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Cite as: [1997] 1 FLR 368, [1996] Fam Law 722, [1996] EWCA Civ 548, [1997] 1 FCR 441, [1998] Fam 1, [1997] 2 WLR 614, [1997] 1 All ER 272

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G v. G [1996] EWCA Civ 548 (30th July, 1996)

IN THE SUPREME COURT OF JUDICATURE FAFMI 96/0410/F
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM FAMILY DIVISION
(Mr Justice Hale)

Royal Courts of Justice
Strand
London WC2

Tuesday, 30th July 1996

B e f o r e:


LORD JUSTICE WARD
LORD JUSTICE POTTER

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G v. G





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(Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited, 180 Fleet Street,
London EC4A 2HD
Tel: 0171 831 3183
Official Shorthand Writers to the Court)

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MRS M MULLALLY and MR KEARNEY (Instructed by Barrett & Thomson, SL1 1TQ) appeared on behalf of the Appellant

MISS F ELDER (Instructed by Allan Janes, HP11 1NU) appeared on behalf of the Respondent


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J U D G M E N T
(As approved by the Court )

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Crown Copyright










Tuesday, 30th July 1996
JUDGMENT
LORD JUSTICE WARD: To enable periodical payments to made only for such term as would be sufficient to allow the recipient to adjust without undue hardship to the termination of her financial dependence on the other party is a worthy purpose of a matrimonial law which strives to enhance self-respect and self-sufficiency after divorce. "Look on the bright side" is an essential rubric for the good divorce lawyer, but not at the expense of looking out for potential lethal traps inherent in orders for a limited term of periodical payments. This unfortunate case signposts certain pitfalls of which the profession should make itself aware.

Even though the marriage of the petitioner and the respondent has long been dissolved, I shall for the sake of convenience still refer to the parties merely as husband and wife. They married in 1968. The wife practised her profession as a speech therapist until Jonathan was born in 1974. Camilla was born on 14th November 1976. In 1982 the wife began part time employment as an elocution, speech and drama teacher and, although she did see some children with remedial problems, she was not in clinical practice. That work ceased in 1987. For his part, the husband had improved himself steadily throughout the marriage. There were periods when he undertook training or retraining partly sponsored by his employers but partly maintained by the wife's efforts. The family were dislocated from time to time in the course of the husband's employment. He was made redundant in 1987 and departed to America in December 1987 to make a new career for himself. In that he was successful. In July 1988 the wife returned to work, this time with estate agents, and she was so employed when, on 17th October 1989, the claims for ancillary relief were disposed of by order made by consent. The agreed arrangement effected a deferred clean break. The material elements of it were that the wife was to have conveyed to her the matrimonial home free of mortgage together with the collateral insurance policies that secured the charge. He paid her a modest lump sum of £5,000. He undertook to provide private health insurance for the petitioner and the children. He was to pay each of the children £2,500 per annum "until such children shall attain the age of 18 years or cease full time education whichever shall be the later or until further order." The order for periodical payments for the petitioner was expressed in these terms:-
"The respondent do pay or cause to be paid to the petitioner as from the 1st day of July 1988 periodical payments at the rate of £14,000 per anum payable monthly in advance until the petitioner shall remarry, cohabit with a man for a period of six months or periods totalling six months, or until the child of the family Camilla shall attain the age 18 years whichever shall be due sooner or until further order."

The order further provided that "claims against each other of a capital nature do stand dismissed."

The first pitfall to which I draw attention is whether or not it was truly appropriate to limit the petitioner's entitlement to periodical payments for five years, or at all. That question has not been before us but the level of sympathy, if any, which may be felt for the wife is nonetheless shaped by its answer. This was, very broadly, a twenty-year marriage with the wife making the fullest contribution. At the time of the order each of the parties was 43 years old. The wife had shown her willingness to work. I have little doubt she wished to assert her independence. I have little doubt she was more than willing to be financially, as well as emotionally, free of her husband. The question remains, however, whether or not it was ever appropriate in 1989 to say with confidence and with certainty that she could achieve the goal of independence in five years, or at all. At the time of the order Jonathan was 15 and Camilla nearly 13. They could be expected to live full and busy lives. Many demands were yet to be made on the time of their mother. She had not practised her profession for 15 years. She had sacrificed it for the sake of the family. She had probably forever been condemned to a weaker financial position than the bread-winning husband. If it was possible to re-enter her profession, it needed retraining, time out, and money. She could not, on her earnings as a receptionist, maintain herself to a standard appropriate to that which had enjoyed. She had high hopes and I dare say dogged determination to succeed. I venture to think, however, that no one then looking into the crystal ball of her life would confidently have predicted any certainty of achievement of those laudable aspirations. Those agreeing and those making these term orders have a duty pursuant to section 25(2) to consider whether the payee can adjust without undue hardship to the termination of dependence on the payer. Events have proved this wife is not able to do so. Whether or not that ought to have been apparent in 1989 may be open to question but I am not in a position to answer it.

