Grey v Grey [2010] EWHC 1055 Apeal concerning a spousal maintenance order in which the impact of the wife’s relationship with another on the assessment of the maintenance award was determined

30/07/2012 11:17



Singer J's judgment arises from the Court of Appeal decision to remit the further investigation required by it into the relationship between the wife and the father of her child, Mr. Thompson, after the husband sought to appeal the spousal maintenance order made by Singer J at the conclusion of the ancillary relief trial in 2009. The Court of Appeal allowed the husband's appeal on the "cohabitation point" and the judgment is reported as grey vs grey [2009] EWCA Civ 1424.

In this judgment, the court also considers the husband's application for variation of the continuing periodical payments order. Singer J heard from the parties and the husband's father as well as Mr. Thompson on the issue of cohabitation and while reluctant to embark upon an exercise to attach a definition to the wife and Mr. Thompson's relationship, concluded that from November 2007 onwards that the quality of their relationship was to be regarded as such as to require an assessment of what Mr. Thompson should contribute to the wife's household and that their stable and committed relationship had continued thereafter. However, Singer J found that it had not been a fully-cohabiting relationship and that it would have been inappropriate to assume that Mr. Thompson would give up his own home.

Singer J went on to find that there was no warrant in law for reducing the husband's maintenance to a nominal order or to reduce the payments further than to adjust for the fair assessment of Mr. Thompson's contributions. After assessing Mr. Thompson's capacity to contribute to the wife's household, he found that for two years it should be €55,000 and at the rate of €16,000 for the then current year and until further order.

The husband had a significant increase in earnings for 2008 and 2009 that were to be taken into account but in the circumstances would not lead to an upward increase of maintenance. After determining the wife's budget, Singer J held that the husband should, from the date of the hearing onwards, make provision for the wife and their child (after deduction of the amount which reflected Mr. Thompson's assessment) such as to continue to provide for them at the standard of living envisaged when the current orders were made.

In assessing the husband's payments for child maintenance, Singer J, concluded, inter alia, that the husband's income was such that an increase to €27,500 p.a., with a concomitant decrease in the maintenance payable to the wife was entirely affordable for the husband. The effect on the wife would therefore be neutral but reduce, to some extent, the overall payment the husband makes.


Neutral Citation Number: [2010] EWHC 1055 (Fam)

Case No: FD06D00385

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 14 May 2010
Before :


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Between :


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Nigel Dyer QC (instructed by Manches LLP) for the Applicant Wife
Martin Pointer QC and Katharine Davidson (instructed by Alexiou Fisher Philipps) for the Respondent Husband

Hearing dates: 12, 14, 15 and 21 January 2010

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Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

Signed: [Mr Justice Singer] Dated 14th May 2010


This judgment is being handed down in private on 14 May 2010. It consists of 89 paragraphs and has been signed and dated by the judge. The judge gives leave for it to be reported.

Mr Justice Singer :

1. On 17th June and 20th July 2009 I made orders for ancillary relief on the applications of Lara Jane Grey (to whom I shall refer as W) consequent upon the dissolution of her marriage with Richard John Paul Grey (H). In the judgments which those orders reflected I set out the numerous disputed issues of fact and of suggested inference canvassed between the parties in this bitterly-fought litigation, and my decisions in relation to them.

2. Those judgments have not been reported, but the background to my decision concerning the dispute (central to the hearing in relation to which I give this judgment) whether W's periodical payments should be affected in terms of their quantum by the nature of her relationship with Liam Thompson (LT) is set out in the judgment of the Court of Appeal delivered on 31st December 2009 when that court allowed H's appeal and set aside those orders insofar as they related to spousal periodical payments. That judgment,  grey vs grey has been reported at [2010] 1 FCR 394.

3. The headnote posted on the Family Law Week website at may serve as a useful summary introduction to the case as the Court of Appeal found I should have found it to be on what may be called 'the cohabitation point', and its effect on income provision for wives in general and this W in particular. It reads:

The couple had separated in 2005 after having been together for nine years, finally marrying in 2003, after an invalid marriage in Spain in 1998. The wife moved to her home town of Dublin with their daughter to live in a house awarded to her as part of the settlement. Also included in the settlement were periodical payments at an annual rate of £135,000 from November 2006 until the judgment (March 2009) and £125,000 thereafter. During the hearing, the judge had heard evidence that the wife was cohabiting with another man from the husband's father, and an enquiry agent who had been observing movements at the wife's house. This allegation was at first denied by the wife but the husband also revealed that the wife was now pregnant by her new partner, a fact she had not disclosed and which led her to admit that she did have a permanent relationship. However, counsel for the husband had not put before the judge any documentary evidence as to the alleged cohabitant's income or contributions. In his judgment below Singer J considered the relevant authorities, including Fleming, Atkinson and K v K before concluding that "[t]he presence of L on W's scene, and indeed the presence of their child, do not in my opinion affect at all the quantum of capital provision with which W should exit this marriage."

In this appeal counsel for the husband submitted that i) the judge had failed to make proper findings of fact regarding the alleged cohabitation and ii) the judge misdirected himself in law and failed to recognise that a new approach had emerged concerning the inter-relationship between pre- and post-marital cohabitation, it being argued that there was no logic in pre-marital cohabitation being added for the purposes of assessment when post-marital cohabitation is ignored. In allowing the appeal, Thorpe LJ first concludes that the judge was plainly wrong in his factual findings. Though he had been correct to say there was no evidence of financial contribution by the new partner, the question should be not what he is contributing but what he should be contributing and the judge was not bound by the evidence put before him in his search for fairness. On the second submission, he concludes that the analysis in Fleming still stands and, in the absence of parliamentary legislation, while the argument put forward is "superficially attractive ..... [it] does not run unless and until the applicant has acquired a statutory claim against the new partner". However the judge had erred in law as it was plainly open to the judge to discount the periodical payments applying the "orthodox" authorities culminating in Fleming as that decision is "sufficiently flexible to enable the court to do justice and to reflect social and moral shifts within our society."

4. To flesh out the background, these parties separated in February 2005 and divorce proceedings were commenced in January 2006. On 29th November 2006 H was ordered to pay maintenance pending suit at the rate of £90,000 p.a. That order was made by consent, but on the basis of deliberately erroneous financial information provided to W and to the court by H. He concealed changes to his employment contract which enabled him by the time of the final hearing which took place in February 2008 to channel near enough £1,000,000 of remuneration into an offshore pension scheme. He did not disclose the new arrangements or the pension until shortly before the final hearing. The effect was to understate his gross income for the year to end-March 2007 (as it turned out) by some £750,000.

5. By my orders in June and July 2009 I required H to pay as a component of W's overall lump sum an additional £137,500 designed to represent the capitalised equivalent of what W would have received if the maintenance pending suit order had provided for an annual total of £150,000 (including child periodical payments) rather than £90,000. This was retrospectively to remedy the wrong H did by failing to disclose his true position.

