How does cohabitation affect divorce settlement?

How does cohabitation affect divorce settlement

Stranger on the shore: the significance of the cohabitee

 

How does cohabitation affect divorce settlement?  How does it affect my imminent divorce or the payment of spousal maintenance payments?  The vexed questions surrounding cohabitation usually cause a bulge in my virtual postbag.  The common scenario is as follows: there is a divorce and one spouse pays maintenance to the other.  The spouse paying the maintenance moves in with a new partner, often with a new family.  The new family struggles financially, and the ex-wife refuses to settle for reduced payments.  Years after the divorce, resentment festers on both sides, often crystalising about this time of the year when one ex seems to be able to go on a ‘swanky foreign holiday’ whilst the other contemplates a day trip to Butlins with packed lunches all round.

I think it is difficult enough for ex-spouses trying to get on with one another in a post-divorce world with the difficult issue of the maintenance order that goes on and on (and on).  But at least there is resolution of a sort for those who have dissolved their marriages and been given their financial orders.  So spare a thought for those whose divorce or financial proceedings appear to have dragged on for years, outliving Government administrations and Take That comeback tours. How can you plan a life with a new partner when the legal obligations for your previous spouse (and the children you’ve had together) have not been put to bed?

To the postbag…

Sinead contacted me recently and this is her query:

I have read your blogs on co-habitation after a divorce where the person recieving maintenance etc has gone on to live/marry etc and how this affects the level of maintenance paid. How does it work the other way round?

My partner (of 7 years), separated 71/2 years ago, divorced almost 2 years ago is currently going through the throws of financial settlement. He has 2 adult children and a 10yr old. The 10yr old currently lives with his ex wife in the old family home. He has continued to pay the mortgage/endowments on the family home and cleared many joint debts throughout this period (equates to about 75,000 to date). He was retired from the army 2 years ago with a pension and lump sum. He has not had work since. The lump sum has now all gone (living costs and paying debts etc mentioned above) and his monthly income does not cover his outgoings if he continues to pay the mortgage etc on the family home. As a consequence I am now supporting him (and as such payments to his ex wife!) – I am on a reasonable salary, almost paid off the mortgage on my house and have substantial savings (I had the misfortune of losing both parents and inheriting as well as having saved my whole working life) I have 3 children of my own that I support independently from my partner.

Will this have any influence on the likely award to the ex wife? (with her salary and benefits she brings home about the same as my partner) or will his financial status be looked at independently?

How does cohabitation affect divorce settlement?

Well, the first thing I should say is that it is always difficult in matrimonial settlement cases to isolate maintenance claims from capital claims.  Each marital settlement needs to be viewed as a whole. The existence of a new relationship, especially one of cohabitation is a fraught issue.  The cohabitant is not one of the legal parties to the divorce but their presence, like that distant stranger on the shore, is hard to ignore.   I have been critical of the way in which the courts presently deal with committed cohabitation where the receiver of maintenance (after a divorce has been granted and a financial order given) is able to pool resources with a new partner and still receive substantial maintenance from their ex.    But Sinead’s case deals with a situation where the financial settlement has not been achieved and there is no financial order yet.    With this thought in mind I can offer the following observations:

