MARY PATRICIA MUTCH v JAMES MUTCH (2016)

A judge had been wrong to find that he did not have the power to extend a spousal maintenance period. The original order had not excluded the wife’s right to apply for such an extension, and on the evidence the application to extend had been made prior to the payment term ending.
The wife appealed against a judge’s finding that he did not have the power to extend a spousal maintenance period in financial remedy proceedings.

The judge had made an order in July 2012 providing that, inter alia, the respondent husband would pay periodical payments of £1,200 to the wife until completion of the sale of the former matrimonial home. The order stated that if the home was not sold by 4 November 2012, and in the absence of agreement, either party had liberty to apply for further directions in respect of the order. The husband failed to comply with the order. The wife filed a notice in October 2012 that she intended to apply for further directions and provided a witness statement regarding the husband’s failure to pay. The home was sold on 5 November 2012. The parties returned to court on 23 November where the original order was varied by consent. It subsequently provided that, notwithstanding that the home had been sold, the husband would continue to make periodical payments at a reduced rate of £1,000 until the wife’s share of the pension was available. The husband failed to comply fully and the wife sought to enforce the order. At that hearing, the husband argued that no valid application for an extension of the periodical payment term had been made prior to the matrimonial home’s sale, and that the only application before the court in November was for further directions under the liberty to apply provision. The judge set aside the November order on the basis that liberty to apply in respect of the periodical payments order did not confer on the court the power to vary the order. 

HELD: (1) The July 2012 order had not included a direction under the Matrimonial Causes Act 1973 s.28(1) that the wife was not entitled to apply for an extension of the spousal maintenance period. Only such an express provision excluded the payee’s right to apply for an extension, Richardson v Richardson (No.1) [1994] 1 W.L.R. 186 applied. The wife was therefore entitled to apply for an extension, but she had to do so before the payment term ended. Provided that an application was made prior to the periodical payments term ending, the fact that it was heard after that did not affect the court’s power to extend it, Jones v Jones (Periodical Payments) [2001] Fam. 96 applied. The question was therefore whether the wife had made such an application before the matrimonial home’s sale on November 5. The formalities set out in the Family Procedure Rules 2010 for seeking an extension of the term of a periodical payments order had not been followed. However, that was not fatal if on the face of the application for directions it had also been stated that an extension was sought. It was necessary to concentrate on the terms of the documents filed by the wife in October in order to ascertain whether they amounted to a valid application for an extension. The October notice had to be read together with the witness statement that accompanied it. It was plain that what was being sought was an extension of the term of the wife’s periodical payments beyond the completion of the sale of the home. That was clear from the November order which identified the hearing as “the wife’s application”. Once it was established that there had been a valid application before the court in November, there could be no further argument about that order. It had been made by consent and was not appealed (see paras 18-19, 21-22 of judgment). 

(2) (Per Lord Justice McFarlane) The power to extend the spousal maintenance period could be invoked by a freestanding application or by using the liberty to apply. The October application read together with the witness statement made an application for a variation of the wife’s spousal maintenance. The application also met the requirements for making use of the liberty to apply: permitting such an application if there had been no agreement between the parties as to the continuation of any periodical payment order meant that the wife was not exposed to termination of spousal maintenance whilst some matters, such as the pension sharing order, remained unsettled (paras 26-29).



Appeal allowed
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