Barnes (R M) v Barnes (K W)

When fixing maintenance, the court should ordinarily assess a fair contribution without first taking account of social security benefits. Where the parties have modest resources, however, it may consider the availability of those benefits to avoid leaving the paying spouse without enough to meet reasonable commitments. Benefits must not enable that spouse to transfer a burden which he or she can properly bear to the state.

Under section 5(1)(b) of the Matrimonial Proceedings and Property Act 1970, a former spouse’s legal responsibility to maintain a new spouse must be fully considered and given the same weight as other financial obligations and responsibilities.

A former wife appealed against two maintenance orders made by the Southampton County Court following the dissolution of the parties’ marriage. The first order awarded £2 weekly for each of four children and nominal maintenance of 5p annually for the wife. The second reduced each child’s maintenance to £1.50 weekly while leaving the nominal order unchanged.

The husband had modest earnings and had remarried. Changes in his payments were offset by corresponding changes in the wife’s social security benefits. The central questions were how those benefits should affect maintenance and what weight should be given to the husband’s responsibility for his new wife.

1. Disposition. The court unanimously dismissed the appeal against the order of 30 June 1971. It allowed the appeal against the order of 13 March 1972 to the limited extent of substituting maintenance of £2 weekly for the wife in place of the nominal order. The children’s awards of £1.50 weekly each remained unchanged.

2. Edmund Davies LJ, with whom Russell and Stamp LJJ agreed, held that social security benefits should ordinarily be disregarded at the initial stage of determining a fair maintenance figure by reference to the matters in section 5 of the Matrimonial Proceedings and Property Act 1970. He found it difficult to regard such benefits as “other financial resources” within section 5(1)(a), although he recognised that the classification was not easy.

3. Where the parties’ total resources are modest, the court may take account of benefits available to the former wife and children if an order based only on the parties’ income, earning capacity and property would leave the husband unable to meet his own reasonable commitments. The approach in Ashley v Ashley (1968) Probate 582 was applied. Social security may supplement an otherwise inadequate contribution and prevent a financially crippling order.

4. Russell LJ emphasised that benefits do not entitle a husband to transfer to the state a burden which he can properly bear. The court may leave him with a proper standard of living even though his contribution alone does not provide a proper standard for the first wife and children, provided benefits supply the deficiency.

5. Under section 5(1)(b), the husband’s legal responsibility to maintain his new wife had to be fully considered. Edmund Davies LJ rejected the submission that remarriage deserved only slight regard. That responsibility carried the same weight as his other financial obligations and responsibilities.

6. The first order was within the judge’s discretion when assessed broadly against the husband’s disposable income. By the time of the second order, a substantive award for the wife was justified, but the £11 total sought would have left the husband and his new wife with too little. A total weekly contribution of £8 achieved justice between the households.

• Court of Appeal: Dismissed the appeal against the Southampton County Court order of 30 June 1971. It varied the order of 13 March 1972 by replacing the wife’s nominal maintenance with £2 weekly, effective from 28 July 1972.
• Southampton County Court: On 30 June 1971, Judge Lee ordered £2 weekly for each of four children and nominal maintenance of 5p annually for the wife. On 13 March 1972, he reduced each child’s award to £1.50 weekly and left the nominal order unchanged.