    • Sinead’s partner was divorced 2 years ago (by which, I assume, a Decree Absolute was granted by the court dissolving the marriage).  This is before there has been a financial settlement, either a consent order or an order given by a judge in the absence of agreement.  This is unusual.  If lawyers are involved, in most cases, they will agree not to apply for Decree Absolute until the court has given a final order dealing with finances.  However, the prejudice, if there is one, would likely be to the ex-wife in this situation as she will automatically lose the right to widow’s benefit and possibly certain dependent’s benefits under the Army pension in the event of Sinead’s partner dying before the financial settlement is agreed.
    • what about pension sharing orders? Even though this army pension is in payment it can still be subject to a pension sharing order.  Expert advice is required (normally from financial advisers instructed by lawyers) as the valuation of armed forces pensions, like police pensions, is not straightforward.
    •  Sinead’s partner has retired from the army.  He took a lump sum but has expended this over the course of the last 2 years in meeting income needs (probably both his own and also his ex-wife’s).  Generally speaking, it is never a good idea to meet income needs out of capital.  Sinead’s partner will no longer have this capital cushion.  I do not know if he has any other savings.  But now the capital has gone, and since I am told he has not worked since retirement, how can he maintain the payments made to the ex-wife, especially the mortgage payments on the former matrimonial home?  Sinead cannot be expected, and legally, certainly is not required, to subsidise her partner’s ex-wife.  But if things carry on as they are, this is effectively what she will end up doing.
    • What about the former matrimonial home? I am presuming it is jointly owned by Sinead’s partner and his ex-wife. It would appear there were 3 children of the marriage but only one of them, a 10 year old, still resides at the property.  Is the size of the property surplus to the needs of the ex-wife and child?  Could they downsize and do so now before the child enters the early years of secondary education when a move could impact upon educational attainment?  Would there be sufficient equity following a sale to allow the ex-wife to purchase a new property free of mortgage charge, or with a much reduced mortgage, that would place less reliance upon the ex-husband’s income (which must come from his pension payments).  If there are lawyers involved in this case, I suspect that they will identify the potential sale or retention of the family home as key in this case.  But to let the situation drift on as it has been doing helps nobody here.
    • I do not know the length of this marriage or the ages of Sinead’s partner and his ex-wife.  Judging by the age of the children I deduce that it is a ‘long’ marriage. This can dictate the length of any spousal maintenance claims.  So, it may be more likely that this could be a joint lives spousal maintenance claim.  That is, Sinead’s partner may have to pay spousal maintenance to his ex-wife until he dies, she dies, she remarries, or the court relieves him of the liability by a further court order.  There may be an argument that the ex-wife should not receive any spousal maintenance at all if the incomes of ex-wife and ex-husband are roughly similar.  However, I would imagine that a court would expect at least nominal maintenance to be paid to the ex-wife because there is still a minor child of the marriage residing with the ex-wife.
    • I should also mention that I do not know which area of England & Wales the ex-wife lives in.  Two courts, 100 miles apart, can produce significantly different outcomes based on the same set of facts.   Talking to family lawyers from different parts of the country, it is clear that some courts seem content to award spousal maintenance for short periods of time after divorce whilst others insist upon joint lives orders.  I would not say there is a North/South divide on this issue but it is clear that there are regional disparities (even though the law is the same!)
    • It is interesting to note the long period of separation without a financial settlement (sealed by a court order) being put in place.  This long delay almost invariably makes it harder to reach agreement.  For instance, Sinead’s partner has been paying for the mortgage and endowments on the former matrimonial home.  His lawyer may say that if these monies have come out of his pension capital then he should ask for a credit for those payments (say 50%) to be taken account of in the financial settlement.  This argument would be based on the fact that he had increased the value of the capital assets of the marriage (the home and the associated endowment policies) by depleting his own capital (from his pension lump sum).  But the devil is always in the detail.  The ex-wife’s lawyers may argue that the mortgage  and endowment payments were in lieu of the proper spousal maintenance and proper child maintenance that should have been paid to the ex-wife and children over the 7.5 years of separation.  And, for all I know, the mortgage may be an interest-only mortgage which does not reduce the amount of capital borrowed over the term of repayment.  So it’s fingers crossed, that the endowment policy will be substantial enough at the point of maturity to pay off the outstanding mortgage sum.
    • If the capital assets of the marriage are modest and the income of the parties is also modest, then this may be characterised as a needs case.  That is,  there may not be enough capital within the marriage, to meet the housing needs of the ex-wife and Sinead’s partner.  The ex-wife may argue that she needs more than 50% of the capital in the home (once the mortgage is paid off) because the housing needs of the 10 year old child will be resting on her shoulders. (And the court will give first consideration to the needs of any minor children of the marriage).
    • The complication in these circumstances is that Sinead’s partner has been cohabiting with Sinead for a significant period of years.  The fact of cohabitation with a new partner by one spouse is taken into account by the court and I think the weight that may be attached by a court to this cohabitation will work itself out along the following lines:
      • Is the new partner a potential income or capital resource?  In this case Sinead has built up her own capital by dint of hard work and has also inherited capital from her parents’ estates.  Sinead receives a good wage.  She has in effect subsidised the ability of her partner to continue the payments to the ex-wife.  If Sinead was in a position of having no capital, living in a rented property with her partner, and entirely dependent upon benefits, then we may safely say she would be an added responsibility for her partner rather than a capital or income resource for her partner.
      • Even if the new partner does have capital and income resources, is there a competing demand upon the new partner’s resources that should effectively cancel out the resources?  In Sinead’s case, yes, she has three children of her own and they unarguably would have first call upon her resources.
      • How long and how committed does the cohabitation appear to be?  A few years of on/off cohabitation is not going to really impact upon any court’s consideration in a divorce financial settlement.  But Sinead’s case is somewhat different.  There appears to be some 7 years of cohabitation.  A court may think that is a fairly settled situation.  Perhaps a court may think it could give more of the capital in the matrimonial home to the  ex-wife because the husband’s housing needs have been addressed by living with Sinead.  The reality, of course, is that Sinead could ask her partner to leave her house the day after any such divorce settlement was agreed.  He has no security of tenure in Sinead’s property (on the information provided by Sinead).  So, he does still have housing needs and some entitlement to the capital in the former matrimonial home.
      • Is it likely that Sinead and her partner will marry?  Any such intention would have to be declared by Sinead’s partner at the point of submitting a financial consent order (presuming there is an agreement) to the court for approval.  If marriage is likely, then Sinead will appear to the court to represent a more solid capital and income resource for her partner and the ex-wife will probably seek more of the capital in those circumstances.

