Fleming v Fleming
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE THORPE,LORD JUSTICE JONATHAN PARKER,LORD JUSTICE SCOTT BAKER |
| Judgment Date | 17 November 2003 |
| Neutral Citation | [2003] EWCA Civ 1841 |
| Docket Number | B1/2003/0520 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 November 2003 |
[2003] EWCA Civ 1841
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NEWCASTLE UPON TYNE COUNTY COURT
(HIS HONOUR JUDGE TAYLOR)
Royal Courts of Justice
Strand
London, WC2
Lord Justice Thorpe
Lord Justice Jonathan Parker
Lord Justice Scott Baker
B1/2003/0520
MR ROBIN SPON-SMITH (instructed by Sinton & Co of Newcastle upon Tyne) appeared on behalf of the Appellant
MR JAMES RICHARDSON (instructed by Mincoffs of Newcastle upon Tyne) appeared on behalf of the Respondent
The parties to this appeal are 49 years of age. They both qualified as dental surgeons in 1978 shortly before their marriage on 2 September. There are four children of the marriage now aged respectively 24, 21, 17 and 14. The parties separated in September 1995 after 17 years of marriage. The husband petitioned for divorce shortly after the separation. A decree was pronounced on 3 March 1997 and an ancillary relief consent order was made on 15 December 1998. The order provided for the division of properties between the parties and for the payment of £1,000 per month by way of periodical payments to the wife until 20 December 2002. The order was made by a district judge in the Newcastle upon Tyne County Court. The circumstances in which the order came to be made have not been other than briefly explored at today's hearing.
Neither Mr Spon-Smith who appears for the appellant husband, nor Mr Richardson who appears for the respondent wife acted in December 1998. The solicitors have had conduct throughout, but we have not been shown any material from their respective files to establish the basis upon which the order was made. Mr Richardson suggests, on instructions, that the compromise was reactive to some sort of comment made by the judge. But, for the purposes of this appeal, I proceed on the basis that, absent any particular evidence as to the nature of the compromise, it is to be taken as one that each of the parties and their respective advisers regarded as being a fair disposal. I proceed on the basis also that the district judge must have regarded it as a fair disposal otherwise he would not have made the order that he did.
The order is quite plain: "the husband do pay the wife periodical payments in the sum of £1,000 per month, commencing on 1 December 1998, during joint lives until the respondent shall remarry or until 30 November 2002 whereupon the wife's claim for secured periodical payments shall stand dismissed and the respondent shall not be entitled to make further application." It is to be noted that that form of order did not include an express provision under the terms of Section 28 (1) (a) to the effect that -
"The court may direct that that party shall not be entitled to apply under Section 31 below for the extension of the term specified in the order."
Accordingly on 1 July 2002 the wife exercised her right to apply for an extension of the term provided by the consent order. That application was heard by His Honour Judge Michael Taylor. He delivered an extempore judgment on 25 February. Mr Spon-Smith, who appeared for the husband below, unsuccessfully sought permission to appeal the judge's conclusion that the wife was entitled to an extension of her periodical payments order on a joint life basis, albeit at the reduced rate of £500 per month. Permission to appeal was granted by me on paper.
We have heard today the submissions of Mr Spon-Smith in support of his appeal and Mr Richardson defending the judge. Mr Spon-Smith in his skeleton argument has advanced two points which he contends are points of principle. This is the first: the wife has for many years —indeed, even from the period of her qualification —suffered from a disabling condition which has impaired her ability to develop a professional career to anything like the successful extent that her former husband has achieved. The judge had to make an assessment of what was her present and future earning capacity in the light of expert evidence that had been before the court in 1998 and further expert evidence that was before the court in 2003. He also had to make that assessment on the basis of the wife's evidence, not only in writing but also orally. The judge came to clear conclusions in those fields. Mr Spon Smith in his skeleton argument criticises the judge for having failed to take account of certain passages in the expert evidence which he submits support the conclusion that the wife has not taken responsible steps to minimise the impact of her disability. Mr Spon Smith submits that had the judge correctly assessed the totality of that evidence he would have dismissed the wife's application on the simple basis that her disability was, in reality, self—inflicted.
The second submission which he advances as one of principle is that the judge gave insufficient weight to the settled relationship between the wife and her cohabitee. Its inception preceded the consent order by some 18 months and accordingly had five-and-a-half years of uninterrupted history by the date of the hearing before Judge Taylor. That leads Mr Spon Smith to submit that the decision of this court in Atkinson v Atkinson [1998] Fam 93 requires reassessment. Mr Spon-Smith submits that the increasing tendency of couples to cohabit rather than marry justifies a more rigorous approach to cases involving applicants who...
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