Practitioners are all aware of Mr Justice Mostyn’s view in B v S (Financial Remedy: Marital Property Regime)  2 FLR 502 that periodical payments are there to meet (save in exceptional cases) needs alone but the opportunity for the Court of Appeal to consider that was not taken up in the recent case of Aburn v Aburn  EWCA Civ 72.
In that case, the Husband had a net income of £85k pa and the Wife had not worked since their first child was born (aged 19 at the time of the hearing). There was a younger child aged 14 who attended a fee paying private school. The Deputy District Judge ordered the Husband to pay the Wife periodical payments at the rate of £1,000pm together with the school fees until completion of ‘A’ levels. The Deputy District Judge further ordered that once ‘A’ levels had been completed, the Husband was to pay the Wife an additional one half of what the school fees had been by way of increase to the existing periodical payments order.
Perhaps understandably the Husband appealed and was successful. The Court of Appeal observed that the Deputy District Judge was plainly wrong in the exercise of his discretion in making a variation order in advance based on only one known element and what the needs of the child would be in four years time. The Court confirmed that it was always open to either of the parties to apply back around the time the child was due to complete ‘A’ levels or at any other time and the Court could evaluate properly at that time.
In the Court of Appeal, both parties raised the issue of whether Mostyn J’s view that periodical payments should be determined by needs alone or whether the sharing principle should apply was correct. McFarlane J. who gave judgment suggested that in the instant case the issue was irrelevant as it was a needs case and not a sharing case.
Looks like we will have to wait for another case before the Court of Appeal until we find out whether needs alone dictate the quantum of periodical payments.
As to advance variation of periodical payments, Aburn perhaps reminds us that there needs to be some evidence of the basis on which the variation can be effected (save perhaps in respect of indexation variations) if a future variation clause is to be incorporated.