Rupert Chapman

Variation of maintenance – the scope of the court’s discretionary exercise

A number of previous cases have been used in support of the assertion that the court in considering an application for variation of spousal periodical payments must consider the case de novo and reapply the s. 25 criteria from scratch. In Flavell v Flavell [1997] 1 FLR 353 Ward LJ held that “the court is not required to proceed from the starting point of the original order but looks at the matter de novo”. This has long been relied upon as justification for the argument that it is not necessary, per se, to show a change of circumstances in order to justify an application for variation, though such a change is an important and relevant circumstance of any such case.

In the recent case of Morris v Morris [2016] EWCA Civ 812, however, the Court of Appeal has made it clear that this assumption is not always applicable. The case concerned an application for variation of maintenance issued a mere 6 months after the original order, where the court at first instance had made a slight variation of maintenance (reducing the payments from £2,000 per month to £1,750). The case had a long history in which the husband had failed to pay maintenance and mortgage arrears and was the subject of a judgment summons application and committal order which was also the subject of the appeal.

The husband argued that the judge on the variation application, who had also heard the original claim, had failed to consider the level of payments from scratch but had simply credited the husband with the benefit of a change in the wife’s circumstances (her slightly increased income). He said that the judge’s approach was “light touch, in the extreme” and failed to either analyse the relevant criteria sufficiently or consider the possibility of a clean break. The judge had also, he said, failed to take into account changes in the husband’s circumstances, though on examination of the order they did not appear to have any significant impact on his own income. The wife, however, argued that the court was not required to undertake a full review of the section 25 criteria given the short time between the first order and the variation application.

The court concluded that there was in fact no requirement on the court to consider the matter de novo. The judgment in Flavell had to be seen in the context of the submission in that case that the applicant had to show exceptional circumstances or at least a material change of circumstances in order to make the application in the first place. In essence a party is not required to show that there has been a change of circumstances before an application can succeed.

Moylan J observed, however, that this was not the same as saying that the court was required to consider every case from first principles. Indeed in Flavell Ward LJ approved the approach of Cazalet J in Garner v Garner [1992] 1 FLR 573 when he held that almost invariably such an application will involve a change of circumstances, otherwise it would in effect be an appeal in all but name and that if an order has not been appealed it is assumed to be correct and that therefore there will usually be no justification for varying it without a change of circumstances. Support was also garnered from the approach of Ormrod LJ in Lewis v Lewis [1977] 1 WLR 409 and of the Supreme Court in Wyatt v Vince (Nos 1 and 2) [2015] UKSC 14 when considering the duty of the court to apply the overriding objective.

He held that given the short time between the original order and the application for variation the husband would have to show more significant changes than had in fact occurred in this case. The court was entitled to take a light touch where it was self-evident that little had changed in the very short time since the order. Plainly to do otherwise would be effectively to allow the applicant to appeal out of time an order which was perfectly valid when made or to simply incur costs for the respondent unnecessarily. This would seem to be a sensible approach to the case management of applications to vary, which will assist respondents where (as is often the case) the application is more a response to dissatisfaction with the original order than any real change in need.

Rupert Chapman

Committal proceedings and the right to silence

In the recent case of Morris v Morris [2016] EWCA Civ 812 the Court of appeal has restated the importance of the accused’s right to silence in Committal Proceedings. The husband appealed against a committal order made on the wife’s application by judgment summons for arrears due under a periodical payments order, as well as against a variation of that order.

The husband had a history of failing to make payments for the benefit of the wife, refusing to pay the mortgage to apply pressure on the wife to settle proceedings on his terms and was found to have been dishonest in his disclosure. The Judge at first instance awarded the wife 88% of the liquid assets and 24% of the assets, plus £24,000 pa in maintenance until the husband reached the age of 65 with no s. 28(1A) bar. The capital due to the husband was almost entirely eroded by an order for payment of arrears of mortgage payments and maintenance to be made by the husband. As a result of his failure to pay the mortgage the property was sold at a lower than expected value under the threat of repossession, a reduction which only affected the wife.

The husband applied to vary the order a mere 6 months later. Shortly before this application the wife applied for judgment summons in respect of arrears of maintenance and mortgage payments. At the first hearing a deputy district judge ordered that the husband ‘shall’ file a statement setting out his financial affairs, which he duly did. On this and the next occasion the judge had no jurisdiction to hear a judgment summons application due to a lack of seniority. The circuit judge who had made the original financial remedies order heard the final hearing on the variation and judgment summons applications and imposed a suspended sentence on the husband and a small downward variation in maintenance.

Moylan J, sitting in the Court of Appeal and giving the leading judgment, overturned the committal order, observing that;

  • The respondent to a judgment summons application cannot be required to give evidence (Mubarak v Mubarak [2001] 1 FLR 698 and rule 33.14(4) of the Family Procedure Rules 2010; and
  • The respondent is entitled to legal aid so that he can be represented in such proceedings.

These are fundamental procedural requirements and the court below having failed to remind the husband of each of them and having directed that he must file and serve a statement, its order had to be set aside. The judge relied on Inplayer Ltd v Thorogood [2014] EWCA Civ 1511 where it was said that “there can be no question of upholding findings of contempt against a person who has been deprived of valuable safeguards” (per Jackson LJ at para 45). The errors were said to have occurred as a result of the listing of the two applications together. The judgment summons was therefore dismissed.

These requirements are important checks on the use of committal or judgment summons proceedings in a wide range of different proceedings. Practitioners should always be aware of them when representing either party to an application for committal as the failure to abide by them will almost inevitably lead to a successful appeal.