6. By my order of the 20th July 2009 I varied the maintenance pending suit order in two ways. For the period until 16th March 2009 for which it ran I allocated £15,000 of the £90,000 annual payments to the parties' child. From that date I ordered that H should pay £125,000 p.a. (or rather, because W and child live in Ireland, its then equivalent of €137,500) to W and €16,500 p.a. (then the equivalent of £15,000) for their child (plus school fees and reasonable agreed extras). Those orders have since remained in force, but all payments made by H since the first order took effect on 1st December 2006 are now for review.

7. £15,000 was an agreed figure for child periodical payments. So far as spousal maintenance is concerned I arrived at these provisions upon the basis of findings I made which are set out at [96] to [98] of the 17th March 2009 judgment, here reproduced:

96 W will be able to achieve an income return on the (approximately) £275,000 of capital which she should retain after meeting the debts to which I have referred. In attempting to assess the income return she may realistically achieve I must ignore the turmoil in the financial world since last summer which has brought most investment returns crashing down. I shall adopt a Duxbury amortisation approach as a guide to the return she might theoretically achieve. According to the computer program Capitalise (2008 edition) W might with £275,000 achieve a net return (based on a UK tax environment) in year one of £13,000, and I shall adopt that figure as the (inevitably imprecise) contribution towards her budget which she will make from investment income.

97 In August 2006 each party estimated their annual expenditure requirement. W put hers at £104,400, H his at £273,000 rising to £375,000. I accept that H's income only really took off from about 2003, but do not feel that either budget represented a helpful or accurate picture as at January 2008. Neither party put in any revision although H had pruned W's down to £62,000, possibly over-vigorously in some areas.

98 But as in so many cases the budgets presented and their rebuttal may be little guide to what is reasonable. Needs are not the only or the strict test. H is to be treated as having earned average bonuses for the calendar years 2006 and 2007 of £475,000, bringing the gross income which I shall attribute to him for current purposes as £725,000 p.a. Applying a broad tax deduction of 40% reduces this to an approximate net spendable income of £435,000.

99. In my view, ongoing maintenance (subject to variation, of course) for W at the rate of £125,000 and to B at the agreed rate of £15,000 is appropriate. W's maintenance will net down to £76,200 at the January 2008 Irish tax and euro exchange rates then prevailing, to augment which she will have £28,000 from B's untaxed maintenance and from her own investment income. A spendable income for the household of about £100,000 seems to me to be fair, and affordable for H who on the basis of his previous two years' average remuneration will be left with £295,000 for himself (subject to any maintenance adjustment for currency movements).

100. …

101. The spendable income disparity in his favour … to my mind adequately reflects and rewards the fact that his income is hard-earned, and takes account of all the other factors in the case.

8. I will not repeat here nor incorporate other than a few passages from the Court of Appeal judgment which is well known to the parties and available to be read by others who wish to do so. The target of the appeal was the spousal maintenance order, in the light of what the Court of Appeal found was my unsustainable conclusion that W's relationship with LT should not impact on the maintenance award.

9. In the key passages of my March 2009 judgment of that relationship and its potential impact on W's continuing provision I had said:

70. Once more the truth concerning this is confounded behind W's reluctant, unsatisfactory and (I am satisfied) partial presentation. She and L appear to have been in relationship since about the end of 2006 at the latest. Until shortly before the hearing she was coy in her responses to enquiry, when indeed she deigned to deal with them. Confronted by H with enquiry agent evidence and details of the observations made by her father-in-law (for H's parents live just three doors away from her home in Dublin) she was constrained to admit that L had spent most of his January leisure hours and nights at her home. Not until cross-examination did she reveal that she was 17 weeks pregnant by him.

71. Her suggestion that she had not thought to mention that because she thought it insignificant in these proceedings is not credible. Disclosed her pregnancy clearly should have been. But its relevance and effect must be considered dispassionately. L was not free to marry her, were that their intention, although one assumes that that impediment could in time be removed. There was no evidence to suggest that he made any effective or material contribution to her living expenditure on any sustained basis. Their expected child is likely to increase their mutual dependence, but will not inevitably do so. They may or may not cohabit - an unsatisfactory word and concept, in my long-held view, vague as to quality and duration and not a reliably valid indicator of anything long-term. The helpful decision of HHJ Tyrer in Kimber v Kimber [2000] 1 FLR 383 contains a useful check-list of potentially relevant considerations, but there can be no cut-and-dried test: in a number of situations reliance on the opinion of more than one 'reasonable person[s] with normal perceptions' could lead to different conclusions. [Emphasis added]

and at [74] I concluded:

That [Fleming v Fleming [2003] EWCA Civ 841, [2004] 1 FLR 667] was a case of over five years of settled and uninterrupted relationship. Making every possible allowance for lack of candour or even downright dishonesty on the part of W, her relationship with LT is some way off from that.

10. Thorpe LJ at [9] to [16] of his leading judgment marshals the evidence about these two individuals' relationship which had been given in February 2008, in the course of which W had said that theirs was 'a fixed committed relationship' and a 'fixed permanent relationship'. This, together with the other aspects of the evidence and W's false case before and at that hearing, rendered my 'ambiguous' conclusion that 'they may or may not cohabit' inadequate as well as imprecise. I should not have accepted W's 'fundamentally implausible' explanations for LT's recent virtually quotidian stays at her home, and should have drawn inferences against her when uncorroborated. Thus:

27. The above route would have led the judge to a clear finding that, whatever the future might hold for them, the wife and Mr Thompson were a couple and the financial consequences of that development had to be investigated and assessed.

28. The judge did not address the financial consequences of the development. He was indeed correct to say that there was no evidence of financial contribution by Mr Thompson to the wife's budget but that was not the only relevant question. There is in these cases an obvious motive to avoid any pooling of income to meet expenditure. The real question will generally be not what is he contributing but what ought he to contribute. Although I recognise that the judge was not much helped by the rival submission, it is plain from the note of Mr Pointer's oral submissions that he and the judge discussed both partial discount and nominal order.

11. The second aspect of the appeal was the invitation proffered to the court on behalf of H to reconsider what was described as 'the orthodox line of authority culminating in Fleming', but which (the Court of Appeal in the present case reaffirmed) prevailed. Thus was rejected the primary submission of Mr Martin Pointer for H that cohabitation with a third party imports prima facie that substantive maintenance for the cohabiting spouse should cease.

12. In allowing the appeal Thorpe LJ said:

47. Accordingly my conclusion is that the appeal must be allowed. What other orders should be made must depend upon an assessment of Mr Thompson's financial circumstances and an assessment of his capacity to contribute to the wife's economy. I would remit that further investigation and judgment to Singer J, before whom the husband's alternative application for variation of the continuing periodical payments orders is fixed for a three day trial early in the New Year.

