Mills v Mills – permission to appeal to the Supreme Court granted

15 / 09 / 2017

On 8 August 2017, the husband in the case of Mills v Mills was granted permission to appeal on the ground of “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”, with permission to appeal on the other grounds advanced being refused.

Background

It is important to first set out some brief background to this case.

The parties separated after 15 years of marriage and they divorced in 2012. Following separation, the parties entered into a Consent Order in relation to their finances providing for (together with other provisions) a capital lump sum (of £230,000) from the sale of the family home to the wife (so that she could buy herself a new property to house her and the parties’ son), as well as periodical payments (spousal maintenance) to the wife from the husband in the sum of £1,199 per month. It was also agreed that the husband would retain his business assets.

In 2014, the husband applied to the Court asking the Court to Order that the periodical payments would cease entirely (that being his preference of course). Or, in the alternative, that the level of periodical payments be varied downwards so that he would be required to pay a lower amount each month. The wife, on the other hand, applied to vary the periodical payments upwards, stating that she was unable to meet her basic needs.

The Judge at the first hearing, whilst finding that the wife was unable to meet her income needs, refused both applications and held that the periodical payments would remain as they were. Both parties appealed that decision.

The case then went to the Court of Appeal and there it was held that the first Judge was wrong to decide that the wife could not meet her income needs (i.e. that she had a shortfall of what was assessed to be £341 per month) but did not increase the level of periodical payments to the wife. The Court of Appeal consequently varied the wife’s maintenance upwards.

The husband had contested that the payments should increase (and indeed, he argued that they should cease entirely) as he argued that the wife should utilise her own earning capacity to meet her needs and further, he argued that she had mismanaged her finances so that she had none of the capital left that was provided to her to purchase a property and that essentially he should not have to bear the brunt of that.

The appeal to the Supreme Court

As mentioned above, the husband in this case asked for permission to appeal to the Supreme Court as to “whether, provision having already been made for the Respondent’s [the wife’s] housing costs in the capital settlement, the Court of Appeal erred in taking these into account when raising her periodical payments”.

What is being submitted on the husband’s behalf is that it is through the wife’s own actions that she no longer has her capital housing fund (the £230,000 that was awarded to her for that purpose as explained above), and that the periodical payments he is making to her on a monthly basis should not be increased to include provision for rent payments – the wife of course would not have rent to pay for if she had a mortgage free house that she could have purchased with the capital sum provided to her at the time of the divorce settlement – that is a need that she has created for herself and her housing needs had already been accounted for in the financial Consent Order.  This is arguably what family lawyers describe as trying to have a “second bite of the cherry”.

We await to see when this case will be set down for a hearing in the Supreme Court and how the Court will deal with these issues.