Colouring in is harder than it looks
It is a common question in divorce: “Can my ex claim money from my new partner?” Or: “Can my new partner’s ex claim against me?” It seems to be a fear for most spouses going through the divorce process who are cohabiting, or thinking about cohabiting, with a new partner. When I receive questions like this, I always think: this time I will give a really short, clear answer. But just like my efforts at colouring in when younger, I end up going over the lines. So it is with my blog posts about English family law.
And so to the virtual postbag. This is the question, posed by C:
I would like to know that if my new partner and I got together (living or married) could his ex-wife claim on my monthly wage? Plus I own my house outright would she have any claim on that?
Thank you.
Each case turns on its own facts. This is what lawyers say all the time to just about every enquiry that comes in their direction. Put another way, it is essential to know the facts of a given situation if any advice is to be given in a legal context. To say anything useful in response to C’s question I will need to colour outside the lines. And I have written before about the status of co-habitees in family law. Now, as every regular reader of my blog will know, I do not, ever, give out advice. I can only make observations or prompt further questions for my readers to consider.
Can my ex claim money from my new partner?
So, in answer to C’s question, I can make the following points:
- Since it is your house, your new partner’s ex cannot make any claim against your property. Full stop.
- I presume that your reference to your new partner’s ex-wife means that he has obtained a divorce and a financial settlement. If he has NOT finalised his divorce and financial settlement, and you move in together, he must disclose that fact to his solicitors. If he does not have solicitors, then he must disclose that fact to his wife or her solicitors. This is called the duty of disclosure.
- If the divorce and financial settlement have not been sorted out yet, and you move in together then his ex’s solicitors may say that you represent a resource to your partner. The fact that you are housing him means that he may not need as much of the equity in his matrimonial home as his ex-wife. If your partner has children from his marriage and they are predominantly going to live with his ex-wife then she may say their housing needs should be added to her own housing needs so she should have more of the equity. And anyway, her lawyers may say, since you are helping your partner to address his housing needs, the ex-wife can how have more of the equity since he does not have as great a need.
- If the divorce and financial settlement have not been sorted, and the ex-wife wants spousal maintenance then she will say the fact that you are living together means that you are sharing your living expenses so perhaps this frees up a bit more income for spousal maintenance. But she cannot claim against your monthly income. That is your money – not your partner’s nor his ex-wife’s.
- But, if the divorce and financial settlement have been sorted then the impact of you living together is more limited. There should be a final court order dealing with the matrimonial finances. The key thing is whether the ex-wife has an order for spousal maintenance. If she does, then she may argue that moving in with you means that your partner is sharing his living costs with you so he can afford to pay his ex a bit more. The ex-wife may therefore make an application to vary her spousal maintenance upwards.
- And C should remember to consider protecting her own position in relation to her new partner if she lets him move in. What about a cohabitation agreement between you to sort out who pays what over the course of time?
I could go on quite a bit with these observations. The answer to “Can my ex claim money from my new partner?” is not as straightforward as it might appear. But I have almost worn down my crayons so time to pack it in.
Tags: cohabitation
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I am currently getting divorced, but no financial settlement has been sorted. I currently earn a considerable amount more than my spouse and my solicitor fears here may be a claim for spousal maintenance.
I am considering buying a new property with my new partner that would no equity in it of my own, deposit put in by my partner, and would like to know if my ex has any claim on this property. Also my new partner has 2 dependant children that would be living with us and there would also be a high mortgage now to repay.
Would this help me in my ability to stop spousal maintenance being raised, or would my ex still potentially have a claim.
