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Family Law

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Court of Protection Practice and Procedure Conference 2016

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19 DEC 2007


(Family Division; Charles J; 19 December 2006)

Under a consent order made in 1981, before the court was given the power to dismiss an application for periodical payments, a nominal order was made for periodical payments to the wife. The husband had care of the three children (then aged 12, 10 and 6) in the former matrimonial home, and provided the wife with a sum to enable her to purchase a home, and with some income producing assets. Following an emigration to Australia, the wife lost a significant amount of her capital through poor investment decisions, although she retained over £250,000; she had not obtained any work to supplement her income. The husband had prospered and was worth at least £5m. The wife now sought a variation of the nominal order for periodical payments under s 31(7) of the Matrimonial Causes Act 1973. The judge varied the order to £16,500 pa and went on to capitalise the payments in sum of £202,000 to achieve a clean break. It was clear that the wife had failed to make her best endeavours to help herself, but that was not a condition precedent to the exercise of the courts discretion. Section 31(7) expressly referred to all the circumstances of the case; the court was to have regard to all the relevant circumstances and within them matters listed in the statute. This precluded an approach which isolated one of the factors as a condition precedent or trigger to the exercise of the courts discretion, as such an approach would fail to take account of all the factors as required by the statutory provisions. There was a powerful case that the wife was undeserving of a variation of the nominal periodic payments, but the judges decision had not been plainly wrong.

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