W appealed against an order of the justices that, out of a net income of andpound;22 per week, H should pay only andpound;2.50 per week for the maintenance of herself and their son. The reasoning of the justices was that H needed to apply the balance of his income to support himself and his cohabitant and two of her children.
Held: The court:
(a) decided to survey the relevance not only of a husband’s moral obligation to support a cohabitant but also of an ex-husband’s legal obligation to support a second wife (on the basis that the claim of the former could not rank higher than that of the latter);
(b) held that not only an ex-husband’s legal obligation to a second wife but also a moral obligation of a husband or ex-husband to a cohabitant had to be brought into account in assessing the level of his obligation to maintain a first wife; but
(c) held that ‘on general principle, a spouse must on marriage be presumed . . to take the other subject to all existing encumbrances, whether known or not – for example . . an obligation to support the wife or child of a dissolved marriage’; but
(d) considered that English law did not, as did some Commonwealth courts, take the principle to its logical conclusion by affording ‘primacy’ or ‘priority’ to the claims of the first wife; yet nevertheless
(e) concluded, at 5D and 10D, that a decision, such as that of the justices, to give such ‘priority’ to the claims of the cohabitant (or second wife) as virtually to ignore the claims of the first wife was plainly wrong.
Rees J considered the ambit of the phrase ‘the circumstances of the case’, and rejected a submission that the court should confine itself to a husband’s ‘legal’ obligations enforceable at law, and said: ‘Therefore no hard and fast line can be drawn between ‘legal’ and ‘moral’ obligations. Such obligations frequently involve the support and maintenance of children, and in this context (i.e. the husband’s moral obligations to support his illegitimate children) nice distinctions between whether or not they are enforceable at law . . are often impracticable of application and in any event undesirable. Merely by way of example we cite the following: (relevant instances of enforceable moral obligations) an obligation to support an illegitimate child under an affiliation order; and obligation to support an illegitimate child in respect of whom an affiliation order might be obtained, but is obviated by actual support of the child.’
Judges:
Rees J, Sir Jocelyn Simon P
Citations:
[1970] P 1
Jurisdiction:
England and Wales
Cited by:
Applied – Vaughan v Vaughan CA 31-Mar-2010
H had been paying maintenance to W for many years after the divorce. W now appealed against an order revoking the arrangement without providing a capital sum to replace it. H’s health had declined, and also his earnings.
Held: W’s appeal . .
Lists of cited by and citing cases may be incomplete.
Family
Updated: 28 March 2022; Ref: scu.408429
