SRJ v DWJ

There is no presumption in favour of a financial clean break. The court must balance finality against the parties’ continuing financial needs and the policy that a spouse should not be left dependent on state benefits where the other spouse may later be able to contribute.

After a long marriage, particularly where the applicant remains responsible for a young child, has poor employment prospects and sacrificed earning capacity for homemaking and childcare, it may be inappropriate to dismiss periodical-payment claims entirely. A nominal order may properly preserve the possibility of future variation, provided that any application is supported by solid evidence of a material improvement in circumstances.

A deferred lump-sum order based on pension rights may be appropriate in principle, but its practical benefit, the parties’ debts and likely costs must be assessed.

The parties divorced in 1996 after a 27-year marriage with four children. The wife had little capital, lived in rented accommodation supported by state benefits and remained responsible for a young child. The husband was a professional engineer with uncertain but potentially improving earning prospects and pension rights.

The wife’s claims for capital provision and periodical payments had been dismissed by the Deputy District Judge and, on appeal, by the circuit judge. She appealed to the Court of Appeal on two questions: whether a deferred lump-sum order could reflect the husband’s future pension entitlement, and whether her periodical-payment claim should have been preserved by a nominal order rather than dismissed.

1. Appeal allowed in part. The refusal of a deferred lump-sum order was upheld. The possibility of an order of the kind considered in Milne v Milne [1981] 2 FLR 286 was recognised in principle, because the husband’s pension benefit was reasonably foreseeable. However, the parties’ substantial marital debts, the limited sum likely to be realised and the likely effect of legal costs meant that the order would provide no real benefit to the wife.
2. Under section 25A of the Matrimonial Causes Act 1973, the court must consider whether financial obligations should be terminated as soon as justice and reasonableness permit. It has power to dismiss a periodical-payment claim, but there is no presumption in favour of a clean break.
3. The court must balance the policy of finality against the policy that a spouse should not be left dependent on state benefits where the other spouse may later be able to provide maintenance. The approach described in Ashley v Blackman [1988] 2 FLR 278, drawing on Barnes v Barnes [1972] 1 WLR 1381, was applied.
4. Several factors made a clean break inappropriate here: the wife’s responsibility for a young child; her very poor employment prospects after leaving teaching to care for the family; and the length of the marriage and consequent loss of earning capacity. The authorities concerning continuing obligations where children remain, including Suter v Suter and Jones [1987] FD 111, Pearce v Pearce (1979) 1 FLR 261, Moore v Moore (1980) 11 FL 109 and Preston v Preston [1982] FD 17, supported that conclusion. The reasoning in M v M [1987] 2 FLR 1 was relevant to the wife’s employment prospects.
5. A nominal periodical-payment order of £10 per year was therefore made. Future variation would require solid evidence that the husband’s financial position had materially improved.

• Court of Appeal (Civil Division): allowed the wife’s appeal to the limited extent of making a nominal periodical-payment order of £10 per year; the refusal of a deferred lump-sum order was upheld.
• Swindon County Court: His Honour Judge McNaught dismissed the wife’s appeal from the Deputy District Judge’s order dismissing her claims for capital provision and periodical payments.
• Deputy District Judge Bedford: dismissed the wife’s claims for a lump sum, transfer of property and periodical payments after the matrimonial home had been sold and the secured liabilities discharged.