A clean break, Children and a Statutory Steer

Experience would indicate that where there are young children present as a factor in financial remedy proceedings, judges can be reluctant to order a clean break between the parties ‘just in case’ and a nominal order may prevail.

Matthews v Matthews [2014] 2 FLR 1259, a case that reached the heady heights of the Court of Appeal, has perhaps given that apparent justification a battering.

This was a short marriage producing two children aged 6 and 3 who lived with the wife and had no contact with the husband. He was a self-employed plumber who, perhaps unlike many self-employed plumbers, was earning a modest £27k pa. The wife had worked in a bank earning around £43k pa but had been made redundant; was then unemployed for 6months before obtaining some other short term work receiving c£23k for 6months leading up to trial. The judge (Mostyn J.) found her to have an earning capacity of c£40k pa. There was no real capital in the case with the wife having overall debt of c£6k and the husband having a positive balance of c£30k. The husband was ordered to pay a lump sum of £10k to the wife and to transfer to the wife the jointly owned property (with a small negative equity). The judge ordered the husband to pay modest child maintenance to the wife for the children. The wife sought a nominal spousal order during the children’s minority, which was rejected by the judge who ordered an immediate clean break.

The wife appealed, principally on the ground that the judge was wrong in principle to order a clean break where there were young children and where there was a possibility that the wife would not be in a position to secure permanent employment. Such had been put to the trial judge who had rejected it, finding that the wife had a higher earning capacity than the husband and that the statutory steer towards a clean break should be followed.

The Court of Appeal dismissed the wife’s counsel’s submissions on the basis that the judge had properly taken all of the necessary factors into account in declining to order nominal provision and the Matrimonial Causes Act s25A, which was inserted into the Act in 1984 to encourage and enable a clean break settlement, provided a presumption in favour of achieving such.

The Court of Appeal rejected the submission that it was wrong in principle to effect a clean break where there were young children.

It was also observed that ordinarily since an order either providing for a nominal order or rejecting such was discretionary, the decision to omit or include would be hard to appeal, provided the relevant factors had been considered by the judge in exercising that discretion.

What can be gleaned from this? The presence of young children does not lead (at least in the High Court and Court of Appeal) to a presumption of ongoing spousal provision, nominal or otherwise, whereas Matrimonial Causes Act 1973 s25A does lead to a clear presumption of a clean break.  Whether such will change outcomes in practice remains to be seen.