My ex is living in the marital home that is paid for outright. And I plan to let her ave this as part of the divorce.-
Hi Paul,
Whether or not you are required to pay maintenance to your spouse depends upon a number of factors – usually referred to by lawyers as section 25 factors (as in section 25 of the Matrimonial Causes Act 1973). The relevant factors would be, as you have already mentioned, any significant disparity in incomes. But other factors include the amount of income your wife needs to live on and the stability of her employment, as well as the duration of the marriage and the existence (and age) of any children of the marriage. These are considerations that you will have to take guidance upon from your solicitor. However, you mention the potential purchase of a new property by your new partner and ask whether your spouse would have a claim upon that. The short answer that I would expect to come from your own solicitor, is ‘No’. The only exception would be if you did end up putting capital into that new property and your spouse claimed that you had used matrimonial capital to do so. The fact that your spouse may end up with the matrimonial home free of mortgage charge does not automatically mean that you will not have to pay spousal maintenance for the reasons (section 25 factors mentioned above) that may be relevant in your case. You really need to obtain guidance from your solicitor tailored to the unique facts of your case.
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Hi…i am buying a house outright in my name with my inheritence ..
I am married and just need to know whether my husbands ex wife would be able to touch it?-
Hi,
In short: No. It’s your money and your house so it is not capital that belongs in the matrimonial pot of your husband’s former marriage.
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Hi, my partners decree nisi came through last January but is still caught up in the financial arrangements and so no sign of the absolute. We are wanting to put the last two years behind us and move on with our lives together. We have had to rent during this time due to so that we wouldn’t lose another property during the financial hearings. However, we are desperate to settle and build a happy life for ourselves (before our baby is born) if we were to put some money into a house with both of our names on the mortgage is there still the possibility that his ex wife will take this from us (we plan to buy a house equal or below the cost of hers)? As the Nisi has already been granted would this house be counted as non-matrimonial?
Many thanks for any advise you can give
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Hi Sarah,
I’m happy to make observations but I do not give advice on this blog.
My first thought is: why are the financial arrangements taking so long? I take it that your partner’s wife is the Petitioner in divorce. She has obtained Decree Nisi over a year ago – which means the court has the power to make financial orders, hopefully by way of consent order if there is agreement. I’m a bit in the dark as to what stage has been reached in the court hearings. This state of limbo is no good to any of you, and you certainly would benefit from having the your partner’s divorce and financial settlement achieved before your baby arrives (congratulations by the way!) In any event, I hope your partner settles soon or there is at least a final hearing listed so the matter can be done and dusted.
There is nothing to stop you and your partner purchasing a property. I don’t know whether your partner is a party to any mortgage on the former matrimonial home or if the wife has her own property already. He may have trouble perhaps getting another mortgage if he is still a party to a mortgage with his wife. Your partner is entitled to address his housing needs. If you were putting capital into such a joint purchase then your partner’s wife is not able to make a claim against that capital. Unless, perhaps, she was claiming that your partner had salted the capital away out of the matrimonial pot, had passed it to you, and you were pretending it was yours. (This does happen sometimes). But, in very round terms, your partner’s wife can only make capital claims against capital or property in which your partner has an interest or against income that he generates himself.
If it was a case where you were putting in much more capital towards a joint house purchase, then you may consider obtaining a declaration of trust, which will set out your particular interest think of owning the property as tenants in common. If you don’t what this means, have a look at the Tag Cloud for “Notice of Severance” on my blog and read the posts and comments.
The mere granting of Decree Nisi does not mean your partner’s interest in any new property would be counted as non-matrimonial. It depends whether he is using savings from the marriage to buy the property or if he is borrowing the majority of the purchase price by way or mortgage, in which case this is fresh borrowing and nothing to do with the marriage. The financial claims will not be resolved until there is a financial court order, usually followed by Decree Absolute.
Good luck, especially with the new arrival…
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Hello,
My new partner is going through a divorce having been separated for some time. We are currently cohabiting in one of their marital properties, but I am currently looking at purchasing a house of my own. My partner and his ex have 2 children together and he has always paid maintenance in fair amounts. My partner has just received a letter from his solicitor asking for details of my finances for disclosure. Are we on strong grounds to refuse given that I am not contributing and purchasing my own property?
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Hi Louise,
You are not a party to your partner’s marriage. As far as any matrimonial proceedings are concerned, you would be a ‘third party’. Your partner has an obligation to provide full and frank disclosure of his means for the purposes of any financial proceedings. I’m not sure if there are any proceedings in place or if the solicitors are attempting to deal with financial disclosure on a voluntary basis in the hope of agreeing matters without the need for formal court proceedings.
