In Hamilton v Hamilton  EWCA CIV13 the Court of Appeal was asked to decide on whether it was appropriate to vary the terms of a Consent Order which provided for payment of a lump sum by a former wife to her former husband.
The Order required the wife to pay her husband £450,000 in 5 payments.
The wife paid a total of £240,000 by which time her business had been placed in administration and she was unable to make any further payments.
The husband brought enforcement proceedings and served a Statutory Demand on the wife which would be followed by bankruptcy proceedings.
The wife brought proceedings under Section 31 of the Matrimonial Causes Act 1973 in which she sought a variation of the original Order. She claimed it was plainly an Order by instalment whereas the husband asserted that the Order could not be varied as it was an Order for a series of individual lump sums.
In the lower court Parker J found that the Order constituted a lump sum by instalments and was, therefore, subject to variation under Section 31.
The husband appealed to the Court of Appeal where Mrs Justice Baron made these findings:
- Parker J was wrong in finding that any Order for payment of lump sums in stages constituted an Order for lump sums by instalments.
- Parker J was entitled to find that this case fell within Section 23 (3) so that the Order was variable.
- Variation enables the Court to deal with quantum and timetable. In this particular case Parker J had simply dealt with the timetable but had not adjusted quantum.
- Parker J’s decision was just in the circumstances.
Accordingly the Order of the lower Court was upheld.