Hamilton v Hamilton

Under the Matrimonial Causes Act 1973, a consent order may provide for separate lump sums or for one lump sum payable by instalments. Separate lump sums under section 23(1)(c) are generally final and cannot be varied under section 31, subject to the limited timing exception identified in Masefield v Alexander (1995) 1 FLR 100. Classification depends on the objective substance of the agreement, not its drafting label. The court may consider the order’s language, surrounding circumstances and preceding communications, but not the parties’ subjective beliefs. An objectively single sum payable by instalments falls within section 23(3)(c) and may be varied under section 31. The court also indicated, obiter, that this power extends to quantum as well as timing.

William John Hamilton appealed from Parker J’s decision in the High Court Family Division. A consent order required Tracey Elizabeth Hamilton to pay the Husband a total of £450,000 through a series of specified lump sums. After the Wife’s business failed, substantial sums remained unpaid. She applied under the Matrimonial Causes Act 1973 for variation and, alternatively, sought relief under Schedule 1 to the Children Act 1989.

Parker J held that the payments constituted one lump sum payable by instalments under section 23(3)(c) and varied the payment timetable under section 31. The appeal concerned whether the order created separate lump sums under section 23(1)(c), whether the court could look beyond its wording to the underlying agreement, and whether the variation was permissible.

Mrs Justice Baron gave the judgment of the court, with which Lord Justice Kitchin and Lord Justice Thorpe agreed. The appeal was dismissed, although Ground 1 succeeded to the extent that Parker J’s general statement of the law was too broad.

1. Statutory distinction. Section 23(1)(c) of the Matrimonial Causes Act 1973 permits one order containing separate lump sums. Such orders are not ordinarily variable under section 31 because finality and the possibility of a clean break must be preserved. Section 23(3)(c), by contrast, concerns one lump sum payable by specified instalments and brings that order within section 31. The limited exception concerning an extension of time for a lump sum order remains governed by Masefield v Alexander (1995) 1 FLR 100.
2. The court rejected the view expressed by Coleridge J in Lamont v Lamont and adopted by Parker J that every staged payment is necessarily a lump sum payable by instalments, or that separate lump-sum drafting can never preserve finality. Genuinely separate or contingent sums remain possible.
3. The classification of an order is an objective question. Although the language of the order will ordinarily settle the matter, the court may examine the surrounding factual matrix, including the communications and events preceding perfection of the order. It must assess what was objectively agreed, rather than the parties’ subjective beliefs. On the evidence, the parties had agreed one overall sum of £450,000 payable over time. The order therefore fell within section 23(3)(c), notwithstanding its wording.
4. The Wife’s variation application was within section 31. Parker J had adjusted the period for payment rather than reduced the principal sum. Her discretion was exercised within the broad range of permissible orders, and she was required to give first consideration to the welfare of the two minor children whose home was at risk. The challenge to her finding concerning the Wife’s beneficial interest in the new company identified no error of law or misdirection and was merely an attempt to substitute the Husband’s preferred findings of fact.
5. Obiter, the court considered that the wide language of section 31 would extend to quantum as well as timing, although that issue was not necessary to the appeal. The court suggested that a recital setting out the basis of an agreement and its potential treatment under section 31 could reduce future disputes.

1. Court of Appeal (Civil Division) — In [2013] EWCA Civ 13, the court dismissed the appeal and upheld Parker J’s order, while correcting the breadth of her legal analysis.
2. High Court, Family Division — Parker J declared that the capital provision in the consent order was a lump sum payable by instalments under section 23(3)(c) of the Matrimonial Causes Act 1973, and varied the payment timetable under section 31.