New relationships and divorce settlements

Divorce|September 25th 2014

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.

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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  1. annoymous says:

    Why doesnt the wife hand back the money she didnt earn when she finds a new provider, the new partner could have even more money than her previous partner. She then marries the new partner and gets 75% percent of his assets for the second marriage, crazy!

    Are you trying to tell me that that when the man is divorced, he is going to find a new partner who will pay the majority of the bills? The expectation of most women is that the man pays the majority of the household expenses, plus the divorced man will be paying child support also,

    A women will almost certainly find another man to pay most of her bills when she divorces, whilst the divorced man is left with nothing

    The english and welsh divorce law is disgraceful

  2. Nordic says:

    I totally agree that English family law is a complete disgrace and evidently gender biased, but this crazy judgement is not about redressing that imbalance. Those who rejoice that the woman got less in this particular case are missing the point. The fundamental problem is that the starting position for asset division is polluted by the need argument which in this jurisdiction reflects gender roles ala the 1950s. Need is an argument for child and spousal maintenance, not asset division. More developed and civilised jurisdictions have long ago implemented legally binding regimes for asset division, which ensures the parties know what they commit to when marrying and know that this commitment will be upheld when they divorce (unless of course they have moved to this lawless jurisdiction in the meantime). Two wrongs do not a right make.
    The judgement obviously does not even stack up in its own internal logic. It implies that:
    (A) if the parties are single at the time of divorce, the courts will presume that they will stay so for the rest of their lives (crazy).
    (B) if a party has entered into a new relationship, then the courts will assume that this will last, even though the one thing that is known about the parties is that their previous relationship failed (crazy)
    (C) the other party in the new relationship is now deemed as financially responsible for his or her new partner including his or her divorce settlement (crazy).
    This judgement incentives people to stay living on their own and not marrying again. It will obviously lead to loads of more litigation as the parties try prove the relationship status of their former spouses. And where the assumptions underlying a divorce settlement subsequently prove invalid, this judgement give ample room for re-opening the whole process. It you wanted to make absolutely sure divorcing couples will fight until they die (or have no more money to pay for legal fees), then this was the way to do it. It is a crazy judgement which demonstrates what happens when you leave policy making, in what is probably the most important area of public policy of all, to elderly men from privileged backgrounds.

  3. Andrew says:

    Nordic: I had some professional involvement in a case which would interest you. H, a man of substantial wealth, ordered to pay maintenance for W and child and to buy a substantial house for her – hers until she died or remarried, the full Martin order. On sale he or his executors were to have 80% and she 20%: but

    And one fine day an envelope reacheD him in the post – anonymously – with a marriage certificate of his ex and A N Other (penniless) about a year earlier. He never knew who sent it. Of course he stopped the maintenance (for W) and demanded immediate sale of the house. She claimed that she had not re-married and that somebody had impersonated her before the Registrar. The Queen’s Proctor was invited to take part and it ended up with handwriting evidence and the Registrar being called – the witnesses, who had probably used bogus names and addresses, were not to be found – and the court finding that that it was indeed her.

    She was ordered to pay H’s and the QP’s costs and my involvement came late in the day: she bought a tiny flat for herself and the child, who was by then 15, and H and the QP both got charging orders for their costs, which added up to much of the value of the flat. Once the lad reached 18 they applied for and got a sale, in spite of vigorous attempt to re-open the original litigation in the guise of resisting sale: you will imagine, Marilyn. Some litigants cannot grasp the concept of res judicata, or done deal as we say in English.

    Sale followed and she disappeared into bedsit land and so she should!

  4. Nordic says:

    Andrew. You are forcing me to defend the wife, in this the most gender biased of jurisdictions!!
    I do not get why you think she should disappear into bedsit country, unless the marriage was very short. I think your case actually demonstrates my point. If we had a proper and legally binding regime for division of matrimonial assets, the initial weird and messy judgement would not be required. The idea should surely be to allow people to divorce not just in name but also financially. She should get her fair share of the jointly acquired wealth and that should be it as far as assets are concerned. Ongoing needs should be captured in spousal and child payments, not asset division. Giving her a house until remarrying is stupid and only serves to prolong the matter. It also again implies an archaic view of women as being incompetent creatures unable to take care of themselves and therefore needing to be passed from man to man. If we men want to be treated as equals and remove the obvious gender bias in English family law, then we must also be willing to offer equality.
    The principle in most matrimonial property regimes around Europe is that you share equally what you have created together (By the same token, you do not share the wealth you had before the marriage or gained during it through inheritance). There should be no exceptions to this common sense principle. No special contribution claims should be entertained, nor should the need argument be allowed to pollute the asset division. The need argument is relevant only to child payments and spousal support (which should be transitional and strictly term limited). If H had built his wealth while together with W, then surely she is entitled to half. That should have been the end of that story.

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