Whilst the approach of the court in respect of spousal maintenance payments has no doubt hardened over the past few years, a common question that still arises frequently is whether any such spousal maintenance payments cease if the party receiving those payments begins to cohabit with a new partner. For those paying spousal maintenance, it can often feel unfair that those payments continue when their ex-spouse is living with someone else.
The court approaches cohabitation very differently to remarriage. An order for spousal maintenance payments will likely contain provision that those payments will cease if the receiving party should remarry but not if they cohabit. Remarriage is viewed as a sign of commitment and the receiving party may have recourse to their new husband or wife for financial support by way of spousal maintenance payments should the marriage break down. A cohabiting relationship comes with no such rights.
There are two key points the court must consider:
- Is the ex-spouse cohabiting with a new partner?
- If the ex-spouse is cohabiting with a new partner, does that cohabitation justify a change in spousal maintenance payments?
Is the ex-spouse cohabiting?
It will come as no surprise that many of those who receive spousal maintenance will wish to keep their new relationship hidden from their ex-spouse, particularly as that relationship becomes more serious and living together becomes a real possibility. It can often be difficult to prove definitively that an ex-spouse is cohabiting, particularly if they take steps to give the impression they are not. Evidence gathering at an early stage is therefore vital.
There are numerous factors that may lead to a determination that an ex-spouse is cohabiting but the below list provides a helpful guide as to what the court may consider relevant:
- Whether the parties are living together in the same household;
- Whether the parties share daily tasks and duties;
- The stability and permanence of the relationship;
- The financial affairs of the parties;
- Whether it is a sexual relationship;
- A close bond between the third party and the children of the family;
- The motives and intentions of the parties; and
- Whether a reasonable person with normal perceptions would consider that the parties were in a cohabiting relationship
The court will consider all the evidence before it as to whether there is a cohabiting relationship. Evidence that may be of assistance in proving such a relationship includes, but is not limited to, joint bank accounts, plans to marry the new partner and the sharing of childcare responsibilities.
Does the cohabitation justify a reduction in the spousal maintenance payments?
If the court determines that the ex-spouse is in a cohabiting relationship, it must then decide whether that cohabitation justifies a change in the spousal maintenance payments. It is important to note that establishing cohabitation is not decisive and will not automatically lead to the court deciding that there should be a reduction in maintenance payments.
The court will have regard to the overall circumstances of the case and whether varying the maintenance payments will result in undue hardship on the party receiving such payments. One key question the court will ask is not what the new partner is contributing but what they ought to be contributing, having regard to the financial circumstances of the parties. Each case will turn on its own facts and whilst the court, as a starting point, does not need to consider the matter completely afresh, the level of disclosure and analysis will depend on the complexities of the case.
If you would like to discuss any of the above, or indeed any other issues relating to divorce or separation, our team of specialist family law solicitors are more than happy to discuss your situation with you. Please be in contact by telephone or email; WBrownhill@streathers.co.uk or on 020 7317 7226.