13. Before issue of the appeal proceedings H had in February 2009 applied to vary the orders he by then knew from the circulated draft of the March 2009 judgment I would make. And indeed in the week preceding the January 2010 hearing W applied to vary by increasing the order, an application designed to put beyond doubt the court's ability to take into account if appropriate the changes (which have been considerably for the better) in H's income since early 2008. By what appear to be different routes Thorpe LJ and Wall LJ were in agreement that that 'assessment of LT's capacity to contribute to W's economy' should range over the whole period from November 2006. The applications were remitted to me 'to ensure an outcome fair to both parties from November 2006 and onwards' [48]. Wall LJ at [61] described the task as requiring me to:

... deal compendiously with the husband's variation application at the forthcoming hearing. He can either apply an appropriate discount for cohabitation and adjust the level of periodical payments accordingly, or he can backdate any variation which he sees fit to make.

Summary of conclusions
14. These in summary are my overall conclusions:

• It is from November 2007 onwards that the quality of the couple's relationship should be regarded as such as to give rise to the assessment of what LT should contribute to W's domestic economy.

• That stable and committed relationship continued unabated thereafter and at the time of the January 2010 hearing.

• It has not hitherto been a fully-cohabiting relationship, and it would be inappropriate to assume for that assessment that LT will cease to maintain his separate establishment, or to conduct the assessment on the notional basis that he would or should dispose of his house.

• There is no warrant in law or on the facts for reducing H's maintenance obligation to a nominal order, nor would it be appropriate to reduce his payments further than to adjust for the fair assessment of LT's contribution so as broadly to maintain for W and their child the standard of living determined by me as appropriate in the summer of 2009.

• LT's capacity and the fair amount which he should contribute I assess as €55,000 for the period from the start of December 2007 to the end of 2009; and at the rate of €16,000 for the current year and until further order.

• A countervailing circumstance (which should not in the circumstances lead to upward variation but is certainly to be taken into account) has been the significant increase in H's earnings for 2008 and 2009. In the light of that he should from January 2010 onwards make such provision for W and their child (after deduction of the amount which reflects LT's assessment) as will continue to provide for them the standard of living I envisaged when making the current orders.

• I will order an increase in child maintenance to €27,500 p.a., with a concomitant decrease in the maintenance payable to W. This will be neutral from her point of view, while to some extent reducing the overall payment H makes.

The scope of enquiry into the duration of the settled relationship
15. I have not found the task set easy, may I be the first to confess, hence at least in part this over-delayed reserved judgment. The three days already allotted in my diary to H's variation application in the week commencing 11th January 2010 thus took on an expanded burden in the light of the Court of Appeal's redefinition of the task in hand. What had been envisaged (by me, at least, and perhaps simplistically) as an investigation whether the developments in the relationship between W and LT since February 2008 (when I had heard W give her evidence) required a different conclusion on 'the cohabitation issue' was now to involve a wider inquiry back to November 2006, the date of the maintenance pending suit order.

16. 'Not so' said Mr Pointer (appearing with Miss Davidson for H). He maintained that I was constrained by the Court of Appeal judgment (and the order drawn between Counsel to reflect its decisions). I need not and should not investigate the development of the state of the relationship prior to February 2008 when, he maintained, the Court of Appeal had already found that the couple had been in relevant relationship, such as should impact on spousal provision, at the time of the making and throughout the currency of the maintenance pending suit order from December 2006 onwards. Mr Dyer for W maintained that the investigation and assessment required findings about the nature and evolution of the relationship over the whole of that period.

17. Mr Pointer's submission was based upon the observation of Thorpe LJ [26(i)] that I should in February 2008 have proceeded on the basis that:
The unchallenged evidence established actual cohabitation throughout the five weeks of surveillance [which ended just before the February 2008 hearing] and the commencement in November 2006 of a situation in which LT was a regular member of the household. [emphasis added]

and Mr Pointer referred me back to the terms of paragraph 3 of the Court of Appeal order which was in these terms, that:

On the basis of the findings made by this court concerning the issue of cohabitation (as recounted in the judgment) including that, as at the date of the original hearing in February 2008, [W and LT] were a couple and the financial consequences of that fact should be investigated and assessed, the matter be remitted ... for determination of:

(a) the appropriate rate of maintenance pending suit and periodical payments payable by [H to W] from November 2006 to date (irrespective of whether such periodical payments were expressed historically by way of conventional maintenance pending suit and periodical payments orders or by lump sum orders calculated as capitalised periodical payments); and

(b) the quantum and method of repayment of any such figure as [H] is found to have overpaid [W] during the relevant period.

18. Mr Pointer submitted that, in this context, the finding made that and description of LT as having been in November 2006 'a member of W's household' necessarily implied that he was substantially living there. But the phrase employed in the judgment was 'a regular member of W's household'. [emphasis added]

19. Regular primarily denotes regularity, an even spacing of time, numbers or size. A secondary, somewhat transatlantic, meaning implies that something is commendably ordinary, complete or full-size. Thus a person can regularly be a member of another's household even if only on an infrequent basis (as in: regularly once every week/month/year); or he may be there every day. I do not wish to trade epithets, but I have to say that for me there is some imprecision in the phrase.

20. As the case advanced by W and LT (who in January 2010 gave evidence both written and oral) was that there had been stages in their relationship's development, I felt it would not be fair to shut off investigation pre-February 2008 on the basis, in effect, of the Court of Appeal's conclusion that I should not have accepted the explanation proffered 'for LT's presence as a member of the household throughout the five weeks preceding trial' [26(iv)], but rather should myself have concluded that they 'were a couple' [27]. So to have been confined would hardly be consistent with 'compendious' consideration of H's variation application, which I understand to have been intended to encompass not only the period under consideration but the 'value' in maintenance-diminishing terms of the relationship as it developed, if indeed upon the evidence it might be concluded that it was not from as early as November 2006 onwards tantamount to a fully-fledged 'couple' situation.

21. The unfairness to W of assuming (as Mr Pointer asserts the Court of Appeal has committed me to do) that by the date of the November 2006 maintenance pending suit order she and LT were already 'a couple' is easy to see. How long does it take, I ask myself without finding any definitive response, for two adults engaged in social and sexual relationship and spending time in each other's homes to be regarded as 'a couple' or (to adopt another and unsatisfactorily vague but contemporary description) 'an item' such that a wife's periodical payments should be reconsidered in the light of what the man should be contributing to her economy?

