KG v NB  EWFC 16028 September 2023
Published: 07/11/2023 11:12
HHJ Willans. Application by H to vary periodical payment term found in a consent order dated 26 March 2019 ('the 2019 order').
W resides at the FMH with the two children of the marriage (aged 15 and 17 – 2023).
In early 2020 W formed a relationship with the cohabitee. By the time of the application, W and the cohabitee had been living together for three years. The cohabitee inputs c.£1068 per month to the family budget, assisted W with legal costs and contributed to reducing the mortgage. W and cohabitee had been engaged since March 2021, although deny plans to marry.
The orders. The relevant periodical payment term from the 2019 order:
- H to pay W maintenance at £1500 per month until 28 March 2027;
- From 28 March 2027 H to pay W £1250 until 28 March 2036;
- Payments terminate 28 March 2036 with a clean break and s 28 bar preventing extension to the term.
In 2021 the parties returned to court and reached consent terms ('the 2021 order') varying terms of 2019 order. Variation of the 2021 order principally concerned the FMH. The 2019 maintenance term (i–iii) remained in force.
- When considering change of circumstances is the court required to view this from the perspective of the 2019 or 2021 order?
- Does W have an improved earning capacity when compared to the date of the consent order?
- To what extend should the maintenance award be recalculated in light of the role of the cohabitee having regard to his resource?
- Can the court assess a future time when the maintenance needs will further change?
- The ability of the applicant to meet the existing maintenance award?
Power to vary an existing order (s 31(1) and (2) MCA 1973). The court should have regard to all the circumstances of the case, including any change in circumstances to which the court would originally have had regard since the making of the 2019 order, notwithstanding variation per the 2021 order. Consideration should be made as to whether a clean break can be effected without causing undue hardship to the receiving party.
NB. The court’s discretion in such cases has been described as ‘unfettered,’ however, principles governing an original consent order should not be interfered with.
Cohabitation. HHJ Willans viewed cohabitation as ‘dynamic rather than static in character’; . HHJ Willans was not compelled by notions of conduct as, per Waterhouse J, it would be an ‘unjustified fetter on the freedom of the [party] to lead her own life as she chooses following the divorce’ (i.e. decision not to marry cohabitee – Atkinson v Atkinson  Fam 93). HHJ Willans cannot recall sight of any judgment since Atkinson in which a decision not to marry has been held as conduct (per 25(2)(g) MCA). Rather, cohabitee’s financial role is more properly understood as a change in resources for the party since date of original order (s 25(2)(a) MCA).
The 2021 process did not ‘meaningfully engage’ with the maintenance issue and it would therefore be artificial to suggest it amounted to a resetting of the maintenance obligation; . The relationship between W and cohabitee shows a high level of commitment and is of significance; . Cohabitee is contributing a fair and appropriate balance to the domestic economy; any expectation of further contributions is not appropriate; . W’s earning capacity did not carry such weight as suggested by the applicant; . H can afford the maintenance as his finances in the 2019 order were set at a similar level to those at present.
HHJ Willans delineates his judgment into two periods:
- Period 1: Through to 2026 (sale of property);
- Period 2: After 2026 (following the sale of property).
Period 1. Cohabitee contributing at an appropriate level and needs cannot be further reduced beyond available income resource. It is accepted that the global income into the home has increased but it has been offset by increasing costs (>10% inflation) with the net effect that W and cohabitee are living just within their resources.
Period 2. Likely on balance that W and cohabitee would pool their resources to fund a mortgage free property. Mortgage obligation falling away would allow for finances to improve. Costs would reduce by around £1,126 (current mortgage). Reasonable to assume i) reduction in living costs ii) older child less dependent, and; iii) all children less reliant. This will culminate in reduced needs (taken globally for W and cohabitee).
There is no justification for a phased reduction between summer 2026 and April 2027 and a single adjustment can be made:
- Maintenance shall continue at current rate pending 2026 reduction;
- Upon youngest child leaving secondary education (no later than 1 September 2026) maintenance reduces to £750;
- Continuance of £750 until s 28 bar in 2036; and
- £ for £ reduction for any PIP award received; .
NB. HHJ Willans considers the natural focus in such variation applications will be on changes, so as to avoid a variation application being an appeal by the ‘back door’; .