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ANCILLARY RELIEF: Hems v Clemans [2009] EWCA Civ 672

Date:19 MAY 2009

(Court of Appeal; Thorpe, Wall and Elias LJJ; 19 May 2009)

In the couple's ancillary relief proceedings, a compromise was reached. Under the consent order the wife was to have the matrimonial home, after paying the husband for his interest in the property and transferring various policies to him, and the husband was to share the support of the three children, including school fees, with the wife. The husband also gave five undertakings to the court; these essentially provided that he was to pay 50% in respect of 'extras' for children's education and that he was to take out life cover with a suitable insurance company to include critical illness and redundancy cover for the total costs of his obligations to the children. The wife later applied to enforce these undertakings. The husband eventually accepted that he was in arrears with the order for child periodical payments, in the sum of £443, and agreed to pay.

In relation to the undertakings, the wife's application was adjourned, to give both parties time to produce documentary evidence in support of their cases; the case was to be restored to the same judge. Unfortunately, the case came before a different judge, who for some reason raised with the wife the issue of the children's lack of contact with the husband. The judge then made an order under which the wife was to provide the husband with the receipts for the 'extras' at the end of each school term; the husband was to take whatever steps were required to ensure that his obligations in respect of the children would, if necessary, be discharged from his pension, and the husband was released from the undertakings that he had given. The husband thereafter refused to pay 50% of the extras, claiming that since he had been released from his undertakings, he had no obligation to pay. The case returned to the most recent judge, but he was unable to remember exactly what had been agreed and adjourned the case, requiring the husband to establish that his payments via the Child Support Agency met his obligations to the children, and requiring the wife to establish that sums were due to her under the original consent order.

The mere fact that the husband had been released from his undertakings did not mean, and could not, under any interpretation of the order be taken to mean that he was released from his obligation to pay. A judge dealing with an application to enforce undertakings associated with an order for child periodical payments should not involve himself in the question of contact, which had nothing to do with such an application. The muddle in this case had been caused by the order releasing the husband from his obligations. That order would be set aside, and any application to enforce or to vary the original consent order was to be made to the relevant district judge. The district judge would then be able to go back to the original order, to look at all the events that had since occurred, and to decide what the husband owed, if anything. In fact this was a matter that should be capable of agreement, in which case no further applications would be needed. It was a great pity that there had not been judicial continuity in this case.