Fisher v Fisher [1988] EWCA Civ 4 (21 December 1988)

Fisher v Fisher [1988] EWCA Civ 4 (21 December 1988)

The court held that the existence of Richard, a child not of the marriage, was a relevant circumstance affecting the wife's ability to work and could be considered in assessing her need for maintenance. The court rejected the argument that voluntary choices reducing earning capacity must be ignored, and affirmed the registrar's and judge's exercise of discretion under s.31(7) to continue periodical payments, subject to future review. The appeal was dismissed.

Citation
[1988] EWCA Civ 4
Parties
Petitioner (respondent): Janet Sylvia Eileen Fisher; Respondent (appellant): John Harry Fisher
Jurisdiction
England and Wales
Judgment Date
21 December 1988
Procedural Posture
Appeal (family Law Ancillary Relief) / Court of Appeal Judgment on Appeal From County Court Order Varying Periodical Payments
Outcome
Appeal dismissed with costs.
Legal Topics
Ancillary Relief, Periodical Payments, Variation of Maintenance Orders, Clean Break Principle, Discretion Under Matrimonial Causes Act 1973 S.31(7)
Family Law Ancillary Relief Periodical Payments Variation of Maintenance Orders Clean Break Principle Discretion Under Matrimonial Causes Act 1973 S.31(7)

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Parties

Janet Sylvia Eileen Fisher

Petitioner (respondent)

John Harry Fisher

Respondent (appellant)

Procedural Posture

Appeal (family Law Ancillary Relief) / Court of Appeal Judgment on Appeal From County Court Order Varying Periodical Payments

Legal Issues

  1. 1 Whether the existence of a child not of the marriage (Richard) can be considered in assessing the wife's earning capacity and the husband's liability for periodical payments under s.31(7) of the Matrimonial Causes Act 1973 as amended
  2. 2 Whether the court should impose a 'clean break' or limit the duration of periodical payments

Ratio Decidendi

The court held that the existence of Richard, a child not of the marriage, was a relevant circumstance affecting the wife's ability to work and could be considered in assessing her need for maintenance. The court rejected the argument that voluntary choices reducing earning capacity must be ignored, and affirmed the registrar's and judge's exercise of discretion under s.31(7) to continue periodical payments, subject to future review. The appeal was dismissed.

Court Disposition

Appeal dismissed with costs.

Orders

  • Registrar's order for periodical payments to the wife and child Jonathan affirmed, subject to review on further application.
  • Costs of the appeal, including costs of the adjourned hearing, awarded against the appellant.