Law Report: Former wife cannot make a claim for financial relief: Hewitson v Hewitson. Court of Appeal (Lord Justice Balcombe, Lady Justice Butler Sloss and Lord Justice Leggatt). 6 October 1994

If parties cohabited after divorcing in a foreign jurisdiction, in which a clean break financial order had been made and implemented, the cohabitation was not a basis for granting leave to apply for financial relief under the Matrimonial and Family Proceedings Act 1984.

The Court of Appeal allowed the former husband's appeal against Mr Justice Wall's refusal, on 24 May 1994, to set aside leave to the former wife to apply for financial relief.

The husband and wife were married and divorced in California. In 1988, a comprehensive financial agreement was negotiated to create a clean break final order. The parties then cohabited briefly, both in the United States and in England, and finally parted in 1992. The former wife applied under the Matrimonial and Family Proceedings Act 1984 for leave to make an application for financial relief.

Mr Justice Wall decided that after the divorce the parties had maintained a relationship with adverse financial consequences for the former wife, and the former husband had, by his conduct, incurred fresh obligations and responsibilities to her and she should be allowed to apply.

James Holman QC and Florence Baron (Bower Cotton & Bower) for the former husband; Nicholas Mostyn (Wilkinson Maughan, Newcastle upon Tyne) for the former wife.

LADY JUSTICE BUTLER SLOSS said that prior to the 1984 Act the English courts had no jurisdiction to grant ancillary relief where the divorce had not been granted in this country. Problems were raised by spouses who were divorced and deprived of financial relief in other jurisdictions and who appeared before the English courts. Parliament enacted the 1984 Act under which either party to a marriage which had been dissolved overseas and where the divorce was recognised in England might apply for an order for financial relief. Leave of the court was required.

There was no reason to give those in the position of the former spouse a benefit which was not intended by the 1984 Act and was unavailable under the domestic matrimonial legislation.

It would be wrong in principle and contrary to public policy to extend the narrow compass of an Act designed to meet limited objectives to cover a wider and unintended situation. The Californian court made a consent order which was not appealed nor criticised and was designed to be comprehensive and final. The former husband complied with the order.

It was inconsistent with the comity existing between courts of comparable jurisdiction for an English court to review or seek to supplement the foreign order on the basis of the subsequent relationship of the former spouses. It was all the more so when an applicant in similar circumstances seeking to vary a final order under our matrimonial jurisdiction would be precluded from doing so. The relationship which might develop between former spouses was to be dealt with under civil law. There was no substantial ground for making the application.

LORD JUSTICE LEGGATT, agreeing, said that the 1984 Act empowered our courts to grant financial relief when no, or no sufficient, relief had been awarded abroad.

LORD JUSTICE BALCOMBE, agreeing, said it was never contemplated that the Act could or should be used to provide financial relief arising from a status of co-habitation, even if the parties had previously been married.