Delaney v Delaney

When assessing periodical payments after divorce, the court should first assess the reasonable needs of the former spouse and children, then the payer’s ability to meet them. A payer’s reasonable commitments to suitable accommodation, employment and access to children are not automatically excessive because they were undertaken after the original family obligation arose. Where those commitments leave insufficient income, the court may take available social-security benefits into account and avoid an order that would financially cripple the payer. The children’s welfare remains the first consideration under section 25 of the Matrimonial Causes Act 1973. A clean break may be achieved by substituting nominal maintenance rather than dismissing the claims.

After divorce, the wife applied for periodical payments for herself and the parties’ three children. A deputy Registrar ordered the husband to pay £10 per week for each child and made a nominal order in the wife’s favour. His Honour Judge Blackburn dismissed the husband’s appeal after rehearing the matter.

The husband appealed to the Court of Appeal. The central issues were whether his housing and other commitments were unnecessary or excessive, and whether the wife’s entitlement to social-security benefits could be taken into account when determining his ability to pay maintenance.

1. Disposition. Ward J delivered the first judgment, with which Nourse LJ agreed. The appeal was allowed. The order of £10 per week for each child was replaced by an order of £0.05 per annum per child. Both parties’ costs were subject to legal aid taxation.
2. Need and ability. The proper approach was first to assess the wife’s and children’s need for proper support and then to consider the husband’s ability to meet that need. A divorced parent remains subject to responsibilities towards the existing family, but is also entitled to arrange a reasonable post-divorce life and pursue a new family future.
3. Reasonable commitments. The husband’s half-share of the mortgage and rent for a three-bedroomed house was about £40.28 per week. That was not disproportionate to the wife’s £33 weekly rent, and there was no evidence that suitable cheaper housing was available. The accommodation was suitable for access visits. The car and modest household expenditure were also reasonably incurred. Applying the approaches described in Furniss v Furniss [1982] 3 FLR 46, Barnes v Barnes [1972] 1 WLR 1381 and Preston v Preston, the husband had not gone beyond permissible expenditure.
4. Benefits and outcome. Under section 25 of the Matrimonial Causes Act 1973, the children’s welfare was the first consideration. Following Stockford v Stockford [1982] FLR 58, the court could take available social-security benefits into account where reasonable commitments left insufficient income to maintain both households. The wife’s benefits produced income of approximately £152 per week against expenditure of £112.70. The husband and his partner had joint income of £212, but reasonable outgoings left only about £25 for food, clothing and other expenses. The husband could not reasonably pay more without financial crippling. Nominal orders were therefore appropriate.

1. Court of Appeal (Civil Division). Allowed the husband’s appeal and substituted an order of £0.05 per annum per child.
2. Altrincham County Court. His Honour Judge Blackburn dismissed the husband’s appeal from the deputy Registrar’s order on 21 November 1989.
3. Deputy Registrar. Ordered the husband to pay £10 per week for each of the three children and made a nominal order in the wife’s favour.