Tattersall v Tattersall

A pending application to vary periodical payments does not automatically require enforcement proceedings to be adjourned. The court must decide whether to do so on the circumstances of the case, including the risk that enforcement may otherwise be frustrated. An application for leave under section 32 of the Matrimonial Causes Act 1973 need not follow a prescribed formal process.

When capitalising periodical payments, the court should first identify the payments which should continue, then assess their capital equivalent. Duxbury will ordinarily be appropriate, but it is not mandatory. A different calculation method is not, without more, an error of law. The capital sum must also reflect deductions required by the underlying periodical-payments order.

The husband appealed three orders made after a final financial-remedy order of 10 December 2012. That order required him to make periodical payments to the wife, subject to deduction of child-support payments. His earlier appeal from the final order had been dismissed by the Court of Appeal, reported at [2014] 1 FLR 997.

The challenged orders gave the wife leave to enforce arrears, capitalised the husband’s future periodical-payment liability into a lump sum, and directed payment to the wife of money held by conveyancing solicitors. The husband’s application to vary the periodical-payments order had been issued in January 2014 but remained undetermined. The central issues were whether that pending application prevented enforcement or capitalisation, whether the capitalisation calculation was wrong, and whether child-support payments had been allowed for.

1. Appeal allowed in part. The appeal from the capitalisation order was allowed only to reduce the lump sum by £6,000 to reflect child-support payments. The appeals from the enforcement order and the order releasing retained proceeds were dismissed.
2. Section 32 of the Matrimonial Causes Act 1973 required leave to enforce arrears falling due more than 12 months before enforcement proceedings began, but prescribed no formal application process. The procedural course depended on the circumstances. The judge could deal with the wife’s request informally while determining related applications, particularly as only one or two months of arrears required leave.
3. There was no rule that an enforcement application had to await determination of a variation application. That was a discretionary case-management question. The judge was entitled to permit enforcement, while staying part of the arrears pending production of the husband’s variation material.
4. In considering capitalisation under sections 31(7A) and 31(7B) of the Matrimonial Causes Act 1973, the court applied the approach in Pearce v Pearce [2003] 2 FLR 1144 and Vaughan v Vaughan [2010] 2 FLR 242. The first task was to identify the periodical payments which should in principle continue. The judge had done so, and the husband had not undermined that evaluative conclusion. His longstanding failure to progress his variation application meant that its continued non-determination did not invalidate the capitalisation order.
5. Duxbury would ordinarily be used to calculate the capital equivalent, but it was not compulsory. Use of the Ogden tables was therefore not an error of law and did not justify interference on the evidence available. However, the original order required deduction of child-support payments. The capitalisation calculation had omitted that allowance. To avoid double payment, the lump sum was reduced by £6,000.
6. The judge had jurisdiction to vary or discharge the earlier stay and to direct payment of the retained conveyancing proceeds to the wife.

• Court of Appeal (Civil Division) — allowed the husband’s appeal in part by reducing the capitalisation sum by £6,000; otherwise dismissed the appeals: [2018] EWCA Civ 1978.
• Central Family Court — on 11 January 2016, directed payment to the wife of approximately £7,600 held by conveyancing solicitors.
• Central Family Court — on 1 June 2015, capitalised the husband’s periodical-payment liability and ordered payment of a lump sum, together with arrears.
• Central Family Court — on 23 September 2014, permitted enforcement of arrears and stayed payment of part of them on conditions.
• Court of Appeal — on 9 July 2013, dismissed the husband’s appeal from the final financial-remedy order of 10 December 2012; the decision was reported at [2014] 1 FLR 997.