The second wife and spousal maintenance orders

The blessings of a second (or maybe the third or fourth) marriage can be marred by the financial obligation holding over from a previous marriage. The new family will not take lightly to the financial demands of an earlier wife and will demand efforts to bring these commitments to an end.

Applications to vary maintenance and periodical payment orders can be made either to the family court in the divorce proceedings.  The question will then arise is of the effect of the financial commitment to the second wife and the new family and how this should impact on the divorce courts earlier order for the support of the first wife.

The reality of changed circumstances

The law has always accepted the reality of changed circumstances, new relationships and new financial responsibilities. There has to be a life after divorce. The established position as of 10 years ago was that a husband was entitled ‘ to order his life in such a way as would hold in responsible balance the responsibilities of his existing family, which he carries into his new life, as well as his proper aspirations for the new future ‘.

The courts have consistently refused to prioritise one wife’s claim over another. The legitimate financial claims of a former wife will not be ignored but equally the husband’s legitimate and reasonable financial responsibilities towards a new life and family have to be taken into account. In marvelously flowery language it has been said that the court would deprecate any notion that a husband and father might slough off the tight skin of family responsibility and slither into and lose himself in the greener grass on the other side.

In earlier cases the courts have held that on remarriage a second wife must be presumed to take the husband subject to all existing encumbrances whether known or not and these will include obligations to support an earlier family.

In one enlightening case (Furness v Furness) the Court of Appeal allowed an appeal by a husband who by virtue of an order for periodical payments to his first wife, would have been forced to sell the family home purchased with his second wife. After the husband’s remarriage, he found a new and better job and was able to purchase a very nice home for his new Wife and family. The first wife continued to live a pretty miserable life in a council house.

The decision at first instance was that it was the husband’s choice to remarry and if he could not afford it then it was his tough luck. This was rejected by the Court Of Appeal. In allowing the husband’s appeal it was held that it was entirely reasonable for him to remarry and purchase a new home with his new wife.

The second wife impact

The second wife impact on matrimonial ancillary relief orders was recently reviewed 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. The effect of a second wife does not extend to prioritise one claim over another. However what was made clear is that the second wife impact is relevant where:

• the second wives 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 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.