Sinead will probably want to keep her capital savings separate from her new partner until (and even after) his financial settlement is resolved.  She will not be thinking of giving her partner a share in her own property.  After all, she has her own children to think about and prioritise.   She may well be asked by the ex-wife’s solicitors (via a request to her partner) to give disclosure of her financial means so they can gauge whether she really does represent a resource that should be taken into account.  Sinead does not have to provide detailed disclosure but may consent to provide a headline figure for her net income and her net capital.  It would be prudent, however, to state that Sinead does have three children to maintain with her income and there is no legal obligation upon her whatsoever to support her partner or, indirectly, his ex-wife.

Sinead may, if she sought legal advice, be told to have a cohabitation agreement with her new partner or, if she plans to marry him in due course, to have a pre-nuptial agreement.  So the answer to the question: “How does cohabitation affect divorce settlement?” is “It depends on the facts in each case”.

, ,

8 Responses to How does cohabitation affect divorce settlement?

  1. Michelle November 28, 2012 at 11:03 am #

    I am in a situation where my partner is recently divorced but have yet to come to a financial agreement. He has raised a Consent Order thorugh his solicitor which his now ex wife was due to sign. She has been made aware of our relationship and has now asked my partners solicitor to ensure my information is factored into the disclosure of monies. Can this be right? What committment would I have to his ex?? He has 2 children also. Would this change if we were to be married? He was due to move into my home but would this also become a factor?

  2. DivorceFT November 28, 2012 at 10:39 pm #

    Well, Michelle, your partner and his ex-wife owe each other an obligation to give full and frank disclosure of their financial means to each other right up to the point that the consent order is approved by the court.

    When your partner completes a document called a D81 (Statement of Information Form for a Consent Order) – which must accompany the consent order to the court, one of the questions is whether he is cohabiting or intending to cohabit or re-marry. You and your partner are not presently cohabiting but clearly he has an intention to do so. He is obliged to tell the truth about his intentions on the form.

    However, the ex-wife’s solicitors may enquire about your existence but you are not a party to these proceedings and may simply refuse to give any details about your finances. The issue here is whether you represent a ‘resource’ to your partner which will make it easier for him to survive financially after the matrimonial finances have been divvied up. If capital and income in the former marriage is tight then the ex-wife may say she can take more from the pot of money to meet her needs or those of the children and that your partner will not miss it so much because you can indirectly help him out.

    But you may never move in together. Or you may move in but then quickly move out. So it is not clear cut to simply say: “Look, my ex has a new partner so that must mean I will get more of the capital from the marriage” Each single case will turn up its own facts.

    You may volunteer some ‘headline’ figures for your capital or income to the ex-wife’s solicitors if they are requested if you think it helps to move things on. But, in the final analysis, you may simply say “Bog off” and there is not a great deal that can be done about that.