Another pitfall relates to the drafting of the periodical payments order. Firstly, it did not provide, as the Solicitors' Family Law Association precedents prudently provide, for the order to stand dismissed upon the happening of the event. Whether or not it was strictly necessary so to provide is perhaps doubtful for reasons I shall give shortly. However, inclusion of such a term would have made this appeal impossible to argue on the wife's behalf. Secondly, it did not provide whether or not the parties intended section 28 (1A) to apply. That provides:-
"Where a periodical payments...order in favour of a party to a marriage is made on or after the grant of a decree of divorce..., the court may direct that that party shall not be entitled to apply under Section 31 below for an extension of the term specified in the order."

Thorpe J., as he then was, explained the importance of the point in Richardson -v- Richardson [1994] 1 FLR 286 at 294F:-
"In my experience it is generally understood, certainly among the specialist Bar in London, that if the respondent has won in negotiation the exclusion of the applicant's right to apply within the agreed term for its extension then a Matrimonial Causes Act 1973, s. 28(1A) direction must be included in the consent order. By contrast, if the applicant has preserved in negotiation her right to apply for an extension, that right does not have to be expressed in the order, it is sufficient to ensure that the s. 28(1A) direction is not included."

As I understand the husband's case, he was under the impression that the former position prevailed; yet there was no section 28(1A) direction.

When Jonathan reached 18, payments to him ceased. I understand he did not immediately become independent. As Camilla's 18th birthday loomed, the petitioner became anxious about her future. Her casual employment at the estate agents had been brought to end, and she began to work for a network marketing company selling jewellery but with little expectation of earning more than a couple thousand pounds per annum. In May 1994 the husband put the wife on notice that he was not prepared to support her beyond November 1994. She apparently called upon him to continue the payments under the order. She instructed solicitors and I do not know what, if any, advice they then gave her. She could not afford them in any event. Camilla reached adulthood on 14th November 1984. No more money was forthcoming from the husband. On 1st December 1994 the wife applied "to vary the maintenance paid to Camilla who is still in full time education" and "to extend maintenance paid to myself for the time my daughter is still in full time education or I remarry or cohabit for a period of six months."

That was resisted. There were affidavits, questionnaires, bundles over 1000 pages long, interim orders and finally on 7th November 1995 a hearing before District Judge Cushing who varied the order so that the husband was to pay the wife £17,000 per anum from 1st November 1995 to 31st July 1996, just under £12,000 per anum for the following year, reducing to £7,248 to 31st July 1988 and thereafter nominal payments of 5p per anum during their joint lives or until she should remarry, cohabit for six months or further order. The claim for periodical payments for Camilla was dismissed.

That order pleased neither party. The husband appealed originally only against the imposition of the nominal order which, of course, had the intended effect of keeping her claims alive. She wished for more generous provision to be made for her and for it to be back dated. She wished an order for Camilla to be maintained. Two days before the hearing fixed before the High Court Judge to hear that appeal, the husband gave notice of his intention to seek to amend his appeal in order to raise, for the first time, whether or not the court had any jurisdiction to make any order in the wife's favour.

