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Separation financial order variation case study Hamilton v Hamilton

In January 2013, the Court of Appeal dismissed the claim of Mr Hamilton, against his wife, who had varied the terms of their separation settlement consent order.

The financial order variation occurred when Mrs Hamilton failed to keep to the agreed schedule of lump sum payments.

Facts of the financial order variation case

On separation, Mrs Hamilton became primary carer for the couple’s two children. Matrimonial assets constituted the family home and Mrs Hamilton’s recruitment business, which she had valued at £1.5 million during negotiation of the financial settlement. The agency had been expected to perform strongly.

In January 2008 the ancillary relief consent order was ruled upon and it was agreed that Mrs Hamilton would pay £450,000 in sums payable on five different dates.

The first payment was made at the requisite time but the second payment was only partly fulfilled. As a result of the economic slump Mrs Hamilton sought a variation order but was denied. No further payments to Mr Hamilton were forthcoming and the husband sought enforcement by issuing a statutory demand.

Mrs Hamilton issued counter proceedings under s 31 of the Matrimonial Causes Act 1973, arguing that the original consent order had amounted to a ‘lump sum order payable by instalments’ within s 23(3)(c) of the 1973 Act and thus variable under s 31(2)(d). She also sought to extinguish her obligation to pay any outstanding sums.

In the High Court, Parker J found that Mrs Hamilton’s order was eligible to be varied as it was a lump sum payable by instalments over a period of time. However, she did not agree to wipe out the sum owed, but varied the order by allowing deferral of the outstanding sums and adding interest.

In the Court of Appeal, the husband attested that the order had been for payment of lump sums and could not be deemed variable. He argued that Parker J’s ruling had been flawed in her finding that a lump sum payable over time could be considered a lump sum by instalments (and consequently variable).

The court held that the original ancillary relief order had been an instalments order and that a judgement should not be based solely on the wording of the order but should be made after assessing “what the parties agreed against the objective factual matrix of what occurred during the relevant period”.

Legal advice on the variation of a financial order

If you are finding it difficult to keep to the terms of a financial order on divorce please call the family lawyers at George Ide for advice.

The law regarding such matters is complex and simply ‘not paying’ is never a good idea. We can help you apply for a financial order variation, if applicable, and can represent you in any litigation proceedings.

Call our family lawyers today in either our Chichester offices. Our team is friendly, approachable and will always offer expert, pragmatic advice for your particular situation.