22. Certainly relationships, like Rome, are not built in a day. Maybe more than many human pursuits and endeavours they may embark tentatively or at full tilt. They may stop and they may start, they may founder and they may rekindle. Over days months or years they may wax and wane. They take innumerable forms and no one size fits all. And the language we use to describe relationships and those in them is also unsatisfactory, lacking in precision, frequently ambiguous, signifying one thing or different things to one pair of partners or cohabitants and another, and often quite different things again to those who observe and attempt to categorise them. Many ingredients will fall for consideration into the mixing-bowl of objective relationship appraisal, but I regard mutual commitment as a very important indicator in the context of financial responsibility for another's household.

23. Indeed Mr Pointer and H sensibly recognised that the guillotine (as H would have it be) does not fall nor the reduction application bite in an instant. By way of concession they suggested that it would be appropriate not to curtail W's periodical payments until six months after what is suggested as the December 2006 pre-ordained starting date: so room recognised there for reflection and a space for retreat, for some hit and miss, without the risk of financial downside impacting. But why six months rather than three or twelve? The answer is that the assessment must be relationship-specific and can only be imprecise.

24. I therefore heard evidence of the state and development of W and LT's relationship from what I was told was its inception, and will explain my findings in due course and, as it were, with the benefit of retrospection. For I propose first to consider what is said to have been the state of play since the February 2008 hearings where (and Mr Pointer is on firm ground here) the conclusion the Court of Appeal has held I should have reached is that by then they had become a couple.

The nature of the relationship since February 2008
25. At the February 2008 hearing W failed to disclose, until it was put to her in cross-examination, that she was 17 weeks pregnant with LT's child, a daughter born in July 2008. This was against the background of prevarication and untruthfulness in response to questions in solicitor's correspondence seeking to elicit potentially relevant information about that relationship. In cross-examination this year W replied to Mr Pointer's question whether their relationship remained in her view permanent, fixed and committed that that was so, and had remained so since she gave that description of it in February 2008. She furthermore agreed that she and LT 'hopefully' intended that to continue.

26. I take that in effect to be conclusive (and it is supported by other conclusions) on the question whether the exercise of evaluating what financial contribution it would be fair for LT to make to W's economy should extend unabated over the period since the February 2008 hearing. Plainly it should. But there is a morass of conflicting evidence in respect of that two-year period.

27. On the one hand I have the broad picture projected by W and LT that his relationship with her has been focused upon and dominated by the fact that she was to be and since July 2008 has been the mother of his only child, who for some imprecise time (and to an extent still) has presented difficulties in her care which W found too onerous to deal with unaided. Hence for some time around and after her birth that is one reason why LT so frequently visited and stayed at her home. But in any event he has made a point of visiting his daughter on a daily basis, so far as practicable. Often (and how often was heavily disputed) he has stayed the night, at other times he has left in the course of the evening and driven back to his own house on the other side of Dublin. Usually, as LT described it, when he stays overnight he sleeps alone in one of the three bedrooms as H's daughter (six at the time of the 2008 hearing, now eight) still shares her mother's bedroom, and there is an overnight nanny many weekdays to assist with the younger child. He usually eats his evening meal there whether or not he stays the night.

28. At weekends and over holidays they go out and away en famille (not always including the older child who stays regularly with H). They attend some social occasions together, by no means all child-oriented. They have been away on holiday with and without one or both children.

29. LT has kept and maintains his own separate home (subject to mortgage) and possessions. Neither of them regards him as having 'moved in' to W's home. They do not (or say they do not) regard themselves as cohabiting.

30. There is no significant commingling of finances, save that he puts about £12,000 a year into a bank account in his name access to which since December 2007 W has had via a credit card. This has been used to meet medical expenses for her and their child, to pay the nanny, and for other relatively minor expenditure. Otherwise, broadly speaking, they have met their own expenses from their own pockets. There are exceptions but they are modest. LT introduces provisions and sundries which he purchases directly, but makes no payment towards overheads and general household expenditure. He will pay for all four of them if they go out for a meal or to an entertainment as it would be clearly artificial to differentiate between the two girls by paying for the pizza or the ticket for one but not for the other.

31. They present themselves, both, as unready to think in terms of marriage (and LT remains married), and they both (but in particular LT) value their independence. They say that they have no plans to merge their households although it may well be that W will move from the uncomfortable proximity of H's parents, and indeed she may have no option but to move to meet the consequences of this litigation. LT told me that he would prefer not to sell his home, that in any event he would rather make his own decisions about that (and about the progress of his relationship with W) in his own time, rather than in response to what he perceives as pressure from H.

32. The other side of the coin, submits H, is manifest from the evidence (first and second time round) of H's father and of an enquiry agent. Disbelief and suspicion have been fuelled further by H's persistence in formulating the theory that LT and W have regularly deliberately conspired to confound Mr Grey senior's observations. Over a period LT has produced evidence that he passed through an electric motorway toll barrier on the longer (but he maintains as fast if not faster) route from W's home to his, avoid Dublin's city centre and traffic lights. These documented journeys he relies on to support his case that on a significant number of evenings he has not stayed overnight at W's home. H's theory, pursued with increasing vigour as the case before me proceeded, would have it that having established his alibi via the toll records LT then doubles back to W's house for the night.

33. While scorning H's speculation (which I have to say I regard as far-fetched) LT for his part points out that from records he says he has scrupulously kept he has demonstrated that he was indeed at W's home overnight on a number of occasions when there would otherwise have been no evidence of his stay. And he accuses Mr Grey senior of being, at least, unfair in failing to draw attention to the fact that his car, though there at the times noted by Mr Grey, did not so stay overnight on a considerable number of days when LT says he drove later to his own home for the night.

34. Mr Grey senior's evidence as a not at all casual observer from three doors down the street maintained that LT was just as much residing at W's home and cohabiting with her as he had concluded at and prior to the first hearing. Then he said that that had been the position in his view 'for quite some time'. He had at his fingertips the detail of schedules charting the arrival but not always the departure of LT's car. He saw as particularly significant the fact that at the time of the Court of Appeal hearing and judgment when widespread publicity was being given to the case by the Irish and English press LT had parked in a nearby road rather than as was his usual wont in the street running past their two houses. H attributed the same motive, to mislead his father, but I am not prepared to agree with them on this.

35. Mr Grey senior also very clearly subscribed to what is H's passionately determined belief that his son should not have to 'contribute to another man's family when the other man is not doing likewise.' There is therefore much material from which it can be said that the evidence of Mr Grey senior was partisan, in the sense that he is understandably very committed to H's cause. But be that as it may his positive sightings were not in fact in dispute (and neither were those of the enquiry agent). When I consider what weight I attribute to his use of the words 'residing with' and 'cohabiting', however, I bear in mind that he is not an objective observer.

