England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice
		6th November 2009

MR. JUSTICE MOYLAN:

1. At this hearing, I have to determine an application by a former wife under section 31 of the Matrimonial Causes Act 1973 and an appeal by a former husband against an interim order made in the course of the wife's application under section 31.
2. For ease of reference, I propose in this judgment to call the parties "the husband" and "the wife" although they were divorced many years ago.
3. The issues raised by the section 31 application are broadly agreed to be:

(a) Should the current periodical payments order be varied and, if so, to what amount?; and

(b) Should the periodical payments order be capitalised and, if so, in what amount? By that, of course, I mean should the court exercise its powers under section 31(7)(a) and (7)(b) of the Matrimonial Causes Act and, if so, how? The amount to which child maintenance should be increased was effectively agreed by the end of the hearing but I have also been invited to indicate the proportion of that maintenance which should be paid to the wife during the child's tertiary education. In my view it is premature to deal formally with this latter issue, although at the end of this judgment, if I am nevertheless requested to do so by the parties, I will express an informal indication as to the approach which I would expect the court to adopt at that time.

4. I have heard oral evidence from the husband and the wife, and I have read those parts of the bundles to which I have been referred. I have also received comprehensive written and oral submissions from Mr. Cohen QC, on behalf of the wife, and Miss Boyd, on behalf of the husband.
5. By her open offer, the wife proposes that her periodical payments should be capitalised by the payment of a lump sum of £840,000. She also seeks an increase in the periodical payments payable for the parties' child to £25,000 per annum. By his open offer, the husband proposes that the capitalisation lump sum should be £250,000 or, alternatively, that the wife's periodical payments should be increased to £24,000 per annum. He proposes that child maintenance should be increased to £23,000 per annum, although in her final submissions Miss Boyd increased the amount proposed to £24,000 per annum.

Factual Background

6. The factual background to this application is as follows. The wife is aged 42 and the husband is aged 48. They met in 1996 and started living together in 1997 or 1998. They married on 25th September 1999. They have one child, T, who is now aged 9. The parties separated in November 2001. Divorce proceedings were commenced. A final consent ancillary relief order was made on 6th April 2004.
7. When the parties met, the wife was working as a veterinary nurse and the husband was working as a solicitor. In 1996, the husband incorporated a company ("the Company"), a project on which he had been working for some years prior to this. In 1997 the company began trading. The husband ceased working as a solicitor and from then on worked full-time in the business. In February 2003 there was a management buy-out. The wife left her employment shortly before their child's birth and has not been in paid employment since then.
8. The wife's substantive application for ancillary relief was determined by the consent order of 6th April 2004. A side issue has been raised as to whether the husband gave full and frank disclosure for the purposes of that application and order. The husband's interest in the Company had been valued by an expert accountant, Mr. Walton, in late 2006. In January 2007 the husband had a meeting with the owners of another company called S. This led ultimately to the Company purchasing S in August 2004, in other words, following the making of the consent order. In correspondence, and in Mr. Cohen's skeleton argument, a question has been raised as to whether the husband's failure to disclose the meeting and subsequent developments prior to the final ancillary relief order constituted non-disclosure.
9. In his evidence the husband says that the developments which had taken place prior to the consent order were not sufficient as to merit their disclosure. They were no more than tentative developments and, further, the husband contends that the purchase of S did not affect the value ascribed to his interest in the Company by Mr. Walton.
10. It can be difficult to identify what developments in a company must be disclosed for the purposes of ancillary relief proceedings. At one level it could be said that everything which might have a material effect on the value of the shares in the company should be disclosed. This could easily be wholly impracticable because in many companies such events occur with great regularity. Companies can frequently be looking for or tendering for new business. If successful, the fortunes of the company might change significantly. But, again, it would be unrealistic to expect every tender or business proposal to be disclosed when they might lead to nothing. It would make the whole exercise too cumbersome and expensive. The disclosure line can be a difficult one to draw. However, in the present case, I am satisfied by the husband's evidence that the line had not been crossed so that there was any obligation on him to disclose additional information regarding the possible purchase of S by the Company.
11. The parties' capital resources at the date of the consent order were as follows: the net equity in the former matrimonial home of approximately £130,000; the husband's interest in the Company which had been valued by Mr. Walton as being worth approximately £3.65 million, and a small pension fund. The husband's shares were unrealisable and there was minimal capacity to withdraw capital from the Company. His net income was £127,000 per annum.
12. Under the order, the wife was provided with a housing fund of £478,000 by way of an immediate lump sum of £100,000 and borrowings of £378,000 to be funded by the husband. The husband was required to redeem the mortgage if he disposed of the bulk of his shares in the Company or if he ceased to reside in this jurisdiction. With the capital provided to her pursuant to this order, the wife purchased a property, which remains her home.
13. In addition, the husband was ordered to pay maintenance to the wife for herself at the rate of £18,000 per annum and for T at the rate of £15,600, making a combined total of £33,600. Both were index linked. This total met the wife's then budget. The husband was also ordered to pay school fees and agreed extras. After deducting the sums due in respect of his own and the wife's mortgage of approximately £55,000 and child maintenance, the wife received a substantial proportion of the husband's then remaining net income. As a result of indexation provisions, the payments due under the 2004 order have increased to approximately £21,000 and £18,000 for the wife and T respectively. The husband also undertook to notify the wife 14 days prior to any sale or other disposal of 75% or more of his shareholding in the Company and to redeem the wife's mortgage on such a sale or other disposal.
14. The wife began a relationship with Mr. N in October 2004 and he moved to live with her in her property in January 2005. They have lived together since then. Mr. N has two children from his marriage, who spend just under half their time with him under a shared care arrangement.
15. The husband also has a new partner, called Ms B, with whom he has been in a relationship since 2004. She has a child by a previous relationship. The husband and his partner have a child now aged almost four. They all live at the former matrimonial home and the husband is responsible for maintaining all of them.
16. In November 2006, the husband's Company was sold. This was effected at a propitious time which, combined with other perhaps fortuitous circumstances, led to the Company being sold for an extremely advantageous sum. The husband received a total of approximately £11.4 million net, which was paid as to £9.1 million in December 2006 and the balance of £2.3 million approximately a year later.
17. Notwithstanding the terms of the husband's undertakings in the consent order, the husband did not inform the wife of the sale. On 5th February 2007, the husband's then solicitors wrote to the wife's solicitors stating that the husband was "willing to accelerate the redemption of the remaining mortgage borrowing so that he discharges earlier than anticipated his lump sum obligation under the court order". There was then reference to the fact that a significant penalty would be incurred if the mortgage was repaid prior to July 2008, so it was proposed that the mortgage would be discharged as at that date.
18. The husband has apologised for his failure to comply with his undertakings, stating that he had forgotten about them. This was a regrettable failure, as it has given the wife the impression that the husband was in fact trying to hide the sale of the Company. This impression was compounded because he told the wife he had chartered a yacht when he had in fact purchased it for approximately €3.4 million with part of the proceeds of sale of his interest in the Company.
19. The wife became aware of the sale in the course of 2007. Her solicitors first wrote on 10th September 2007 seeking an increase in the level of maintenance paid both for the wife and for T and seeking the capitalisation of the wife's income claims. The parties were unable to agree and the wife issued a formal application on 20th March 2008. The husband also issued an application on 17th June 2008, seeking a decrease in the level of periodical payments, but this is no longer pursued. The husband has discharged the wife's mortgage pursuant to the terms of the 2004 order and has also discharged the mortgage on his own home in England.
20. On 5th December 2008, the wife's application for an interim variation of the periodical payments orders, to include an allowance in respect of legal costs, was heard by Deputy District Judge Lavelle. The Deputy District Judge increased the periodical payments payable for the wife and for T by £500 per month each for general maintenance, and backdated this increase to July 2008. She also made a costs allowance of £2,500 per month for a defined period.
21. The husband appealed against these orders. On 28th January 2009, King J stayed Deputy District Judge Lavelle's order save in respect of part of the costs allowance. The appeal was due to be heard in May 2009 but was not reached. It was listed again in August 2009 but again could not be heard. This history does not reflect well on the court, and I apologise to the parties for these ineffective listings.
22. On 15th September 2009, Parker J ordered the husband to pay the wife £120,000, by way of interim periodical payments, as a costs allowance. The order provides:

