Divorce and the Second Wife (or Husband)

Life after divorce?

So is there life after divorce? The answer is yes, but for many this can be affected by on-going financial obligations from an earlier marriage. Statistics show that remarriage is usual and that thoughts of ‘once bitten, twice shy’ do not last. What will be the effect, however, of having a second wife and a new family on maintenance, that has to be paid to a first wife?

Orders for periodical payments made in divorce proceedings can be varied by application under section 31 of the Matrimonial Causes Act 1973. The basis of such an application is changed financial circumstances and having a second wife will very much fall into that category. The question which will arise therefore is how, if at all, the financial commitment to the second wife should affect the courts’ assessment of the need to support the first wife. Dependent upon this assessment will be a decision to terminate the periodical payments, vary them, or possibly substitute a lump sum or other order.

The law has always accepted that new relationships bring with them new financial responsibilities. It has also accepted that there has to be a life after divorce and that a husband is fully entitled to look for the happiness which a new relationship can bring. The traditional view was explained in the 1991 case of Delaney v Delaney as the husband’s entitlement being to ‘order his life in such a way as will hold in reasonable balance the responsibilities to his existing family, which he carries into his new life, as well as his proper aspirations for that new future’.

Ex-wife’s claims over those of the new wife

What is well established is that there is no principle of priority with an ex-wife’s claims over those of the new wife. In 1970, the Divisional Court held that no primacy could be given to the claims of a first wife, but rather that ‘on general principle, a spouse must on marriage….be presumed to take the other subject to all existing encumbrances, whether known or not’.

Equally however, the court will not allow ‘any notion that a former husband and extant father may slough off the tight skin of familial responsibility and…slither into and lose himself in the greener grass on the other side…’ (Delaney). The legitimate financial claims of the first wife will not be ignored. But the husband’s legitimate and reasonable financial responsibilities towards his second wife and family will be taken into account. In practice, this may not be easy and the balance required not easy to achieve.

In Slater v Slater and Another, the court considered the impact of a second wife in reverse, asking to what extent her resources were relevant to the discretionary exercise. The Court of Appeal determined that the financial position of the second wife had relevance to the extent, firstly, that her resources could ameliorate the husband’s financial obligations to his second family and, secondly, that the whole financial position of the second family should be accounted for when considering the net effect of any order on the husband. However, such an assessment would not extend to ‘treating the second wife’s income as a joint fund together with the husband’s income, out of which the first wife [would be] entitled to draw her entitlement…’

The second wife impact

The second wife impact on matrimonial ancillary relief orders was  considered by the Court of Appeal in the case of Vaughan v Vaughan [2010]. Here wife number one was appealing against an order discharging a periodical payments order made in 1989. The wife was in her mid-60s and the husband (who just happened to be a successful barrister) had turned 70 and was in poor health. Both owned valuable properties and had private investments and pensions.

The decision of the appeal court showed the need to strike a balance between the shackles of obligation and the freedom and anticipation of a new relationship. What was made clear is that the second wife impact is relevant where:

• the second wife’s own financial position assists to allow the husband to meet all his financial obligations past and present, and
• the ultimate net effect of any order for periodical payments on the husband, taking account of the reality of his circumstances and obligations within his new family.

The influence of any ‘second wife impact’ cannot extend to give priority to one claim over another, albeit that in certain cases it may be that the husband’s reasonable and fair obligations to his second wife are ordered in such a way that, in effect, his decision to remarry does give primacy to his new family.

The court will always find decisions such as here a delicate balancing exercise. Each case will turn on its individual facts and as such there will be no clear precedent to follow.

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