In any event, disclosure is often dealt with by completion of a financial questionnaire called a Form E. The relevant question on the Form E that your partner has to answer is at section 4.6 in relation to his co-habitee’s financial circumstances (insofar as they are known to him).
Section 4.6 of the Form e only asks for basic details such as a new partner’s income (important to say whether it is gross or net), and their approximate capital and liabilities. There is no requirment for your partner to produce any documents supporting these basic details – after all, remember that you are a third party so technically, you are able to just say “Bog off – this has got nothing to do with me”. Your partner can’t force you to disclose any information in relation to your finances. Whilst there are potentially mechanisms by which a court could try to compel you to provide documentary evidence, in reality this hardly ever happens to a cohabitee.
So, it may help your partner to keep any proceedings rolling along, if you agree to provide only the basic information required by section 4.6 of the Form E.
I hope that gives you something to go on.
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Alan,
Your website has been very helpful but just wanted some advice on an issue similar to the above. My partner has been divorced for a few years but has a child who he is paying maintenance for via the CSA. We are thinking of buying a property together but the arrangement is not 50:50, I have more money to put towards a deposit and a higher earning capacity, therefore I am worried about his ex wife being able to make a claim to our property together – whether that be the whole property or his portion. This is despite his divorce finances being settled.
Also if we ever got married does that mean the child maintenance would be calculated on our joint income or just his own?
Many thanks.
Abby
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Hi Abby,
You say your partner is divorced and his divorce finances have been settled. I will presume you mean he has a financial order dealing with matrimonial finances. In those circumstances, it is likely that any capital or property adjustment claims that his ex had will have been dealt with already or dismissed in the final financial court order. This should mean that even if he owns a property with you, she cannot claim against his interest in that property.
Any couple purchasing a home together should consider whether to reflect their unequal capital contributions in a declaration of trust, say 60/40 or 70/30, so that as in the latter example, one person would be entitled to 70% of the equity in a property and the other owner would receive 30%. If your income is greater you could consider a cohabitation agreement that would regulate your respective contributions to the running of your home and and your responsibilities to each other.
In the event of your marriage to your partner, it would not change the way the CSA or CMA deal with child maintenance. This will continue to be based upon 15% of your partner’s net income for one child (your income is not taken into account). If your partner transitions to the CMA scheme, he will pay a percentage based on his gross income, but it is slightly more complicated than the CSA scheme. But, again, your income will not be taken into account.
Cheers,
Alan
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Hi
I had a very short marriage 18mths then filed for divorce i divorced him many reasons bad. did not get absolute til 5 yrs later as he would not pay small court order was not worth going to fight over small amount. so just got absolute.
well i signed the form i relishwish all rights to HIs future stuff inheritance. but i dont think he sighned his to me so want i want to know is if i get a good job and come into some money can he get anymore money off me or if i get re married. at the time he even wanted alomoney from me only on 20k them and he earned alot more but self employed so hid it very bad bloke been stalked too so basically can he ever come after me for any money
thanks xx
we had no children only i mine as as such a short marriage he did not have to pay anything he just had to pay me small amount which he didnt
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Hello there,
OK, you want to know whether your ex can come after you for any money. You mention having signed a form relinquishing all rights to his ‘future stuff and inheritance’. Perhaps you mean a financial consent order settling all claims between you and your ex-spouse? If this was a court order that you refer to, then whether he can make any further claims against you will be decided by the terms of the order. You say he had to pay you a small amount but didn’t. I’m not sure if you mean a one-off lump sum payment or ongoing spousal maintenance? It is unlikely that your ex has any further claims against you if you are referring to a court order but it is very difficult for me to make any further observations without knowing a bit more. Sorry…
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My partner is married but I have been with him for 16 years, living in my house for 7 years and then for the last 7 years living in a house we chose together but the house is in his name. I have recently sold my house. He has a will with his wife, I currently none.