36. H brought disbelieving scepticism rather than hard factual evidence to the debate about the gestation and nature of the relationship since February 2008. He points to what he says is a clear change in the pattern of visits/stays after he issued his variation application in February 2009. In fact the reduction in frequency is not all that striking and the relationship clearly continued unabated, in my view. When he gave his oral evidence on the first day of the hearing H was prepared to leave open as a possibility the theory (which hardened into a positive assertion by the time of formal submissions) that LT doubled back after passing the toll, a theory prompted by the discovery that at the time of the Court of Appeal proceedings and the press interest LT took to parking round the corner. H did not accept that LT drove to his own home on many or most evenings, whereas I have to say that I do. But I do not accept that that issue or the frequency (whether 50% per LT or 83% per H) of nights spent at W's home at the various stages scrutinised has any real impact on the outcome of the case. For I have formed the conclusion that finding firm facts on these and other issues does not assist me in reaching what I intend will be a fair conclusion that takes into account needs, means and ability to contribute.

37. I have re-embarked upon this case from the point of departure that as at February 2008 I underestimated W's self-serving concealment and actual deception in what she told me about this relationship and its status. This couple were by that date established in settled relationship. The judges of the Court of Appeal have been clear about that, and that I should have approached the case on the basis (per Thorpe LJ at [26]) that:

i) The unchallenged evidence established actual cohabitation throughout the five weeks of surveillance and the commencement in November 2006 of a situation in which Mr Thompson was a regular member of the household.

ii) The wife had presented a false case both in preparation for trial and at the trial itself. She was caught out in her deception by the husband's investigations through his agents.

iii) The wife's only motive for her false case was to protect her periodical payment claim from reduction to reflect the arrival of Mr Thompson in her life.

iv) The explanation for Mr Thompson's presence as a member of her household throughout the five weeks preceding trial was fundamentally implausible.

v) The judge should not have accepted the wife's evidence on this topic without corroboration and if any inferences were to be drawn they were to be drawn against the wife.

and that this should have led me [27] 'to a clear finding that, whatever the future might hold for them, the wife and Mr Thompson were a couple and the financial consequences of that development had to be investigated and assessed.'

38. And so I now approach the 2010 evidence of W with every possible reservation and hesitation. She is hopelessly all over the place when it matters to remember dates and frequency. Her lack of consistency on aspects of the developing relationship was skilfully but easily exposed in cross-examination. It is possible she has the retention of a sieve for such matters (and generally she does not demonstrate huge acumen upon a range of topics). I am sure that may be part of her problem. But another if not the main ingredient must remain that she has been desperate to hold on to a maintenance award, and has in large part presented a construct rather than the reality. This is so despite her expressions of candour when confirming the now long-term commitment of their relationship and in hoping for its indefinite continuation, and her repeated interjections that she was trying to do her best to remember and to be honest.

39. As for LT, the trouble with his evidence is that his actions and that evidence are inevitably tainted because of the loyalty he clearly feels towards W, both as his child's mother and as his companion. It would be unreal to expect there to be no artificiality in their activities and indeed in their thought processes, his as well as hers, given the unfortunate duration and unremitting nature of the litigation between H and W, a battlefield (as LT pointed out) which has been active throughout the time he has known W. To add to the pressures engendered and the lack of an end in sight to the English proceedings, both in 2008 and in 2010 it became apparent that there are contested proceedings re H and W's child ongoing in the Dublin courts.

40. On the face of it LT is articulate and intelligent and has been and is very supportive of W, and on the face of it he seemed to be doing his best in terms of the accuracy of his recollection. He spoke with apparent candour and only a little rancour. There were some areas of his evidence about which I felt less confidence (the onset of his subscription to the electronic tagging, and some aspects of the use of the credit card which seemed inconsistent with the general picture presented). But I have to conclude, considering the evidence of W and LT in the round, that I cannot take his at face value, nor that it redeems hers.

41. There is this further consideration, that even if the reality of their relationship is and has been as LT maintains, I very much doubt it would be as it now is said to be but for the constraining influence of the fishbowl scrutiny within which they have operated these last years.

42. In considering quite what I may safely be able to accept from the picture presented by W and LT I have been struck by the fluidity of the meaning we attribute to some words which are common currency in the context of relationships. They probably do genuinely hold the view that they do not cohabit or live together, just as firmly as Mr Grey senior and H contend that they do. As I have already mentioned, all these conjunctive descriptions of domestic arrangements - cohabitants who live together, partners who comprise an item - are vague and imprecise at their edges. A couple who live together on a settled basis cohabit. But what if, as here I have found to be the case, they each have their own home and each spend time there without the other, as well as spending some of their time together at one of their homes. If that was their settled modus vivendi I would not classify them as cohabitees, but others maybe would. As for whether two persons are domestic partners, that again to my mind connotes a sharing, not necessarily just of space in a home but of time in each other's lives, and very importantly a degree of mutually-felt commitment to each other. The degree of their commitment is their subjective business: the opinion of observers as to whether they are domestic partners or not may coincide, but if it is different then the categorisation of the relationship should surely primarily depend upon the subjective (if honestly-expressed) view of those within it.

When the relationship became significant for maintenance purposes
43. I have found that the established couple in settled relationship which LT and W had become by February 2008 remained so in January 2010. I now look back to the time before, at the end of 2007, the observations made of LT's stays at W's home and W's explanations led Thorpe LJ to make the comments in [26] already set out above. Rejecting, as I have done, H's contention that that is a binding finding by the Court of Appeal that such was the position from the time when the maintenance pending suit order was made and throughout the intervening period, here are my conclusions on the relevant period for reassessment.

44. LT's evidence was reasonably clear that a definite stage came, which he put at February 2007, when they each resolved to turn their until then non-exclusive relationship into one which could be classed as 'monogamous until further notice'. W's evidence in 2008 and now was to the same effect.

45. The next watershed in their relationship was the discovery in November 2007 that W was expecting LT's child. According to LT they had been going through a somewhat sticky patch at that point which he attributed to W's growing preoccupation with the forthcoming ancillary relief hearing. But the news of the pregnancy led to a consolidation of their relationship, albeit (as he described it in his evidence) focused upon W as his child's mother. This evolution does not seem to me to be fundamentally improbable. Indeed I would think that discovery of W's pregnancy would lead to both of them taking stock. It is true that by now W had already brushed aside solicitors' letters enquiring about their relationship. She consistently withheld increasingly relevant information. That does not seem to me necessarily to demonstrate that prior to the discovery of her pregnancy there was the same degree of mutual commitment which for my part I regard as so important a benchmark in the ascertainment of the point at which it is reasonable to impute to LT a responsibility to contribute to W's home such as to alleviate the financial burden on H. That responsibility is of course moral rather than legal (in so far as it arises qua W rather than for LT's child) but is one which in fairness should, in my judgment, be imputed from November 2007 onwards rather than (as H contends) from an earlier date.

