Settle in haste and you may repent at leisure: A recent court order on maintenance payments poses a serious threat to ex-husbands. Sue Fieldman explains

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The Independent Online
THERE could be a financial time bomb ticking away for thousands of ex-husbands when the result of a recent court case becomes common knowledge.

An ex-wife, who agreed in court, and then in a subsequent court order, that she would receive maintenance for a fixed period only, has gone back to court and had the term of maintenance extended.

She was able to do it because a few words had been ommitted.

The case is an alarming cautionary tale for ex-husbands to check the wording of the court order with their solicitor. Otherwise they could also find that what they thought was a fait accompli could be re-opened.

The case involved Mr and Mrs R. Mr R is a 59-year-old hospital doctor, his wife is 51 and trained as a nurse. They were married in 1970, and have two children aged 20 and 18.

In 1984, Mrs R petitioned for divorce. In January 1987, she applied to the court for financial provision for herself and the children. The couple reached agreement outside the doors of the court, and the terms were then incorporated in a court order.

The relevant clause of the court order said that Mr R would pay Mrs R pounds 8,000 a year, monthly on the first day of each month. The payments were to start on 1 February 1988, 'such payments to cease with the payment due on 1 January 1991 and thereafter Mrs R's claim for periodical payments for herself be dismissed'.

Mr R duly paid, and as 1 January 1991 approached, he thought that would be the end of the matter. After all, the agreement was quite clear.

However, days before the maintenance period ended, Mrs R applied to vary the order. Not only did she want to extend the maintenance but also to increase the payments substantially.

Mr R defended the action. He argued that the terms of the agreement were conclusive, and he had acted in accordance with them.

Mr R lost. The judge said he could not look at the general intention of the parties at the time. He had to look at the wording of the order.

Now anyone with any common sense might believe the wording is plainly obvious.

The maintenance was until 1 January 1991, and thereafter Mrs R's claim for maintenance was dismissed. How much clearer could it be?

Even the judge said: 'On the face of it, for a non-lawyer, if an order was made that a maintenance application be dismissed then that should be the end of it, and on the face of it, it ought not be possible to go back to court again.'

Under the terms of the Matrimonial Causes Act 1984 it is not sufficient to say that the right to maintenance is to be dismissed. The order also has to say that the wife cannot go back to the court to make a further application for periodical payments at a later date.

If ever wording was superfluous to what is already blindingly obvious then this it.

But the Act says the extra words have to be there, they weren't, and Mrs R could apply for her variation. The judge awarded her pounds 12,000 a year indefinitely.

Mr R appealed, so Mrs R also appealed, asking for a further increase in her maintenance. There was another court hearing in front of a different judge.

Mr R lost again. The judge said that even if both parties understood in February 1988 that Mrs R should not have the right to apply for periodical payments after 1 January 1991, the order as drawn did not have the effect in law of depriving the court of the jurisdiction to hear her application.

However, Mr R has one small consolation. In yet another hearing this month, it was decided that the maintenance was not to continue indefinitely but only for another five years.

It will be pounds 12,000 a year until December 1994, when it will be reviewed again.

Charles Coller, a litigation partner with solicitors Nichols Marcy, of Walton-on-Thames, Surrey, now acts for Mr R. He did not act for him at the time of the 1988 agreement.

Mr Coller said: 'This is by no means an isolated incident. There are undoubtedly many more consent orders which do not have the necessary extra words and which have so far slipped through unnoticed. The wife has to apply during the original maintenance period.

'Hopefully, therefore, for some ex-husbands the claim period will have expired.

'The appalling thing about this case is the horrendous costs. It has cost Mr R about pounds 60,000. It has been a nightmare for him,' he continued.

Pauline Walker, a matrimonial partner with solicitors Baileys Shaw & Gillett, says that settling matters outside court always seems tempting. But in the heat of the moment things can be easily overlooked.

'In one divorce case there had been a rushed settlement outside the court doors.

'It then transpired there was a misunderstanding about who was to have a painting.

'The amount of money subsequently spent trying to sort it out was vast.'

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