Fisher v Fisher

On an application to vary spousal periodical payments under the Matrimonial Causes Act 1973, section 31(7), the court must consider all the circumstances and give first consideration to the welfare of any minor child of the family. Responsibility for a child who is not the former spouse’s child remains relevant to the recipient spouse’s earning capacity and cannot be disregarded merely because parenthood was voluntary or the other parent provides no maintenance. The clean-break provisions do not make termination the default. The court must first decide whether termination is appropriate and, only then, whether a period of adjustment can be allowed without undue hardship. The discretion remains broad and fact-sensitive.

The parties divorced after a short marriage. The wife retained responsibility for their son Jonathan and later had a son, Richard, whose father was not the husband. An earlier consent order provided periodical payments for the wife and Jonathan.

The wife applied to increase the payments. The husband sought discharge or reduction of the payments to the wife, relying on the clean-break amendments to the Matrimonial Causes Act 1973. The registrar increased the payments. His Honour Judge Hammerton varied the order so that the wife’s payments would cease on Jonathan leaving full-time education or after three years, whichever was earlier. The central issue was whether Richard’s presence could be taken into account when assessing the wife’s earning capacity and the appropriateness of terminating her support.

1. Disposition. Lord Justice Purchas delivered the leading judgment. Lord Justice Nourse agreed, adding a separate observation, and Lord Justice Stuart-Smith agreed with both judgments. The appeal was dismissed, with the order adjusted to take the form of the registrar’s order as drawn.
2. Statutory approach. Section 31(7) of the Matrimonial Causes Act 1973 requires consideration of all the circumstances, with first consideration to the welfare of any minor child of the family. Section 31(7)(a) requires a two-stage inquiry. The court must first decide whether termination is appropriate after considering the circumstances and relevant changes. Only then should it decide whether a further period will enable adjustment without undue hardship.
3. The clean-break amendments encourage financial independence and discourage indefinite dependence, but they do not create a presumption that periodical payments must end. The court retains a wide discretion. The approach endorsed in Barrett v Barrett (transcript 20th June 1988) was applicable, while Hepburn v Hepburn (transcript 21st June 1988) confirmed the breadth of the discretion but added little on these facts.
4. Richard was not the husband’s child, but the wife’s responsibility for him was a relevant circumstance affecting her present ability to work. The court was not required to disregard that responsibility because the pregnancy was voluntary or because Richard’s father provided no maintenance. The so-called faculty cases involved wilful refusal to work or concealment of resources and provided no valid analogy.
5. Roberts v Roberts [1970] Probate 1, followed in Moon v Moon [1981] FLR 115, Macey v Macey [ 982] FLR 7 and Cowey v Cowey (Fam. Law Journal, 1983), did not establish that a later family must be ignored altogether. The first family was not to be placed in priority, but the resources and earning capacity of a later spouse could be relevant. Suter v Suter & Jones [1987] Fam 111 concerned a different question and did not govern the treatment of Richard’s presence.
6. The existing order was not a permanent entitlement immune from later review, but immediate termination was premature. A future application under section 31 would require consideration of all the circumstances, including changes since the earlier order. Lord Justice Nourse observed that exceptional circumstances might justify different treatment where responsibility for a child or cohabitee had been assumed with reckless disregard for future maintenance or to embarrass the former husband; there was no evidential basis for such a suggestion here.

1. Court of Appeal (Civil Division). Dismissed the husband’s appeal and adjusted the order so that it took the form of the registrar’s order as drawn.
2. Tunbridge Wells County Court. His Honour Judge Hammerton, on 10 June 1988, varied the registrar’s order concerning the duration of the wife’s periodical payments.
3. Registrar. Mr Registrar Di Castliglione, on 17 March 1988, increased the periodical payments payable to the wife and Jonathan.