Birch v Birch
[2017] UKSC 53 but I am clear that it does not assist her. I can release a party from an undertaking. What I cannot do is impose a different undertaking on a party. Second, she said that her client will comply with his undertaking and, given the uncertainty as to the pension, it would be wrong to capitalise the entitlement now. Again, I disagree. Dealing first with the question of the Husband’s approach, I have not queried the bona fides of the evidence he has given to me but I am of the view that he has adopted a wholly disproportionate approach to the 2017 order in his determination to have it set aside or substantially varied almost from the word go. I would have dismissed his application in Luxembourg and not countenanced an appeal. If it had not been for the loss of his employment in the UAE two months ago, I am clear that this application would have been dismissed as well. 54.I consider there is real opportunity for further conflict and dispute over this undertaking. It is entirely right that it might well not be the Husband making the waves, in that it is clear that the Wife genuinely believes he should move back to Luxembourg for six months before he retires to obtain the pension and even use his UK pension contributions to enhance this Luxembourg pension. I am clear that the court could not possibly impose that on him but there would be the need for disclosure and, potentially, consideration of what is available. In any event, given all the litigation that the Husband has instigated, he cannot complain if I now decide to deal with this undertaking as part of the termination exercise. His second point, namely that the amount that he will receive is too uncertain, can be dealt with easily by assuming that he receives the least amount realistically possible from this pension, namely that all he will get back is his contributions. Doing the best I can, I take his earnings at £1,055,905. I apply a rate of 7.5% for his contributions, giving a figure very close to £80,000. One half of that is £40,000. Ms Jones says I should then discount this for early payment. A counter-argument would be that the Husband may get interest but, equally, he may not. I have come to the conclusion that I should discount the figure. Twelve years is a long time in the future. I have decided that the correct figure is £25,000. In the current climate, the Wife would do well to earn 5% on that figure each year. If she did, the value would get to £40,000 in ten years. The discounted figure is therefore broadly correct. 55.In conclusion, I intend to capitalise the periodical payments order for the sum of £38,000, namely the arrears of £13,000 and the pension payment of £25,000. I discharge the periodical payments order both in relation to the spousal maintenance and the bonus payments. I release the Husband from all his undertakings, including to pay the Wife 50% of anything he receives from his Luxembourg pension. All arrears are remitted. There will be a life and death clean break.56.I now turn, finally, to child periodical payments. I am told that the CMS figure is £800 per month. This is the order that I intend to make. A sum of just under £10,000 per annum is perfectly proper for a boy aged 14 and a father earning £100,000 per annum gross plus discretionary bonus. I do not consider it right to reduce this sum by any notional travel expenses, particularly when no such contact is taking place. If contact recommences, I expect the parents to contribute equally to the travel costs. I have already made it abundantly clear that I expect the hostility to end. Contact is C’s right and it is extremely damaging to children if they do not have a good relationship with both their parents. Moreover, a failure to have such a relationship can often rebound disastrously at a later stage. I have seen a significant number of cases where the child has, perhaps entirely unfairly, blamed the resident parent for the ending of the relationship with the non-resident parent and moved to live permanently with the other parent. I would not want to see anything like that happening in this case. The answer is that both parents must make adjustments; think in a child focussed way; and not blame the children for the sins of the parents. 57.During the hearing, the Wife said that C might not be remaining at his current school. I have already made the point that it was quite wrong for the Husband to find this out in this way. I could, of course, hold her to that and say that the Father’s obligation to pay half the school fees should end this summer. I consider that would be unfair as the Wife did not say that this was a definite move. If C remains at his current school, the Husband is to pay the fixed sum of £6,000 per annum, as he offers, again to avoid further conflict. If the parties have to pay school fees out of capital, so be it. 58.The issue of tertiary education is not covered in the order. It is not before me. I make no order. I remind myself that the maintenance paid to the Wife for the children over the last four years has been very generous. I hope she will be able to obtain loans for the degree courses. If not, it is a matter between the children and their father. 59.Ms Jones has said everything that could possibly be said on behalf of her client. The Wife conducted herself with dignity in what I accept were very difficult circumstances for her. Her Case Summary was an excellent document. Indeed, I thought she had been given legal assistance in drafting it. I am quite satisfied that there was no point available to her that she did not take or that I have not considered.Mr Justice Moor4 March 2022