That appeal was heard by Hale J. In her judgment of 29th February 1996 she said:-
" The wife's application to vary the original order was made on 14th December 1994, one month after Camilla had reached her 18th birthday and, according to the husband, his liability under the order had come to an end. This is an extremely unattractive argument because of its apparent technicality, a technicality which must be mystifying to a person in the wife's position who was at the time acting in person. The technicality was not raised at any time in the course of these proceedings, specifically not in July 1995 when the husband agreed to an interim order or in November 1995 when District Judge Cushing made the order under appeal. It was first raised on Monday of this week. Further more, the wife's application was made only one month after the previous term had expired and the wife had drawn the problem to the attention of the husband's solicitors in August 1994. Thus he was not taken by surprise. Counsel, on behalf of the husband [not Mr Evans Q.C. who now appears for him] disarmingly says that he did not raise the point in the court below because he did not think as much of it then as he does now. He confesses that he does not consider that the position which has been reached on the authorities is right in principle. But of course any view of the justice of the individual case or of the merits of the existing law in policy terms cannot effect me if I am bound by statute and authority to hold that I have no jurisdiction, and that the District Judge had no jurisdiction to make the order under appeal."

I agree with all of those sentiments. The learned judge duly and properly examined the law, in particular the case of T -v- T (Financial Provision) [1988] 1 FLR 480, a decision of Mrs Justice Butler-Sloss, as she then was. Hale J, felt obliged to accede to the husband's application. She said:-
"I therefore reach the conclusion that I cannot distinguish T -v- T from this case or bring myself to disagree with it. It does seem particularly hard on the facts of this particular case, in view of the circumstances in which the point was raised and in view of the husband’s acknowledgement that some extension to the order is indeed justified on the particular circumstances of this case. One has, however, to acknowledge that hard cases make bad law. Once applications become possible outside the time limit, it would be impossible to distinguish which should go ahead and which should not. The variation exercise under Section 31 is a quite different exercise from the full financial and property settlement which is made on or after the divorce and is governed by the principles in Section 25 of the Act. Capital provision cannot be varied. Therefore, just as in some cases it may be unjust to take away continuing periodical payments when this cannot be compensated for by capital provisions, similarly it may be unjust to continue periodical payments when one cannot take away concluded capital provision which has already been made. I reach conclusion with considerable regret, and were any higher court to feel that it could reach a different conclusion, I for one would bear it with considerable fortitude."


Again I agree with every word. However I regret that I feel unable to accept the invitation implicit in the final sentence quoted.

Hale J. then dealt with Camilla and said:-
"It is fairly clear that (the District Judge) felt that in the circumstances where the wife was to continue to have some provision for her own needs, which provision would include the maintenance of the household, it was not appropriate for there to be any increase in the provision for Camilla. But the conclusion that I have reached in relation to the periodical payments for the wife clearly alters that situation drastically."


Camilla had begun a university course which would continue until 1999. The judge held, rightly, that she was entitled to be maintained at a level appropriate to a university student who was the child of someone in her parents' circumstances; and these include just as much father's circumstances as those of her mother. Taking into account her grant, father was paying her £3,500 directly, and proposed to continue to do so. The judge held, and again I agree, that that was quite insufficient to maintain her at the appropriate level given her particular circumstances and her special medical needs. The judge found that:-

"She needs a home, she needs the use of a car, she needs feeding during vacations and the like. I see no reason why it should be assumed that Camilla should support herself from obtaining employment other than the sort employment which might contribute towards her studies, her well-being and her growing up. Such employment would not necessarily be forthcoming and it would not necessarily earn very much by way of an income."


The judge then referred to the wife's very modest income as against "well over £100,000 per year gross and at least £6,300.00 net per month" earned by the husband. She held :-
"It seems to me that the financial contribution which [the wife] can be expected to make towards the maintenance of Camilla over the duration of Camilla's university course is simply the provision of the bricks and mortar, either in existing home or in any replacement home that could be provided; and even that is expecting a lot because if there were no Camilla to provide for then the wife would be able to buy herself a small flat anywhere that appealed to her and that would release at least more capital for her to re-establish herself in the labour market.

The husband, certainly in income terms, is a wealthy man and could reasonably be expected to meet his daughters financial needs throughout her university course...[He] can be expected to contribute the whole of the reasonable expenditure in keeping a home going for Camilla for the period of her university course."



