Although at first sight the meaning and purpose of section 2(2) of the Act is not entirely clear, it seems to me that it is merely a declaratory subsection, for on any construction section 2(1)(c) at least allows sums to be ordered on a first application.”
(Emphasis added)76.What Sir George decided was that pursuant to one single application, the court could order a number of lump sums and that it could further order that one or more of those lump sums be paid by instalments. Thus, for example, an order could be made providing that on 1 January the husband is to pay to the wife a lump sum of £5,000 and a further lump sum of £4,000 payable in four monthly instalments of £1,000 commencing on 1 March and ending on 1 June.77.It is true that Sir George did not consider the question of variability of such an order. He must be taken, however, to have accepted the Law Commission’s intention that the figures of £5,000 and £4,000 in my example could not be varied under s 9(1) but that under s. 9(1), 9(2)(b) and 9(7) there was a general discretion to vary the instalments of the second lump sum of £4,000 to, say, eight monthly payments of £500 commencing on 1 March and ending on 1 October.78.Sir George further held (slightly surprisingly) that it was within the power of the court when dealing with an application for a lump sum or sums to order that, say, the husband was to pay the wife a lump sum of £5,000 on 1 January and that the application for a second lump sum would be adjourned to a later date. 79.Let me attempt to explain how the language of the provisions as enacted in the now repealed 1970 Act clearly achieved the effect intended by the Law Commission. (Where emphasis appears in the cited provisions it has been added by me).80.Section 2(1)(c) provided:“On granting a decree of divorce, a decree of nullity of marriage or a decree of judicial separation or at any time thereafter (whether, in the case of a decree of divorce or of nullity of marriage, before or after the decree is made absolute), the court may … make any one or more of the following orders, that is to say
- Approved Judgment
- Mr Justice Mostyn:
- its importance is mainly, of course, in cases where a lump sum has been ordered to be paid by instalments. In our view variations should not be permitted
- In our view once an order for a lump sum has been perfected its amount should not be variable whatever may happen later.
- It will be observed that though the amount of lump sums will not be variable (the reasons for this are set out in paragraph 89 of the Report) the provisions relating to the instalments or any security therefor will be variable. A change of circumstances may make it just either to extend or to curtail the time of payment of the instalments or, indeed, to increase or reduce the number of instalments.
- or sums
- Although at first sight the meaning and purpose of section 2(2) of the Act is not entirely clear, it seems to me that it is merely a declaratory subsection, for on any construction section 2(1)(c) at least allows sums to be ordered on a first application.”
- …(c) an order that either party to the marriage shall pay to the other such lump sum or sums as may be so specified.
- this section
- that sum