This morning I joined presenter Jane Garvey on BBC Radio 4’s Woman’s Hour to discuss the implications of Mr Justice Mostyn’s now infamous comments during a recent divorce hearing.
To be fair to him, he was dealing with a very tricky set of assets, including family trusts and companies. It was not your usual set of circumstances and I think, given what he was working with, the overall outcome was fair.
I’m sure you’ve read the comments which caught the media’s attention by now. If not, Mr Justice Mostyn called post-divorce relationships a “fly in the ointment” when it came to assessing needs. This has been interpreted by the national media as a judge telling women to avoid relationships until their divorce is finalised.
As an experienced divorce lawyer, I have found this reaction somewhat perplexing. This issue is not new. It comes up quite often in divorce courts and it has always been a tricky area. The legislation which sets out how a judge is to determine finances was first enacted in 1973. At this time, it was very uncommon for women to end up cohabiting after a separation. Obviously, times have changed. The number of cohabiting couples is dramatically increasing, so it will naturally be an issue that judges have to deal with more and more. But maintenance post-divorce is usually payable.
In AB v CD, one problem was that the wife did not disclose the relationship to the court. It was uncovered by her husband’s legal team. Going into a divorce you need to give a full, frank and honest disclosure about your circumstances. If you don’t, you risk costing yourself money.
Even with full disclosure, spousal maintenance can still be significantly affected by the possibility that one of the parties could soon be cohabiting with another partner. This is because it can alter the judge’s assessment on what a person’s needs will be in the future. With that in mind, wives or husbands who will be dependent on their former spouse for financial assistance following the divorce should tread very carefully.
I have written about a similar case before. In Grey v Grey, the husband resented having to pay spousal maintenance to his ex-wife who had begun cohabiting with another man. The large number of comments I received on that post shows just how divisive this subject really is. When the case came before the Court of Appeal it received very full consideration and my post on that particular judgement will help potential cohabitants decide whether or not it is worth it. The court made it clear that if cohabitation was proved (and they approved the definition in a previous case called Kimber v Kimber) spousal maintenance would normally no longer be payable.
So whilst what Mr Justice Mostyn said during his judgment may not change things in a significant way, it has shone a light on these issues. That can only help people in the future.
To listen to my full interview on Woman’s Hour, it is available on the iPlayer here. My segment starts at 32:00.