She then dealt with the assessment of the claims. She said :-
"This is an extremely difficult sum to do because it is difficult to disentangle the various strands in the household expenditure. It is argued on behalf of the mother that the £14,000 provided for in the original order would be the appropriate figure for the rest of the university course. That seems to me to be too much because at least some of that must be attributable to the mother’s own needs, quite apart from the needs of Jonathan, who cannot be included as yet in this equation because, although he does not have employment, he is not in education and does not otherwise have special needs which would justify a maintenance order for him. The husband offers, in effect, £10,000 for 2 years of Camilla’s course and £5,000 thereafter until she ends her university career. To mind, there is no particular logic about a taper in this case. The case for providing a home for Camilla exists throughout her course. On any view the wife will not be able to earn very much during that period and on any view her contribution is made through the continuing provision of the bricks and mortar. On the other hand, the £10,000 would be perhaps a generous amount whereas the £5,000 would be too little. It accepted by the husband that any sum should be backdated to Camilla’s 18th birthday, giving of course credit for the sums which have already been paid. For the purpose of this calculation, I leave out altogether what is paid under the order for Camilla and the direct payments to Camilla which the father is now making. Doing the best I can, I consider that the sums offered by the husband are the appropriate ones to order with that degree of backdating."


In the result the learned judge made an order which having recorded the husband's undertaking "to continue to pay or cause to be paid periodical payments to..Camilla...until she shall cease full time education at the rate of £270 per month", allowed the husband's appeal, dismissed the wife's cross appeal in respect of her claim and made the staged periodical payments I have already recited. She also condemned the husband to pay the wife's costs on an indemnity basis.

Once again there are cross appeals by the wife against the dismissal of her claim for periodical payments and by the husband in respect of Camilla's order and in respect of costs.

VARIATION OF A TERM OF PERIODICAL PAYMENTS

Mrs Mullally submits that although the happening of the event of Camilla’s birthday ended the husband's liability to pay under the order, the order itself, in the absence of provision for its dismissal, remained extant but in suspense pending the making of a further order which was itself an eventuality for which the order catered. Mr Evans Q.C. for the husband submits that if the words "or further order" have any meaning at all, they mean only "until further order in the mean time" and that if application for variation is not made before the happening of the last event, being Camilla's birthday, the order ceases to have effect and there is nothing left which is capable of being varied.

The statutory framework in the Matrimonial Causes Act 1973 as amended by the Matrimonial and Family Proceedings Act 1984 is, with emphasis added by me, as follows:-
"23. Financial provision orders in connection with divorce proceedings , etc.

(1) On granting a decree of divorce...the court may make any one or more of the following orders, that is to say

(a) An order that either party to the marriage shall make to the other such periodical payments, for such term, as may be specified in that order.

...

(d) An order that a person to the marriage shall make to such person as may be specified in the order for the benefit of a child of the family, or to such child, such periodical payments, for such term as may be specified;

(4) The power of the court...to make an order in favour of a child of the family shall be exercisable for time to time...

25A. Exercise of court's powers in favour of a party to the marriage on decree of divorce or a nullity of marriage.

(1) Where the court decides to exercise its powers under section 23(1)(a)...it shall be the duty of the court to consider whether it would be appropriate so to exercise those powers that the financial obligations of each party towards the other will be terminated as soon after the grant of the decree as the court considers just and reasonable.

(2) Where the court decides...to make a periodical payments...order...the court shall in particular consider whether it would be appropriate to require those payments to be made...only for such term as would in the opinion of the court be sufficient to enable the party in whose favour the order is made to adjust without undue hardship to the termination of his or her financial dependence on the other party.

(3) Where...an application is made...for a periodical payments...order...then, if the court considers that no continuing obligation should be imposed on either party to make or secure periodical payments in favour of the other, the court may dismiss the application with a direction that the applicant shall not be entitled to make any further application in relation to that marriage for an order under section 23(1)(a)...above.

28. Duration of continuing financial provision orders in favour of party to marriage, and effect of remarriage.

(1) Subject...to the provisions of sections 25A(2) above and 31(7) below, the term to be specified in a periodical payments...order...shall be such term as the court thinks fit, except that the term shall not...extend beyond the following limits, that is to say -

(a) In the case of a periodical payments order, the term...shall be so defined as not to extend beyond the death of either of the parties to the marriage or...the remarriage of the party in whose favour the order is made;...

1A...the court may direct that the party shall not be entitled to apply under section 31 below for the extension of the term specified in the order.

