Fleming v Fleming

On an application to extend a term order for periodical payments, the court must consider whether continuing financial responsibility can be terminated without undue hardship to the payee. Where an earlier consent order fixed a date for absolute termination, an extension requires exceptional justification. A finding of future hardship cannot sustain an extension if it conflicts with findings that the payee and a cohabiting partner have sufficient combined income to meet their expenditure.

Cohabitation is not equivalent to marriage and does not itself terminate maintenance. Its duration, stability and financial consequences nevertheless form part of the overall circumstances and may receive considerable weight.

Following the parties’ divorce, a consent order divided their properties and required the husband to pay the wife £1,000 per month until 30 November 2002. The order did not prevent the wife from applying to extend the term. Before its expiry, she sought an extension because a long-standing disability impaired her earning capacity.

His Honour Judge Taylor in Newcastle upon Tyne County Court extended the order on a joint-lives basis at £500 per month. He found that the wife had a substantial part-time earning capacity and that her long-term cohabitee also had an earning capacity sufficient, in combination, to meet their living expenses.

The husband appealed. The principal issues were whether the judge had properly applied the clean-break obligation under the Matrimonial Causes Act 1973, and whether the wife’s long-term cohabitation or response to her disability required a different approach.

1. Appeal allowed unanimously. The wife’s application to extend the term of the periodical payments order was dismissed. Thorpe LJ delivered the judgment, with which Jonathan Parker LJ and Scott Baker LJ agreed.

2. The assessment of the wife’s disability and earning capacity fell within the trial judge’s broad discretion. He was entitled to conclude that she had not unreasonably failed to minimise the effects of her condition. That conclusion disclosed no basis for appellate intervention.

3. The court approved the approach in Atkinson v Atkinson [1998] Fam 93. Cohabitation is not equivalent to marriage. Its effect must be assessed from all the circumstances, including its financial consequences. A lengthy and stable cohabitation may receive considerable weight, and the trial judge had treated it as a central feature.

4. On a variation application under section 31 of the Matrimonial Causes Act 1973, the court must consider whether it can terminate the parties’ continuing financial relationship without undue hardship to the payee. The statutory policy favours a clean break wherever that result is achievable. The power to substitute a lump sum for continuing periodical payments may be used to achieve it.

5. The obligation to consider termination was enhanced because the earlier consent order had fixed an expiry date. The parties and the court had intended the husband’s liability to end absolutely at that date. The husband therefore had a legitimate expectation of termination, and extension required exceptional justification.

6. The trial judge’s conclusion that termination would cause, or risk causing, substantial financial hardship was contrary to his earlier findings. He had found that the wife could earn £15,000 to £20,000 annually through part-time dentistry, that her cohabitee could earn £20,000 to £25,000, and that their combined income met their combined expenditure without maintenance or recourse to savings. The extension was consequently wrong in principle.

7. The husband did not seek repayment of the periodical payments made under the extended order pending appeal. The order was to reflect that position.

1. Court of Appeal (Civil Division): The husband’s appeal was allowed unanimously. The order extending periodical payments was set aside and the wife’s application for an extension was dismissed: [2003] EWCA Civ 1841.

2. Newcastle upon Tyne County Court: His Honour Judge Taylor extended the periodical payments order on a joint-lives basis at the reduced rate of £500 per month.

3. Newcastle upon Tyne County Court: A district judge had made the original ancillary-relief consent order, including periodical payments of £1,000 per month for a fixed term.