Tattersall v Tattersall – periodical payments, enforcement before variation?

Divorce & Matrimonial Finance

03 October 2018

This case involved two parties who had married in 2000 and subsequently separated in 2010. The marriage produced one child who continued to reside with the wife. On 10th December 2012, a final financial remedy order was made dividing the capital unequally in the wife’s favour in order to enable her to purchase accommodation for her and the child. As part of the financial remedy order, the husband was also ordered to make periodical payments at the rate of £1,070 per month.

Less than a year later, on 9th October 2013, the husband applied to vary the periodical payments order. However, at the time, the husband did not pay the fee required and as a result, the application was not issued. Said fee was subsequently paid on 27th January 2014 at which point the application was issued.

The wife had also made two applications of her own, in July and September 2013, both relating to enforcement of the periodical payments order.

The matter was listed on 3rd June 2014 where it had been directed all outstanding applications would be considered. At this hearing, it became apparent the husband had taken no steps to further his application for variation and the Judge was without any documentation or even the application itself. As a result, the Judge gave the parties permission to file written submissions.

Giving judgment on 23rd September 2014, the Judge made an order in respect of the distribution of the net proceeds of sale of the parties’ property. The Judge gave the wife permission to enforce all of the arrears of periodical payments which she calculated at £16,340 and found there was “no good reason” why the husband had failed to pay as ordered. Part of these arrears, approximately £6,600 was ordered to be paid out of the husband’s share of the net proceeds of sale with the balance stayed until 24th November 2014. This sum was to be retained by the conveyancing solicitors. It was further ordered that the stay would continue if, by 24th November 2014, the husband produced a copy of his variation application and evidence in support. In default of such evidence being produced, the stay would lapse.

The husband duly complied with the direction with regards to filing evidence and it became clear that his argument with regards to variance of the periodical payments centred around change in circumstances. The husband argued that the wife had become entitled to 15 hours’ free nursery, the wife’s earnings had increased, his financial needs had increased and the wife had more capital than envisaged at the making of the financial remedy order in December 2012.

At a following hearing on 1st June 2015, the husband did not attend nor was he legally represented. HHJ Tolson made an order capitalising periodical payments under ss.31(7A) and 31(7B) of the 1973 Act. The order required the husband to pay approximately £74,500 by way of capitalisation and approximately £9,000 in respect of arrears.

The husband then sought to appeal the decision of both 23rd September 2014 and 1st June 2015. This was considered by King LJ on 25th May 2016 at an oral hearing. It was made clear in judgment that the sole reason permission to appeal was given was because the issue of the husband’s variation application, on the face of it, remained undetermined.

As a result, the appeal court considered the husband’s appeal of both the order of 23rd September 2014 and 1st June 2015.

Order of 23rd September 2014

The husband’s grounds of appeal with regards to the order of 23rd September 2014 were as follows:

(i) the court had erred in law in determining the wife’s application to enforce prior to the determination of his variation application;
(ii) the wife had not made any formal application for permission to enforce arrears more than 12 months old; and
(iii) non-payment was reasonable because the order was still subject to a stay granted by the Court of Appeal.
On ground one, the Court made clear there was no principle which requires a Judge to adjourn an enforcement application pending determination of a variation application. LJ Moylan stated that

“the objections to such a principle are obvious. It would enable the process to be too easily manipulated, if not subverted. It is a question for the judge to determine having regard to the circumstances of the individual case”.

The Court found there was no reason in this particular case that enforcement or payment of all the arrears should have been stayed pending the husband’s application to vary being determined.

On ground two, the Court highlighted that it is not stipulated what formal process should be adopted when an application under s32 of the 1973 Act is made. Again, the Court considered that it will be dependent on the circumstances of the particular case. In this case, where approximately only two months of arrears accrued outside of the twelve-month period, there was no need for a formal application.

Finally, on the third ground of appeal for the order of 23rd September 2014, it was held that this point was without merit as the appeal had been determined on 9th July 2013 and therefore the stay had lapsed.

Order of 1st June 2015

The husband’s grounds of appeal with regards to the order of 1st June 2015 were as follows:

(i) The order effectively pre-determined his variation application which was an error of law

(ii) The Judge was wrong to determine that the lump sum should be £83,488

In judgement, the Court of Appeal considered the Court’s powers to vary or discharge orders for periodical payments under s.31 (7A) and s.31 (7B). Specific reference was also made to Vaughan v Vaughan [2010] 2 FLR 242 which dealt with capitalisation of periodical payments.

In this particular case, LJ Moylan found there may have been some force to the husband’s submissions in 2015 and 2016. However, there was no force in it now. The Court found that the husband had responsibility to process his application and he must bear the consequences in his failings to do so.

With regards to the second ground of appeal of the order of 1st June 2015, the Court considered solely the capitalisation sum of £74,500. The first question was whether the Judge identified “the level of periodical payments which should in principle continue to be made” as per Vaughan. It was found that in this case, that exercise had properly been undertaken.

The Court then went on to consider whether the Judge’s use of Ogden tables rather than Duxbury could give rise to appeal. Following Pearce and Vaughan, it is clear that the Court should use Duxbury rather than Ogden tables. However, it was held that a judge can use an alternative method of calculation and this is not an error of law. The Court stated that in light of no alternative calculations being provided, there was no evidence to suggest that the calculation under Duxbury would be sufficiently different to warrant interfering with the order.

On this basis, the husband’s various grounds of appeals were dismissed.

Whilst the facts of this particular case are rather complex by virtue of several applications and various grounds of appeal, it offers helpful guidance as to how Courts will consider concurrent applications for variation and enforcement. As a resounding message, the appeal Court within this case has made clear that there is no onus on a Court to consider an application to vary before enforcement. The case of Tattersall further highlights that when making an application for variance, the onus is on the applying party to ensure that the matter is progressed through the Court properly, particularly in circumstances whereby there is a further application to enforce.

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