Friday, February 05, 2016

Aburn v Aburn: Appeal allowed against advance variation of periodical payments order

Lord Justice McFarlane
A summary of Aburn v Aburn [2016] EWCA Civ 72 (04 February 2016), which concerned an appeal relating to a provision for an automatic increase in the level of periodical payments payable to the wife following the date upon which the youngest child ceased privately funded secondary education.

The appeal arose from a financial provision order made by a deputy district judge in August 2014. At that time the wife was 47, the husband was 54 and the two children of the family were 19 and 14. The order was made after a contested hearing and provided, inter alia, for the husband to pay periodical payments to the wife of £1,000 per calendar month until the first to occur of the wife's death, remarriage or further order. The order also provided for the upward variation of the periodical payments upon the youngest child completing her secondary education, the increase essentially being equivalent to 50% of the child's private school fees, which were £1,750 per month at the date of the order and were being paid by the husband. The deputy district judge's justification for the variation was that the saving on education fees should be split equally between the parties.

The husband appealed against this part of the order (it was actually a second appeal - the husband had previously appealed against three provisions in the order: his appeals in respect of two of those provisions were allowed, but the circuit judge dismissed his appeal in relation to the variation).

The Court of Appeal allowed the appeal. Giving the leading judgment Lord Justice McFarlane found that this was a "needs" case and the deputy district judge had reached an assessment of the wife's need for periodical payments, in the sum of £1,000 per month. He did not explain how, some four years later, the wife should be entitled to about twice that sum. It would be quite reasonable for the maintenance to be reviewed when the school fees payments stopped, but "it must be impossible to predict, as the deputy district judge sought to do, in August 2014, what the result of that review would be in the summer of 2018." For example, it was not known what the child would do after she left school, the wife's income may by then have increased, and the husband's finances may by then have changed.

Lord Justice McFarlane also considered:
"...that the deputy district judge was wrong to regard the cessation of school fees payments as a 100% net gain to the family finances to be split by a calculation entirely limited to the size of the previous year's school fees bill, and without any regard whatsoever to the likelihood (as it surely is) that [the child] will require further financial support in the period that then follows."
He concluded:
"...that the deputy district judge was wrong as a matter of law and plainly wrong in the exercise of his discretion, by making an advance variation order based upon only one known element with respect to the parties' finances, and the needs of [the child], some four years hence."
Accordingly the appeal was allowed and the variation provision in the order was struck out.

Lords Justices Vos and Simon gave consenting judgments.

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