I was surprised to find this morning that a case we reported on the blog yesterday has caught the attention of the national press.
AB v CD was, on the face of it, a relatively uncomplicated divorce hearing. The couple had been married for nine years and together for 13. They started a business together and adopted a child. They spent time renovating a property given to them by the husband’s parents.
Granted there was there were some unusual aspects to the case – the husband’s wealthy farming family for example, or the fact that the couple separated in the middle of the adoption process, with the result that the husband ended up adopting the child alone.
But that’s not what caught the media’s attention. Instead, the Telegraph zeroed in on comments made by the judge, Mr Justice Mostyn, while calculating the wife’s financial settlement. It had emerged that she had begun a new relationship since she and her husband had gone their separate ways – a relationship which only came to light during investigations by the husband’s legal team.
Unsurprisingly, the judge took this relationship into consideration in his ruling. But did he really, as the Telegraph proclaims, tell women to avoid dating before divorce? No. He simply noted that such relationships have implications for settlements, phrasing this observation in a particularly judge-like way, complete with an ornate classical allusion:
“Relationships like this always are a significant fly in the ointment in the assessment of need. One cannot make assumptions, if it is not full blown cohabitation akin to marriage, that it will grow into that, because if it does not the wife may be left stranded between Scylla and Charybdis if the assumption is wrongly made.”
Mr Justice Mostyn continued:
“On the other hand, if one makes a needs assessment on the basis that she is a single woman and she soon cohabits, then the paying party in the ancillary relief proceeding can rightfully feel significantly aggrieved.”
‘Ancillary relief’ is an older version of what is now more commonly called a ‘financial remedy’ – that is to say, the settlement reached by a couple following divorce. And by ‘need’, the judge of course means the financial resources each party in a marriage will require following divorce. Despite the Telegraph’s claim that the relationship dealt a “hammer blow” to the wife’s case, the judge still went on to award her £250,000, hardly a miniscule sum.
But he did so noting that “I cannot ignore the existence of the relationship with Mr P” and declaring that, if the relationship had not begun, he would have doubts as to whether the sum awarded would be sufficient to meet her needs.
His Lordship carefully notes the dilemma facing judges in such a scenario. As he wrote, an award based on the assumption that the wife will remain a single woman can seem quite unfair if she swiftly sets up home with a new partner. But an award based on the assumption that she will set up home with a new partner can be equally problematic.Personally I would take issue with the principle of what he did. I don’t think it is right to take a potential cohabitation into account and leave the woman to come back to court if that fails. The chances are strong that it will. Many relationships formed at turbulent times wilt on the vine. The Judge left her facing an uphill and expensive task to establish her entitlement to a fairer deal.
‘Rebound’ relationships are quite common amongst divorcing couples. In my years of practice, I have seen women have affairs with their gardeners, their tennis instructors, friends they’ve known for years. None of these relationships were remotely serious – they were a distraction, some fun, a shelter from the storm of their divorces. Would it have been fair or just for a judge to have drawn conclusions about their settlements on the basis of these flings? I personally do not believe so. The financial settlement reached following a divorce should fairly reflect that person’s contribution to the relationship and their needs going forward. Some will say that her relationship should be reflected in the award and the Judge was absolutely right. I’m expecting regular commentators to the blog to do just that.
But here we must diverge. I don’t have great faith in the cohabitation potential of such relationships. Take away the thrills and the secrecy and there may not be much passion left.
Perhaps the wife’s mistake here was in secrecy. The relationship only came to light following an investigation – she did not tell the court about it herself, and the discovery may well have been a moment of triumph for the husband’s lawyers.
Had the wife instead, followed the advice I have given on this blog for the last seven years, as well as in my book Divorce and Splitting Up, she would have told the court and her husband the full story and I expect would have walked away with more money.
But she didn’t, and so, exercising his discretion, the Judge made his ruling.