CHAPTER FIVE – COMPETING CLAIMS
This is a topic that can often need to be considered alongside that of remarriage. It is raised briefly here in case of use.
The principle from Roberts v Roberts [1970] P. 1, although old, remains good law. It was set out and approved by the court in Vaughan v Vaughan [2010] EWCA Civ 349 as follows, per Wilson LJ at [37-38]:
‘The court (Sir Jocelyn Simon P and Rees J) [in Roberts]
(a) decided, at 3E, to survey the relevance not only of a husband’s moral obligation to support a cohabitant but also of an ex-husband’s legal obligation to support a second wife (on the basis that the claim of the former could not rank higher than that of the latter);
(b) held, at 6E to 8B, that not only an ex-husband’s legal obligation to a second wife but also a moral obligation of a husband or ex-husband to a cohabitant had to be brought into account in assessing the level of his obligation to maintain a first wife; but
(c) held, at 8G, that “on general principle, a spouse must on marriage be presumed … to take the other subject to all existing encumbrances, whether known or not – for example … an obligation to support the wife or child of a dissolved marriage”; but
(d) considered, at 8H to 9F, that English law did not, as did some Commonwealth courts, take the principle to its logical conclusion by affording “primacy” or “priority” to the claims of the first wife; yet nevertheless
(e) concluded, at 5D and 10D, that a decision, such as that of the justices, to give such “priority” to the claims of the cohabitant (or second wife) as virtually to ignore the claims of the first wife was plainly wrong.
Any judge-made “principle” of family law enunciated over forty years ago requires rigorous scrutiny in case changed social conditions have rendered it obsolete. But I see no reason to conclude (and Mr Mostyn did not argue) that the principle enunciated in the case of Roberts and quoted at [37(c)] is obsolete. It has been applied in a few reported cases, albeit themselves also now old, and it remains in the textbooks. But what was and is its effect? In the interests of realism and practicality the Divisional Court muffled it. And, to the muffling of it, we should certainly still subscribe. One may conclude with confidence only that the court should always have the principle in mind; that it should give effect to it where it reasonably can; and that, although it should not go so far as to give priority to the claims of the first wife, it should certainly not give priority to the claims of the second wife.’
The other helpful authority on this topic is Cameron-Webb v Cameron-Webb (No 2) [1982] 3 FLR 389, which provides guidance about how practically to proceed where there are two, likely competing, spouses with live claims.
The court in Cameron-Webb held that when considering wife/spouse one’s application for financial provision, section 25 MCA required the court to take into account the actual and foreseeable obligations of the husband – and so to take into account the position of the wife/spouse two too, and the husband’s obligations towards her. The FLR summary states:
‘If the applications were heard separately the court might have to rely on evidence which was untested by one party, the husband or his accountants might give differing evidence at each hearing, matters relevant to one application might come to light in the other, and the court might be driven to reach different values.
The wives’ interests were similar and the husband’s assets were substantial enough to avoid putting the wives in an adversarial position as between themselves. In any event such a possible conflict must be weighed against the duty of the court under s.25 of the 1973 Act and the need to do justice between the husband and each wife. It would be impossible to decide what was fair, just and reasonable between the husband and each wife unless the evidence was considered in its entirety. Accordingly, the two applications would be consolidated.’