31 Variation, discharge etc. of certain orders for financial relief.

(1) Where the court has made an order to which this section applies, then, subject to the provisions of this section and section 28(1A) above, the court shall have power to vary or to discharge the order or to suspend any provision thereof temporarily and to revive the operation of any provision so suspended.

2. This section applies to the following orders that is to say -
(a) ...
(b) any periodical payments order..."


It is to be observed that whereas the power to make a periodical payments order in respect of the child can be exercised from time to time, only one periodical payments order can be made in favour of a party to the marriage. When the term is defined by s. 28(1)(A) not to extend beyond death of either spouse or remarriage, then the order ceases on the happening of that event and cannot be revived. No one would contest that proposition. There would, therefore, have to be very good reason for giving different treatment to a term specified by the court so as, in that case, to permit the kiss of life to be given to it after the obligations to pay under it had ceased to have effect. To give consistent meaning to the Act, one would be constrained to find there no longer is an order which is capable of variation. On that view of the law, that is the end of this appeal.

A review of the authorities leads to the same conclusion. The leading case is Minton -v- Minton [1979] A.C. 593. There the periodical payments order was expressed to be "at the rate of 5p per year until the matrimonial home is conveyed to her, such payments to cease on completion of the conveyance." It was held that L -v- L [1962] P. 101 was correctly decided. There the wife had agreed to accept a lump sum in full satisfaction of her present and future rights to maintenance and the order provided by consent that "the petitioner's application for maintenance be dismissed." Lord Scarman said at p. 608:-
"Had Parliament, when re-enacting section 1 of the Act of 1958, wished to overrule L -v- L , it could have added to subsection (1) the words 'from time to time'. When Parliament wished to make it clear that no previous dismissal of an application or discharge or termination of an order could displace the court's power to make maintenance orders in favour of the children, it added, by subsection (4) the words 'from time to time' to the words 'at any time thereafter' which it had used in subsection (1). No plainer indication could be given of the intention of Parliament.

For these reasons I conclude that section 23(1) of the Act of 1973 does not empower the court to make a second or subsequent maintenance order after the earlier application has been dismissed. Counsel for the wife, however, submits that present is not a case of dismissal: an order was made which included periodical payments and a property transfer order...Thus he seeks to draw a distinction between a dismissal and an order. I agree with him on its proper construction the consent order in this case is more than a dismissal. It contains an express provision for a limited period of maintenance (the nominal order until conveyance) and a provision for the transfer of the home.

The short answer to the point, however, is that upon the true construction of section 23(1) the court does not have the jurisdiction. Once an application has been dealt with upon its merits, the court has no future jurisdiction save where there is a continuing order capable of variation or discharge under section 31 of the Act...The court having made an order giving effect to a comprehensive settlement of all financial and property issues as between spouses, it would be a strange application of the principle of the clean break if, not withstanding the order, the court could make a future order on a subsequent application made by the wife after the husband had complied with all his obligations...I would not deny the court power, where it thinks just, to achieve finality as between spouses (children are a different matter) unless compelled to do so by clear enactment. Your Lordships are under no such compulsion; on the contrary section 23(1) is perfectly clear: it permits the court to achieve finality, if it thinks it appropriate, practical and just."


It should be observed that Minton does not narrowly refer only to cases where the claim for periodical payments was dismissed. The speech ranges much wider. In fact, the order there did not stand dismissed: it simply ceased. Lord Scarman therefore spoke of dismissal or discharge or termination as displacing the court’s power. He referred to finality where the husband had complied with all his obligations. Thus it seems that a provision that on the happening of the specified event the periodical payments order should stand dismissed, as the Solicitors’ Family Law Association recommend, is a counsel of caution rather than necessity.

Jessel -v- Jessel [1980] 1 FLR was a different case. There the periodical payments ran until the petitioner should remarry "or until further order at the rate of £2,000 per anum less tax to be reduced to £1,200 less tax should the respondent cease to be a Member of Parliament." Mrs Mullally relies heavily on a passage in the judgment of the Master of the Rolls, Lord Denning where he says at p. 35:-
"Those words 'or until further order' are of much importance. There are many cases to show this. I need not go through them all. I will just mention their names. See Hall -v- Hall [1915] P. 105, Turk -v- Turk [1931] P. 116; Bennett -v- Bennett [1934] Law Journal 38. It is plain as can be that the words 'or until further order' keep the position alive so that an application can be made at any time for a further order to vary the periodical payments upwards or downwards as the situation changes in regard to them."