If we were to now put the house in my name or joint names what claim would his wife have on our home?-
Hi Tracy,
A number of points occur to me:
It seems that your partner has been separated from his wife for a long time without obtaining a divorce and financial settlement. I don’t know whether your partner still supports his wife financially (or if there are children of the marriage). But, even after such a long period of time, the wife may still be able to bring claims against your partner. There is a case in court at the moment which involves a claim 19 years after separation. It might be a good idea for your partner to obtain legal advice to see if a divorce and financial settlement can be achieived (what about mediation?)
If you are going to put the house in joint names, it might be an idea to do so by way of Declaration of Trust so your respective interests are properly recorded. This not only makes it clear as between you and your partner but also makes it clear to the wife that you have a distinct interest that cannot be attacked if she does make a claim. If you have a Declaration of Trust you must get a Will. This is really important, as your interest in the property will otherwise pass in accordance with the laws of intestacy – so best not to leave this to chance.
I don’t know how you and your partner organise your finances but you have had a long relationship together. I think it would benefit both of you to consider a co-habitation agreement (which will regulate your financial relationship together)and your respective Wills. I am sure you would both wish the other to benefit in some way if one of you died. So, for instance, if your partner were to die now (and I’m sorry to be morbid), where do you stand in relation to your occupation of your home which is in his sole name? Your partner’s wife could have a strong claim against his estate and you could also have a lesser claim as you have been co-habiting together for over 2 years. But the Inheritance Act would put the wife in a stronger position (as a widow) than you as a cohabitee, no matter how long the relationship. I think your partner needs to sort out the divorce and financial settlement.
So, Tracy, please, have a chat to your partner, take some advice and get a plan. Good luck.
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I divorced my ex using a online service, we had a verbal agreement to sort out some financial stuff afterwards but she as gone back on the agreement, can i do anything about this
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Hi Martin,
It is still possible to have an agreement that could be enforceable even if the agreement is a verbal one. The problem of course is one of proof as to the terms agreed if there is no documentary evidence or if there is no one else, independant of you and your ex, to say they were a witness to the terms of the agreement.
In any event, the financial claims between you and your ex arise out of the divorce itself so it is possible to still make a claim by issuing financial remedy proceedings in the court. But, the process is an involved one and you would have to pay a court fee. Also, there is no guarantee that your ex will not get more from the court than you expected (as in pension orders, for instance). So much depends upon the circumstances of your case and whether the costs of getting legal advice or going to court will outweigh the benefit of the agreement you thought you had reached with your ex.
I’m sorry I can’t be more positive: this is why agreements reduced to writing, in the format of a deed or by way of court order, can at least be enforced if one of the parties attempts to walk away.
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i seperated from my wife in 2010, i currently live with my new partner
in her house, my ex is now wishing to file for the divorce an wants me
to supply her with our address, however due to the nature of my ex
i do not wish to tell her my address, for the purpose of divorce am i able
use a c/o address for the purpose of having papers served-
Hi,
Yes you can use a care of address, perhaps a trusted third party. This is, of course, one of the benefits of using lawyers. Alternatively, you could agree to be served with the divorce papers at a neutral venue by a process server on behalf of your wife. I guess the difficulty might come if there are financial claims arising out of the divorce and you are asked to give details of where you live and whether you own that property. Then it may be difficult to resist providing those details. I’m not sure why you are uncomfortable with your ex having your address – if it is because of domestic violence then you could explain the situation to the court.
Best wishes,
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Dear Alan
Thank you for your reply 13 February 2014. However my situation has some what changed recently in that my partner’s wife has died and was wondering what position this now puts me in as cohabitee? There are 3 adult children from their marriage, I have 2 adult children of my own who both live with us, one disabled. It has transpired that the deceased wife had somehow managed to put their jointly owned property into her sole name back in 2001!which no doubt was why she never bothered divorceing him and anyway that would have made things too easy for us. Why is life so complicated!!-
Hi Tracy,
Yes, life is complicated, isn’t it! I think, Tracy, one of my initial observations for you when you originally posted a query, was that you sat down and made a plan with your partner. I was a little bit concerned at the length of your relationship and the fact that you did not have a legal interest in your home and may not have any benefit under your partner’s Will. I don’t know if you were able to follow up that suggestion but I think it still holds true for you. What your partner’s wife’s death has done is, perhaps, to throw your own situation into sharp relief.