"The said sums shall be paid to and held by the Petitioner's solicitor and used solely for the payment of the legal expenses of this litigation and subject to credit being given against the said sum for any payment made by the Respondent pursuant to the costs order made against him on 7th August 2009 and any adjustment that the trial judge shall make either by reflecting the costs allowance in determining the level of award and/or by way of a costs order."

23. In her affidavit filed in support of her application, the wife has given evidence about her contributions during the marriage, including her alleged contributions in respect of the development and progress of the Company. The husband challenges the wife's evidence and contends both that he had been engaged in developing what became the Company from well before he and the wife met and that, in any event, she made no significant contribution to the business. I fully understand why the husband considered it necessary to answer the assertions made in the wife's affidavit which, in my view, did seek to inflate her role. However, I do not consider that the wife's current claims would be enhanced by the matters on which she sought to rely, in that they would not add to the weight which I would in any event give to her contributions to the welfare of the family prior to the parties' separation and divorce.
24. In her oral evidence, the wife dealt with a number of matters. She described the financial and other assistance she has been given by friends and family, subsidising her and T's holidays. A list of the amounts she received between June 2007 and January 2008 is set out in her replies to questionnaire and totals £14,000. The wife also gave evidence as to the state of her relationship with Mr. N, including that she does not foresee them marrying. They keep their finances separate, save that Mr. N makes a monthly contribution to a joint account which the wife solely manages.
25. Mr. N has provided details of his financial circumstances. His earned income has fluctuated over the years and remains uncertain. At present his income is limited to £1,000 per month, but he hopes that he will shortly obtain a contract which might lead to full-time employment paying £30,000 gross per annum. In addition, he receives maintenance for his children and child benefit. His total current income is in the region of £25,000. He has capital of approximately £130,000 representing what remains of the lump sum he received on his divorce from his wife.
26. As I have indicated, the wife and Mr. N keep their finances separate save that Mr. N has always made a contribution to the household expenses by paying a monthly sum into the joint account. Initially, Mr. N made a contribution of £1,500 per month and the wife also paid in £1,500 per month. In 2008 Mr. N reduced his contribution to £750 per month, as a result of his income decreasing. In July 2009 he increased it to £1,000. It is the wife's case that this contribution broadly matches the amount attributable to Mr. N and his children as included in her budget.
27. Mr. N also gave evidence as to the strength of his relationship with the wife. He described difficulties in their relationship, some of which might be caused by or related to the stress of these proceedings, which have now been continuing for almost two years. He is unsure what the future holds beyond saying that they are trying to make a go of it.
28. In his affidavit, the husband makes plain his view as to the effect which he considers the wife's relationship with Mr. N should have on her claim for periodical payments. He says:

"I have always accepted and fulfilled my responsibilities both towards T and the applicant. I do, however, find it difficult to accept that I should be expected indirectly to maintain the applicant's cohabitee. I find it particularly galling that they consider £500 per month is a fair contribution for himself and his two children, when he does not have to provide for any housing. The reality is that both he and the applicant have moved on from their previous relationships. They are in a settled relationship together and have been so for nearly six years, compared to our two year marriage. I am deeply suspicious about the applicant's protestations that she does not intend to marry Mr. N. Quite clearly it is not in her financial interests to do so whilst I am paying spousal maintenance. I find it difficult to comprehend that after leaving the marriage at the age of 34 and settling into another permanent relationship, I am expected to continue to maintain the applicant for life and at an increased level to what had been agreed five years ago, at a time when she was on her own. I am aware that it is now being said that their relationship is on shaky grounds. At the time of this statement, I am unaware of the precise details but remain very sceptical, given the proximity of the final hearing. In the circumstances, I believe capitalisation may cause a huge injustice. I would be prepared to pay a capital sum if it is significantly discounted to reflect the reality of the cohabitation. Otherwise, I respectfully submit that it would be more appropriate to continue to pay maintenance. I have never defaulted under the order and, given the very short duration of the marriage, the age of the applicant and the history of cohabitation, I submit it would, in all the circumstances, present a fairer solution."

29. In his oral evidence, the husband repeated his disbelief that the wife's new family unit is not required, in effect, to pay its own way. When, he asked, is someone required to take responsibility for their own lives? In essence, he cannot believe that he remains financially responsible for the wife, and asked rhetorically: "When is it going to end?"

Section 31

30. Turning now to section 31(7) of the Matrimonial Causes Act 1973:

"In exercising the powers conferred by this section the court shall have regard to all the circumstances of the case, first consideration being given to the welfare whilst a minor of any child of the family who has not attained the age of eighteen, and the circumstances of the case shall include any change in any of the matters to which the court was required to have regard when making the order to which the application relates, and ­

(a) in the case of a periodical payments... order made on or after the grant of a decree of divorce... the court shall consider whether in all the circumstances and after having regard to any such change it would be appropriate to vary the order so that payments under the order are required to be made or secured only for such further period as will in the opinion of the court be sufficient (in the light of any proposed exercise by the court, where the marriage has been dissolved, of its power under subsection (7B) below) to enable the party in whose favour the order was made to adjust without undue hardship to the termination of those payments."

