Remarriage And Maintenance Orders

So is there life after divorce? The answer is yes but for many this can be affected by ongoing 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 1973and the question will be whether an application to vary would succeed following a remarriage to take account of the new financial responsibilities.

The basis of such an application to vary maintenance payable under a court order is changed financial circumstances. Having a second wife and the financial obligation flowing from this will very much fall into that category. The question which will arise therefore is how, if at all, should the financial commitment to the second wife affect the courts assessment of the need to support the second 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 husbands 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". What is well established is that there is no principle of prioritisation of 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 equally, the husband's legitimate and reasonable financial responsibilities towards his second wife and family must be taken into account. In practice this may not be easy and the balance required not easy to achieve.

In Slater v. The husband is proper and reasonable financial responsibilities for his second wife and family will be taken into account. The court will not ignore the legitimate financial claims of a first life. 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 on matrimonial ancillary relief orders was recently considered by the Court of Appeal in the case of Vaughan v Vaughan [2010]. it is well-established that there is no general principle of prioritisation of a former wife's entitlement to maintenance over those of a new wife. The second wife impact will be relevant where. In this case the first wife was appealing an order made by the lower court which discharged a periodical payments order made 20 years before in the divorce proceedings. 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. it is clear that an application to vary a spousal maintenance order will turn on its individual facts and as such there is no clear precedent to follow: the second wifes 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.

by: Andrew John

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