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Duxbury v Duxbury [1987] 1 FLR 7

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Financial provision – Lump sum order – Wealthy husband – Wife cohabiting with man of relatively insubstantial means – Conduct irrelevant – Whether judge justified not taking cohabitation into account - Lump sum – Wife cohabiting with another man – Effect on quantum

[1987] 1 FLR 7

Court of Appeal

Ackner, Stephen Brown and Parker LJJ

25 November 1985

This was an appeal by a husband against a lump sum order made in favour of his wife in proceedings for ancillary relief following the divorce of the parties. The marriage had lasted for 22 years. There were three children but all were grown up and well provided for. The parties had lived like millionaires. The wife had not brought any capital into the marriage nor had she been engaged in paid employment but it would have been socially quite unacceptable for her to have gone out to work. The husband conceded that his wife had done all that was required of her as a wife, mother and hostess during the subsistence of the marriage. Both had developed extra-marital relationships. The wife was living with another man who, relative to the husband, was of insubstantial means. It was uncertain whether she would marry him. It was agreed that the judge should not be troubled with any allegation of conduct by one spouse against the other. The husband accepted that the wife was entitled to enjoy a comfortable, even luxurious lifestyle for the rest of her years. It was common ground that one of the properties owned by the husband, where the wife was living, should be transferred to her. There was also a considerable measure of agreement as to the amount of money that the wife would require to meet her reasonable needs.

The judge ordered the transfer of the property and made a lump sum order. He applied the clean break principle now enacted in s. 25A(1) of the Matrimonial Causes Act 1973 and decided not to attach any weight to the wife’s cohabitation.

The husband appealed against the lump sum order contending that the judge wrongly exercised his discretion by not taking into account, or giving sufficient weight to, the wife’s cohabitation with another man, who would, as a consequence, benefit from the capital payment. He further contended that, having regard to her cohabitation and the possibility of her remarriage, the judge should have made a smaller lump sum order coupled with a secured periodical payments order. In this way the court would retain control of the situation and if the wife remarried the order would come to an end. The husband also argued that if the wife were to dissipate the lump sum by extravagance or otherwise he would feel morally bound to make further provision to save her from destitution.

Held – dismissing the appeal –

(1) The judge was wholly justified in failing to take into account the wife’s cohabitation since it was irrelevant. He had to consider what were the reasonable needs of the wife in the circumstances. The sum required to meet those needs was agreed upon by the parties. How the money was spent was her affair.

(2) The parties had agreed that the judge should not be troubled with any issue of conduct. The application of s. 25 of the Matrimonial Causes Act 1973 was essentially a financial and not a moral exercise save where conduct was such that, in the opinion of the court, it would be inequitable to disregard it. The judge had exercised his discretion properly by applying s. 25 of the 1973 Act. An appellate court would only interfere with the exercise of judicial discretion where its exercise exceeded the generous ambit within which reasonable disagreement was possible and was plainly wrong.

APPEAL from an order of Reeve J.

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