There has been a very useful recent decision on global maintenance.
Global maintenance is the mechanism by which the Court makes an order that provides for an overall award of maintenance but allows for that award to be reduced by the amount of child maintenance paid under the statutory CMS system.
Arguably a global maintenance order is a way of getting round the fact that the Court cannot make a child maintenance order because that jurisdiction belongs to the statutory body, the CMS.
It has therefore often been regarded as controversial. Indeed, its inventor, District Judge Segal (to whom is owed the global maintenance order nickname the “Segal Order”) felt the need to write an article attempting to row back from it (“Segal Orders” [2002] Fam Law 923) attempting effectively to limit it to interim orders when he realised what use was being made of it following the Court of Appeal decision in Dorney-Kingdom v Dorney-Kingdom [2000] 2 FLR 855: Nonetheless that Court had endorsed its use, albeit seeing the order as a somewhat unusual one, describing it as “just within the bounds of legitimacy”, rejected its use where the wife had only a nominal maintenance claim in her own right and implied at least, that it could only be a holding position until the statutory assessment. DJ Segal’s article could not override a decision of the Court of Appeal but, different first instance courts continued to hold differing views on how controversial the order was.
Despite that controversy, the Mostyn J financial remedy pro-forma precedents adopted the global maintenance order and, of course those precedents have been approved by the President in “View from the President’s Chambers” July 2013 and most recently in CH v WH [2017] EWHC 2379. Nonetheless, not everyone, nor every tribunal, was convinced, which is what makes this latest decision important.
AB v CD (Jurisdiction Global Maintenance Orders) [2017] EWHC 3164 (Fam) is a decision of Roberts J on appeal from a final hearing determined by a Circuit Judge. The assets were large, almost £2m, with housing needs determined at over £1m and the global maintenance order was a large one too, £39,000 p.a. with a reduction corresponding to any future CMS calculation (from which it can be correctly surmised that there had not been one at the time of the first instance decision) with an extendable term of 10 years.
The principle of the jurisdiction to make such an order was the first ground of appeal, on the obvious basis that the Child Support Act ousted the Court’s jurisdiction to make a child maintenance order in favour of the statutory authority. There was no written agreement that might have given the court jurisdiction pursuant to S. 8 (5); there was no S. 8(6) top-up jurisdiction; at the time of the original decision there had not even been a CMS assessment and, the trial Judge accepted that he did not have jurisdiction to make a child maintenance order.
As Roberts J made clear, this was not an order that was to expire automatically once the CMS made an assessment, in fact, at the time of the first instance decision it was potentially possible that no CMS application would be made, nor was the spousal element clearly differentiated from the child element.
Nonetheless, Roberts J noted the inclusion of this type of Order in the approved precedents and referring to Dorney-Kingdom, above, concluded that “ ‘Segal Orders’ do not per se amount to an impermissible device to circumvent S. 8(3) of The Child Support Act” [para. 42]. That is an unusual sentence that may attract some further judicial analysis at some stage, arguably endorsing as it does, the validity of devices to circumvent statutes. However, Her Ladyship then referred to a 1998 Child Support Commissioner’s decision that did not declare a similar arrangement void but, only where that was based on an agreement reached by the parties and where the substantive order was phrased in terms of spousal maintenance with only the undertaking phrased in terms of child maintenance [44-47]. Finally, on returning to Dorney-Kingdom at [48], Her Ladyship noted that that decision continues to be cited in leading text books and rejected the appeal.
So it seems that global maintenance orders are acceptable, at least in so as far as Dorney-Kingdom allows. This appellate decision of an eminent High Court Judge will undoubtedly encourage those who continued to doubt the efficacy of global maintenance orders to think again and of course it will determine matters in the lower courts but, Dorney-Kingdom is an interesting decision and pro-forma precedents are not binding on the Court of Appeal so it remains to be seen whether this debate is over.
