Lily Cooke summarises a judgment for Family Law Week. It concerns a husband's application to vary a lump sum payment owed to the wife (following a final order made by consent in December 2018) and the wife's cross application to strike out the variation application.
Initially the husband’s application was to vary the date for payment of the lump sum. However, the application was subsequently amended to seek an extension to the date for payment of the lump sum.
Payment of the lump sum was secured by a mortgage over a flat in the husband’s home. Following non-payment of the lump sum by the due date, the wife issued a claim for possession of the flat, in reliance on the mortgage.
At a hearing in October 2023, the husband was ordered to give the wife possession of the flat. He sought permission to appeal.
The wife successfully cross-applied to strike out the variation application on the grounds:
- the court lacks jurisdiction to extend the time for payment of a lump sum for a period of 2 years
- the variation application was a collateral attack on the October order.
The court considered there was no statutory power to extend the time for payment of the lump sum (the lump sum did not include provision in respect of pension rights or pension compensation rights).
The court closely considered BT v CU [2021] EWFC 81, [2022] 1 WLR 1349 and determined that a 2-year extension of time was not a “modest” extension.
The judge also considered costs and how these should be paid to the wife. He used guideline hourly rates as an indicator of what costs were proportionate for the receiving party to recover in absence of clear reasons why those rates should be exceeded.