31. Subsection (7B) provides:

"The court has power, in addition to any power it has apart from this subsection, to make supplemental provision consisting of any of -

(a) an order for the payment of a lump sum in favour of a party to the marriage."

32. Both parties accept and, indeed, contend that the changes in circumstances which have occurred since 2004 justify the court exercising its powers of variation. Both parties have also identified the most significant changes as being the development in the husband's financial fortunes and the fact that the wife has been cohabiting since 2005.

Section 25

33. Turning now to consider the relevant section 25 factors, some of these, such as the age of the parties and the duration of the marriage, do not need repeating.
34. There is a dispute as to how the standard of living enjoyed during the marriage should be described. Putting it simply, it was a standard based solely on the husband's earned income at the level referred to earlier in this judgment (or slightly lower than that because his income had increased between the date of separation and the date of the consent order). Since the husband sold his interest in the Company, it is clear that he has been able to enjoy a standard of living significantly higher than that enjoyed by the parties during the marriage as well as that currently enjoyed by the wife.
35. The husband's current capital wealth totals approximately £9 million. As stated by the husband much of it is not easily realisable but he has cash/equities of approximately

£2.5 million. He is trying to sell the yacht I have mentioned at a very reduced sum but without any success and at present he continues to fund two permanent crew at a combined cost of €7,500 per month. In the schedule produced by Mr. Cohen for this hearing, the husband's total wealth is put at £10.4 million. Whilst this is substantially more than the total given by the husband, it is not a difference which would have any effect on my determination of the issues raised in this case.

36. The husband's income depends in part on how he manages his liquid investments. Currently his total net income is approximately £340,000, subject, I believe, to the United Kingdom non-domicile tax charge. The husband's income needs, including the tax charge but excluding the sums he pays for the wife and T, total approximately £270,000. The husband's school fees obligations, for the three children I have mentioned, currently total approximately £40,000 per year. This will increase next year.
37. The wife's capital consists of her interest in her property, with a net value of just under £500,000. In her evidence she has provided details of her liabilities. She has a bank loan which was incurred in part to pay a sum in respect of her legal costs for these proceedings and in part to fund the purchase of a new car. The repayments are £262 per month and the total capital sum due is in the region of £15,000.
38. The wife seeks a sum to enable her to meet the cost of building works to her property totalling approximately £11,300. These comprise the redecoration of the property and the repair of a conservatory roof. In her affidavit, the wife says:

"T and I continue to live in the same basement/garden flat that I purchased in 2004. The flat is in a poor condition as I have not been able to afford the cost of the required remedial and redecoration works, as can be seen from the photographs [which she exhibits]. I have obtained a quote for the remedial work and redecoration. To meet the bare minimum required would cost £11,385. The conservatory and dining room may need to be fully repaired, which will double the cost. The builder needs to confirm whether the existing sides can take a new roof. The damp may be much worse, which would require more work to cover tanking, which involves taking off the plaster, lining the walls below the ground and replastering and repainting at an approximate cost of £8,000 to cover the rest of the flat. My boiler is 10 years old and I have been advised that I will need to replace it very soon and related pipework/radiators. British Gas have told me that this will cost approximately £4,500."

39. The wife and Mr. N also say that she owes him the total sum of approximately £14,500. This total consists of sums spent by Mr. N on the wife's property, totalling approximately £6,000; the repayment of a loan incurred by the wife for legal fees of £6,000; and a sum of £2,500 paid in January 2009 to clear the overdraft on their joint account. The wife has outstanding legal costs of £11,000 in respect of these proceedings and, as I understand it, £4,000 in respect of proceedings concerning T.
40. The wife's income consists of the maintenance paid by the husband, child benefit of approximately £1,000 per year, and the payment she receives from Mr. N of £12,000 per annum.
41. Turning to contributions, each of the parties made their respective full contributions from 1997/1998 to 2001. Since they separated, they have each continued to make contributions to the welfare of the family by caring for T both financially and otherwise. These contributions will continue for at least another 12 years, when T will be 21, and could well continue thereafter.
42. The wife has a bad back which has an effect on her ability to undertake paid employment.

Authorities

43. I have been referred to a large number of authorities. I propose to cite only some of them, dealing first with those that address the issue of the impact of cohabitation. Both sides accept, as they must, the general proposition that cohabitation does not equate to marriage. In Atkinson v. Atkinson [1995] 2 FLR 356, the Court of Appeal dismissed a husband's appeal against an order made on his application to vary a periodical payments order in favour of his former wife. The husband sought the reduction of the periodical payments order to a nominal amount based solely on the wife's settled cohabitation with another man. The trial judge had reduced the order by 25% to reflect the diminution in the wife's needs resulting from the contribution which the wife's cohabitee would or should be making. The husband's appeal was rejected. Quoting from the judgment of the Court of Appeal, which was given by Waterhouse J:

"I am unable to derive from these cases or from the amended legislation itself any binding authority or persuasive support for the basic proposition on which the husband in the instant case relies, namely that settled cohabitation by an ex-wife with a man should be equated to remarriage, at least whilst it lasts, and should disentitle the ex-wife to anything more than nominal maintenance, whatever the particular financial and other circumstances of the parties may be. In my judgment, it is clear that the wife's cohabitation constitutes a change of circumstance within the meaning of the new section 31(7) of the 1973 Act. I accept also that the cohabitation, the decision not to re-marry and the reasons for it, are conduct which it would be inequitable for the court to disregard within the terms of the new section 25(2)(g) of that Act. In considering any application to vary or discharge a periodical payments order, however, the court must carry out the full exercise required by section 31(7) involving a review of all the circumstances of the case including any change in any of the matters to which the court was required to have regard when making the order to which the application relates. I can find no warrant for equating in this context remarriage with cohabitation -a word which itself presents problems with definition. The effect of remarriage is dealt with separately in section 28 governing the duration of a periodical payments order and the policy that an ex-wife should lose her right to maintenance from her ex-husband on acquiring a new matrimonial status and new matrimonial rights against another man is readily understandable. I do not consider that it is open to the courts to add a gloss to those existing provisions by equating cohabitation, however defined, with remarriage without legislative sanction. The court is invited on behalf of the husband to give decisive weight in the section 31(7) exercise to the fact of cohabitation praying in aid if necessary the concept of conduct, but it is conceded by counsel that a punitive approach would not be appropriate in this case and, in my judgment, that concession is rightly made. The variety of human folly is, of course, infinite and there may well be cases in which an ex­wife's conduct in the context of cohabitation may make it necessary and appropriate that a periodical payments order should be discharged or reduced to a nominal amount. Again, the overall circumstances of the cohabitation and particularly the financial consequences may be such that it would be inappropriate for maintenance to continue, but in general there is no statutory requirement that the court should give decisive weight to the fact of cohabitation. If the court were to do so, it would impose an unjustified fetter in the present state of law on the freedom of an ex-wife to lead her own life as she chooses following a divorce."

