Mills v Mills [2018]: No second bite of the cherry

The Supreme Court has this week delivered a unanimous judgment in the case of Mills v Mills [2018] UKSC 38  setting aside a 2017 Court of Appeal decision to increase a wife’s spousal maintenance to cover her rental payments, 16 years after a financial settlement was agreed in 2002. A timely reminder that despite the making of a spousal maintenance order, the receiving spouse is still under a duty to do all that can reasonably be done to achieve financial independence or indeed to be responsible for bad financial decisions.

In 2002 the wife received a lump sum of £230,000 and periodical payments of £13,200 per annum. It was anticipated at the time that the wife would use this lump sum to rehouse mortgage free. Instead, she took out a mortgage and began buying and selling properties, each time taking out a larger mortgage and failing to reinvest the sale proceeds, until eventually she found herself in a position where she had to sell her home and begin renting. In 2015 she applied to increase her periodical payments to cover her rental costs and the husband cross-applied to downward vary or discharge the periodical payments.

The judge at first instance dismissed both applications, effectively meaning that the order of 2002 would continue. The Court of Appeal overturned this judgment on the basis that insufficient reason had been given for the judge’s decision and ordered the husband to increase his periodical payments to the wife to meet the shortfall in her income needs.

It is important to recognise that the Supreme Court’s decision this week to restore the order of the first instance judge was arrived at on the very narrow point of whether the judge at first instance was entitled to decline the wife’s original application to increase her periodical payments to cover her rental costs even though provision had already been made for her housing needs in the 2002 financial settlement. The Supreme Court held that sufficient reason had been given and the judge was entitled to decline the wife’s application.

Notwithstanding the narrowness of this point, the Supreme Court’s decision reminds us that in a world where gender norms are changing and life expectancy is on the rise, orders which require one individual to cover another’s needs for life can no longer be the default position and provision for a former spouse’s needs will not be “duplicated” through the backdoor of variation.