    You would have no commitment to the ex-wife. Your capital and your income are your own. She has no claim upon them.

    If you and your partner marry, then the relationship is accorded more weight by the family court than cohabitation. If you had a reasonable amount of income and capital you would more likely be seen as a resource to your partner.

  3. Sarah October 15, 2013 at 10:18 pm #

    My ex husband is ordered by the court to pay maintenance to myself & 8yr old son. He has recently bought a 4 bed house together with a new partner (over 400K) who works and has a 10yr old.

    He now wants to reduce our maintenance by over £300 per month (saying his income is not what it was at time of order, which is not clear, think he gets a very good bonus which he keeps hidden). The court order ordered that it was to be reduced a year ago which it did and now he wants to reduce it even more. I do not have a new partner and due to health unable to work.

    He is threatening me with taking me to court unless i agree. Whats his chances of success and does his partners income come into the equation? They moved to a bigger house which wasn’t really necessary and surely between them the home income is much larger than when he was on his own which is evident in the big new house and several holidays abroad!

    • Alan Larkin January 7, 2014 at 9:28 pm #

      Hi Sarah,

      Your ex has to respect the terms of the court order. If he wants to reduce the amount he will need your consent but you are entitled to assess his financial situation to satisfy yourself if there is justification for a reduction in the payments.

      You should invite him to mediation for which legal aid is still available so you can both be assisted with a financial disclosure process – the main gist of which will be the level of his net income, his outgoings and his ability to afford the payments.

      His partner’s income in and of itself cannot be the subject of a maintenance claim by you of course but it may stand as a ‘resource’ to him and certainly the pooling of two incomes is usually beneficial in one household. So he may find it hard to justify a reduction once you have seen his figures.

      He is entitled to return the matter to court but he would have to undertake a process of financial disclosure (as would you) before he could persuade a judge to reduce the payments. Of course, that process may result in an increase in the payments to you. It is impossible to predict without knowing the full circumstances.

  4. Mark P October 24, 2013 at 8:54 am #

    My partner has been divorced from her ex-husband for 8 years and the divorce settlement included a monthly spousal maintenance payment until she remarried or he died.

    We co-habit and he has now stated that the payments will cease in two months as he may have to reduce his working hours. He is a director of a financial successful business and his payments (spousal and to the two children) have not varied since the settlement was ordered by the court.

    My income is minimal in comparison.

    Does he need to reapply for variance through the court?

    • Alan Larkin January 7, 2014 at 9:17 pm #

      Well, your partner’s ex is not entitled to stop the payments unilaterally unless the order giving rise to the payments stated that cohabitation would bring the spousal maintenance to an end.

      What about inviting the ex to attend mediation? The mediator will assist with the financial disclosure which will allow your partner to assess whether she should agree to a variation by consent. LEGAL AID IS STILL AVAILABLE FOR MEDIATION.

      In the absence of an agreement the ex will have to apply to the court to vary or stop the spousal maintenance payments. If he does stop them then your partner can apply to the court herself to enforce the spousal maintenance order.

  5. leanne June 2, 2014 at 12:39 pm #

    Hi, I live in Wales and am currently at my absolute whit’s end!!! Very long story, will condense as much as I can. I was with my partner from 2000, we married in 2006 with 2 children, when we separated in 2010 we had 3 beautiful children. I moved out of the marital home with my 3 children to a private rental property. My ex was working away at the time and was home on weekends, he spent this time finishing off the house (it was a self build) to a standard where it could be sold for a price that would pay off the debts and leave money left over for each of us.

    My ex moved in with his current partner in 2011, they are still together and are trying for a baby of their own. To put it bluntly, it got very very ugly, lots of texts etc between myself and him. He produced a “solicitors” letter in 2012, not sure of the precise time. In a nutshell, because I refused to sign without legal council and beacause I disagreed with its contents he was furious.

    I inadvertently caught him, his mother and his brother, on a Monday at the marital home taking furniture and other household items. I had no qualms about him having things, I had sufficient furniture from the home when I moved out, fair is fair, it was the fact that it was all planned (he had hired a van from where he currently resides) and done so underhanded!! A massive row ensued between myself, his mother and him. I said I would move back in with the boys, he told me he would stop paying the mortgage and have the house repossessed so it didn’t matter either way, the house was “going” he said. I asked him more than once if this was his intention and he smugly told me it was everytime. I asked 1 question after that, was everything in the house fair game? He was hesitant but said yes, I left.

