Capitalised maintenance: a court-free solution?

The court’s unpredictable approach means alternative resolution could be the logical choice argue Kim Beatson and Victoria Brown

• The court applies its powers to capitalise maintenance provision in an unpredictable manner making litigation a risky process.
• Dispute resolution processes including private judging and arbitration are a logical alternative.

In divorce and civil partnership dissolutions the court can capitalise maintenance provision by making certain lump sum property adjustment or pension sharing orders in place of an earlier periodical payments order (Matrimonial Causes Act 1973 ss 31(7A)–( ); Civil Partnership Act 2004 Sch 5 Pt 11 paras 50–62). Capitalisation cannot be used in nullity proceedings judicial separation or to adjust orders made in favour of children of the family.

When capitalising maintenance the court must:

• discharge the periodical payments order or secured periodical payments order; or
• vary such an order so that the payments are required to be made or secured only for such further period as is determined by the court.

In exercising its capitalisation powers the court can substitute the following in place of the original maintenance order:

• a lump sum order;
• one or more property...

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