I emphasise the passage in the judgment - "the overall circumstances of the cohabitation and particularly the financial circumstances may be such that it would be inappropriate for maintenance to continue" – which makes it clear that the impact of cohabitation is not necessarily confined to its financial consequences.

44. In Fleming v. Fleming [2004] 1 FLR 667, the Court of Appeal was invited to reassess the decision of Atkinson. This invitation was rejected. Thorpe LJ, with whom Parker and Scott Baker LJJ agreed, said that the decision did not call for:

".. re-visitation in the light of whatever social changes there may have been over the course of the last 15 years or so. The judgment of Mr Justice Waterhouse on the point of principle is broadly expressed. His conclusion that cohabitation is not to be equated with marriage remains as sound today as it was then. Equally, it seems to me that the direction that the court, in assessing the impact of cohabitation, should have regard to the overall circumstances, including financial consequences, remains the proper course to be followed. Of course in a case such as this, where the length of cohabitation is now greater than many a marriage that comes before a court for assessment, the range of discretion given to the judge enables him or her to place considerable weight on that circumstance."

45. In K v K [2006] 2 FLR 468, Coleridge J dealt with the issue of cohabitation by saying, among other things:

"I suggest that the court must nowadays grapple with this point [i.e. cohabitation] and factor into its analysis and calculations, not only numerically but in principle, the existence of a lengthy and settled period of cohabitation and the likelihood of its continuing indefinitely. To confine its consideration to the arithmetic only is a judicial fudge, mixing principle with practicality and producing potential unfairness and enhanced forensic uncertainty."

46. Further, when capitalising the wife's award in that case he said:

"The Duxbury model has been approved by the Court of Appeal in the context of these applications to capitalise but it seems to me that at this stage of the calculation the fact that the wife and Mr. B have been in a settled relationship for three years and show every sign of continuing to remain in that state, having become fully involved in each other's financial affairs, must impact on any capitalisation process by way of reduction of the period of dependency. It must amount to a circumstance and/or a change in circumstance as envisaged by section 31(7)(b). If the court were not capitalising, it would be considering closely the length of any ongoing term. Whatever may have been the underlying thought process leading to the original periodical payments order, the cohabitation cannot simply be ignored as if it had not existed and did not exist, as if it was not a circumstance of the case. The wife and Mr. B will probably remain together and they should strive towards financial independence from the husband even if that calls for them each to accept a measure of financial commitment to the other and even some reduction in their overall current financial position, short of undue hardship. Financial commitment is surely an aspect or illustration of overall, including emotional, commitment, whether the coupled be married or cohabiting, so pretending the two are unconnected is unreal."

47. The ultimate award made by Coleridge J in that case reflected a reduction of approximately 20%. He said:

"The reduction is to reflect the shorter period for which the husband should now be expected to support his former wife but takes into account the wife's underlying pension entitlement element from the old order. In rough and ready terms, this is about a 20% reduction for the fact and financial impact of the cohabitation and the financial implications which flow from it. But for the wife's pension entitlement, I would have reduced it further."

48. In H v. H [2009] 2 FLR 795, Singer J declined to follow the decision of K v. K. The parties in that case had lived together for seven years, of which they were married for two, and had a child aged seven. The wife was pregnant by another man with whom she had a relationship but with whom she was not clearly cohabiting. Singer J decided that the wife's relationship and pregnancy did not affect either her capital or income claims.
49. It is clear from these authorities, and is accepted by counsel in this case, that the wife's cohabitation with Mr. N is a factor to which I must give proper weight when exercising my powers under section 31. The parties of course differ as to the weight which should be given, the husband contending that it should be given very significant weight, in particular if I decide to capitalise the wife's income claims, and the wife contending that it should be limited to an assessment of the financial impact of the cohabitation. I return to this issue later in my judgment.
50. I turn now to consider those authorities which deal with variation of maintenance and capitalisation. In Cornick v. Cornick (No.3) [2001] 2 FLR 1240, Charles J determined an application for the capitalisation of an income claim:

"[105] In my judgment White v. White, Cowan v. Cowan confirm and support the approach taken in Cornick (No.2) that the court should consider the whole picture. The earlier cases and Cornick (No.2) show that the court can take into account an increase in the wealth of the payor and that section 25(2)(c), na mely the standard of living enjoyed by the family before the breakdown of the marriage, is by itself not a determinative factor. In my judgment, this approach to section 25(2)(c) accords with the language of the statute and the underlying purpose of section 31. For example, if the payor's available resources decrease dramatically, the payee would not be able to argue successfully against a downward variation because the payee's standard of living would then fall below the standard enjoyed by the family before the breakdown of the marriage. In my judgment, in those circumstances, the payee would be likely to have to suffer the consequences of the inability of the payor to pay as much. It is therefore logical that a payee is not precluded from deriving benefit from an increase in the payor's fortunes, even if this results in the payee enjoying a higher standard of living than she or he did during the marriage.

[106] In my judgment, just as it is on the first application for orders for financial provision, White v. White is clear authority on an application for variation (and for an order for a lump sum on a discharge or variation of a periodical payment) for the following points, namely that (a) the court should not rely on the judicial concept of 'reasonable requirements' as a determinative or limiting factor in cases when a payor has or acquires an ability to pay more than the payee's financial needs, even when they are interpreted generously and called 'reasonable requirements'; and (b) the court should exercise its discretion by applying the words of the statute."

51. In Pearce v. Pearce, [2003] 2 FLR 1144, the Court of Appeal allowed a husband's appeal from a capitalisation award on the basis that the judge should have restricted himself to capitalising the increased periodical payments order and should have abstained from the addition of a substantial uplift when calculating the lump sum award. Quoting from the headnote:

"On dismissing an entitlement to future periodical payments, the court's function was not to re-open capital claims but to substitute for the periodical payments order such other order or orders as would both fairly compensate the payee and at the same time complete a clean break. There was simply no power or discretion to embark on further adjustment of capital to reflect the outcome of unwise or unfortunate investment on one side or prudent or lucky investment on the other."

52. It is then stated that Charles J's comments in [109] and [118] of Cornick v Cornick (No.3) were obiter and erroneous. Continuing with the headnote:

"On these applications for variation and capitalisation, there had been three questions to be decided: (1) what variation, if any, to make in the order for periodical payments; (2) the date from which any variation should take effect; and (3) when to substitute a capital payment calculated in accordance with the Duxbury tables for the income stream being terminated, albeit with a narrow discretion to depart from those tables to reflect special factors generated by the individual case."

