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Jurisdiction and quantum of global maintenance order (AB v CD)

Date:5 JAN 2018
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Family analysis: Did the court, in deciding on financial provision, have jurisdiction to make a global maintenance order? Liz Cowell, partner at McAlister Family Law, looks at the issues of ‘global’ and ‘Segal’ orders in the recent case of AB v CD [2017] EWHC 3164 (Fam), [2017] All ER (D) 50 (Dec).

Original news

The Family Division ruled that a judge at the Central Family Court had not erred in ordering a husband to pay a global sum of £39,000 per annum in respect of his wife’s claims for herself and their three children, as it had had a substantial ingredient of spousal support and had been within his jurisdiction. The Family Division further refused the husband’s appeal in relation to the overall quantum of the maintenance award and the division of  capital.

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What was the background to this case?

This case was an appeal by the husband against an order made by HHJ Everall QC for financial provision for the wife.

The appeal was made against a global maintenance order of £39,000 per annum for a wife and three children from the husband’s net income of £132,000 per annum, both as to jurisdiction and quantum on the maintenance. There was also an appeal against the departure from equality in the division of capital in favour of the wife.

All three limbs of the husband’s appeal failed.

How had the court at first instance approached maintenance for the children?

At the time of the hearing there had been no Child Maintenance Service (CMS) assessment. One of the children suffered from a disability – this meant that the court did have jurisdiction pursuant to s 8(8)(a) of the Child Support Act 1991 (CSA 1991) to make provision for him.

The judge knew that he had no such jurisdiction for the other two children, as such jurisdiction lies with the CMS pursuant to CSA 1991, s 8(1). No agreement about the children’s maintenance had been reached between the parties which would have allowed the judge to make an order pursuant to CSA 1991, s 8(5), nor had there been an assessment that would allow for top-up maintenance, the father’s gross income exceeding £156,000 per annum.

Despite these findings, the judge decided that it was ‘appropriate to make a global order for spousal maintenance to include an element referable to child maintenance and to give credit for any sums paid pursuant to a child support assessment if such an assessment is made’.

His approach followed District Judge Segal’s well-known precedent. Such a precedent was accepted as valid by the Court of Appeal in the case of Dorney-Kingdom v Dorney-Kingdom [2000] 2 FLR 855 where there was a substantive entitlement by a spouse to maintenance in his or her own right. Thorpe LJ describes such an order as:

‘[J]ust within the bounds of legitimacy, since it is no sort of ouster of or challenge to the jurisdiction of the [Child Support] Agency, but merely a holding until such time as the Agency can carry out its proper function. But it seems to me to be absolutely crucial if legitimacy is to be present there must be a substantive ingredient of spousal support in the Segal order.’

What view did the Appeal Court take as to ‘global’ ‘Segal’ orders?

The Appeal Court was satisfied that the judge had found that he could not be satisfied that the wife had an earning capacity which would allow her to adjust to the termination of her maintenance without undue hardship. He had made a global order which would end on a term calculated to 1 October 2016 with no bar on extending the term per s28(1)(a) of the Matrimonial Causes Act 1973. He correctly identified that he could not order maintenance for the children. The order did not expire on the making of a CMS assessment.

Furthermore, the judge’s order was a reflection of the President of the Family Division’s prescribed standard orders, and the order was found to be in entirely conventional terms. The findings of Holman J in Dickson v Rennie [2014] EWHC 4306 (Fam), [2015] 2 FLR 978 did not apply, as that precedent related to an application to reinstate a previous order following a CMS assessment which had terminated that earlier generous order.

It was found to be quite proper to make an overall assessment of the wife and children’s needs for income in the light of the husband’s ability to pay from a net income of £132,000.

The court also relied on an unreported decision of Mr Commissioner Jacobs sitting in his capacity as the Child Support Commissioner CCS 316/1998, which approaches the making of global orders on the basis that there is nothing in such orders which prevents the CMS making an assessment (see para [44]).

The court concluded that in this case the global orders met Thorpe LJ’s test as set out in Dorney-Kingdom. The appeal on the grounds of jurisdiction was accordingly dismissed.