Grey v Grey

Post-separation cohabitation is relevant to periodical payments but is not equivalent to remarriage and does not automatically terminate maintenance or require a nominal order. The court must assess all the circumstances, including the relationship’s financial consequences and what the new partner ought to contribute. A judge may require evidence of the partner’s means and draw adverse inferences if information is withheld. The fact that pre-marital cohabitation may count towards the duration of a marriage does not, without a statutory entitlement against the new partner, require a different rule for post-divorce cohabitation. The appeal was allowed because the factual findings and financial investigation were inadequate.

The parties’ ancillary relief proceedings followed their separation and involved substantial capital and income claims. Singer J made periodical payments orders in favour of the wife. The husband challenged only those orders, arguing that the wife was cohabiting with Mr Thompson and that settled cohabitation should ordinarily end substantive maintenance or lead to a nominal order. The wife disputed the existence of cohabitation and argued that the established Court of Appeal authorities had been correctly applied. The appeal concerned the adequacy of the factual findings, the financial investigation required, and whether the law had changed so that post-divorce cohabitation should be treated more like remarriage.

The appeal was allowed unanimously. Thorpe LJ gave the leading judgment, Wall LJ agreed and added observations on retrospective variation, and Patten LJ agreed.

1. Factual findings. The evidence established actual cohabitation during the five weeks before trial and a relationship in which Mr Thompson had been a regular member of the wife’s household since at least November 2006. The wife had presented a false and materially incomplete case. The judge should have made a clear finding that the parties were a couple and should not have accepted the wife’s account without corroboration.
2. Financial investigation. The relevant question was not only what Mr Thompson actually contributed, but what he ought to contribute and what capacity he had to contribute. There was an obvious possibility that the parties would avoid pooling income. The judge had a proactive duty to obtain the necessary information. He could require the wife to provide evidence of Mr Thompson’s means and could draw adverse inferences if the information was withheld. The court was not confined by counsel’s submissions or by the evidence the parties chose to adduce.
3. Applicable law. The Court of Appeal’s approach in Atkinson v Atkinson [1988] Fam 93 and Fleming v Fleming [2003] EWCA Civ 184 remained sound. Under the Matrimonial Causes Act 1973, cohabitation is a relevant factor in the full assessment of periodical payments, including its financial consequences, but it is not equated with remarriage. It does not automatically terminate the order or require reduction to a nominal sum. It may, however, receive considerable weight in a long and settled relationship.
4. Proposed change in the law. The reasoning suggested in K v K [2005] EWHC 2886 (Fam), that settled cohabitation should be taken into account in principle as well as numerically, was not adopted. The development allowing pre-marital cohabitation to count towards the duration of a marriage did not inevitably require equivalent treatment of post-divorce cohabitation, particularly because the new partner owed no statutory financial obligation to the applicant. Any wider change was for Parliament or a court with authority to make new law.
5. Disposition. The judge had both misassessed the evidence and misapplied the authorities. The appropriate reduction could not be determined without evidence of Mr Thompson’s means and capacity to contribute. The matter was remitted to Singer J for further investigation and judgment. Wall LJ additionally observed that a variation could be backdated beyond the date of the variation application, subject to the proper exercise of discretion.

1. Court of Appeal (Civil Division) — [2009] EWCA Civ 1424: allowed the appeal and remitted the issue for further investigation and assessment by Singer J.
2. High Court (Family Division) — Singer J made periodical payments orders in favour of the wife. The judgment citation is not stated in the judgment.