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Q v Q [2005] EWHC 402 (Fam)

Order for periodical payments determined in the light of McFarlane; Parlour.

Q v Q [2005] EWHC 402 (Fam)

Family Division: Bennett J (18 March 2005)

Order for periodical payments determined in the light of McFarlane; Parlour.

The husband, a talented professional footballer, and his wife separated after nearly 11 years of marriage. The couple had three children, and the wife had a child by a previous relationship whom the husband had accepted as a child of the family. The parties had agreed to split their net capital assets equally, although there was some dispute as to how that should be done. So far as income provision for the wife and children was concerned, the husband earned in the region of £1 million, ie considerably more than was necessary to 'maintain' (generously construed) his wife, their four children, himself and his new partner. The wife sought an equitable share of that surplus over a four-year period to enable her to go a long way to achieving a clean break. The husband accepted that he must not only maintain the wife and children but also pay over a proportion of the surplus; both the level of maintenance for the wife and children and the sharing of the surplus were in dispute.

The judge considered the parties' respective submissions concerning capital: although the margin of dispute was slight (less than 4% separated the parties' assessments of the net capital assets), he reviewed in detail the actual and potential assets; what was not in dispute, in the light of White v White [2001] 1 AC 596 and Lambert v Lambert [2002] EWCA Civ 1685, was that the capital assets should be split equally between the parties. As to income, the wife had no income other than child benefit and maintenance, and the judge was satisfied that the standard of living during the marriage had been high. It was submitted on behalf of the wife that a figure of £120,000 per annum for her maintenance, and £20,000 per annum for each of the four children, would be reasonable.

The final issue for consideration by the judge was the appropriate rate of the husband's net income to be used in determining the order for periodical payments for the wife and children; this was the first case since the Court of Appeal decision in McFarlane v McFarlane; Parlour v Parlour [2004] EWCA Civ 872 in which the court was being asked to determine the size of the split of the husband's net income over an agreed (but extendable) term of four years.
The judge took account of three specific sources: first, section 25(2) of the Matrimonial Causes Act 1973; secondly, section 25A of the 1973 Act; and, thirdly, the Court of Appeal judgments in McFarlane; Parlour, especially Thorpe LJ's words concerning 'the imperative to achieve finality'.

The judge drew attention to the fact that, in cases such as this one, the court was not making a final, clean break order regarding income: it was making an order as to income which was in itself a step along the way to an anticipated clean break.

The judge considered that the wife had made, and would make in the future, a very substantial contribution to the upbringing of the children, and her earning potential for the next four years was effectively nil; however, at the end of the four-year term, given that the children would then be aged between 9 and 20, she ought to be able to start building up an earning potential; accordingly, a figure of £120,000 per annum for the wife's maintenance, and £20,000 per annum for each of the four children, would be reasonable.

While accepting submissions on behalf of the wife that the husband could afford a 50/50 split, the judge determined that payment to the wife of 40% of the husband's net income would go a long way towards achieving a clean break on income. He also accepted that, if the husband's income were to decline at the end of his current contract in 2006 or 2007, the wife's savings would not be as great as had been anticipated; but neither would the husband's, and her percentage share of his net income would remain the same.

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