goes according to plan.  Sometimes those misfortunes or unexpected developments arise from, compounded or accentuated from, the foundation or circumstance of a past relationship.  I could see why in those circumstances there might be a justification for a nominal order being made into a substantive order.  I think that debate needs to be had.  But it’s a debate and especially in the context of the 1984 encouragement of clean breaks.  However where misfortune or unexpected developments have absolutely nothing to do with having been in a married relationship a decade earlier then in my assessment it is in 2021 no longer part of the policy and practice of our family law that one spouse should be responsible for the other.

 

43.         Losing a job through the consequences of the virus when one had a job at the time of settlement a decade earlier cannot be ascribed to relationship generated disadvantage or even a loose causal connection.  As again to create a nuance, there might be an argument if the work position of the receiving party is significantly disadvantaged through the relationship particularly if relatively recently after the end of that relationship and so at higher risk of losing work, and again I can see a debate on this.  But not as I have set out in the first sentence above.  And that is the situation here.  This court is of course sorry to hear of the circumstances of the former wife as it is of everyone who is in financial difficulties as a consequence of this most appalling development in the life of our planet.  It is of all events thoroughly unexpected.  However a nominal spousal maintenance order made almost a decade earlier is not the basis for coming back to court to ask for a short-term financial support provision from the paying party who has not paid anything over that period and is quite probably himself facing his own financial difficulties in his line of business.

 

44.         I am therefore completely satisfied that it is right to dismiss the application.  For the avoidance of any doubt, it is this sort of scenario for which the rules are deliberately intended to enable consideration at an early stage.  This is not summary judgement summons as found in the civil divisions.  It is determining the application at the first hearing where there are good reasons to do so, R9.20.1.  Not to do so, with the high risk this would be the outcome after extensive disclosure and costs, would be unfair to both parties and a derogation of reasonable court management.

 

45.         I am asked to dismiss the spousal maintenance order altogether.  I am close to doing so but ultimately have held back.  Within a matter of months, the elder child will be 18 and either this summer or next would have left secondary education.  Within four years so will the daughter.  As I’ve indicated, it’s rare to find nominal spousal maintenance outside the child dependency context.  Unless something very substantial occurs soon, I cannot see any basis upon which the former wife would be able to convert the nominal maintenance order.  Another reason for my preparing a written judgement was so that this is available for the future.  I don’t think I should dismiss but I would be very surprised if circumstances justified bringing back to court and they would have to be very significant.

 

DDJ David Hodson

9 January 2021