In AB v CB, Mr Justice Mostyn said that women who begin new relationships soon after their marriages break-up risk harming their divorce settlements. His comments have caused a considerable amount of controversy since they were first published on Friday. But just how controversial are they really?
Details of the case are available on the summary which appeared on this blog, but very briefly, Mr Justice Mostyn was dealing with a wife’s claim for a financial/property settlement following divorce. When considering the issue of her financial needs he found that, since she separated from her husband the wife had formed a relationship with another man – a fact that she had not disclosed, but which was revealed during investigations made by the husband’s lawyers. The wife said that she was not going to live with the man, although it was clear that the relationship was strong. Mr Justice Mostyn said:
“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. 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.”
Mr Justice Mostyn was considering whether a net capital position of just over £250,000 was sufficient to meet the wife’s needs. He found that if she were “assuredly single” and he could foresee that continuing, then he would have his doubts as to whether that sum would be enough. On the other hand, he said, he could not ignore the existence of the wife’s new relationship and so reached the conclusion that that figure was sufficient to meet her needs. In other words, the wife might have received more if she had not been in the new relationship.
To put all of this into context, we are talking here about the question of needs. In many higher-money cases needs are not an issue, as there is more than enough money available to cover the reasonable needs of both parties. Mr Justice Mostyn’s words will therefore have no bearing upon such cases.
The crux of the problem that Mr Justice Mostyn was facing was, of course, that the financial needs of someone who is cohabiting with another person are likely to be less than those of someone who is not cohabiting. When you are cohabiting, the amount you need to house yourself may, for example, be halved by being shared with your new partner.
It could be said, I suppose, that the new partner is effectively subsidising the wife and their means should not be used to reduce the husband’s liability. However, I’m not sure that such an argument is valid, as it works both ways – the husband’s needs would also be reduced if he were to cohabit.
Another point to make is that we are not talking here about maintenance. If we were, then any order made by the court would not be final, in the sense that the maintenance order could be varied or extinguished if the wife were to cohabit.
My main point, however, is this: what was Mr Justice Mostyn to do? Let’s be honest: the likelihood is that a wife in such a situation will shortly be cohabiting with her new partner, and if she does then it is only right that her needs are considered as if she were cohabiting. Of course, the relationship may fail before cohabitation takes place, but if it is clearly a ‘strong’ relationship, then that can justifiably be considered the less likely scenario. It should also be said that in this case the wife may not have done herself any favours by not disclosing the relationship – a fact that may have gone against her in Mr Justice Mostyn’s mind.
It has been suggested that the judgment is a warning, telling wives that they should not form a new relationship until after their financial settlements have been finalised. I don’t agree: the issue here is the wife’s needs, not whether she has formed a new relationship.
Lastly, it should of course be pointed out that many of those who have criticised Mr Justice Mostyn’s comments believe they restrict the freedom of wives to move on with their lives. However, all of what he said of course works equally for both husbands as for wives – the law does not differentiate between the sexes.
In short, I’m not sure that Mr Justice Mostyn’s comments in this case were at all controversial. He was merely stating the obvious: that a new relationship (by either party) puts the judge in a quandary when it comes to considering that party’s needs.