A former husband who left his job after developing depression has won his appeal against a ruling that future maintenance payments should not be limited.
In N v N, the former couple had been married for nine years and had two children, both now teenagers. They separated in 2002 and their divorce was finalised in 2005. Under the terms of their financial settlement, the husband was to pay his ex-wife £1,000 per month in maintenance for five years, on the basis of his annual salary of £125,000 per year.
Three years later, however, she returned to court and applied to have the payments increased to £1,800 per month, and extended on a ‘joint lives’ basis – ie until she remarried or either party died. He, meanwhile, submitted a counter application for the payments to be reduced, saying he was no longer working due to the depression.
In 2009, the judge left the man’s maintenance payments at £1,000 per month but extended them by further three years.
Judge Raeside declared:
“The husband… impressed me. This court is well used to husbands who lose their jobs and dissipate their assets in order to defeat the financial claims of their former wife. I do not consider that this is such a man. I have watched the husband (and his mother who was allowed into court to support him) and heard him give evidence over almost two days. I accept that he is genuinely distraught over the lack of contact with his children; I accept that the behaviour of his former wife has had a major effect on his mental health. I find him fundamentally honest, although in a couple of serious instances he has failed before the court and the CSA to be honest about his financial situation. He is an able and clever man, and if [the wife] would leave him alone, he would be able to contribute both in financial and emotional terms towards his children.”
“In good health, the husband can earn over £100,000 pa. At the moment, he has a minimal earning capacity. What he will choose to do in the near future is impossible to predict; but I have the impression that he wishes to work and to continue to support his children as he has in the past. I have come to the conclusion that it is likely that when the litigation is completed, he will be able to return to a well-paid employment…if he is involved in further litigation or CSA wrangles he will not be able to work.”
The judge concluded:
“I dismiss the wife’s claims for an increase in her own maintenance from the date of her application; in the light of her failure to take any realistic steps towards financial independence I do not see why the husband should pay any more than that sum. I accept that the husband was in receipt of a good salary… but the wife should have been taking steps to increase her own earning capacity and has done nothing serious about it.
The judge also banned any further extensions of the maintenance order.
The wife was unhappy with this result and launched an appeal. She was initially successful, winning an order that the current payments be extended to 2015. However, this ruling was later overturned following an appeal by the husband and the original order issued by Judge Raeside was reinstated.
The wife then tried to appeal to the Supreme Court. When that proved unsuccessful she launched a new appeal, claiming that the husband was guilty of ‘material non-disclosure’ – ie that he had no fully disclosed his financial status. She presented the court with evidence that the husband had undertaken freelance work and had been discussing future employment opportunities when she made her original application for an increase in the maintenance payments.
The matter came back before Judge Raeside. She ruled in the wife’s favour, saying the husband claim to not be working due to ill-health had been misleading and set aside her earlier order.
The husband successfully appealed. Lord Justices Patten and McFarlane, along with Sir Stephen Sedley said there had been no requirement on the husband to give full and frank disclosure of his situation during every stage of the appeals process. The judge had mistakenly believed he had a duty to do so and this had affected her whole view of the husband’s conduct.
Lord Justice McFarlane said:
“…it seems likely that the judge allowed her adverse view on his misleading conduct, and her erroneous view that he should in any event have been updating disclosure of his finances during the appeal, to colour her retrospective reconsideration of his presentation during the 2009 hearing.”
“I conclude that the material placed before the court, and the process adopted at the hearing, were insufficient to support a finding of material non-disclosure with respect to the husband’s future employment intentions in 2009. I would therefore allow the appeal and set aside the judge’s order which, in turn, set aside the 2009 order. The result…; is that the 2009 order is reinstated.”