Joy-Morancho v Joy [2017] EWHC 2086 (Fam)

Facts:

• H and W married in 2006 and separated in 2011. There were three children of the family. Divorce proceedings were instituted in July 2011. Litigation concerning their finances ran concurrently to litigation in France regarding child maintenance.
• The judgment from the final hearing was handed down in August 2015 (Joy v Joy-Morancho and others (No 3) [2015] EWHC 2507 (Fam)).
• At the final hearing, the judge rejected H’s contention that he was only able to make modest periodical payments to W and the children for the foreseeable future. The judge found that H would soon regain access to the assets of a trust from which H had been excluded (the ‘NHT trust’). The judge also found that H had an earning capacity of at least £200,000 pa and that H’s only reason for not commencing employment while residing in France was to avoid paying tax.
• H was ordered to pay W maintenance at a rate of £120,000 pa, backdated to November 2014, on condition that W would give credit for any sums received from H in relation to rent, and pursuant to any child maintenance order made in France. W’s capital claims were adjourned. An order for costs was made against H. This shall be reffered to as the “2015 Order”.
• H failed to comply with the terms of the 2015 Order and W initiated enforcement proceedings. In November 2015, H started employment with a company related to the NHT trust at an annual salary of EUR 120,000. In December 2015, after he was refused permission to appeal, H applied for a downward variation of the periodical payment order to a nominal order only.
• H’s application for variation was heard in July 2017 on the basis of submissions only.

Held:

• H’s application was dismissed.
• H’s application could not be disguised as a further attempt to appeal against the 2015 Order. H was bound by, and could not go behind, the fundamentals of the 2015 Order. In order to succeed in his variation application H had to demonstrate that there had been a change of circumstances.
• The variation application was launched in December 2015, only three months after finalisation of the 2015 Order. The only change of circumstance during that interval was H’s new contract of employment. This did not warrant any change to the periodical payments order as H had provided no explanation as to how the employment contract was negotiated nor what other arrangements existed between H and the NHT trust.
• There had been no significant change of circumstances between December 2015 and the date of the hearing of H’s variation application. The judge remained of the view that H’s apparent difficulties would be resolved at some point. The judge was not persuaded that H’s salary was less than what he had found to be his capacity (i.e. £200,000), nor was he persuaded that H would not receive any bonuses from his new employment.