N v N

On an application to vary a nominal periodical payments order, the court must assess all the circumstances, including the statutory factors and changes since the original order. The applicant need not satisfy a separate condition precedent showing that financial need arose despite best endeavours at self-help. Delay does not itself bar an application. The court must balance the relevant factors and may treat some as more important than others. On appeal, a discretionary decision will stand if the correct approach was applied and the conclusion fell within the range reasonably open to the judge. Capitalisation should follow the proper assessment of periodical payments and must not be used to revisit the original capital award.

The wife appealed against a decision of District Judge Greene varying a nominal periodical payments order made by agreement in 1981. The variation was assessed at £16,500 per annum and capitalised at £202,000, producing a clean break. The husband argued that the application should be dismissed because the wife had failed to establish that her financial need arose despite best endeavours, and contended that the district judge had erred in law or was plainly wrong. The central issues were the correct statutory approach to variation, the significance of delay and the limits of appellate intervention in a discretionary financial remedy decision.

1. Appeal dismissed. The district judge had given adequate reasons. He was entitled to use the wife’s actual income return on retained capital rather than a Duxbury return, and the resulting periodical payments figure remained below the relevant budget.
2. The proposed condition precedent or trigger was rejected. Section 31(7) required consideration of all the circumstances and changes in the matters relevant under section 25 of the Matrimonial Causes Act 1973. That language required an overall balancing exercise, rather than isolated assessment of whether the wife had made sufficient efforts at self-help.
3. This did not mean that self-help, delay, investment losses, lifestyle choices, the parties’ financial positions, or the history of the nominal order lacked weight. Such factors could be magnetic or determinative within the overall assessment. Delay alone did not prevent an application, and the district judge had considered its effect in the context of the husband’s later financial support and the absence of prejudice.
4. The district judge had not impermissibly adjusted the wife’s capital provision. Consistently with Pearce v Pearce [2003] 2 FLR 1035, the proper approach was to determine the appropriate periodical payments and then capitalise them under section 31(7B). The wife’s investment losses were relevant to present need but did not require the husband to restore the lost capital.
5. Although the judge considered that he might have reached a different result at first instance, the decision under appeal was within the range of discretionary decisions properly open to the district judge. It was therefore not plainly wrong.

• High Court (Family Division): appeal from District Judge Greene dismissed. The variation and capitalisation order stood.