Mutch v Mutch

A recipient’s right to seek an extension of the term of periodical payments under the Matrimonial Causes Act 1973 is excluded only by an express direction to that effect. An application must be made before the existing term ends, but it may be determined afterwards.

Where a notice and its accompanying witness statement, read together, make clear that an extension is sought, the absence of an express reference to extension in the notice does not prevent a valid, timely application. A consent order made within the court’s jurisdiction and not appealed cannot later be set aside by attacking the merits of the justification advanced for it.

Following their divorce, the parties obtained a financial remedies order in July 2012. It provided for periodical payments to the wife pending the sale of the former matrimonial home and for a pension sharing order in her favour.

Before the home was sold, the wife filed a notice seeking directions and a supporting witness statement. The statement sought continuing maintenance because the sale proceeds were lower than expected and the pension sharing order had not been implemented. In November 2012, the parties consented to an order varying maintenance to £1,000 monthly until the pension-sharing trigger event.

In 2014, the judge held that the court lacked jurisdiction to make that variation, set it aside, dismissed the wife’s enforcement application, and ordered repayment. The central issue on appeal was whether the October 2012 documents amounted to a valid, in-time application to extend the maintenance term.

1. Appeal allowed unanimously. Lady Justice Black gave the leading reasons, with Lord Justice McFarlane agreeing and Norris J adding concurring reasons. The order setting aside the November 2012 consent order was itself set aside.

2. The July 2012 order contained no direction under section 28(1A) of the Matrimonial Causes Act 1973 excluding an application for an extension. The wife therefore remained entitled to apply under section 31. The authorities established that the application had to be made before the maintenance term ended, although it could be heard afterwards: Richardson v Richardson [1994] 1 FLR 286; Jones v Jones [2000] 2 FLR 307.

3. The October 2012 notice had to be read with the accompanying witness statement. Taken together, they plainly sought maintenance beyond completion of the house sale. The solicitor’s description of the request as an invitation did not detract from its substance. The recital to the November consent order, identifying an application to vary spousal maintenance, confirmed that this was understood at the hearing. The application was therefore valid and timely.

4. Once jurisdiction was established, there was no basis to unsettle the consent order. It was not appealed, its circumstances were apparent, and the unimplemented pension sharing order supplied a further basis for continuing maintenance. The final clean break contemplated by the July order depended upon implementation of all its terms, not merely the sale of the home.

5. Norris J further concluded that the liberty-to-apply provision could also be used by either party. Both stated conditions were met: the home had not been sold by the stipulated date and there was no agreement as to continuation of periodical payments. The November 2012 order accordingly governed the husband’s obligations from its date.

• Court of Appeal (Civil Division): Allowed the wife’s appeal and restored the November 2012 consent order: [2016] EWCA Civ 370.
• Manchester County Court and Family Court: On 8 October 2014, Judge Booth set aside the maintenance-variation provisions of the November 2012 order, dismissed the wife’s enforcement application, and ordered repayment of sums paid under those provisions.
• Manchester County Court and Family Court: Judge Booth made the July 2012 financial remedies order. On 23 November 2012, the parties consented to vary periodical payments pending implementation of the pension sharing order.