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Mills v Mills in Supreme Court

Date:11 AUG 2017
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The Supreme Court has granted permission to appeal the Court of Appeal decision in Mills v Mills (see March [2017] Fam Law 328) a case which relates to the proper approach to applications to vary periodical payments orders made pursuant to s 31(7) of the Matrimonial Causes Act 1973 after the grant of a decree of divorce.
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Following their divorce in 2002, the parties' financial claims were settled by a consent order which, amongst other things, provided the wife with a capital sum and required the husband to make periodical payments to the wife of £1,199 pcm. In 2014, the 'husband' (as he has been described throughout these proceedings) applied to discharge the periodical payments order or, in the alternative, for a downward adjustment. His case was that the wife (i) had lost the capital she had been awarded in 2002 through gross financial mismanagement and (ii) was in a position to work more in order to increase her earnings. The wife sought an upward variation of the periodical payments on the basis that she was unable to meet her basic needs. The judge held that the order should continue without any variation. The Court of Appeal allowed the wife's appeal.

The Supreme Court has granted permission to appeal on the single ground: whether, provision having already been made for the respondent's housing costs in the capital settlement, the Court of Appeal erred in taking these into account when raising her periodical payments.

National Head of Family Law at Irwin Mitchell Private Wealth, Ros Bever, said:

'The Court of Appeal’s judgment increasing the wife’s monthly maintenance payments had caused some surprise  among family lawyers because the recent trend had seemed to indicate that  parties should become financially independent from each other sooner and joint  lives maintenance orders have become much less common.   

The central issue which the  Supreme Court will have to decide here is, since the wife had already had a  capital settlement which took into account her housing needs, should the Court  of Appeal have looked at her housing needs again when granting her more  maintenance?  In essence, even when a significant period of time has  passed after a divorce, does a wife’s need justify an increase in her financial  support from her former husband, irrespective of her conduct since the divorce.

Does need justify a second bite  at the cherry? This is a difficult call given the wide discretion afforded to  the judiciary pursuant to the Matrimonial Causes Act 1973 and it is interesting  to consider whether need really does trump all other considerations.'