H had been granted a divorce on the grounds of W’s adultery. The court considered how the clean break provisions could be incorporated in a situation with children and how conduct might affect periodical payments.
Held: The duty to consider a clean break applies whether or not there are children. The judge had erred in saying that a clean break was not possible until the children were grown up. The duty to consider the children first, was neither a duty to consider them first in time, nor to give them paramount importance. In fact the phrase has been criticised as meaningless. Doing the best the court could ‘the welfare of the children cannot override the duty to be just and reasonable as between the former spouses, as required by section 25A. ‘ As to conduct: ‘It is right, having regard to the wife’s conduct in inviting the co-respondent effectively to live in the matrimonial home without requiring him to contribute anything to its costs, to reduce the periodical payments to her so as to reflect the amount which the co-respondent could and should contribute. Such conduct can and should be taken into account under section 25(1) in assessing the appropriate level of periodical payments’
‘The question was what if any effect the conduct should have for the purposes of section 25. The question which arose for the purpose of section 25 was whether it was inequitable to disregard the conduct of the wife, who had invited the co-respondent to spend most evenings and nights at her home. It was agreed before the judge that evidence before him should be limited to the issue as to what if any contributions the corespondent was making, or was likely to make, to the finances of the wife. She described the situation in the words ‘We are lovers. We sleep together every night except when he goes off to Kent with friends. ‘ She did not ask him for money and he made no financial support for the household. ‘ It was appropriate to make an order on the basis that the co-respondent should be making a contribution to the household. H’s appeal succeeded nd the order varied, inter alia to reduce the maintenance payable to W to andpound;1.00 per year.
Judges:
May LJ and Sir Roualeyn Cumming-Bruce
Citations:
[1987] Fam 111, [1987] 3 WLR 9, [1987] 2 All ER 336, (1987) 151 JP 593, [1987] 2 FLR 232, [1987] Fam Law 239, (1987) 151 JPN 174, (1987) 84 LSG 1142, (1987) 131 SJ 471, [1986] EWCA Civ 7
Links:
Statutes:
Matrimonial Causes Act 1973 25(2) 25A, Matrimonial and Family Proceedings Act 1984
Jurisdiction:
England and Wales
Family
Updated: 04 July 2022; Ref: scu.235276
