Cook v Cook
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE NEILL,LORD JUSTICE RALPH GIBSON |
| Judgment Date | 30 October 1987 |
| Judgment citation (vLex) | [1987] EWCA Civ J1030-3 |
| Docket Number | 87/1064 |
| Court | Court of Appeal (Civil Division) |
| Date | 30 October 1987 |
NEILL AND RALPH GIBSON, L JJ
Divorce – financial provision – consent order – wife having sexual relationship with another man – relationship known to husband – wife failing to disclose intention to cohabit – whether change in circumstances – whether change of a nature to invalidate basis on which consent order made.
The parties were married in 1978. There were three children of the family. In 1985 the parties became friendly with another married couple, Mr and Mrs M, and after a short time the two couples changed partners. The husband left the matrimonial home and went to live with Mrs M. The former matrimomal home of Mr and Mrs M was sold and the proceeds shared between them. The husband and Mrs M bought a new house where they lived with Mrs M's two children. Mr M also bought a new house for himself. The wife continued to live at the former matrimonial home with the three children of the marriage. The wife and Mr M did not live together but they continued to have a sexual relationship. There was no attempt to conceal this relationship and it was known to the husband. In 1986 the wife obtained a divorce and an application was made for a consent order. By s 76A of the Matrimonial Causes Rules 1977 (as amended) the parties were required to state, inter alia, whether they intended to marry or cohabit with another person and the wife stated that she did not so intend. A consent order was made, on the basis of the information given by the parties, on 15 December 1986. The principal terms of the order were that the husband would transfer to the wife his interest in the former matrimonial home, the wife's claims for financial provision were dismissed, and payments were ordered for the children. Soon after the order was made the husband discovered that the wife's statement as to her intentions of cohabitation was inaccurate. He obtained leave to appeal out of time and applied that the wife's application for ancillary relief be reheard by a Judge on appeal on the ground that the wife had wrongly stated that she had no intention of cohabiting with another person and that, in fact, she did shortly afterwards start to cohabit with Mr M; and that, therefore, there was a change in circumstances which invalidated the basis on which the consent order had been made. The Judge found that there had been a change in circumstances but that they were not such as to invalidate the basis upon which the order had been made.
The husband appealed.
Held – dismissing the appeal: An appeal against a consent order would be entertained only if, amongst other things, new events had occurred within a relatively short time since the making of the order which invalidated the basis on which the order was made: see Barder v Caluori [1988] AC 20. Also, failure to make full and frank disclosure would lead to a consent order being set aside only where the absence of full and frank disclosure has led to the court
[1989] FCR 138 at 139
making an order substantially different from the order it would have made if such disclosure had been made: see per Lord Brandon in Livesey v Jenkins [1985] AC 424 at p 445. In this case, there had not been a complete change of circumstances. It was the development of an existing relationship which was known to the husband. The Judge had all the material necessary to conclude that, despite the change in circumstances, there was no real likelihood that a new order would be made. The Judge was fully entitled to come to that conclusion and it was not a case where the court should interfere with the Judge's decision.
AppealAppeal from His Honour Judge McCreery sitting at Portsmouth county court.
Janice Brennan for the husband.
Anne Ralphs for the wife.
LORD JUSTICE NEILL.This is an appeal by a respondent husband in divorce proceedings from an order of His Honour Judge McCreery made on 27 May 1987. By that order the Judge gave the husband liberty to appeal out of time but dismissed his application for a rehearing of the petitioner wife's application for ancillary relief.
The husband and the wife were married on 20 Sepember 1975. There are three children of the family, now aged 9, 7, and 4½. In the spring or summer of 1985 the parties met, and became friendly with, a Mr and Mrs M. At that time the matrimonial home was in Purbrook, Hampshire. The relationship with Mr and Mrs M became closer, and after a short time Mr and Mrs M and the Cooks changed partners. The husband (Mr Cook) left the matrimonial home and went to live with Mrs M. During the following year, 1986, what had been Mr and Mrs M's house was sold, the proceeds being divided between Mr and Mrs M. The husband and Mrs M bought a new house from her share of the proceeds of sale of the former M house, and there, as far as we are aware, the husband and Mrs M live with the two children of that other marriage.
Meanwhile, however, it seems that the relationship between the wife and Mr M had cooled. Mr Mbought a new house for himself with his share of the proceeds of sale of the former M house and the wife continued to live at the former matrimonial home with the three children. The wife started divorce proceedings in November 1985; a decree nisi was pronounced on 21 April 1986 and the decree was made absolute on 5 June 1986.
In August 1986, however, the close friendship between the wife and Mr M was resumed. The wife and Mr M were living in their separate houses but, according to the evidence, they were having intercourse together about twice a week. The Judge found that the wife made no...
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Wetz v Wetz
...the Barder principle. Thus the ripening of the wife's known friendship into a full-scale cohabitation did not suffice in Cook v Cook [1988] 1 FLR 521, still less did her remarriage in Chaudhuri v Chaudhuri [1992] 2 FLR 73: although not foreseen it was clearly foreseeable, as it is after alm......