Browne L.J. also said at p. 37:-
"I entirely agree with my Lord that this not a genuinely final order, nor a once and for all order. It provided for continuing periodical payments to continue indefinitely unless certain events happen, one of which was until further order."


Mrs Mullally relies upon those words as support for the submission that a further order is itself a further event contemplated by the order until the happening of which the order continues in effect. Mr Evans has, however, taken us to the authorities to which Lord Denning referred. These show that the power to vary given by s.190(2) of the Supreme Court of Judicature (Consolidation) Act 1925 was limited in that the court was able to order in addition to or instead of the amounts ordered such sum as was reasonable, provided only that the husband's means had either decreased or increased, but not for any other reason. In Bennett v Bennett, Sir Boyd Merriman held at p.40:-
"Consideration of the matter, as dealt with so far in Hall -v- Hall and Turk -v- Turk; Dufty -v- Dufty , have left me in no doubt whatever that it is now the practice of the court, founded on authority, to regard the introduction of the words 'until further order' in the original order made for maintenance as enabling the court, when the matter comes up for review, to have regard to all the statutory factors available for consideration in the first instance, and in my view the whole point of the decision in Turk -v- Turk; Dufty -v- Dufty , is that where those words are inserted the court is not limited in its jurisdiction - to withhold such review - by the proviso in section 190 subsection 2. I am not in this judgment to be taken as expressing any doubt on what I understand to be the decision Turk -v- Turk; Dufty -v- Dufty - that in order to found the jurisdiction to review where the words 'until further order' appear in the original order it is not necessary to find that the husband's means have diminished. Jurisdiction can be founded on any of the statutory grounds on which the original order could be made."


If that was the original purpose of the words 'until further order', they are now superfluous because the purpose sought to be attained by them is plainly achieved by the wide words of section 31 which require the court to have regard to the whole range of circumstances of the case including any changes in any of the matters to which the court was required to have regard under section 25. when making the order to which the application relates.

Before the passage of the 1984 Act, it had been established in Dipper -v- Dipper [1980] 1 FLR 286 that claims could not be dismissed without consent. In that case Ormrod L.J. at p. 298 said:-
"There are essentially four ways of dealing with applications for periodical payments: first to make a substantive order; secondly, to make a nominal order, the purpose of which is to enable the party obtaining it to take advantage of the variation section without undue difficulty; the third alternative is to adjourn the application generally if the court does not wish to make any order at that time; the fourth is to dismiss the application, provided the consent of the applicant is forthcoming."


In Thompson -v- Thompson [1985] 1 FLR 863 a property adjustment order was made whereby the property was to held on trust for sale but not to be sold until a specified event 'or further order'. It was held that the court had jurisdiction to entertain an application for a sale before the prescribed event provided the object was to give effect to the spirit and construction of the original order, there being no power to vary to produce a different substantive result from that originally contemplated. Oliver L.J., as he then was, said at p. 869 that:-
"The words 'further order' are, in my judgment, unless there is some clear context to the contract, to be construed as 'further order in the meantime', and the long-hand version of the order in the instant case would postpone the sale 'until (a) the youngest child of the family...reaches the age of 17 years or finishes further education (whichever is the later), or (b) such earlier date as may be specified in any order made before the expiry period referred to in (a) above."


Those words were adopted by Butler-Sloss J., as she then was, as equally applicable to an order for periodical payments: see T -v- T (Financial Provision) [1988] 1 FLR 480. The facts of that case are on all fours with the matter before us. There a periodical payments order had been made in favour of the wife which was expressed to take effect "until such day as (the wife) shall remarry or until (the husband) retires from John Lewis Partnership or further order". After the husband had retired, the wife made an application for a variation of the order. Butler-Sloss J. held at p. 483:-
"Since no application was made to vary prior to the (husband's retirement), and the order for £20 came to an end, there was no order, not even an nominal order, upon which to hang an application to vary. In my judgment, counsel for the wife's argument that the application was in limbo and could be revived upon a variation application is fallacious. The original application had been adjudicated upon, the variation application had not been made, and application in limbo does not come within the four categories of Dipper -v- Dipper (above) and is, in my judgment, unknown to family law. The court, therefore, has no jurisdiction to entertain the variation application I agree with the conclusions of the Senior Registrar (Mr Brian Tickle) and his reasons. The appeal is dismissed."


