Or: Co-habitation subsequent to a foreign divorce is not a basis for the English court to grant matrimonial financial relief.
As I mentioned here the other day, there has recently been a trickle of old family law reports onto the Bailii website. I don’t know whether this is part of a plan to ‘fill in the gaps’ of family law judicial utterances, or just a coincidence. Whatever, some of the cases are quite interesting.
Take, for example, the 1994 Court of Appeal decision Hewitson v Hewitson, which appeared just the other day. It concerned an attempt by a wife to persuade the English court to provide her with financial relief following a foreign divorce, pursuant to the provisions of Part III of the Matrimonial and Family Proceedings Act 1984. Now, as we shall see, Part III MFPA, as I shall refer to it, was enacted to give protection to spouses, primarily wives, where they had divorced abroad, but had not received a proper, or any, financial settlement in the foreign court.
That, however, was not the situation in Hewitson. Here, there had been divorce proceedings in the USA, and the American court had made an agreed final financial order, which provided for a clean break between the parties. That order had not been appealed, or successfully criticised. What the wife claimed gave the English court jurisdiction to deal with the case under Part III MFPA was the fact that, since the divorce, she and the husband had cohabited briefly, from time to time. She claimed, and the husband did not deny, that as a result of the continuing association she was induced to take financial steps to her detriment, upon the promise of the husband to maintain her for the rest of her life. This he refused to do, and as a result she found herself in a ‘parlous financial situation’.
The wife therefore applied for leave to make an application for financial relief under Part III MFPA. Leave was granted, and the husband appealed against the grant of leave, ultimately to the Court of Appeal.
Giving the leading judgment of the Court of Appeal Lady Justice Butler-Sloss (as she then was) pointed out that the MFPA was designed to meet the ‘limited objective’ of protecting the spouse who had not been financially provided for by the foreign divorce court. It was not designed to give foreign spouses the sort of ‘post-divorce’ protection that spouses in this country did not have. She said:
“There has to be finality and an end to litigation. In my view the umbrella of the dissolved marriage which covers the post-divorce period cannot remain open for ever. Upon the making and implementing of a ‘clean break’ order between spouses with no children, that umbrella has to be shut. Thereafter the relationship which may develop between former spouses is to be dealt with under civil law. The rights of one who enters into cohabitation without marriage are manifestly less satisfactory than under our matrimonial legislation but that deficiency is not a reason to extend the provisions of the 1984 Act to cover a situation neither referred to by the Law Commission [which recommended the enactment of Part III] nor in the contemplation of the legislature.”
Lords Justices Leggatt and Balcombe both agreed that Part III MFPA was not intended to apply to a case like this. Accordingly, the husband’s appeal was allowed.
Before I finish, I could not resist mentioning some of the language used in the case. I appreciate that the case is now nearly a quarter of a century old, but that does not seem that long ago to an ‘old-un’ like me. Were things really that different then? Perhaps they were. Anyway, thankfully we do not now usually come across counsel (in the case James Holman QC, later of course to become the highly respected Mr Justice Holman) telling us that when former spouses got back together “the relationship was one of man and mistress”. And then, also in relation to the re-establishment of the relationship between the parties, we had Lord Justice Leggatt treating us to the wonderful line about the wife: “she has since yielded once more to her former husband’s blandishments”. Perhaps His Lordship had a penchant for the Victorian romantic novel…
You can read the full report of the case here.