Law Report: Wife could apply for fresh financial order

LAW REPORT: 19 June 1997

Hill v Hill; Court of Appeal (Lord Woolf, Master of the Rolls, Lord Justice Millett and Lord Justice Ward) 11 June 1997

A woman who had cohabited with her husband for 25 years after their divorce in 1968, and who had been granted maintenance and other financial provision in the divorce proceedings, was entitled on their subsequent separation to further provision to take account of their improved financial circumstances since the divorce.

The Court of Appeal allowed the appellant's appeal against Mr Justice Holman's refusal to set aside a lump sum order or make a property adjustment order in divorce proceedings.

Mr and Mrs Hill had married in 1962. They were divorced in 1968, and Mr Hill was ordered to pay Mrs Hill pounds 6 per week maintenance, pounds 3 per week for each of the two children, and a sum of pounds 75; and to transfer to her ownership of a Mini car "in full settlement of any claims the petitioner may have in respect of the matrimonial home . . . under section 17, Married Women's Property Act 1882".

Shortly after the decree absolute the parties had resumed cohabitation, but had separated again in 1994. Over that period their financial position had improved. Mrs Hill subsequently applied by notice issued in the 1968 divorce proceedings for a variation of the original periodical payments order, a property adjustment order, and a lump sum order or, if a lump sum order had originally been made, a re-hearing.

Ashley Ailes (Bernard Chill & Axtell, Eastleigh) for the appellant; Edward Boydell (Lamport Bassitt, Southampton) for the respondent.

Lord Justice Ward said that Mrs Hill's claim should be viewed as one based upon the decree of divorce but put in abeyance during the subsequent cohabitation, rather than as one based upon cohabitation.

A distinction could not be drawn in principle between premarital cohabitation and post-divorce cohabitation.

Whilst fully supporting the view that as a matter of policy the cohabitee should not be regarded in any way as having the equivalent right of a wife or a former wife, there was another important aspect of policy to bear in mind. That was the policy of encouraging reconciliation wherever possible.

It was universally recognised that it was better for children to grow up cared for by parents who were together than by parents who were separated. As a result of the reconciliation in the present case, the children had been given the stability of a settled home. To treat cohabitation with her former husband as cohabitation with a stranger was to distort the reality of their relationship.

The test for deciding whether or not to grant leave to Mrs Hill to make her property adjustment application was essentially holding the balance of justice between the parties. She would suffer undoubted hardship if the court did not intervene: he had the means to redress it. The balance tipped in favour of the appellant.

The judge had erred in principle in construing the order of 15 January 1969 as a disposal of the prayer of the petition for a lump sum order. He had therefore erred in law in concluding that the court was without jurisdiction to entertain that claim. No policy consideration precluded it.

As for the application for leave to apply for a property adjustment order, the judge had erred in finding that there had been a comprehensive property settlement at the time of the divorce which expressly took into account any interest which Mrs Hill might have had in the then available property. That left the court free to exercise its own discretion.

The appeal would therefore be allowed. The court did have jurisdiction to entertain the appellant's claims for a lump sum order and/or for a property adjustment order. The appellant did not need leave to proceed with the former but should have leave to proceed with the latter.

Kate O'Hanlon, Barrister

Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs People

Geography Teacher

£85 - £140 per day: Randstad Education Cheshire: We require a teacher of Geogr...

HR Assistant / Human Resources Assistant

£Neg + Excellent Benefits: Guru Careers: An HR Assistant / Human Resources Ass...

Talent Community Coordinator

£Neg + Excellent Benefits: Guru Careers: A Talent Community Coordinator is nee...

Business Support - Banking - Halifax - £250 pd

£150 - £250 per day: Orgtel: HR Analyst - Banking - HR - Halifax - £150 - £250...

Day In a Page

A new Russian revolution: Cracks start to appear in Putin’s Kremlin power bloc

A new Russian revolution

Cracks start to appear in Putin’s Kremlin power bloc
Eugene de Kock: Apartheid’s sadistic killer that his country cannot forgive

Apartheid’s sadistic killer that his country cannot forgive

The debate rages in South Africa over whether Eugene de Kock should ever be released from jail
Standing my ground: If sitting is bad for your health, what happens when you stay on your feet for a whole month?

Standing my ground

If sitting is bad for your health, what happens when you stay on your feet for a whole month?
Commonwealth Games 2014: Dai Greene prays for chance to rebuild after injury agony

Greene prays for chance to rebuild after injury agony

Welsh hurdler was World, European and Commonwealth champion, but then the injuries crept in
Israel-Gaza conflict: Secret report helps Israelis to hide facts

Patrick Cockburn: Secret report helps Israel to hide facts

The slickness of Israel's spokesmen is rooted in directions set down by pollster Frank Luntz
The man who dared to go on holiday

The man who dared to go on holiday

New York's mayor has taken a vacation - in a nation that has still to enforce paid leave, it caused quite a stir, reports Rupert Cornwell
Best comedians: How the professionals go about their funny business, from Sarah Millican to Marcus Brigstocke

Best comedians: How the professionals go about their funny business

For all those wanting to know how stand-ups keep standing, here are some of the best moments
The Guest List 2014: Forget the Man Booker longlist, Literary Editor Katy Guest offers her alternative picks

The Guest List 2014

Forget the Man Booker longlist, Literary Editor Katy Guest offers her alternative picks
Jokes on Hollywood: 'With comedy film audiences shrinking, it’s time to move on'

Jokes on Hollywood

With comedy film audiences shrinking, it’s time to move on
It's the best of British art... but not all is on display

It's the best of British art... but not all is on display

Voted for by the British public, the artworks on Art Everywhere posters may be the only place where they can be seen
Critic claims 'I was the inspiration for Blanche DuBois'

Critic claims 'I was the inspiration for Blanche DuBois'

Blanche Marvin reveals how Tennessee Williams used her name and an off-the-cuff remark to create an iconic character
Sometimes it's hard to be a literary novelist

Sometimes it's hard to be a literary novelist

Websites offering your ebooks for nothing is only the latest disrespect the modern writer is subjected to, says DJ Taylor
Edinburgh Fringe 2014: The comedy highlights, from Bridget Christie to Jack Dee

Edinburgh Fringe 2014

The comedy highlights, from Bridget Christie to Jack Dee
Dame Jenny Abramsky: 'We have to rethink. If not, museums and parks will close'

Dame Jenny Abramsky: 'We have to rethink. If not, museums and parks will close'

The woman stepping down as chair of the Heritage Lottery Fund is worried