Hale J. reached the same conclusion and found herself unable to depart from T -v- T . She approached the matter in this way:-
"It is therefore argued on behalf of the wife with some force that the plain meaning of the words 'until further order' must be given their effect and that plain meaning is that a further order could be made at any time. Orders do from time to time contain otiose words so as to clarify the meaning for the parties and for everyone else. The words do have the advantage of dispelling any suggestion that the parties contemplated that there should be no applications to vary, even though these could not be excluded. Against that, there would have been nothing easier than to put in a clause based on s. 28(1A), which was not done in this case. This means the parties must have contemplated that there could be an application for extension of the period. But it does not follow from that that they must have contemplated that the application could be made at any time, even after the order had ended. Although it will not appear so to the wife, or indeed perhaps to the husband, from the point of view of that argument, whether it be one month or several months thereafter, makes no difference."


She found the conclusion particularly hard on the facts of this particular case, in view of the circumstances in which the point was raised and in view of the husbands acknowledgement, that some extension to the order is indeed justified on the particular circumstances of this case. I agree and had I thought it possible to grant the wife relief, I would have been anxious to do so. I have concluded, however, that such a course in not open to this court. The speech of Lord Scarman makes it clear that the order comes to an end not only when it expressly stands dismissed but also when it "ceases" or is "discharged" or "after the husband (has) complied with all his obligations". In those events there is no "continuing order capable of variation or discharge under section 31 of the Act." This view accords with the statutory language. Section 23 enables an order to be made "for such term as may be specified in the order". Section 25A(2) enables the court to require the periodical payments to be made "only for such term" as is sufficient to enable adjustment to be made without undue hardship to the termination of financial dependence on the other party. Section 28 deals with "duration of continuing financial provision orders" and provides "the term...shall be such term as the court thinks fit" subject to the statutory limits of death or remarriage. Consistency demands that when the term specified in the order, of whatever kind it may be, expires, the order expires with it. The words "or further order" must be given their usual meaning and it is not possible to construe out of those words the meaning that only the obligation to pay comes to an end leaving the order comatose but capable of being kissed back to life by an application to vary. As Hale J. pointed out, if that submission was correct, then an application to vary could be made years after the event. That it would so fly in the face of the spirit of a clean break, even a deferred clean break, as to be unacceptable.

Practitioners should, therefore, note that unless there is a specific direction in the order under section 28(1A), the order can be extended beyond the term only provided that the application is made before the term expires. Although no argument has been addressed to us, I incline to the view that it is essential not only that application be made but that an order be made before the expiration of the term. There is no reason why the District Judge of the Day may not make an interim order of nominal periodical payments to preserve the position pending inter partes argument. Further, given the draconian effect of all relief being lost if the term is not extended before it expires and given the real possibility that years after the order had been made, a wife being without legal advice might overlook the urgency of a variation application, then if it is not a section 28(1A) case, it may be advisable specifically to provide for nominal periodical payments to be made after the expiration of any term provided for so as to give a peg on which to hang any late variation application.

I now turn to the husband's cross appeal against the order made in respect of Camilla. The first submission is that the learned judge was wrong to require an undertaking to be given "to continue to pay or cause to be paid periodical payments to the child" as well as ordering periodical payments to be made to the mother for the benefit of the child. The submission is that because the undertaking has the same effect as the order, there were in effect two orders for periodical payments being made when section 23(1)(d) permits the making of only one such order either to the child or to someone for the benefit of the child.

I am not prepared to give such a narrow construction to the Act. The court has power to make "any one or of the following orders". In my view those words are wide enough to mean not only the orders provide in (a) to (f) but any one or more of the orders within a subparagraph. It is not uncommon for older children, and especially undergraduate children, to operate their own bank account and to manage an allowance provided for them. That is money which should be paid to them. It may be wholly appropriate that children learn from having personal control over a modest allowance, but it is not appropriate that there should be a relationship between parent and child which requires a parent to have to go, almost cap in hand, to the child for a contribution towards the cost of maintaining the home and all that goes with it for the benefit of the child. This is what happened in this case, and it proved embarrassing for both mother and daughter. Management of the household budget should be left to the adult. That dichotomy is properly reflected in the orders made by the learned judge. I reject the submission that there was no jurisdiction to make them. As Mrs Mullally pointed out, it is now common practice to make orders for payment partly to the child (or the parent for the child) and directly to a fee paying school. There is in my judgment power to make an order to the child as well as to the parent for the child.