Must LT dispose of his home to enable him to make fair contribution to W's economy
46. H's view as expressed to me is that it is unfair that he should have to provide an income for LT and his child; and that W's home has been and is now LT's household towards which he should be paying as much as he can afford. His claim at its largest is for repayment of the entire sum which he has since December 2006 paid by way of spousal maintenance. In January 2010 he put this at £418,750 (without at that point including any allowance for the six-month concession to which I have referred). He continues to maintain that where, as he claims is here the case, an ex-wife and a mother now form a new household they should finance it without input from the woman's former husband. The Court of Appeal has however reaffirmed that is not the law, however unhappily and illogically it may sit with what by statute is law: that a remarrying rather than a cohabiting wife automatically and irrevocably loses the maintenance to which she might otherwise have been entitled. In this context therefore cohabitation does not have the same effect as marriage.

47. The overall conclusion I have formed for the period I have found relevant is that it would be fair to approach evaluation of the extent to which H's maintenance obligation should in principle reduce on the basis that this has been a committed partnership falling short of full cohabitation. I have heard both parties to that relationship and have made full allowance for the artificiality of the situation, and the extent to which it has been glossed. But I have to say that that part of their evidence (and in particular that of LT whose house after all it is) concerning his desire to maintain his independence and his own home and space struck me as understandable and indeed genuine. And so I baulk at drawing the inference that part of what they conceal is an active desire or intention to fuse their household entirely. Their evidence of the extent and quality of the virtually daily contact, however jaundiced a view I take of it, does not leave me able to conclude that they are artificially holding up the moment when they will in fact merge their homes and their financial resources .

48. I bear in mind that the fact that one witness or two may be deliberately misleading on many aspects of a case does not exclude a finding that upon part of it one of them or they can nevertheless be believed. I have heard their evidence, and I do not believe that it is fair or reasonable in the overall financial circumstances of H and W for H to insist that LT's ability to contribute to W's economy should be assessed upon the basis that he will or should have to sell his home (or rent it out, as Mr Pointer suggested was the alternative).

An assessment of what LT fairly should contribute
49. So it is upon that basis that I turn to consider what means LT has had available during the period from December 2007 to which I have determined reassessment should apply.

50. It has not been suggested that LT has any income other than what he earns nor any assets of significance beyond what in his view is the modest equity that there would be if he sold his home. His income has decreased over the relevant years, as again has not been disputed. The Irish tax year coincides with the calendar year, and in 2007 LT was earning at the rate of €200,000 p.a. gross. In 2008, including bonus, he earned €164,000. In August 2009 his employers imposed a 10 per cent cut in his basic salary, and for that year no bonuses were awarded: he earned about €130,000 gross, €77,500 net (equivalent to about £70,000) in that year. So far as could be anticipated his employment income for 2010 was again set to decrease as the 10 per cent cut seems likely to continue throughout the year, and the burden of Irish taxation is set to increase. His estimate is that for 2010 he will receive €68,500 net, €5,700 per month.

51. Throughout the period in question LT has been paying his mortgage and putting €1,200 per month into the account accessed by W and from which the nanny is paid. That is a total of €2,900 per month (and in the earlier part of the period when mortgage interest rates were higher it was more). I have conducted a calculation of what net spendable amount each year he would have after meeting these commitments. It is necessarily only an estimate, but not one which was conducted by either side during the course of the hearing before me. The results are in essence that in 2008 (when I have estimated that LT's €164,000 gross would have netted down to about €100,000, and when the mortgage was higher) he would have been left with about €5,000 each month. The comparable figure for 2009 (taking the reduced figure for the mortgage of €1,700 per month) was €3,600. If 2010 turns out as predicted, then LT will be left each month with €2,800 per month after meeting the same two items of expenditure.

52. I cannot see how it would possibly be fair to treat W on a basis which attributes to her economy the whole of LT's available income after the mortgage and part (for I accept that he meets additional out of pocket expenditure) of his contribution for their child. It seems obvious to me that LT could not reasonably be regarded as 'due' to pay that amount over to W, and thus that she would not receive it even if that founded the basis of reassessment.

53. I then calculated how much would have been produced over the period in question if LT had been contributing half his available net income so defined. That would produce a figure for the whole period to the end of 2009 (25 months) of about €55,000. Upon the basis of the 2010 estimate he would put €16,800 into W's economy this year. In my judgment amounts of this order might constitute a fair answer to the question posed by Lord Justice Thorpe, what should he have been and be contributing?

54. Whatever the precise (and, for whatever reason or motive, changing) proportions of time LT has spent at W's home, whether overnight or not, and in her company I have found that for the assessment period they have been a cohabiting couple, albeit not full-time. Both H and LT have a child in W's household, and therefore it seems to me to be reasonable by way of cross-check to calculate broadly what 50% of W's establishment costs amount to. I will refer below to the dispute which there has been, this time as last, about the accuracy of W's estimate of her current expenditure. H's adjusted budget for her seems to me to be a fair basis for this calculation. If (as he does) he asserts that his allocations should and would meet her needs then it is hard to see how he could use a larger measure when assessing what it would be fair for LT to contribute.

55. H's pruned figure was £47,712 (or €53,450 at an exchange rate of £1 = €1.12). Over 25 months half that works out at approximately €55,700.

56. I will therefore for the period to 31st December 2009 treat €55,000 as what it would have been fair as between H and LT for the latter to put into W's household (in addition to the €1,200 p.m. he has been paying via the credit card towards his own child, and other expenditure he has met).

57. For H to be relieved of that amount of maintenance will call, as I have described, for the grossed up sum which would have produced €55,000 net in her hands to be calculated, and that will be what W should repay H in a manner to be fixed when the implications of this order have been considered by both H and W, and for that matter LT.

58. Based on the projections of his net income for the current year, LT will be left with €33,600 after paying his mortgage and that €14,400 transfer to the bank account for his expenses connected with his daughter. Were he to contribute for the current year at the same annual rate of €26,400 rate as I have fixed for the earlier period when his income was higher, he would be left for the whole of this year with only €7,200 with which to meet all his other standing and out of pocket expenses including running his car. Therefore to continue this year to be expected to contribute at the same rate is clearly beyond his means. I conclude that for the time being and in his current circumstances €16,000, slightly below 50% of the available residue, is the limit of his current capacity.

The case for reduction to a nominal order
59. But the calculation does not and cannot stop there. For H asserts as a moral principle to which I should give effect that fairness can only be done to him if the independent household as which he regards them is self-sufficient, and if he is absolved from all but a potential liability to meet any future application for resumed payments in the event of a change of circumstance in the life of W. It follows that H would not be content to stop at a reduction in his payments simply of the equivalent of what I find LT should fairly contribute.

60. I do not propose in this judgment to embark upon any detailed analysis of legal principle. My task has been clearly set by the Court of Appeal decision in the instant case where earlier consistent authorities have been reaffirmed. I regard my function as rather to reach such conclusions as seem to me to be sustainable concerning the nature of the domestic partnership between W and LT, and then to assess what its financial consequences should entail for them, and then for H.

