Woodroffe v Woodroffe

CourtCourt of Appeal
JudgeClarke P,Bell JA,Smellie JA
Judgment Date12 April 2021
Docket NumberCivil Appeal 2020 No 10

[2021] Bda LR 30

In The Court of Appeal for Bermuda


Clarke P; Bell JA; Smellie JA

Civil Appeal 2020 No 10

Michael Woodroffe
Pamela Woodroffe (née Collins)

Mr C Hill for the Appellant

Respondent in person

The following cases were referred to in the judgment:

Russell v Russell [1985] 1 FLR 465

Dickens v Pattison [1985] FLR 610

H v H [1993] 2 FLR 35

Charilaou v Charilaou (unreported transcript CO/706/1998)

Mann v Mann (No 2) [2016] EWHC 314 |

Enforcement of arrears of maintenance — Arrears due more than 12 months prior to proceedings



1. This appeal is concerned with the ability to enforce arrears of maintenance which have accrued more than 12 months before the attempt at enforcement. Any such enforcement application is governed by section 36 of the Matrimonial Causes Act 1974 (“the Act”), which provides as follows:

“Payment of certain arrears unenforceable without the leave of the court

36 (1) A person shall not be entitled to enforce through the court the payment of any arrears due under an order for maintenance pending suit, an interim order for maintenance or any financial provision order without the leave of the court if those arrears became due more than twelve months before proceedings to enforce the payment of them are begun.

(2) The court may refuse leave or may grant leave subject to such restrictions and conditions (including conditions as to the allowing of time for payment or the making of payment by instalments) as the court thinks proper or may remit the payment of the arrears or of any part thereof.

(3) An application for the grant of leave under this section shall be made in such manner as may be prescribed by rules of court.”

2. The starting point is the Consent Order (“the Order”) made by the Supreme Court on 1 December 2008, at which time both parties were represented by experienced family law counsel. The Order dealt in detail with the financial arrangements between the parties following their divorce, both in relation to their assets and the arrangements for their children, through to the completion of their education.

3. The following provisions of the Order are relevant for the purposes of this appeal:

“2. The Respondent shall pay to the Petitioner a lump sum of $200,000 to be paid in the following manner:-

(i) $50,000 shall be paid upon the execution of this Consent Order;

(ii) Within 30 days of the Respondent receiving his annual bonus in 2010, and thereafter on the anniversary day of receiving his bonus in succeeding years, the Respondent shall pay to the Petitioner a sum equal to 10% of his annual bonus, but in any event, a sum not less than $25,000 until the sum of $150,000 has been paid in full.

3. Should the Respondent's employment position change, or should he fail to receive an annual bonus in any given year, the Respondent shall pay the minimum annual sum of $25,000 to the Petitioner out of his other financial resources/savings until the said sum is paid in full.

7. The Respondent shall pay the private educational expenses of the two children of the family until they complete their secondary education and the parties shall jointly pay on a 50/50 basis the cost of the children's tertiary educational expenses to the conclusion of their first degree at college/university. “Educational expenses” is defined to mean private school fees, tuition, room and board when applicable, books, airfare, pocket money and other necessary incidentals, including but not limited to the purchase of a computer and other necessary educational equipment. The Petitioner shall consult with the Respondent on all matters regarding the children's education and the costs incidental thereto in a manner designed to facilitate agreement between the parties in relation to such matters. In the event of disagreement either party shall have liberty to apply to the Supreme Court of Bermuda for determination of the issue(s) in dispute.

9. The Respondent shall pay to the Petitioner periodical payments for the children of the family in the sum of $1,100 per month, per child. The said sum will be reviewed on the 1st January 2010 and each year thereafter and shall be adjusted in accordance with the US Consumer Price Index for the previous year. The said periodical payments shall be paid until each child shall have completed his or her secondary education, or until varied by agreement between the parties or until further order of this Court. Upon completion of their secondary school education and the continuation of the children at tertiary education, the parties shall agree the level of maintenance to be paid by the Respondent towards the children's reasonable maintenance needs, failing which there shall be liberty to apply.

