Law Report: Wife could apply for fresh financial order
LAW REPORT: 19 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
From the blogs
There are more empty shops on our high streets than ever before, says another report into the state ...
The guard has changed at Old Trafford for the first time in 26 years. Meanwhile, down the road, the ...
There is a good many moments in the second episode of this psychological thriller that deserve refle...
The opening titles squeal ‘Never Can Say Goodbye…’. Oh Lord how I wish I could heave this series off...
That's some guestlist! Stunning images show huge dynastic wedding between Ultra-Orthodox Jewish families which attracted 25,000 guests
'Sickening, deluded and unforgivable': Bloody attack brings terror to capital’s streets
German chancellor Angela Merkel named most powerful woman in the world by Forbes - again
World news in pictures
Eyewitness gives extraordinary account of her confrontation with Woolwich attackers
- 1 'Sickening, deluded and unforgivable': Bloody attack brings terror to capital’s streets
- 2 Mothers' diets may harm IQs in two-thirds of babies
- 3 Far-right French historian, 78-year-old Dominique Venner, commits suicide in Notre Dame in protest against gay marriage
- 4 Eyewitness gives extraordinary account of her confrontation with Woolwich attackers
- 5 Woolwich attack: The EDL might have a sinister plan as a soldier is murdered in suspected Islamic terrorist attack
BMF is the UK’s biggest and best loved outdoor fitness classes
Find out what The Independent's resident travel expert has to say about one of the most beautiful small cities in the world
Win anything from gadgets to five-star holidays on our competitions and offers page.