61. But I have found helpful some passages from the first instance decision of Thorpe J (as he then was) in Atkinson v Atkinson (No 2) [1995] 2 FLR 356. The factual matrix was very different, the husband was a very rich man whose maintenance liability was reduced from £30,000 to £10,000 p.a. notwithstanding that the longstanding and prosperous full-time cohabitee of the wife was prosperous enough to provide if he chose the whole of that subvention. The husband argued for a nominal order. At 361 Thorpe J said:

In this field of law it is seldom possible to state principles where the infinite variety of circumstances determines the outcome of individual cases. The function of the Family Division judge is not so much to state principles as to reflect the relevant circumstances of the particular case in the discretionary conclusion. But these authorities do show a broad approach.

First, cohabitation is not to be equated with marriage. In performing its functions under the Matrimonial Causes Act 1973 (as amended) the fact of cohabitation is not to be given decisive weight. Secondly, cohabitation is, however, a relevant factor in that it bears upon the financial circumstances, particularly upon the assessment of the wife's financial needs. But to me it seems above all that the court should strive to discern the realities in determining what weight to give to the factor of cohabitation, particularly since the subjective presentation of the parties often seeks to disguise or distort the realities.

and at 363:

In assessing the relevance of the cohabitation factor, it seems to me as much, if not more, weight must be given not to the presence of the cohabitee as to his financial circumstances and his capacity to make a reasonable contribution in return for the benefits of the provision of a home.

Then at 365 he said:

What can he afford to contribute and what ought he to be contributing towards the provision of substantial benefits, direct and indirect, that come to him as a result of his partnership with the wife? It seems to me that it would be inappropriate, even if he has a net income after tax of over £100,000 a year, to say that he can support and maintain her totally.

62. The Court of Appeal refused leave to appeal: Atkinson v Atkinson (No 2) [1996] 1 FLR 51. Giving reasons, Waite LJ rejected the submission that the continuance of anything more than nominal periodic maintenance in these circumstances, namely that the wife is now living as man and wife with Mr W, is manifestly unjust in these terms:

That involves a direct challenge to the discretion exercised by the judge. In order to succeed it would have to be established that the judge had applied some error of principle or reached a result that was manifestly wrong. For my part, I am unable to detect either an error of principle or perversity of result in the judge's decision. All the criticisms that are made of it are really criticisms of emphasis. No error of principle is established.

63. I do not take the view that the fair outcome in this case is a nominal order.

The case for a reduction in H's payments greater than LT can or should contribute
64. H next invites me retrospectively to reduce his liability by more than I would assess it would be fair for LT to contribute, and to order W to repay him a greater amount.

65. I can see one factor which should indeed lead to a greater than euro for euro reduction in the payments H makes to W. She is subject to Irish tax on spousal (but not child) maintenance. Any actual contribution from LT would have already suffered Irish tax in his hands and would be free of tax if and when it reached hers. Therefore logically H's periodical payments liability should reduce by the greater amount which would have produced the sum in question in W's hands net after Irish tax. That would be a matter for calculation by accountants or others conversant with the Irish tax régime over the period.

66. H's case for further reduction in part is that the measure of W's standard of living should no longer be hitched to what I found to be reasonable (without allowing for the cohabitation factor) as of 2008. Upon the evidence available in early 2008 I took the view that W's household should have about £100,000 net p.a. coming into it. That was a value judgment based upon the totality of the evidence, and not limited or linked to the rival budgets then presented on either side. I reached that conclusion without incorporating any discount to reflect the relationship between W and LT. As I reject H's submission that W and LT should be left to manage within their own means, without input from him, I see no cogent reason why I should depart from that starting-point now. That does not follow from the fact that W's household's income was fixed by me on a 'generously interpreted rather than minimum' reasonable requirements basis.

67. I am not prepared to ignore the effect that significant reduction in maintenance would have upon his daughter's standard of living in the household of the parent who so far as I am aware will continue to be her principal carer and day-to-day provider. The household still comprises H and W's daughter, and W. H does not for a moment seek to deny or to diminish his financial obligations to his daughter. But he does suggest vigorously that he should be entitled to shuffle off or slacken the maintenance links which bind him so uncomfortably to W. I do not subscribe to that view at this stage.

68. H has renewed his assault on W's budget estimate, said to be based on actual expenditure. It is an easy target, manifestly riddled with inaccuracy. Thus his final and finely formulated budget for her amounts to a total of about £58,000 (to include expenses relating to their child) rather than the £96,000 or thereabouts clearly excessively asserted by W and her solicitor as her current level of expenditure. But this again is to miss the point which I hold remains valid, that notwithstanding W's domestic partnership with LT and the presence of LT's child in the household (for whose extra costs I am satisfied LT pays in full) H retains a responsibility to maintain appropriately adequate living standards for W and their own child.

69. The £100,000 I anticipated W might have available included an (admittedly approximate) £13,000 p.a. notionally achievable on a Duxbury basis from free capital it seemed likely she would retain. She will see little if anything of that, in part but not I think entirely as a result of the cost implications of these continuing proceedings. So that £13,000 net p.a. will not materialise as anything like that amount if at all.

70. Tax calculations showed that W was to receive the equivalent of about £76,200 net after payment of Irish tax from her annual maintenance (in the final period) of €137,500.

71. If I were to reduce H's maintenance burden by the grossed-up equivalent of the amount notionally due from LT, but by no more, she would be left in the same position: a net amount of some £76,200 from these twin sources.

72. The third component of her exchequer was £15,000 agreed periodical payments for their child.

73. In addition it became clear during this last hearing that W could from then on receive child benefit at the rate of €1,800 p.a. which she had neglected up to that point to claim in respect of her and H's daughter: a further £1,650 p.a. or thereabouts. She receives the like amount for LT's child.

74. Finally W would (on the basis I have adopted for this analysis) have the use of the £12,000 LT contributes to the bank account upon which she can draw.

75. The total of these amounts is £106,500, as against the approximate sum of £104,200 at which I arrived at [99] of my March 2009 judgment. So two years after the hearing which led to that award, two years during which costs and prices have not stayed static, H's child and her principal carer will have pretty much the same budget to sustain their household, the to-be-met-needs of which will meantime have swollen to include a second child, and a second adult already (on this analysis) putting in as much as he can reasonably (and in my judgment should) be called upon to afford.

76. That may be fair and sustainable. But it seems less so and indeed ceases to be so if H were to succeed in his objective of obtaining more, he would say 'far more', by way of a reduction in his own maintenance liability than LT fairly can or should be expected to contribute in light of his relationship with W.

H's enhanced financial position
77. On the evidence as it stood in February 2008 I treated H as having earned average bonuses for the calendar years 2006 and 2007 of £475,000, which with his basic salary of £250,000 brought the gross income which I then attributed to him to £725,000 p.a. Applying a broad tax deduction of 40% reduced that to an approximate net spendable income of £435,000.

