AB v CD (Jurisdiction Global Maintenance Orders)

A court may make a global spousal periodical payments order which provides a financial benefit to children, provided the order contains a substantial element of genuine spousal support and does not oust the statutory child-support jurisdiction. A CMS assessment need not already exist where the order is framed as spousal maintenance and preserves the effect of any later assessment. The order must not be an exclusive or disguised child-maintenance order. On an appeal from a discretionary financial remedy decision, the appellate court intervenes only if the decision was wrong. Needs may justify a departure from equality in capital division, including provision for housing, contingencies and future retirement resources.

The husband appealed against a final financial remedies order made by His Honour Judge Everall QC on 2 November 2016 after the breakdown of the parties’ marriage. The order required the sale of the family home, lump-sum payments, a global periodical payments order for the wife and children, and payment of school fees.

The appeal challenged the jurisdiction to make the global order for the two younger children, the level of periodical payments, and the unequal division of capital. The central issue was whether the order was an impermissible child-maintenance order or a valid spousal order which also benefited the children.

1. Appeal test. Under FPR 2010 r 30.12(3), an appeal succeeds only if the decision below was wrong or unjust because of serious procedural or other irregularity. No procedural irregularity was alleged.
2. Global maintenance order. The court had jurisdiction under s 23 of the Matrimonial Causes Act 1973 to make a spousal periodical payments order which included an element referable to child support. The order was legitimate because it contained a substantial element of spousal support and did not purport to make an order exclusively for the children or to interfere with the CMS’s statutory function.
3. The absence of a CMS assessment did not invalidate the order. The judge was entitled, on the transparent evidence of the husband’s income, to assume that the statutory threshold for a maximum assessment was crossed. The failure to apportion the global sum was not fatal because the order was properly characterised as spousal maintenance, included a pound-for-pound reduction for any later CMS assessment, and left the statutory gateway available.
4. Maintenance quantum. The assessment of the wife’s needs, earning capacity, the children’s circumstances, the parties’ resources and the husband’s ability to pay was a broad discretionary evaluation. The resulting imbalance in disposable income did not make the order wrong, particularly given the wife’s lack of realistic earning capacity for the foreseeable future and the likelihood that the husband’s position would improve.
5. Capital division. The departure from equality was justified by the wife’s housing needs, a modest contingency fund, her limited future earning capacity and the treatment of the parties’ pension assets. A deferred charge or Mesher order was not required. The judge’s conclusion fell within the permissible range of outcomes under s 25 of the Matrimonial Causes Act 1973.
6. The appeal was dismissed and the order below remained in force.

• High Court (Family Division): The appeal from the order of His Honour Judge Everall QC made on 2 November 2016 was dismissed. The original order remained in full force and effect.