Court Rectifies Mistake in Maintenance Order

24th November 2020

A couple who were divorcing, reached a financial agreement which included the husband paying maintenance to the wife until the wife re-married.  A few years later the husband applied to Court to vary the amount of maintenance he was paying.  The parties then reached agreement that the maintenance payments would be reduced. 

The wife had been the Applicant in the original divorce proceedings, however the husband was the Applicant in the application to vary the maintenance.  When the Order was drafted which reflected the reduction in maintenance payments, the Order repeated the provision that the Applicant’s (originally the wife’s) maintenance would stop on re-marriage.  The Barrister who drafted the Order failed to spot that the Applicant was now the ex-husband and not the ex-wife.

The ex-husband subsequently re-married and immediately stopped paying maintenance on the basis that maintenance was to cease on the Applicant’s re-marriage and he was now the Applicant. 

The ex-wife applied to Court stating that this had been a simple slip/error in the original Order and the Court had the ability to correct an accidental error in an Order.  The Judge agreed that this was an error as the intention behind the Order was what mattered and not simply the wording of the Order.  This illustrates that even when Orders are not entirely clear, the Court can look at the correspondence that has passed between parties leading up to the making of an Order to determine what the intention was and to implement the Order based on that intention.

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