Thursday, January 24, 2013

Hamilton v Hamilton: Varying a lump sum order

Mrs Justice Baron
A brief summary of Hamilton v Hamilton [2013] EWCA Civ 13, decided today.

This was an appeal by the husband against an order varying a lump sum order that had been made by consent. The lump sum order required the wife to pay to the husband five lump sums, totalling £450,000.

The wife paid £240,000, but then her business went into administration, and she applied to vary the order, and was given more time to pay. The husband appealed.

Giving the leading judgment in the Court of Appeal, Mrs Justice Baron made the following findings in respect of the 5 grounds of appeal:

1. The judge was wrong to conclude that any order for the payment of lump sums over time is an order for a lump sum by instalments.

2. However, the judge was not wrong in holding that the order was for a lump sum by instalments, and thus variable.

3. Whether the judge was wrong in law in holding that Section 31 (2) (d) permits the Court to vary the quantum of the lump sum ordered as opposed to the timing of the same was irrelevant, as the judge did not vary the quantum.

4. The Judge was not wrong in principle to vary the lump sum in this case given the facts as found - her decision was just in the circumstances.

5. Lastly, the Judge was not plainly wrong and/or perverse in finding the wife was not the true beneficial owner of the company for which she worked.

Accordingly, the appeal was dismissed.

Lord Justice Kitchin and Lord Justice Thorpe gave consenting judgments.

Mrs Justice Baron concluded her judgment by recommending that: " future, parties may consider that a recital at the beginning of an order which sets out the basis of the agreement in terms of a potential variation would put disputes of this type beyond doubt."


  1. This is not a fair result. She has the house, he has not got the money, and she can apply for further time.

    Imagine a man who could pay the maintenance ordered but did not because he wanted to invest it in his business instead . . . he would probably be committed for it.

    I know, I know, the children, the children. But yet again an ex-husband is treated as an insurer and it is just plain wrong.

    1. Thank you for your view, but I'm not sure it would have been any different if the husband had been the one paying the lump sum.

  2. I wish I was so sure. It probably would not have been the husband with the children and they seem to have been her trump card. The fact is that she behaved irresponsibly and got away with it, and that he is vulnerable to any other creditor who makes her bankrupt or gets a charging order.

    1. I'm not sure I agree with you as to the facts, but once again thank you for your view.


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