Thorpe LJ made it clear, in addition, in the course of his judgment that he was not seeking to impose a straitjacket in particular in respect of the first stage, namely the quantification of maintenance, in respect of which he said the trial judge has a "broad discretion".

53. In the House of Lords' decision of Miller; McFarlane, Charles J's observations in Cornick v Cornick (No.3), which I have quoted, were expressly endorsed by Lord Nicholls. He said:

"The wife's financial needs, or her 'reasonable requirements', are now no more a determinative or limiting factor on an application for a periodical payments order than they are on an application for payment of a lump sum."

54. In addition, Baroness Hale, when dealing with the desirability of effecting a clean break, said that independent finances and self-sufficiency are the aims.
55. In Lauder v Lauder [2007] 2 FLR 802, Baron J heard an appeal from a District Judge who had determined a former wife's application for the variation of a periodical payments order and for capitalisation. Baron J awarded the wife a sum substantially in excess of her budget on the basis that needs were not a limiting factor and having regard to the wife's right in that case to have an element of compensation. She capitalised the sum on a whole life basis without discount.
56. H v. H [2007] 2 FLR 548 is a decision of Charles J when determining a wife's claims for all forms of ancillary relief. In the course of his judgment, Charles J addressed the issue of the extent to which, if at all, future income and earning capacity could be said to be fruits of a marital partnership. He concluded that [87]:

"I do not accept that such contributions by a wife to the family after the end of the marital partnership can generally be said to warrant a conclusion that a proportion of the husband's future income continues to be attributable to the wife's domestic contribution and thus a fruit of the marital partnership."

57. In [86], Charles J had said:

"I, of course, accept that a wife who continues to act as the primary caretaker of the children of a marriage in a separate household continues to make a contribution to the family or the marriage, after the end of the marriage ... In my view so does the husband who continues to meet their financial needs. But as this is looking at the position after the marriage is over these contributions whether described as being to the family or the marriage are not, in my view, contributions to the marital partnership because that is over."

58. Miss Boyd seeks to rely on these passages in support of an argument that a wife's contributions to the welfare of the family after the end of the marriage are in some way matched by a husband meeting a child or children's financial needs. If I have understood Miss Boyd's submissions correctly, however much I look at these paragraphs in Charles J's judgment, I do not see that they support her submissions. Further they do not, in my view, find support from the Matrimonial Causes Act which requires me to arrive at an award which is fair based on, among other factors, the contributions both parties make to the welfare of the family. I must give proper weight to the wife's contributions as a mother and these are not, in my view, in some way negated by the husband's financial and other contributions, valuable though they are.
59. In VB v. JP [2008] 1 FLR 742, Potter P., when determining an application to vary a periodical payments order, addressed the issue of compensation for relationship-generated disadvantage. He said at [59]:

"In my view there emerge from the post-Miller; McFarlane authorities to which I have been referred the following propositions in elaboration of, but consistent with, the House of Lords decision. First, it is at the exit of the marriage and in relation to the division/redistribution of the family assets that the consideration of the element of compensation immediately arises, but as a feature of the concept of fairness rather than as a head of claim in its own right. Second, on the exit from the marriage, the partnership ends and in ordinary circumstances a wife has no right or expectation of continuing economic parity ('sharing') unless and to the extent that consideration of her needs, or compensation for relationship-generated disadvantage so require. A clean break is to be encouraged wherever possible."

60. Earlier in his judgment, the President makes clear that the principle of compensation for relationship generated disadvantage is merely an aspect of fairness. In [45], after the President has quoted from the speeches in Miller; McFarlane, he says:

"These are clear statements of an underlying principle falling for consideration in cases where it is clear that: (i) the parties have arranged their affairs in a way which has greatly advantaged the husband in terms of his earning capacity but left the wife very considerably handicapped in the terms of her own earning capacity; and (ii) the husband is a high earner with a substantial surplus of resources over what is required to meet both parties needs. However, as made clear by their Lordships, while the term compensation is a convenient or appropriate label by which to identify and emphasise the need for an approach which would not preclude a wife from relying on a clear relationship-generated disadvantage in support of a claim for maintenance, it is no more than an aspect of fairness, important to be identified as a strand or step in the thinking of the court when exercising its powers under ss 23 and 25 of the 1973 Act."

61. In the recent decision of Hvorostovsky v Hvorostovsky, a decision of the Court of Appeal on 23rd July 2009, the Court was dealing with an appeal by a wife from an order made on her application for the variation of a periodical payments order. Her appeal succeeded. The Court of Appeal decided that the trial judge had exercised his discretion too narrowly when awarding the wife only a modest uplift on her needs. The judge should have stood back from the figures and assessed the "overall proportionality" or fairness of his award. In the course of his judgment, Thorpe LJ specifically endorses the paragraphs I have quoted from Charles J's judgment in Cornick (No.3). In his concluding comments, Thorpe LJ addresses the way in which the case had been argued, with the focus being on relationship generated disadvantage:

"[38] However, the present case illustrates what seems to be almost a departure from reality in the presentation of the rival submissions. Was an endeavour to assert a relationship-related disadvantage really necessary? The exercise consumed endless pages of written submissions. But the reality was that the wife had given up her career only shortly before its natural close. The suggestion that she was an exile in some foreign land seems to me far fetched. [Then he continues a bit later:] There was no evidence that she had made any sacrifice. She may have been well pleased that her husband's career liberated her from her background. Whatever she gave to him and to the children is aptly assessed under the heading of 'contribution'. That, rather than the relationship related disadvantage is the language of the statute.

[39] Of course, compensation for relationship-related disadvantage may be a very important ingredient in many cases, particularly in the assessment of the original division of capital and foreseeable income. If reflected at that stage it will find its continuing reflection on a variation hearing without fresh assessment.

[40] This seems to me a paradigm variation of an original division of capital and anticipated future income. The wife is a whole life dependent. The fundamental changes of circumstances that must be weighed in the judgment are the changes in the wife's budgeted needs and the changes in the husband's circumstances, here principally his hugely increased earnings and a newly acquired second family. The exercise must be guided by the language of the statute."

62. From these authorities it is clear: (a) that the marital standard of living does not constitute a ceiling in the assessment of a payee's variation of maintenance application, in part because the court can (indeed, must) take into account any increase in the wealth of the payor; (b) that the payee's financial needs are not necessarily a determinative or limiting factor when the quantum of periodical payments is being assessed on a variation application.

