Should nominal periodical payments be activated into substantial payments?

It is rare that a case is reported when the judge is a deputy district judge, and it is equally rare when a court considers whether a nominal periodical payments (pp’s) order should be activated into a substantial order.

The latter was the issue in AJC v PJP (9th January 2021) with DDJ Hodson sitting in the FR Court, at the Central Family Court.

In 2012 a final order was made by consent and W received 69% of the available assets, H kept his business and W received nominal pp’s because she was, then caring for young children, now 14, 17 & 18, and who now, spend approximately equal amounts of time with each parent. 

At the time of the order the youngest was aged 6 and that is or was a normal situation whereby nominal pp’s orders have been made over the years. 

In this case, W an airline pilot lost her job as a result of covid, but accepted her application was short term as she expected to work once covid permitted commercial aircraft to fly regularly.

The judge reviewed the sparsity of law.  He referred to the case of North (2007) EWCA 760 in which a nominal order was made back in 1981.  That case was very different factually to this one.  In North it was made clear then that the former husband was not to be the insurer of the life choices of the former wife.

DDJ Hodson looked at Mills (2018) UKSC 38, the central thrust from which was that W should not be expecting her former husband to come to her aid through events occurring which had nothing to do with him and nothing to do with the relationship.

The judge then went to SS v NS (2014) EWHC 4183 especially para 46 in which Mr Justice Mostyn pulls together threads of helpful guidance on spousal maintenance.  Mostyn J draws attention to the fact that it is where evidence shows choices made during the marriage have generated hard future needs but where needs were not causally connected to the marriage, the award should be aimed at alleviating significant hardship, and a termination with transition to independence must be considered. 

DDJ Hodson researched an article about the Singapore Court of Appeal decision of ATE v ATD (2016) SGCA 2 a case about nominal periodical payments orders., and drew the following:-

  • they are not to be automatically granted.
  • it is not sufficient for a receiving party to say her situation in the future may change.
  • the precise facts and circumstances must be taken into account.
  • the purpose is preserving the standard of living of the receiving party, not long-term dependency, and must take into account the duty to endeavour to be self-sufficient.

He considered relationship generated disadvantage.

The judge commented:-

  • would a nominal order would be made if the youngest child had been 14 (as is now the case)
  • how can it be said that the 1984 duty to bring about a clean break as soon as possible after the divorce with the duty to endeavour to become as self sufficient as reasonable soon as possible, be consistent with the moderately long term spousal maintenance.
  • anecdotal practice is, conversion into a substantive order is if there is a major and dramatic change in the circumstances of childcare and ability of one parent to look after the children.
  • is this emergency funding (nominal short term pp’s) to help at a time of global crisis, the purpose of the nominal spousal maintenance order both generally and many years after the separation and divorce?
  • the provision is to protect a spouse only if there is a major and dramatic change in circumstances of childcare and ability of one parent to look after the children.
  • misfortune or unexpected developments in life is the nature of life. Life never goes according to plan.  Sometimes those misfortunes or unexpected developments arise from, compounded or accentuated from, the foundation or circumstance of a past relationship.  I could see why in those circumstances there might be a justification for a nominal order being made into a substantive order.

In conclusion the judge decided ‘Eight years on from the nominal maintenance order, by consent rather than judicially imposed, in circumstances where the youngest child is now 14 and where the recipient has been fully self-sufficient at the time of the divorce and subsequently and where the change in circumstance is the economic impact of the worldwide pandemic affecting so many billions, I am satisfied in law it is not appropriate and reasonable to convert the nominal spousal maintenance into a substantive order’.

The judge determined this application pursuant to FPR r 9.20.1[1].  Although stating the obvious, a nominal maintenance order is only a right to claim maintenance and not a right to maintenance during its currency. 

The thought I leave you with is this, is the situation/test different in a financial remedy case if you’re applying for maintenance pending suit as opposed to applying to convert a nominal order into a substantive order?  Happy thinking !!

(1) If the court is able to determine the application at the first hearing, it must do so unless it considers that there are good reasons not to do so.