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8th July, 2021
In short, the answer to this question is “yes” but I would strongly advise against it!
In the recent case of AZ v FM  EWFC 2, the Court had to consider this very question. The parties had been married for 15 years and had one child together who was studying at University. Sadly, they had been engaged in lengthy litigation not only in the Family Court but also in the Chancery Court following their separation. The Husband had already failed to pay child maintenance previously which resulted in the Wife bringing enforcement proceedings in 2017.
Payments of child maintenance were again outstanding when the Husband had applied to vary the payments downwards. The parties had agreed:
The Wife gave an undertaking (a promise) to the Court that if she did ask for any further child maintenance through the Court or via the CMS, and the Husband paid this, the Wife would refund him within 14 days!
The Judge then decided that he would capitalise the child maintenance ie ensure that a fund held by the parties (previously set aside to meet capital gains tax liabilities) was used to meet the Husband’s child maintenance obligations. The Husband appealed this decision and gave three reasons why his payments should not be capitalised. These were:
As well as the reasons above, I think there are also the following problems with this approach:
Mostyn J dismissed the Husband’s appeal against the order to capitalise the payments. He also ordered the Husband to pay 75% of the Wife’s legal costs. Mostyn J ruled accepted that some predictions about the future had to be made but, in this particular case, the child was already 19 and therefore the risks were limited. The benefits of ensuring the Husband paid, in light of his previous defaults, outweighed these risks.
I am sure that a number of readers would want to say yes to this question. However, the real question is “are you prepared to take such a risk in doing so?”. It is only in very limited circumstances that I would advise this course of action. In the above case, Mostyn J indicated that capitalisation of maintenance cases will remain “a very rare bird indeed” as “the risks and uncertainties inherent in capitalisation will lead the court, where it has jurisdiction, to make, or continue, a traditional order for periodic payments”. Simply put, there are too many variables for such an order to be fair and monthly payments for child maintenance are more appropriate.
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