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Fleming v Fleming [2003] EWCA Civ 1841


Financial provision – Periodical payments – Fixed term – Application for extension – Court’s obligation to consider bringing financial relations to conclusion – Impact of prolonged cohabitation – Effect of legitimate expectation that obligations would end


[2003] EWCA Civ 1841

Court of Appeal

Thorpe, Jonathan Parker and Scott Baker LJJ

17 November 2003

The husband and wife were married for 17 years and had four children. A consent order made on divorce provided for the division of property between the parties and for the payment to the wife of £1,000 per month for the next 4 years. There was no express provision to the effect that the wife was not entitled to apply for an extension and, shortly before the expiry of the 4-year term, she did so. The wife had been cohabiting for over 5 years. The judge, although he accepted that the combined incomes of the wife and her cohabitant were sufficient to discharge their combined living expenses, allowed the wife’s application for a variation of the periodical payments order, awarding her £500 per month on a joint life basis. The husband argued, inter alia, that the cohabitation was a quasi-marital relationship, to which the judge should have given more weight.

Held – allowing the husband’s appeal –

(1) The decision in Atkinson v Atkinson that cohabitation was not to be equated with marriage did not need to be revisited and remained as sound now as it had been 15 years ago, notwithstanding social changes. Equally, in assessing the impact of cohabitation the court should have regard to the overall circumstances, including its financial consequences and duration (see para [9]).

(2) In considering an application to vary a periodical payments order, the court was under an obligation to consider bringing financial relationships between the parties to a conclusion, where that was possible without undue hardship to the payee, and was under an enhanced obligation to do so if the payer had a legitimate expectation that his obligations would end on the date provided in a consent order. In circumstances in which the intention of the parties had been that the payer’s obligations would terminate on a specific date, the exercise of a power to extend those obligations required some exceptional justification. The judge had not had these considerations sufficiently in mind (see paras [12]–[14]).

(3) The judge’s finding that the wife would suffer substantial financial hardship, or risk doing so, if the periodical payments stopped was unsupported by the evidence, and contrary to some of the judge’s own factual findings (see para [17]).

Statutory provision considered

Matrimonial Causes Act 1973, ss 25, 25A, 28, 31

Case referred to in judgment

Atkinson v Atkinson [1988] Fam 93, [1988] 2 WLR 204, [1988] 2 FLR 353, CA

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