The real fly in the ointment

In a written ruling, delivered by Justice Mostyn in a recent divorce case, the High Court judge stated that dating before divorce proceedings are finalised can be a "fly in the ointment" and further warned women specifically to avoid doing it.

The case of AB v CB concerned a couple in their forties who had an adopted child. The mother was a journalist in full-time employment, although she was not wealthy in her own right. Conversely, the father, although not working, had inherited a significant amount of money from his family, leaving his finances in a very comfortable position indeed. Prior to the completion of divorce proceedings, the wife had become involved in another relationship. She was not living with her significant other but also failed to bring the relationship to the attention of the court.

Only through investigations carried out by the husband's legal team was the relationship later discovered and brought to Mostyn J's attention. Describing their relationship as "strong", the judge indicated that although the wife had said she would not be cohabiting with her new partner, he felt it was reasonable to assume that future cohabitation would occur and that this was a natural assumption to make.

"She says she is not going to live with him," he said, "although it is perfectly clear that the relationship is strong. One cannot make assumptions, if it is not full-blown cohabitation akin to marriage, that it will grow into that, because if it does not, the wife may be left stranded between Scylla and Charybdis if the assumption is wrongly made. On the other hand, if one makes a needs assessment on the basis that she is a single woman and she soon cohabits, then the paying party...can rightfully feel significantly aggrieved."

The judge concluded it would be wrong to make a ruling that viewed the wife as a single woman, since if she were to cohabit soon after
the divorce, the husband would be right to feel aggrieved. However, the preceding text in the ruling did put across the opposing argument by stating it would also be wrong to assume the new relationship would end up as something like a marriage. It went on to signal that judges could not refuse the wife financial relief just on this basis, since if she did not go on to cohabit, she could end up in financial difficulties as a result of the judge's incorrect assumption.

Having weighed up each side of the argument, Mostyn J awarded the wife in the case concerned a substantial payment of £250,000. He did, however, concede that this award was less than what he would have awarded had the wife been single. However, he thought that in the light of her current circumstances, including her new relationship, this amount would suffice to cater for her needs.

The ruling received a lot of media attention, for example in The Telegraph and the Guardian, with many commenters viewing the judge's ruling as words of warning to women that they risk losing out financially if they begin dating before divorce proceedings are settled. Suffice to say the reality is slightly more nuanced than that.

Candid comments

Although Mostyn J's ruling does not go as far as suggesting that women should not get involved in another relationship, it was nonetheless extremely candid when it came to highlighting the influence a new relationship might have on the decision of a judge when regarding the division of finances.

Louise Halford, partner at Irwin Mitchell and practising in family law, said she was uncertain as to how Mostyn J was so sure their relationship was not a flash in the pan, and added that his assumption in this case may have been "a bit of
a reach."

A bit of a reach it may have been, but judges undoubtedly face difficult dilemmas in such cases. The judge's decision, in any financial remedy proceedings, is always based on both parties' needs and, in cases with such high sums involved, there is unlikely to be any dispute over needs being unsatisfied (the claimant's £250,000 settlement is what most working people could expect to earn in a decade, given average salaries in the UK).

In the majority of divorce cases in the UK, the issues will boil down to maintenance payments and this is assessed on an ongoing basis, subject to the claiming party's situation. If the claimant were to cohabit with their partner at a later date, then maintenance payments would be adjusted accordingly.

Financial remedy proceedings, previously known as ancillary relief proceedings, are more absolute by nature. Many in the media have suggested that Mostyn J's "fly in the ointment" comments were akin to a public warning to women not to start dating before divorce proceedings have been wrapped up. This is a
bit of a stretch.

The judge was instead trying to highlight the extra dimension such relationships bring to divorce proceedings, especially where large sums of money are involved and especially when there is, in the judge's view, a likelihood of future cohabitation.

Mostyn J faced the dilemma of having to ascertain whether the claimant's current position, which was kept secret from the court, would play a part in her future needs and this could only be assessed through the likelihood of her cohabiting with her new partner in the future. If he ruled the relationship to be 'strong', as in this case, then it could rightly be assumed that her needs would be diminished and that the husband in the case could feel rightly aggrieved financially, if he'd failed to take this into account. Conversely, if the relationship were to break down, then the reverse could be true.

Rebound relationships?

The question arises, though, of how any new pre-divorce but post-separation relationship can be reasonably assessed, given the mental and emotional strains on either a man or a woman going through a divorce (as this ultimately can swing both ways). It is not unreasonable to assume that many people can start up fleeting but ostensibly passionate and healthy relationships at such a tumultuous time, as a form of comfort. Indeed, the term ‘rebound’ is >> essentially shorthand for this tendency. 

For judges to factor in these complex considerations when ascertaining whether a new relationship is “strong” or merely a rebound may well have been quite a stretch, but they are duty bound to do so when the individual situation of each party has to be taken into consideration. 

How Mostyn J came to the conclusion that he did is not clear, but it is understandable that the claimant's decision to keep the relationship from the court may have played a role in deciding the settlement figure and, at the least, will have undoubtedly gone against her.

Ultimately, the case highlights the fluidity and unpredictability of relationships, and how the judiciary are often at pains to accurately predict the strength of any new relationship in the context of awarding financial settlements to an individual who is attempting to finalise the equitable dissolution of an old one. Love and the fragility of some relationships aren't easy to account for in this framework, but legal judgments in financial remedy proceedings must always take into account every financial potentiality and the potentiality of cohabitation with a new partner definitively qualifies, regardless of how difficult it is to accurately predict.

Whether Mostyn J's decision in this instance was ultimately the right one is something we'll never know, but he was right to highlight the complexity and uncertainty such relationships bring to divorce proceedings. While some may have taken his comments to be a warning aimed at women, it's fairer to say he was trying to shine a light on the issue, advising both women and men to mitigate the eventuality, while perhaps tacitly conceding the fact that relationships formed at this legally delicate period will inevitably continue to be a feature of financial settlements in divorce cases such as this.

Much wider commentary on the subject seems to have missed this bigger picture. While the new relationship is clearly a significant factor in this ruling, in any divorce case numerous circumstances must be taken into account.
The presence or otherwise of a new relationship should not, and will not, be the only factor
that a judge will take into consideration when making a ruling on the final settlement, but conversely it is not something that can be ignored either.

Whether a ruling like this would have been made fifteen or even ten years ago is uncertain. Nowadays internet dating has well and truly shaken off the stigmas once attached to it and both men and women are directly or indirectly encouraged to move on. Perhaps in this light the ruling could be seen as a sign of the times.

The legal reality is more nuanced, though. Judges, and consequently lawyers, can find themselves caught between the practical considerations of financial remedy proceedings and the often impractical realities of real
people's lives.

When a marriage has been breaking down for years, both parties may have very little feeling or emotion towards each other and moving on could be a very natural step that may often occur before proceedings are concluded.

Mostyn J's ruling was not about the wife moving on: it was about her needs and it is extremely important to make this distinction (something the press failed to grasp entirely). The wife's needs in this case could be regarded as greatly diminished if she were to be cohabiting with a financially secure partner in the imminent future, but as I've already said the same could be true if the roles were reversed. The point here is that it is beholden on any judge to take this into account and it should therefore be something on every family lawyer's radar as well. SJ

Muna Saleem is an associate solicitor with family law firm, Crisp & Co