78. The question is the extent to which, if at all, I should balance maintenance reduction and repayment against the changes in H's own general and financial circumstances. Of course I continue to bear well in mind that he must work under great pressure to be able to achieve these rewards from his industry, rewards which are prodigious and have been increasing.

79. He continues to live in London in the same home as in 2008, but now with his partner and their child, a son now nearly a year old. In November 2009 he was able to meet the lump sum and order on account of costs together totalling £654,000 which I made in July 2009, utilising the accelerated payment of £1,000,000 by way of loyalty bonus to which he will become contractually entitled only if he remains in the same employment until the expiry in April 2012 of the new contract he negotiated over some months until completion in August 2009. Thus he has been able to retain all the assets which became or were confirmed as his in the ancillary relief proceedings, without the need to make realisations. He remained liable to pay a further £200,000 or thereabouts to W in respect of costs, but that will to some significant extent be offset by the costs awarded to him by the Court of Appeal in respect of last December's hearing, 75% on a standard basis.

80. His overseas pension fund has purchased for €1,575,000 a house for his family's occupation when in Dublin, for which he in turn pays €60,000 p.a. rent to the IPP.

81. In the calendar year 2008 H was paid £945,000, at least.

82. The new employment contract takes retrospective effect from 1 April 2009. His basic salary is unchanged at £250,000. In the year 2009 he received £1,300,000 gross (plus the £1,000,000 advance of loyalty bonus). He was shrewd and/or fortunate enough to make gambling winnings of £150,000 for himself in the course of the year.

83. Over the next 2 years from April 2010 H will (if he generates sufficient revenue to trigger them) become entitled (albeit technically discretionally) to bonuses potentially calculated upon more generous percentages than hitherto. From his remuneration he has agreed that his employers should pay a total of £600,000 into his IPP between now and April 2012.

84. It is the fact that in the current year H will pay tax at 50% on the bulk of that part of his income which is taxable, and (subject to any budget change) an additional NIC levy.

W's application for upward variation
85. Mr Pointer deployed sustained analysis of what he submitted were the difficulties inherent in reconciling recent authorities such as Cornick v Cornick (No 3) [2001] 2 FLR 1240, Lauder v Lauder [2007] EWHC 1227 (Fam), [2007] 2 FLR 802, VB v JP [2008] EWHC 112 (Fam), [2008] 1 FLR 742, McFarlane v McFarlane [2009] EWHC 891 (Fam), [2009] 2 FLR 1322, and Hvorostovsky v Hvorostovsky [2009] EWCA Civ 791, [2009] 2 FLR 1574 with the concept of 'reasonable requirements generously interpreted' lent support by Baroness Hale in Miller v Miller; McFarlane v McFarlane [2006] UKHL24 at [139] where she identified that concept or approach as one of the principles which might be applied in making an award. Again, and without intending any disrespect to these submissions, I propose simply to apply the principle in relation to variation applications which has most recently found favour with the Court of Appeal, and which reasserts previous authority on the topic. In Hvorostovsky at [35] to [37] Thorpe LJ said:

[35] In 2001, in the aftermath of the decision of The House of Lords in White v White [2001] 1 AC 596, [2000] 3 WLR 1571, [2000] 2 FLR 981, Charles J in the case of Cornick v Cornick (No 3) [2001] 2 FLR 1240 clearly stated a rule of fairness, namely just as an income fall justifies an application for downward variation, so an income rise justifies an upward variation. In neither case is the outcome bounded by the family's standard of living immediately before the breakdown. As Charles J said at 1262:

'It is therefore logical that a payee is not precluded from deriving benefit from an increase in the payer's fortunes even if this results in the payee enjoying a higher standard of living than she or he did during the marriage.'

[36] He then developed the proposition in the following paragraph:

'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 a 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 where a payer 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.'

[37] I am in complete agreement with those propositions and with the reasoning of Charles J … In my judgment, there is much to be said for trial judges continuing to direct themselves by reference to paras [105] and [106] in Cornick v Cornick (No 3) and to eschew sophistication that has crept in to the territory of s 31 since the decision of the House of Lords in Miller v Miller; McFarlane v McFarlane [2006] UKHL 24, [2006] 2 AC 618, [2006] 2 WLR 1283, [2006] 1 FLR 1186.

86. I also find myself in considerable sympathy with and derive support from the coda voiced by Bodey J in Hvorostovsky at [42] who observed:

As one who normally hears these cases at first instance I particularly echo what Thorpe LJ says in the closing paragraphs of his judgment. There are, of course, cases where a concise analysis of the identified concepts of 'needs, contributions and sharing' is a necessary and helpful intellectual tool in written or verbal argument, provided these concepts are not elevated to the status of heads of claim. However (because ancillary relief cases tend to be fact-specific and depend essentially on the exercise of a broad discretion in the pursuit of fairness) there are also many cases where a lengthy over-sophisticated approach of this type is an unnecessary diversion, which burdens rather than assists the court. This may be particularly so as regards variation applications, given the clear authorities on the topic cited by my Lord.

87. I find it difficult to adopt, again, anything other than a broad approach to resolve the tension between the very significant increases in H's income on the one hand, and the burden on W of dealing both retrospectively and prospectively with the impact of what may be only a deemed and notional contribution from LT. But I take the view that this is not a case where I should exercise my discretion to increase W's periodical payments in response to H's increased prosperity. As I have attempted to demonstrate, W should (notionally, at least, depending on the extent to which LT in fact contributes) have about the same 'more or less £100,000' coming in to her admittedly expanded household. That £100,000 definitely included some element of slack. I do not in these circumstances consider that it would be fair to H to increase his baseline input over and above the €144,000 p.a. which (now subject to the downward variation to reflect what I consider ought to be LT's contribution) I ordered in 2009.

88. There is however room for some neutral (in its effect on W) refinement to achieve taxation savings. H during the hearing canvassed an increase in the maintenance paid to his daughter from €16,500 to €20,000 or €25,000. I propose to increase them to €27,500 p.a. with effect from the beginning of 2010. That is an amount which is not untoward for a man in H's financial situation. The additional €11,000 will bear no Irish tax. However W's maintenance payments (as adjusted re LT) will from the same date reduce by the further amount which it is calculated would produce €11,000 in her hands if paid as taxable maintenance to her. Thus will be maintained what I have held should be H's baseline contribution, but at somewhat reduced cost to him. If on reflection both parties wish to project this adjustment further back in time then I will of course give that favourable consideration.

89. As it is not practicable to fix a hearing to conclude outstanding questions at the same time as this judgment is handed down, then as is the practice the time for applying for permission to appeal will be extended and will not start to run until after that hearing has been concluded and the form of the order agreed.