Ancillary relief – Whether judge could make periodical payments order for benefit of children – Whether Mesher order to be granted
 2 FLR 855
Court of Appeal
Dame Elizabeth Butler-Sloss P, Thorpe LJ and Smith J
15 June 2000
On divorce the three children were to live with the wife in the matrimonial home. The husband voluntarily vacated the home, valued at £260,000, but sought a deferred charge representing 30% of its gross value. The district judge ordered that the wife should receive the husband’s share in the home outright due to her child commitments, rejecting the husband’s claim for a Mesher order. In addition, the judge ordered that the wife’s entitlement to maintenance was nominal but that the husband should pay £200 per month for each child, subject to adjustment after the Child Support Agency had made its assessment. On appeal, the circuit judge again found the wife’s claim to be only nominal, but raised the total sum to be paid for the children to £1000 per month, to be reduced pro tanto by any sums payable as child support maintenance, and again refused a Mesher order. The husband appealed on the basis that the judge had misdirected himself in holding that he had jurisdiction to make an order for child maintenance where there was neither consent between the parties, nor a substantive entitlement to spousal maintenance, and that the judge had erred in refusing the husband a Mesher order.
Held – allowing the husband’s appeal, setting aside the periodical payments order and granting the husband a deferred charge on the matrimonial home of 25% –
(1) The court had no jurisdiction to make an order for periodical payments to children where the wife had only a nominal claim to support, unless the parties consented. The Child Support Act 1991 deprived the courts of jurisdiction to make a discretionary determination of the extent of the father’s liability to maintain his children. The only exception was under s 8(5), which gave the court power to convert an agreement made between the parties into an order. There was no consent in this case. Although an order (a so-called ‘Segal order’) for spousal maintenance under the Matrimonial Causes Act 1973, s 23, could incorporate some of the costs of supporting children, which would reduce pro tanto from the date upon which the Child Support Agency brings in an assessment, any such order had to include a substantial ingredient of spousal support to be legitimate. In this case the wife’s entitlement to support was only nominal so the sum awarded could not be regarded as spousal support.
(2) There had been no clear explanation given below justifying rejection of the husband’s claim to a Mesher order, particularly given that the husband was willing to forego any realisation of his interest in the property during the children’s dependency. The court was not empowered to redraw the boundary between the respective beneficial interests of the parties at will. A respondent’s beneficial interest should only be reduced or settled insofar as was necessitated by the reasonable requirements of the applicant and the children. Therefore the transfer of the property would be subject to a deferred charge to the husband representing 25% of the future equity. This was less than the 30% sought, which would compensate the wife for such additional borrowing as she might have to make over the coming years in order to maintain the family home until the time of the sale.
Matrimonial Causes Act 1973, ss 8(3), 23(1)(a)
Children Act 1989