Suter v Suter and Jones

Under section 25A of the Matrimonial Causes Act 1973, the court must consider whether a spouse’s financial dependence can end after a period sufficient for adjustment without undue hardship. Dependent children do not make a clean break impossible, although continuing parental cooperation may remain necessary. Under section 25(1), children’s welfare is the first consideration, but it is not paramount or overriding. The court must balance it with all other relevant circumstances, including conduct where it would be inequitable to disregard it. Spousal maintenance may be reduced where a cohabiting partner can contribute to household expenses, the wife may increase her earnings, and child maintenance continues. On the facts, a nominal annual payment was sufficient.

The former husband appealed against orders made after dissolution of the marriage requiring him to transfer his interest in the former matrimonial home and to pay monthly maintenance for his former wife and two children. The wife lived in the home with the children and worked in domestic service. She also lived there with the co-respondent, Jones, who earned approximately £7,000 gross annually but made no household contribution.

The County Court dismissed the husband’s appeal from the Registrar’s order. The husband challenged the continuation and duration of spousal maintenance, arguing that the judge had failed to perform the statutory clean-break exercise under section 25A and had treated the children’s welfare as paramount under section 25(1). The Court of Appeal considered the proper construction and application of sections 25 and 25A of the Matrimonial Causes Act 1973, as amended by the Matrimonial and Family Proceedings Act 1984.

1. Appeal allowed. The husband’s obligation to support the wife was reduced to a nominal order of £1 per year. There was no order for costs; both parties’ costs were subject to legal aid taxation. Leave to appeal to the House of Lords was refused.
2. Section 25A imposed a mandatory duty whenever a periodical payments order was made in favour of a spouse. The court had to consider whether payments should end as soon as just and reasonable and whether a term would enable the recipient to adjust without undue hardship to the termination of financial dependence. The clean-break principle described in Minton [1979] A.C.593, and the earlier observations in Pearce v. Pearce [1980] 1 FLR 261 and Moore v. Moore [1981] Vol. 11 Fam.Law 109, had to be read in the light of the statutory duty. Dependent children did not make a clean break legally impossible.
3. Section 25(1) required the court to consider all the circumstances, giving first consideration to the welfare of a minor child. That consideration was important and had to remain in mind throughout the exercise, but Parliament had not made it paramount. The phrase differed from the “first and paramount” formulation considered in J. v. C. [1970] A.C.668.
4. The wife’s conduct was relevant under section 25(2)(g), since she had invited Jones to live in the former matrimonial home without seeking or receiving a contribution to its expenses. The court refused to admit a new affidavit alleging misconduct by the husband because that issue had not previously been contested and was not the subject of a cross-appeal.
5. The husband had already transferred his interest in the home and other capital assets, and continued paying £200 monthly for the children. Jones was in a position to contribute at least £12 weekly towards household expenses, including the mortgage. The wife could seek increased earnings, and public assistance with mortgage interest remained available in a financial crisis, consistently with Barnes v. Barnes [1972] 1 WLR 1381 and Stockford v. Stockford [1982] 3 FLR 58. It was therefore unjust to require substantial spousal maintenance in addition to those benefits.

• Court of Appeal: allowed the husband’s appeal from the order of His Honour Judge Pennant, who had dismissed his appeal against the Registrar’s order for monthly periodical payments to the wife.
• Weymouth County Court: the deputy Circuit Judge dismissed the husband’s appeal on 20 February 1986.