Factual Issues

63. Before dealing with the parties' submissions generally, I propose to deal with a number of discrete factual issues, namely (a) the wife's earning capacity; (b) the nature of the wife's relationship with Mr. N; (c) the financial contribution which Mr. N is or should be making to the wife; and (d) the wife's income needs.
64. (a) The wife's earning capacity The wife has no formal qualifications. She has not worked in the labour market for approximately 10 years. She is now aged 42. She accepts that she has an earning capacity but essentially sees herself primarily as a full-time mother for T. She considers that she could earn, currently, no more than approximately £4,000 per annum, increasing perhaps to £6,000 to £7,000 when T is more independent.
65. Miss Boyd cross-examined the wife about her employment prospects. She suggested that the wife should be undertaking training and/or part-time work now, so that she is able fully to take advantage of her earning capacity at the latest by the time T is in the Sixth Form. She took the wife to advertisements in the bundles as examples of what she could earn. For example, an administrative officer working 18 hours per week would be paid between £10,600 and £12,600 per annum gross, although this job required good IT skills. Miss Boyd suggested that if the wife started getting relevant qualifications now and/or obtaining work experience, she could, within a few years, be earning £18,000 per annum.
66. Mr. Cohen submits that the wife is not in a strong position in the employment market. He points, among other features, to the following: that the wife has no qualifications; she has no significant employment history and has been out of the employment market for approximately 10 years; her age; her problems with her back which limit the types of work she can undertake; and that she is still caring for a relatively young child. Mr. Cohen submits that against this background it is hard to see the wife earning more than the figures put forward by her. For the purposes of his calculations, Mr. Cohen has taken an assumed earned income from now of £4,000 per annum and has deducted the whole of that sum from the wife's income needs.
67. The wife undoubtedly has an earning capacity. I do not, however, accept Miss Boyd's submission that the wife will be able to earn £18,000 within a few years. I accept that her earning capacity is, and will remain, limited as a result of the matters referred to earlier in this judgment, in particular the effect of her having been out of the employment market for the last 10 years and her continuing obligations towards T. Further, as Mr. Cohen submits, even if the wife does obtain employment, she would only be able to work for a limited number of years. I take into account the wife's undoubted ability to increase her earning capacity over the next few years by taking the steps suggested by Miss Boyd. However, even taking those steps into account, I consider that the figure proposed by Mr. Cohen, averaging the wife's earning capacity over future years, is a better guide to her actual likely earnings than the figures proposed by Miss Boyd.
68. (b) The wife's relationship with Mr. N I found both the wife and Mr. N to be fair and measured witnesses. I am satisfied that they have not adjusted their evidence for the purposes of these proceedings. I am also satisfied that they do not intend to marry and that this decision has not been significantly influenced by the legal effect on the wife's maintenance claims against the husband of her remarriage. As to the future of their relationship, whilst I accept that there are and have been difficulties, I am satisfied that they have invested a great deal of emotion in their relationship and that they will both seek to make it work. I accept that there are uncertainties but for the purposes of my judgment I consider it more likely than not that they will continue to cohabit, at least for the foreseeable future.
69. (c) Mr. N's financial contributions Miss Boyd submits that Mr. N should be making, or be treated as making, a contribution of at least £13,000 per year and that a more reasonable contribution would be £18,000 per year to include a notional rent. Mr. Cohen submits that the contribution currently being made by Mr. N of £12,000 per year fairly reflects the expenditure incurred for both him and his children as included in the wife's budget.
70. For the purposes of my judgment, I accept that the contribution currently being made by Mr. N means the wife is not to any significant extent subsidising him or his children in direct financial terms from her budget. There also appears to be little prospect of Mr. N being able significantly to increase his financial contribution in the foreseeable future. I do not therefore consider that, in my assessment of the wife's claims, I am in fact requiring the husband to make any financial contribution towards Mr. N or his children, either directly or indirectly.
71. As for the sums said to be due from the wife to Mr. N, I accept Miss Boyd's submission that these, at least in part, and save in respect of the sum paid for legal costs, can properly be viewed as an additional contribution made by him as a result of his and his children's use of the wife's property as a home.
72. (d) The wife's income needs In his final submissions, Mr. Cohen put forward the wife's income needs at £42,000 per annum. This was after deducting the contribution from Mr. N of £12,000 per annum, a currently notional amount in respect of the wife's earnings of £4,000, and a notional amount also of £4,000 from T's maintenance for his part of general items of expenditure, rather than for items specifically included in his part of the schedule. The total before these deductions is £62,000. This figure is taken from the wife's budget for herself, excluding the payments for a pension and for the bank loan.
73. Mr. Cohen further relies on the proposition that the wife's current claim for periodical payments is not to be determined solely by reference to her budgeted needs. He submits that her budgeted needs are a starting point and the court can increase the quantum of the payments to reflect the other circumstances of the case. He submits that, when justified to achieve a fair outcome, the wife's income claims can be fixed at a level above that established by her budgeted needs.
74. Miss Boyd has comprehensively challenged the wife's budget. She points to the way in which the wife's forensic budgets have developed during the course of these proceedings. Her first budget, for herself and T, totalled £62,000 per annum, excluding any allowance for the capital cost of furniture, furnishings and a car. It then increased by stages to £68,000 and finally to £97,000. In addition, in the course of cross-examination, Miss Boyd challenged specific items as being either excessive or as being wholly unreasonable.
75. Miss Boyd submits that a reasonable budget for the wife would be £47,000 and for T would be £15,400, making a combined total of approximately £62,000. Deducting the amount which Mr. N should be contributing, which for these purposes was put by Miss Boyd at £13,000 per year, and child benefit, the balance of £48,000 would require a periodical payments order for the wife of £24,000 and a similar amount for T.
76. I do not propose to address each of the items challenged by Miss Boyd. I accept that some of the items in the wife's budget, when viewed individually, could well be said to be excessive, although not to the extent submitted by Miss Boyd - for example, the sums claimed for replacing furniture and white goods, the contingency fund, and some of the other smaller items identified by Miss Boyd. In my view, however, the husband's case focuses too narrowly on the wife's income claim in purely budgetary terms. The question I ask myself is whether the global sum put forward by the wife is a fair sum for her current and future income needs. Having looked carefully at all the points identified by Miss Boyd, in my view the global sum of £60,000 is fair and just.

