Flavell v Flavell

On an application to vary a periodical payments order, the court has jurisdiction under section 31 of the Matrimonial Causes Act 1973 without requiring exceptional circumstances or a material change as a condition of jurisdiction. Those matters may affect the exercise of discretion. The court considers the case afresh, having regard to all the circumstances and changes since the original order. A term ending maintenance is appropriate only where the receiving party can adjust without undue hardship to its termination. For a woman in her mid-fifties, termination will usually require substantial capital or a consistent and significant earning capacity.

The parties married in 1970, separated in 1988 and divorced in 1992. In August 1993 the District Judge ordered the husband to pay the wife £450 per month for two years, while leaving open an application to extend the term. The wife obtained part-time employment, but her income and modest investment return did not meet her needs. The matrimonial home had also proved difficult to sell.

The Deputy District Judge extended the payments for six months. On appeal, His Honour Judge Shawcross removed the termination date and reduced the payments to £250 per month. The husband appealed to the Court of Appeal, challenging the jurisdiction to vary and the assessment of the wife’s prospects of self-sufficiency.

1. Appeal dismissed unanimously. The Court of Appeal upheld the removal of the termination date and the reduction of periodical payments to £250 per month. There was no order for costs below; the husband was ordered to pay the costs of the appeal.
2. Section 31(1) of the Matrimonial Causes Act 1973 gives the court an unrestricted power to vary or discharge an order, subject to the statutory provisions. Exceptional circumstances or a material change are not jurisdictional preconditions. Garner v Garner [1992] 1 FCR 529 supported the view that such matters ordinarily affect the discretion, not jurisdiction.
3. The court must approach the application to vary under section 31(7) afresh. It must consider all the circumstances, including changes in matters relevant to the original order, and determine whether a further term would provide sufficient time for adjustment without undue hardship. The application is not an appeal from the original order, although the original order is approached as correct when made. This approach was supported by Lewis v Lewis [1977] 1 WLR 409 and Garner v Garner [1992] 1 FCR 529.
4. Section 25A of the Matrimonial Causes Act 1973 expresses an aspiration towards eventual self-sufficiency, but termination is permissible only where adjustment without undue hardship can be established. The absence of a direction under section 28(1A) deliberately left open the possibility of extending the term if the original expectations were not fulfilled.
5. For a woman in her mid-fifties, termination will usually be justified only where she has substantial capital and/or a consistent and significant earning capacity. Limited capital, limited earning capacity, absence of a pension, and the risks of ill-health or loss of employment supported the conclusion that continued dependence could not be ended without undue hardship. The judge’s assessment was not plainly wrong. The court could remove a previously imposed term on a variation application.

• Court of Appeal (Civil Division) — appeal from the Aldershot and Farnham County Court dismissed. The Court upheld the order removing the termination date and reducing periodical payments to £250 per month.
• Aldershot and Farnham County Court — the Deputy District Judge extended the periodical payments for six months. His Honour Judge Shawcross allowed the wife’s appeal and removed the termination date.
• District Judge — ordered periodical payments of £450 per month for two years from August 1993 and left the possibility of an extension open.