Aburn v Aburn

In a needs-based financial remedy case, a court may provide for a future review of periodical payments when a known change occurs, but it cannot predict the outcome by reference to one future change alone. The court must assess all relevant factors under the Matrimonial Causes Act 1973, s 25, including the parties’ then-known needs and resources. A reduction in school fees may justify a later review, but it does not justify an automatic increase calculated solely as a share of the anticipated saving.

Following a 20-year marriage, a deputy district judge ordered the husband to pay the wife £1,000 per month, subject to inflation, with an automatic increase after their youngest child completed private secondary education. The increase was calculated as 50% of the previous year’s school fees. HHJ Scarratt allowed the husband’s first appeal on other issues but upheld this provision. The husband brought a second appeal, arguing that the increase was unsupported by need, ignored future financial circumstances and tertiary education costs, and was arbitrary. The central issue was whether the court could prescribe an automatic future increase based only on anticipated school-fee savings.

Appeal allowed. Lord Justice McFarlane delivered the judgment, with Lord Justices Vos and Simon agreeing. Paragraph 18 of the deputy district judge’s order was struck out. The parties remained free to apply for variation when H left school or at another appropriate time.

1. The court accepted the limited appellate role described in N v N (Financial Orders: Appellate Role) [2011] EWCA Civ 940. An appeal is not a rehearing. Appellate intervention is justified for an error of law, restricted factual error, or a discretionary decision that is plainly wrong.
2. The case was conducted on a needs basis. The wider debate between B v S (Financial Remedy: Marital Property Regime) [2012] EWHC 265 (Fam), White v White [2000] UKHL 54, and Miller v Miller and McFarlane v McFarlane [2006] UKHL 24 about sharing and need therefore did not require resolution.
3. A future review when school fees ceased could be justified. It was impermissible, however, to determine its outcome in advance in 2014. The court had to consider the wife’s future earning capacity, the husband’s changing income and finances, H’s possible university attendance, and her continuing need for support.
4. Under the Matrimonial Causes Act 1973, s 25, an order based only on the cessation of school fees could not demonstrate regard to all relevant factors. The deputy district judge was wrong in law and plainly wrong in exercising discretion by treating the saving as a 100% net gain and dividing it automatically.

• Court of Appeal (Civil Division), [2016] EWCA Civ 72: second appeal allowed; the automatic increase provision was struck out, with future variation left open.
• Dartford Family Court, HHJ Scarratt: first appeal allowed on the capital division and duration of periodical payments, but dismissed on the automatic increase.
• Dartford Family Court, Deputy District Judge Martynski: made the original financial provision order, including the automatic increase after completion of secondary education.