Submissions

77. Turning now to the parties' submissions, Mr. Cohen and Miss Boyd have conducted this case, if I might say so, with conspicuous professionalism. They have both argued their respective clients' cases robustly and with determination but also courteously and calmly. I have already referred to parts of their respective submissions. I propose now to do no more than summarise other aspects of their submissions but I have, of course, taken all the matters they have raised into account when reaching my decision.
78. Mr. Cohen submits that since 2004 there have been material changes, in two main respects, which amply justify the level of periodical payments being reviewed. First, he relies on what he says has been a transformation in the husband's resources. He relies on the fact that the husband's resources, both income and capital, have increased substantially and that his wealth has changed from being very largely illiquid. In respect of the husband's income, Mr. Cohen also relies on the fact that as at the date of the 2004 order the husband's income was not only more modest but was also significantly encumbered by mortgage payments both for himself and for the wife, resulting in the wife receiving a substantial proportion of the balance of his net income, especially when added to the payments for T.
79. Secondly, Mr. Cohen accepts that the wife's cohabitation with Mr. N is a material change of circumstances. He also accepts that this is a material factor in my assessment of the wife's claims, both in respect of her income claims and in respect of the capitalisation of those claims. He seeks to confine the impact to an assessment largely of the financial consequences of the cohabitation which, as I have indicated, he submits is broadly neutral.
80. I have already addressed in part the issue of the wife's income claims. Whilst Mr. Cohen bases his submissions on the budget produced by the wife for the purposes of this hearing, he submits that the wife could argue for a significant uplift having regard in particular to the transformation in the husband's resources since 2004. He relies in particular on Charles J's comments which I have quoted from Cornick v Cornick (No.3) as approved by Lord Nicholls in Miller and McFarlane and Thorpe LJ in Hvorostovsky.
81. Mr. Cohen accepts that the wife is not entitled to any share of the husband's current wealth, her substantive financial claims having been determined in 2004. He bases the wife's current claims on her financial needs and her contributions as a mother.
82. Mr. Cohen arrives at a figure for the wife's income claim, as I have indicated, of £42,000 per annum after deducting the contributions made by Mr. N, an amount for her, at present, notional earnings, and a notional allowance for the fact that part of the items included within her budget relate to T. If that sum were capitalised on a straight Duxbury (i.e. for the wife's life) the lump sum would be approximately £985,000.
83. Mr. Cohen submits that, by reducing the capitalised sum the wife seeks to £800,000, he is giving proper weight to the factors relied upon by the husband, in particular the length of the marriage and the wife's cohabitation. In respect of the latter point, he submits that it is not a marriage in all but name and that both the wife and Mr. N regard their primary obligation as being to their own children.
84. A lump sum of £800,000 would, on the basis of Duxbury, produce an income for life of £35,000, below the current level of the wife's income claim. In summary, Mr. Cohen submits that this would be a fair outcome, having regard to: (1) that this sum would provide a "minimum budget" for the wife, discounted from the actual figure of £42,000, and without any element of uplift; (2) that the same result would be achieved by using a higher current budget but later discounted; (3) that it gives proper weight to the wife's earning capacity, the short duration of the marriage, the husband's wealth and the wife's cohabitation.
85. Miss Boyd submits that the relevant factors which impact on the issues raised in this case are - and I quote from her written skeleton argument: (a) under the heading "income and resources of each party" - the fact that the husband's wealth post-dates the marriage, the wife's earning capacity and the impact of cohabitation; (b) under the heading "needs and obligations" - the wife's budget, the husband's obligations towards his partner and other child, the standard of living during the marriage, the age of the parties and the duration of the marriage.
86. In her oral submissions, Miss Boyd focused on the following: (i) that the husband's wealth, or a significant part of it, post-dates the end of the marriage; (ii) the short duration of the marriage; (iii) the wife's earning capacity; and (iv) the wife's cohabitation and its effect both on the quantum of the wife's maintenance claim and on the issue of capitalisation. I have already dealt with aspects of these submissions. Miss Boyd submits that, of the principles identified by the House of Lords in Miller; McFarlane, only those of need and relationship-generated disadvantage could have any potential application to this case. She submits, as is accepted by Mr. Cohen, that the wife has no entitlement to a share of the husband's current wealth.
87. As referred to earlier in this judgment, Miss Boyd submits that the wife's current annual income claim should be fixed at £24,000. This sum is based on her submissions in respect of the budget put forward by the wife for herself and for T and in respect of the contributions, which at a minimum, Mr. N should be making or be treated as making. On the issue of the capitalisation, apart from the factual background of this case, Miss Boyd focuses on the wife's earning capacity and the impact of her cohabitation with Mr. N.
88. As to her earning capacity, Miss Boyd submits that the wife is under an obligation to strive to achieve financial independence. She acknowledges that the wife's earning capacity is currently restricted by her responsibilities as a mother but submits that this is only to a limited extent and will soon cease altogether. She submits that the wife's relationship-generated disadvantage will soon come to an end as she will be in a position to earn what she would have been earning if she had continued as a veterinary nurse.
89. Although I have not made the factual conclusions sought by Miss Boyd, the effect of her submissions, when focused on the wife's earning capacity, seems to me to be that once the wife is able to earn what she would have been earning absent marriage and motherhood, her claim for periodical payments would effectively come to an end. This, Miss Boyd submits, would signal the end of any relationship-generated disadvantage. Whilst, of course, there might be cases where this is a fair outcome, the question I have to address is whether this would be a fair outcome in this case, and in particular whether the wife would be able to adjust without undue hardship to the determination of periodical payments for her. In my view, these are the matters I must determine under the Matrimonial Causes Act rather than by reference to the more limited question of whether any relationship-generated disadvantage has come to an end.
90. In respect of the wife's cohabitation, the primary submission made by Miss Boyd is that, if I were to find that the wife's future relationship is uncertain, it would be unfair and unjust to capitalise the wife's periodical claims as my assessment could prove to be wrong. She submits that, if I am unable to reach any clear conclusion about the nature of the wife's relationship with Mr. N and its likely future, I should not capitalise the wife's maintenance claims. Miss Boyd submits that capitalisation in those circumstances would be unjust and unfair on the husband, as it might be that the wife and Mr. N continue to live together and/or that they might in fact marry.
91. The husband is content to continue to pay periodical payments and wait to see how the relationship in fact develops. This is bound up with his questioning whether the relationship is as uncertain as now alleged by the wife and Mr. N. Although I have already indicated my findings in this case, the difficulty with this argument is, in my view, self-evident. When would it be fair to effect a clean break? The husband appears to contend that it would only be appropriate to effect a clean break when a court could conclude that the wife was in a settled relationship. The problem with this is that this may or may not happen and, further, that such a conclusion is clearly as likely to be proved wrong as a conclusion that the relationship is uncertain. However, having regard to my factual conclusions, I leave this aspect of Miss Boyd's submissions.
92. Miss Boyd's submission, in the event of capitalisation, is that the wife's periodical payments should be capitalised by reference, largely, to the remaining years of T's minority. She has therefore applied a multiplier of approximately 10 to her maintenance figure, which she submits would allow for some tapering off after T has reached the age of 18. This submission is, of course, undermined to a certain extent by my conclusions as to the wife's current and future earning capacity but the general submission still applies, namely, that capitalisation should be largely by reference to the wife's needs during the balance of T's minority.