    I returned the next day alone and took what I needed for my council house. Of course he was mortified but as I previously stated I was told under no uncertain terms the house was going and I would get nothing, I didn’t receive money but I had my share of the house contents. True to his word the mortgage payments and all the other household bills ceased.

    He then declared himself bankrupt last February. Our divorce is proceeding and I have now received a clean break document. he states he has no assets etc and that he commenced employment in April earning £2500.00 monthly. The firm he is employed by was co-founded by him and 2 colleages in 2009, when we separated he claims he signed his share over to one of them and that he had nothing to do with the company, yet they were putting money into his account with invoice numbers as reference, I also have text messages between him and a “silent” colleague discussing when their wage was due to hit their accounts. He tried to talk his way through this but I know he was lying. Low and behold he is now a resurrected Director of said company.

    He has lived with his partner (they had an affair, also denied) in her substantial home since 2011, she is very successful in her own right. He claims she has paid for everything, holidays, all the bills etc. He still drives his brand new BMW M3 Lease car despite being bankrupt, the car is in her name. Basically he has just lied and lied and lied about every single god damn thing.

    I worked until I had my 1st child in 2000, I then stayed at home to look after my baby and the other 2 that followed while his career took off and his earnings were well above average and we lived a very comfortable life. I am currently on benefits for me and my 2 youngest, my oldest wanted to live with hs father and moved there in January. He pays me £150, monthly for the boys but its always a massive power trip to get it off him. He has cut down access to the boys from 3 weekends in 4 to everyother to save on feul!!!! He has offered me £1800 (not in court documents, verbally) to sign the form.

    Its not about the money for me, its the principle and the fact that the effect he has had on my mental health, my life, my everything. I am a totally different person now, I feel like my years with him were all a big fat lie. Now he is living it up and I know he has been earning all along from the company, he is the biggest liar ever!! Do I sign it and take the money offered or would I be better off going to court, I cant work or do I have his earning potential as I sacrificed my career in favour of rearing our children. I am on the edge of insanity over it all, I do not know what to do. He is saying he has nothing but his partner does, i don’t care if i get nothing i just want him to be seen by all as the liar he is, he is foxing everyone, i am not being bitter either, i am telling the gospel truth. Please please advise me, i am a heartbeat away from a breakdown with it all. Thanks

    • Alan Larkin July 4, 2014 at 11:16 pm #

      Hello Leanne,

      What an awful situation for you. My thoughts:

      You have details of his income (if he is being truthful) so why not enter the income figures into my child maintenance calculator to check that he is paying you approximately the right amount.

      If you have young children, you should not be accepting a clean break. A court will not approve it and you actually need an order, not just a bit of paper. You may have capital claims against him. I don’t know what happened to the family home. Was it re-possessed? Was a trustee in bankruptcy appointed? Some people try to declare bankruptcy when they are still solvent as a means to defeating any claims their spouse may make against them. If the bankruptcy was genuine you should have been contacted by the receiver or trustee in bankruptcy if the family home was in joint names.

      If someone is being untruthful the only way to get to the truth is to issue financial remedy court proceedings. The court will ask you both to complete Form E financial disclosure forms and it is perjury to lie on those forms and is potentially an imprisonable offence. He will have to give details of him capital and income and any company interest as well as directorships on that Form E. It would give you a chance to ask questions about his finances. You cannot get legal aid anymore so you would either have to borrow the money to get legal advice to start proceedings or become a litigant in person (LIP) and fight the case yourself. That’s a big ask I know but its what many people nowadays are being forced to do by the government withdrawing legal aid.

      If he has pensions you may be able to get a pension sharing order.

      In short, although I do not have all the facts, the offer of £1,800 does not appear reasonable. I cannot advise you as I do not offer advice on this blog. You really need to get advice if you can. You could try Citizens Advice Bureau or try to get an initial free consultation with a local law firm to see if you have any other options.

      Good luck,

      Alan

Leave a Reply