ANCILLARY RELIEF: B v B [2007] EWHC 789 (Fam)

07 MAR 2007

(Family Division; 7 March 2007; Baron J)

In ancillary relief proceedings the wife had been awarded periodical payments, but no capital provision; the wife had compromised her claims on the basis of a right to remain in a property owned by the husband's father. The wife later obtained an upward variation of her periodical payments on the basis of the judge's finding that the husband had substantial financial resources in the form of family property. The mother now wished to move to new accommodation, and applied for a settlement of property order and/or a lump sum under Children Act 1989, Sched 1. The husband applied to strike out the application, arguing that the question of housing needs had already been determined by the courts.

The wife could issue an application for periodical payments and/or a lump sum for the child under the Matrimonial Causes Act 1973, or under the Children Act 1989. The concept of issue estoppel simpliciter was not appropriate in matrimonial cases, especially when dealing with the developing needs of a child. No adult compromise could oust the court's jurisdiction for the protection of the child. The child's housing needs were not governed by some notion of res judicata in any formal or informal sense. Long-term housing had not been definitively decided and there had been a change of circumstances, in the sense that as time had gone by, the child's needs had changed. The wife had agreed to compromise her own claims, but had not, on the facts, compromised the right to make claims on behalf of the child. The application could proceed.

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