Your partner may have a claim under the Inheritance Act against the estate of his late wife if her Will fails to make reasonable provision for him or if she had no Will and the rules of intestacy also fail to make reasonable provision. Generally, adult children are not able to claim against a deceased parent’s estate unless there are exceptional circumstances. Disability, for instance. I cannot comment further because I do not know the circumstances and in any event I am more concerned about your situation. You need to have that chat with your partner to make sure you have some security in the event of his death and securing your own interest in the family home would be a good start. If he has pension death in service benefits, he could nominate you to receive all or part of those benefits or provide for life insurance that would pay you a lump sum in the event of his death.
Have that chat!
Best wishes,
Alan
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Hi Alan,
My partner has a decree nisi and we’re waiting for the 6 weeks to pass so he can get his absolute. We are wanting to get married next year and then buy a property together in the near future. I have a considerable sum I would be putting in as deposit. If we did this and bought a house, putting it in both of our names once we’re married,would his ex be entitled to anything? Himself and his ex didn’t have children or own any property. We’ve discussed him getting a clean break order but I read that unless she agrees to it, it could be a very lengthy and costly process. She has tried to stall the divorce at every opportunity and been very difficult so I doubt she would sign a clean break agreement. Please help, it makes me scared to marry him for fear of loosing my parents money to her!!
Cara-
Hi Cara,
If your partner and his soon-to-be ex wife agree a clean break then there is nothing to stop you owning property with your partner in the future, whether you are married to him or not.
If it is not immediately possible to obtain a clean break order then I can understand your caution, but I would observe that if you put down a sizeable deposit then you could agree to own the property as tenants in common so that you have distinct beneficial interests recorded in a declaration of trust. Your partner’s ex would not be able to make a claim against your beneficial interest. You must remember though to make a Will determining where your beneficial interest is to pass in the event of your death.
What about your partner and his ex attempting mediation to sort out a financial settlement? Ultimately, if one party really wants to settle financial matters arising out of divorce and the other refuses, then it is possible to apply to the family court for appropriate orders so it would bring matters to a head. Obviously not an ideal solution but that is why the court is there.
But I hope you will see that it is perfectly possible to marry your partner but still protect your financial interests at the same time until you know he has reached a financial settlement with his ex.
As an aside, it may be a prudent measure to consider a pre-nuptial agreement if going into a second marriage when introducing a significant amount of capital. That is, of course, entirely a matter for you.
Regards,
Alan
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After a two day contested hearing I was awarded a lump sum . Six years later I have still not received anywhere near the amount I was awarded ( interest is added daily ) . My ex is and has been cohabiting prior to the order but I have now found out she has bought the house they were supposedly renting . How do I find out if he has a beneficial interest in that property with all the Data protection act twaddle that I got when he was recently called in to answer questions to a court official
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Hi Helen,
This is a hard one: asserting that someone has an interest is different, of course, to be being able to prove it. You are trying to enforce payment of the lump sum I take it, and your ex was examined in court as to his financial circumstances and means to pay. You say she has bought the house they were supposedly renting. Do you mean your ex told you they were renting this in the past but you are now satisfied that she actually owned the property at the time? I’m guessing that you will have already obtained a copy of the property register from District Land Registry which will show the date of the purchase and the amount?
The copy of the property register won’t tell you if there is a beneficial interest. If your ex has made a contribution it may potentially be recorded on the conveyancing file but if the file is in the sole name of his partner then she can refuse to disclose any documents from it. Is there a mortgage on the property? If he is a party then it would suggest that he has an interest and the mortgage application may provide some details.
He should have given evidence on oath so there are serious consequences if he is shown to have lied. If you know the date of the purchase (from the copy of the property at district land registry) could you not seek disclosure of his known bank statements for the period, say 6 months before the date of purchase up to the date itself, to see if any significant funds left his account and can be associated with his partner, or her conveyancing solicitors?