10. The Respondent shall pay to the Petitioner a sum of $400 per month as ongoing provision to enable the Petitioner to employ a nanny and/or housekeeper, but no such monthly sum will be due when no nanny and/or housekeeper is employed.

11. The Respondent shall pay for the children's airfare to Bermuda or elsewhere on those occasions when the children are travelling in order for the Respondent to exercise access to them. When the children will be accompanied on such trips by the Petitioner, she shall book and pay for the children's tickets and the Respondent, when called upon to do so shall reimburse to the Petitioner the cost of the children's tickets. When the children travel with the Respondent or such other third party as the parties may mutually agree upon, the Respondent shall make the travel arrangements and shall pay the cost of the children's tickets.

12. Any sums due to the Petitioner pursuant to paragraphs 9, 10 and 11 above, shall be paid directly to the Petitioner's US Dollar account by standing order or wire transfer. The Petitioner will provide the Respondent with her bank account details upon execution of this Consent Order. Any other sum payable to the Petitioner pursuant to the terms of this Consent Order shall also be paid to the Petitioner's said account.

13. The Petitioner shall continue to provide at her sole expense major medical and dental health insurance for the children of the family, and any medical or dental expense not otherwise covered by the said insurance shall be paid for on a 50/50 basis between the parties for any sum in excess of $100.”

4. The judgment under appeal followed from competing applications made by the parties, in the form, first, of a summons by the Appellant (I shall hereafter refer to the parties, as the judge did, as the Husband and the Wife) dated 5 April 2019, in which he sought a declaration that the Wife should not be able to enforce those arrears of maintenance which had accrued prior to 1 April 2018. This summons also sought the variation of clauses 6, 7, 9 and 11 of the Order, and the deletion of clause 10. The summons was mis-dated 2018 instead of 2019, and also stated that the declaration was sought pursuant to section 41 of the Act, instead of section 36. While strictly the date beyond which the payment of arrears could not be enforced should be calculated with reference to the Wife's application for enforcement, Mr Hill indicated during the course of argument that he was content to have the court treat 1 April 2018 as the relevant date.

5. The Wife, in response to the Husband's application, sought leave to enforce the arrears which had accrued pursuant to paragraphs 7, 9, 10, 11 and 13 of the Order from 1 December 2008 through June 2018. As part of the educational expenses contained in clause 7 of the Order, this summons also sought the determination of the Husband's contribution towards the costs of an apartment deemed necessary to ensure that the child M was able to attend a particular public school in Decatur, Georgia, and the fixing of the parties' contributions towards the costs of the children's tertiary education, which has now commenced for one child and is imminent for the other.

6. Both parties swore affidavits in support of their respective positions. Perhaps unsurprisingly, the Wife's affidavit of over 40 pages led to an equally lengthy reply affidavit from the Husband, filed notwithstanding an order that no further affidavits should be filed, and which in turn led to an application to redact portions of that affidavit. In making that application the Wife sought to prohibit the Husband from being heard, on the basis that he was in breach of orders of the court, and there were further orders relating to the future conduct of the hearing. The Wife filed some 70 pages of documents in December 2019. The basis for such filing is not clear from the record. But suffice to say that the judge had a very considerable volume of material before her.

7. The parties gave evidence before the judge at hearings which took place on 3, 4 and 5 February 2020, which evidence has helpfully been transcribed. I will not at this stage review that evidence, but will instead turn to the judge's judgment, which is dated 8 July 2020, some five months after the hearing.

The Judgment

8. The judge started by setting out the background, referring to the material parts of the Order, noting at paragraph 12 of her judgment that section 36 of the Act mirrors section 32 of the equivalent English act. She summarised the positions of the parties, the Husband's being that the Wife was seeking to vary the terms of the Order some nine years after it came into effect, that a significant portion of the arrears claimed by the Wife related to expenses that were never contemplated by the Order, and contending that it had been agreed that the Wife would assume all additional or ad hoc expenses and that he would not have to make any payments beyond the fixed obligations provided for in the Order. I pause to note that clause 7 of the Order sets out those items to be treated as part of the educational expenses, which are necessarily not fixed items. Finally, the...

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