VB v JP

On variation of a joint-lives periodical payments order, compensation for relationship-generated disadvantage is an aspect of fairness, not a separate head of claim. It may be considered where a spouse sacrificed earning capacity for the family, but it should not ordinarily be quantified as a distinct premium. In cases requiring continuing maintenance, the disadvantage is generally addressed through a generous assessment of needs, having regard to the marriage, the parties’ standard of living, contributions and resources. A variation application may consider the principle even where capital claims were settled by a clean break, but it cannot reopen that capital settlement. Courts should avoid speculative reconstruction of a career that was not pursued and double counting.

The applicant wife sought variation under section 31(7) of the Matrimonial Causes Act 1973 of a consent order providing joint-lives periodical payments for herself and maintenance for the children. The original order had divided capital on a clean-break basis but provided continuing income because the wife was the primary carer and had sacrificed her career. The husband’s income had substantially increased, while the wife claimed increased needs and a separate compensation premium for relationship-generated disadvantage.

The court also considered the agreed RPI mechanism, life insurance, cohabitation, school-fee extras and the children’s maintenance during tertiary education.

1. Compensation and variation. The application was governed by section 31(7) of the Matrimonial Causes Act 1973. The court could consider overall fairness, including relationship-generated disadvantage, when varying continuing periodical payments. The principle was not confined to the original order made on divorce.
2. Compensation was a strand of fairness rather than an independent claim. It was not appropriate to reconstruct speculatively the career the wife might have pursued or to calculate a separate premium. In a case where continuing payments were necessary and capital was insufficient to secure future maintenance, any compensatory element was best reflected by a generous assessment of continuing needs, unrestricted by a strict budget.
3. The wife’s capital settlement could not be reopened. Her later purchase and improvement of property did not entitle her to obtain further capital through the maintenance budget. Ordinary housing outgoings could nevertheless be considered in assessing maintenance.
4. The wife had suffered relationship-generated disadvantage through her role as homemaker and principal carer. Her present earning capacity was limited, but anticipated retraining income was not deducted from the award at this stage because it was modest, uncertain and accompanied by retraining costs.
5. The wife’s periodical payments were increased from £33,000 to £65,000 per annum, backdated to 8 January 2007, during joint lives and otherwise on the existing terms. The agreed RPI and claw-back provisions were retained. The cohabitation provision was not deleted, because no unforeseen change justified rewriting that part of the bargain.
6. The school-fee extras provision was varied to permit up to 40 overnight boarding occasions per year, with the specified deductions. If a child became a full-time boarder, the husband could deduct 20% of the difference between the basic termly day and boarding charges. The proposed reduction in child maintenance during tertiary education was refused.

First-instance decision. No appellate history was stated in the judgment.