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Atkinson v Atkinson [1995] 2 FLR 356


Financial provision – Periodical payments – Husband ordered to make periodical payments to wife – Wife subsequently beginning to cohabit with new partner – No intention to marry – Husband’s application to vary – Whether means of wife’s new partner to be taken into account – Weight to be given to means of new partner

[1995] 2 FLR 356

Family Division

Thorpe J

8 March 1995

The husband and wife were married in 1962. At the date of the hearing the wife was aged 55, the husband 56. In 1986 the wife obtained an ouster order against her husband, following which the husband left the matrimonial home for good. Shortly thereafter, the wife commenced a relationship with a new partner 21 years her junior. That relationship came to a temporary end in 1988, following which the wife lived on her own for approximately one year. During that time, she made an application for financial relief against the husband. That application was heard and determined in December 1991 by the senior district judge. By then the wife had resumed the relationship with her new partner, although they were not cohabiting.

The district judge was not satisfied that the wife intended to marry her new partner. His conclusion was that the wife should have the matrimonial home outright, together with periodical payments of £30,000 pa. Approximately 4 months after that judgment was given, the wife and her new partner began to cohabit completely. The husband discovered this and in 1992 suspended payment of the periodical sums and applied to vary the amount to be paid under the 1991 order.

The variation application was determined by the senior district judge, who reduced the amount of periodical payments to £18,000 pa.

The husband appealed, and the wife cross-appealed. On appeal, the court received affidavit evidence which had not been available at first instance regarding the wife’s new partner, dealing in particular with the strength of his business.

Held – allowing the husband’s appeal – although cohabitation was not to be equated with marriage, it was a factor which the court should take into account since it had a bearing upon the parties’ financial circumstances and, in particular, the assessment of the reasonable needs of the cohabiting spouse.

The weight to be attached to that factor would depend upon the realities of the case, which the court should strive to discern. In the present case, the evidence before the district judge on the variation application was that the financial position of the wife’s new partner’s business was precarious.

The fresh evidence adduced on appeal, however, indicated that this business was in a considerably stronger position. As such, the worth and weight of the wife’s new partner required reassessment. Bearing in mind the financial position of the new partner, the appropriate figure for periodical payments would be £10,000 pa.

Statutory provision considered

Matrimonial Causes Act 1973, s 31

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