X v Y (maintenance arrears - cohabitation) [2012] EWCC 1 (Fam) (13 February 2012)

X v Y (maintenance arrears - cohabitation) [2012] EWCC 1 (Fam) (13 February 2012)

The appellate court found that the Family Proceedings Court erred by rigidly applying the eight-factor checklist from Kimber v Kimber as if exhaustive and by mischaracterising the financial arrangements regarding 1 New Street. The evidence demonstrated that the wife and Mr A were cohabiting by February 2011, including joint financial arrangements for housing, a stable and permanent relationship, and significant time spent together. As a result, the wife's entitlement to periodical payments had ended, and the enforcement proceedings for arrears must be dismissed.

Citation
[2012] EWCC 1 (Fam)
Parties
Appellant/husband: X; Respondent/wife: Y
Jurisdiction
England and Wales
Judgment Date
13 February 2012
Procedural Posture
Family Law Appeal / Appeal From Family Proceedings Court Order Enforcing Arrears of Periodical Payments
Outcome
Appeal allowed; order of the Family Proceedings Court set aside; enforcement proceedings dismissed.
Legal Topics
Spousal Maintenance, Cohabitation, Enforcement of Maintenance Orders, Appeal Procedure
Family Law Spousal Maintenance Cohabitation Enforcement of Maintenance Orders Appeal Procedure

Case Brief

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Parties

X

Appellant/husband

Y

Respondent/wife

Procedural Posture

Family Law Appeal / Appeal From Family Proceedings Court Order Enforcing Arrears of Periodical Payments

Legal Issues

  1. 1 Whether the wife was cohabiting with Mr A for more than six months within twelve months, thereby terminating her entitlement to periodical payments under the consent order; Whether the Family Proceedings Court correctly applied the law and facts in determining the existence of cohabitation; Whether the enforcement of arrears was proper in light of the alleged cohabitation

Ratio Decidendi

The appellate court found that the Family Proceedings Court erred by rigidly applying the eight-factor checklist from Kimber v Kimber as if exhaustive and by mischaracterising the financial arrangements regarding 1 New Street. The evidence demonstrated that the wife and Mr A were cohabiting by February 2011, including joint financial arrangements for housing, a stable and permanent relationship, and significant time spent together. As a result, the wife's entitlement to periodical payments had ended, and the enforcement proceedings for arrears must be dismissed.

Court Disposition

Appeal allowed; order of the Family Proceedings Court set aside; enforcement proceedings dismissed.

Orders

  • The enforcement proceedings for arrears of periodical payments are dismissed.
  • The wife's solicitor is directed to provide copies of this judgment and the Deed of Trust to the senior officer in charge of the housing benefit office at the relevant council and confirm compliance to the court and the husband.