Mr Evans further complains of the judge's approach in deciding how much to order by way of periodical payments. He cannot criticise the way she directed herself that each parent should contribute to the child's needs as best they can; nor can he object to the finding of the mother's limited needs. The judge rightly found that the husband, certainly in income terms, is a wealthy man who could reasonably be expected to meet his daughter's financial needs throughout her university course. The judge's finding that the husband can be expected to contribute the whole of the reasonable expenditure on keeping a home going for Camilla for the period of that course cannot be challenged.

The criticism is, however, that the judge erred in taking as her starting point the £14,000 provided for in the original order and endeavouring to allocate it between the mother and daughter. That criticism seems to me is misplaced. The husband was offering to maintain his daughter. The judge asked counsel how much he was suggesting would be a proper contribution bearing in mind the allowance he was making to her. His suggestion was £10,000 for two years and £5,000 thereafter. The judge did not find it a logical response and commented that on the one hand £10,000 would be too much but on the other £5,000 too little. Since the order provides for a four-year term, the mathematics suggest that the average of £7,500 which the judge achieved is probably about right. The judgment was:-
"Doing the best I can, I consider that sums offered by the husband are the appropriate ones to order with that degree of backdating."


In the light of the information volunteered by the husband, there was material before the judge justifying the order she made. It does not lie in the husband's mouth now to complain in this court that he or his counsel were put under some kind of unfair pressure by the learned judge in asking them to state what they were willing to pay. The case had always been presented as one where he had the means to pay whatever was expected of him. Given his answer and the broad range of figures before the court, there was, in the particular circumstances of this case, no need for a minute breakdown of the household expenditure and the complaint that the learned judge was plainly wrong in arriving at the conclusion she did is not made out.

The husband also appeals against the order for costs made against him. The judge held that:-
"I have already indicated, but I will repeat, that this seems to me to be a case in which it entirely appropriate to order the husband to pay all the costs. The point on which has succeeded is a point that was only raised on Monday of this week and it could have raise at any time in the course of these proceedings. The remainder of the argument in this case has not taken up sufficient time or energy for it to be appropriate for me to order that conclusion."


Mr Evans submits that there was no good reason given why costs should not follow the event. Costs are, however, in the discretion of the court. Here the point was not only taken very,very late in the day but the husband had in the meantime submitted to orders made by consent providing for periodical payments to the wife. His original appeal to the judge was limited to that part of the District Judge's order which made a nominal order in the wife's favour to preserve her position for the future. But that was not the end of it. There was a major issue about periodical payments to or for the child. On that issue the wife won, and won handsomely. The judge was entitled to take the view that the greater victory was obtained by the wife. It was, in my judgment, within the bounds of the proper exercise of discretion to make an order for costs in the wife's favour.

The learned judge did, however, go further. She ordered costs to paid on an indemnity basis. That had not been sought and Mrs Mullally does not resist an appeal against that part of the order. I say no more about it. To that extent only the husband's cross appeal succeeds.

In the result I would dismiss the wife's appeal and uphold the order dismissing her claim for periodical payments. Save that I would substitute an order for the wife's cost to taxed on a standard basis, not on a indemnity basis, I would dismiss the husband's cross appeal.

I would add this. We were presented with a cardboard carton of six arch-lever files containing about 1,200 pages of material totally irrelevant on this appeal, including bank statements and the myriad of other financial documents which burdened the District Judge's enquiry. Such copying represented a total waste. It would seem to be a breach of the Practice Statement and Practice Direction dated 26th July 1995 which directs solicitors how to prepare bundles for the Court of Appeal. It is now time that practitioners take note of pages 69-79 of the Fourth Supplement to the 1995 White Book and the Taxing Master's powers to disallow costs of unnecessary copying. I shall invite him to consider such a course in this case.

LORD JUSTICE POTTER: I agree.


© 1996 Crown Copyright


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