Harris v Harris

On capitalising spousal maintenance, a court must avoid double recovery. It should not award the full capitalised sum, continuing maintenance and interest for the same period where that produces an unintended overpayment. Where child maintenance is substantially increased, the court must consider how the increased award interacts with existing spousal maintenance. An additional spousal payment may be removed from the date of the increased child-maintenance award if the combined sums exceed the needs addressed by the original order.

Child maintenance is assessed broadly by reference to the child’s reasonable needs and the parties’ financial circumstances. It need not be limited to subsistence or mechanically fixed by a CMS figure, particularly where there is a substantial disparity in parental income.

The husband appealed against an order made in the Central Family Court following applications concerning spousal and child maintenance. The earlier order required spousal maintenance representing childcare costs and child maintenance of £850 per month. The husband had stopped paying the spousal maintenance, while the wife sought capitalisation and an increase in child maintenance.

The judge ordered capitalisation of the spousal maintenance at £9,500, with continuing payments and interest if payment was delayed, and increased child maintenance to £1,600 per month retrospectively. The appeal concerned the capitalisation mechanics, the relationship between spousal and child maintenance, the relevance of the CMS figure, the amount and commencement date of the child-maintenance award, and costs.

1. Spousal maintenance. The appeal was allowed in part. The first-instance order double counted by requiring payment of the entire capitalised sum, continued monthly maintenance and interest. That approach was an error of law because it could produce £11,693 instead of the £9,500 intended to represent the maintenance due.
2. The husband remained liable for £6,500, representing the 13 overdue payments of £500. The appropriate alternatives were either continued payments of £250 per month until payment, or payment of £6,500 with interest on the arrears and no further sum if the increased child maintenance was backdated to June 2017.
3. Child maintenance. The appeal was dismissed on quantum and the relevance of the CMS figure. The court could assess the child’s reasonable needs broadly and was not required to limit the award to bare subsistence or to treat the CMS figure as a ceiling. The substantial disparity between the parties’ incomes was relevant. The wife’s Belgian tax liability did not justify reducing the award.
4. The increased child-maintenance award of £1,600 per month was properly backdated to 1 June 2017. However, because the 2015 order was directed to childcare costs, continuing an additional £250 per month in spousal maintenance after the increased child-maintenance award would exceed the needs addressed by the original order. The spousal maintenance was therefore removed from the date of the increased child maintenance.
5. The substituted order required capitalisation of the spousal maintenance at £6,500, with interest at 8% from 1 January 2017 until payment. The husband was ordered to pay 60% of the wife’s costs below. There was no order as to the costs of the appeal.

• Central Family Court: His Honour Judge O’Dwyer ordered capitalisation of spousal maintenance at £9,500, increased child maintenance to £1,600 per month from 1 June 2017, and made consequential orders for continuing payments and interest.
• High Court (Family Division): The appeal was allowed in relation to the capitalisation and interaction of spousal and child maintenance. The child-maintenance award was upheld. The order was substituted accordingly.