If you have any suspicion that he has put money towards another property but this time in his own name but you do not know the address, you can ask him to agree to sign a PNI form and submit to district land registry – this will produce any properties in which his name appears on the title. If he doesn’t agree, you can ask a court to order that the form be submitted without his signature to district land registry but you would need to persuade a court that he really is hiding something (his refusal to agree voluntarily may be enough).
I can’t think of any other ways to prove he has a beneficial interest. It is very easy to hide a beneficial interest if someone is committed to misleading the court in this way. However, if he ever breaks up acrimoniously with his partner he may have a real problem proving he has an interest unless he can provide some good evidence and if his partner wanted to be really naughty, she could produce his sworn evidence in these proceedings as proof that he has no interest!
Sorry I can’t be more helpful.
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Hi just a quick question
I have been separated from my wife for over 2 years now , we have 3 children which I pay for through csa, and have them stay with me also, I currently have a new partner but not living together, she has sold her house and we are in process of buying a house together with her putting all capital from sale of hers into new one with both of us getting new mortgage, my question is does my ex have any claim on my new property ( we rented when together) when we file for divorce ?-
Hi John,
In short, your wife would only be able to make a claim against any capital that you put into your new house with your new partner. If your partner puts in 100% of the capital then your wife cannot make a claim against that contribution. Unless, that is, she claims that you siphoned off some capital rightly belonging in your name, gave it to your new partner and asked her to pass it off as her own capital. Most people purchasing together, where one party makes a significantly greater capital contribution, obtain a declaration of trust. This document sets out your respective interests in the net proceeds of sale should you ever sell up to go your separate ways. The other advantage is that you clearly set out what, if any, contribution you have made to the new property and it protects your new partner against any claims by your wife. You and your new partner will need to put Wills in place if you go for a declaration of trust. You should talk to your conveyancing solicitors about how you wish to hold the property together.
Regards,
Alan
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My ex husband has applied for a variation in my spousal maint order. His income will reduce to equal mine. But does his wifes earnings class as an income and be taken into account when and if he applies to vary to order?
Thank you.-
Hi Jayne,
Your ex’s new wife will probably need to give some details of her earnings to assess whether she is a ‘resource’ that would assist your ex to maintain the payments originally ordered.
I hope that is helpful.
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Help!
My partner is going through a divorce with his wife but he has moved in with me and my children. It’s my house and my mortgage but he does contribute (aka rent). My partner has a house that he rents out which used to be the martial home however only his name on that mortgage. Can my partners ex claim anything from me and my property? They have no children together. I’m just worried I may have to disclose my financial situation to her and she gets money off me. Any advice would be gratefully received.-
Hi Jojo,
In general, the answer to your question is ‘No – your partner’s ex cannot claim any money off you. Have a good read through the earlier comments and responses for more information. You may have to provide some financial details of your capital and income but, again, I have touched upon this in the comments above and I hope they are helpful.
Best wishes,
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Hi,
I have been divorced for over a year now and have join custody of my son. When we divorced, neither of us put in for a clean break order. A week ago, I received a letter from my ex-wife’s solicitor asking me to agree to a clean break order, so that neither of us could claim off the other financially in the future. However, this is total out of the blue and I have knowledge that she has another man living with her, that she hasn’t disclosed officially. Should she have to disclose this officially before we agree to the order for it to be valid? And if an agreement isn’t made, would their combined assets/income be taken into account?-
Hi Tom. the short answer to your question is that if you and your ex-wife agree a clean break then you will need to have a consent order drawn up which can be submitted to the court for approval. This is usually a paperwork application that does not require either of you to turn up at court. But, you and your wife must complete a form called D81 (or Statement of Information for a Consent Order) and these forms must accompany the consent order to the court. The D81 specifically asks if you are living with someone or intending to get married. Your ex-wife must tell the truth on this form.
If you check out the rest of the comments and responses on this post, Tom, you will see that I have answered that last part of your question (…”would their combined assets/income be taken into account?”) quite a few times. I hope those responses help!
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