By the time of trial, the wife was 17 weeks’ pregnant by a man referred to as “L” although the wife did not reveal her pregnancy until sat in the witness box. The wife’s relationship with L was a little over one year old.
This was a case where neither the husband nor the wife acted impeccably. In the context of his financial disclosure, the Court noted that the husband “ducks and dives” and the Court had “no doubt” that the husband had manipulated his remuneration for the divorce proceedings.
The husband and wife met in their teens and started a serious relationship in 1997. Following an earlier ineffective marriage, they had a daughter in 2001 and “remarried” in September 2003. They separated in 2005.
Before the trial, the husband appointed an enquiry agent to investigate whether the wife was cohabiting with L. The enquiry agent gave evidence that L spent most nights in January 2008 with the wife (the trial occurred in February 2008 but, due to the Judge’s ill-health, judgement was not handed down until this year). The husband’s parents, who live just three doors away from the wife in Dublin, gave the same evidence.
Whilst noting that the baby might increase the wife and L’s mutual dependence, the Court also held this was not inevitable. Neither could the Court be certain that the couple would cohabit long-term.
Considering previous case law in the Court of Appeal, the Court reiterated that cohabitation can not be equated with marriage although it can be taken into account in the overall circumstances of a case. The Court called for parliament to decide whether cohabitation, like remarriage, should terminate financial obligations between ex-spouses.
In its judgement, the Court made no account for the pregnancy or the and the wife received spousal maintenance at the rate of £125,000 per annum against the husband’s net income of £435,000.
Can it be right to disregard a wife’s pregnancy with another man, and their relationship, when making a financial order on divorce? Cohabitation is very much the “norm” in the 21st century in a way which could not be envisaged when the present matrimonial law was drafted in the early 1970’s. However, just because the wife was pregnant by L, that does not mean that she will form a settled relationship with him. Equally if the relationship were to end, under present law, the wife would have few financial claims against L apart from his obligation to maintain their child.
This is an issue which parliament must grapple with. The House of Lords considered the draft cohabitation bill in April but reports indicate that progress has stalled. Given the current problems faced by the government it seems unlikely that such a divisive topic will be tackled, especially before the next election.
Katharine Vigus