Conclusions

93. Turning now to my conclusions, I first make clear that I have given no weight to a number of smaller issues raised on behalf of the wife.
94. The first issue I propose to address is whether I should capitalise the wife's income claims. The case in which there is no element of uncertainty will be rare. Uncertainty is not in itself a reason for postponing adjudication and not, in my view, in itself a reason for refusing to capitalise an income claim unless the uncertainty is such that a fair outcome cannot be achieved until the uncertainty is resolved. In my judgment, I can capitalise the wife's claims on the evidence available to me in a way which is fair to both parties and in a way which gives proper weight to the wife's relationship with Mr. N.
95. Turning next to consider the wife's application for a variation of the periodical payments order in her favour. In some cases, on a variation application, the courts have awarded a former wife the same proportion of income she was previously awarded. This is not a claim advanced by Mr. Cohen and is one which, in the circumstances of this case, would in any event be difficult to calculate. In determining this issue, I must take into account all the circumstances of the case, including, as I have already indicated, that the quantum of the payments is not necessarily limited to need. I must also give due weight to the fact of the wife's cohabitation.
96. It will be clear from what I have said earlier in this judgment that I consider the periodical payments order in the wife's favour should be increased substantially. I start from the annual sum of £60,000. Both sides, at this stage, deduct Mr. N's contribution, which I have assessed at £12,000. Further, I must deduct the wife's assumed earnings and the amount by which her budget reflects expenditure for T. I take, broadly, the sums proposed by Mr. Cohen totalling £10,000. This gives a net income need of approximately £38,000. Next, to adopt Thorpe LJ's words from Hvorostovsky, I must stand back and look at the overall proportionality of this sum. To put it another way, I must make a broad assessment by reference to all the circumstances of the case. By reference to that broader assessment, in my judgment a fair award in respect of the wife's claim for periodical payments would be £40,000 per annum.
97. Turning now to the issue of capitalisation and addressing one part of Miss Boyd's submissions. I do not consider that the concept of relationship-generated disadvantage was intended to place a ceiling on a spouse's (or former spouse's) claims by reference to what she (in this case) would have been able to earn if marriage and motherhood had not intervened. It seems clear to me that the proposition is intended principally to ensure that the court does not overlook the effect on a spouse of a loss of career, because the principles of need and sharing can more easily accommodate the more broader claims (and consequences) based on contributions and other aspects of section 25. However, this debate again highlights one of the potential disadvantages of a formulaic application of the principles identified by the House of Lords in Miller; McFarlane and as referred to in Hvorostovsky. It is trite to say that these principles are intended to be guides on the route to fairness and not obstacles to the achievement of fairness.
98. The issue I am determining is what sum, in fairness, should be paid to the wife to enable her to adjust without undue hardship to the termination of periodical payments in her favour. In my view, the approach I must adopt to the exercise of my discretion is clear. I must consider, as I have, what the current level of periodical payments should be and then consider what capital sum should be awarded for the determination of those payments.
99. I do not consider it appropriate to capitalise the wife's income claims by the application of what has been called a straight Duxbury. That would produce a sum very broadly of £940,000. Nor do I consider that the sum proposed by Mr. Cohen, namely £800,000, is appropriate. This would not give proper weight to the matters referred to by Miss Boyd, including the length of the marriage, the wife's future earning capacity, the manner in which the husband's wealth has accrued and the wife's cohabitation with Mr. N. In respect of the wife's cohabitation with Mr. N, it is clear to me, from both Atkinson and Fleming, that the court must take into account and give due weight to the overall circumstances of the cohabitation including, as an element, its financial consequences.
100. I also do not consider it appropriate to capitalise the wife's income claims by the sum proposed by the husband of £250,000. This sum would not, in my judgment, enable the wife to adjust without undue hardship. Further, if I were to apply Miss Boyd's approach to the figure that I have taken for the wife's income claims, namely £40,000, the lump sum would be just over £400,000. In my judgment, even at this higher level, the husband's case does not give sufficient weight in particular to the contributions that the wife has made and will make to the welfare of the family and instead gives too much weight to the length of the marriage and to the wife's relationship with Mr. N. The wife's contributions to the welfare of the family will have extended over a period of approximately 24 years, if measured from the date when the parties started living together to when T will reach the age of 21. This is a very substantial period of time. The consequences of these years of contribution will continue for the rest of the wife's life. Accordingly, it is her contributions as a mother to which I give significant weight in contrast to her contributions as a wife which existed for a relatively short period, even if the years of pre-marital cohabitation are included, and to which I ascribe considerably less weight. In my view also, her contributions as a mother entitle the wife to a measure of financial independence.
101. Taking into account the wife's debts, in my judgment a fair sum to award the wife and one which would enable her to adjust without undue hardship is £625,000. This is a significant discount from a straight Duxbury but is an award which properly reflects the dominant factors in this case to which I have already referred.
102. Next, I propose to deal, summarily, with the level to which the periodical payments for T should be increased. By the end of the case there was no effective dispute between the parties and I propose to increase the sum to £24,000 per annum.
103. Turning to deal with the husband's appeal against the order of Deputy District Judge Lavelle. The appeal, in my view, focuses on too narrow a canvas. A textual analysis of Deputy District Judge Lavelle's judgment enables the husband to argue that her interim award was based on a budget which included items which were unjustified, for example, pension contributions of £500 per month. The grounds of appeal contain a number of other points, including that the Deputy District Judge failed to have regard to:

"... the modest standard of living enjoyed by the parties during the marriage and wrongly pitched interim maintenance at a level which not only exceeded her immediate needs but reflected the husband's increase in wealth which postdated the divorce and final order."

104. The husband's case in respect of his appeal fails to take into account that the Deputy District Judge was exercising a broad discretion when determining whether there should be an interim increase in the level of periodical payments and, if so, by what amount. I am satisfied that the amount awarded by the Deputy District Judge was well within her discretion and, indeed, was a cautious exercise of the discretion afforded to her. Accordingly, I reject the husband's appeal against her award.
105. Turning finally to the order of Parker J, as I have already indicated, pursuant to that order, I must consider whether I should make any adjustment to my award to reflect the costs allowance paid under that order. In my view, if I were to make any adjustment by reducing the lump sum which I have decided the wife should be awarded for the termination of her right to claim periodical payments, she would not be in a position to adjust without undue hardship. I do not, therefore, propose to make any adjustment to my award to reflect the costs allowance made by the order of Parker J.