Clean break for child maintenance?

Clean break for child maintenance?

The benefits of a clean break are well known, sought after and often desirable, particularly where there is acrimony and the means to achieve a clean break fairly and without disadvantage.

Child maintenance is another issue and continues regardless of the dismissal of spouse’s claims for lump sums, property, pensions and maintenance.

A recent case has however examined whether it is ever possible to capitalise the child’s maintenance and effectively have a clean break where a child is involved.

In the case of H v FM 2021, both parties were ‘high flyers’ with stellar careers and high incomes. They had been married for 15 years and had a child together who was undertaking a degree.

When not studying, the daughter lived with her mother and had little contact with father who had moved to live overseas and had remarried and had two more children.

Since their separation, the couple had been engaged in a lot of lengthy and costly litigation. Their financial settlement provided that husband was to pay wife £1,700 per month for the benefit of their daughter until she concluded tertiary education or further order. Husband had applied to vary the maintenance downwards.

H was already in breach of the order by falling into arrears. He also failed to provide full financial disclosure. After consideration of all the circumstances, H was ordered to pay wife a lump sum of £52,104 in respect of the maintenance to the daughter and pay wife’s costs.

H appealed. Mostyn J considering the appeal, looked at S23(4) of the Matrimonial Causes Act 1973 which provides that the court may make an order for a lump sum in favour of a child on more than one occasion.
Stating that a lump sum payment for a child in lieu of maintenance was a ‘very rare bird,’ he commented that the court still had the power to make it.

However there were three reasons why capitalisation of child maintenance was thought to be not permissible.

1. A child maintenance capitalisation, unlike a spousal maintenance capitalisation, is not watertight. The child cannot be prevented from coming back for more.

2. What is to happen if the predictions about the child’s future all turn out to be wrong?

3. Child maintenance is meant to be variable in accordance with the current circumstances prevailing referable to the child’s needs and the payer’s income, and if there is a capitalisation this cannot be achieved.

Mostyn J made clear that although the jurisdiction exists, the circumstances in which it would be appropriate would be exceptional. In this case, H’s repeated defaults in maintenance payments, the extensive litigation which had already taken place, the age of the child and the relatively short period of time until all maintenance liability ceased, made this case the exception that proved the rule.