Cohabitation, Settlement, and Drafting Options as told by St Pauls Chambers

Definition and Proof of Cohabitation: Issues and Legalities

The first part of this article, How Does Cohabitation Affect Divorce Settlements?, traced the development of the interplay between spousal maintenance and the recipient’s cohabitation, and the arguments in favour and against termination of spousal maintenance in the event of cohabitation. It concluded that the current, orthodox approach adopted by the courts, while imperfect, was the fairest approach when contrasted with automatic termination in the absence of legislative reform of the rights of cohabitants upon breakdown.

Notwithstanding that, it is inevitable that payers will continue to argue for clauses within consent orders that the maintenance will cease upon the payee’s cohabitation with a new partner. Equally, there may be some ‘brave’ district judges prepared to insert such clauses within their own orders, as encourage by Coleridge J in K v I (Periodical Payment: Cohabitation) [2005]). Such a stance brings with it its own problems, not least how cohabitation can be defined.

Defining and Proving Cohabitation

Even if cohabitation were to trigger automatic termination, there is still much room for uncertainty. There is no one cohabitation definition and it is unlikely that a payee will readily admit cohabitation if to do so will bring an end to the spousal support they are receiving from their former spouse.

Given that cohabitation is not mentioned as a factor in s25 of the Matrimonial Clauses Act 1973, it is not defined in that act. It is, however, defined in the Family Law Act 1996 as:

…two persons who are neither married to each other nor civil partners to each other but are living together as husband and wife or as if they were civil partners.

Equally, guidance can be taken from:

• The Inheritance Act 1975, which permits an application to be made by any person who for the period of two years ending immediately before the deceased died, was living:
  • In the same household as the deceased, and
  • As the husband or wife of the deceased.
• The Adoption and Children Act 2002 where ‘a couple’ is defined as:
  • A married couple, or
  • Two people (whether of different sexes or the same sex) living as partners in an enduring family relationship.

Such broad general definitions do little to assist the judge trying to ascertain whether the relationship a payee enjoys does, indeed, constitute a cohabiting relationship. Instead, the court must look to case law.

In Crake v Supplementary Benefits Commission (1981), six factors were suggested that may point to cohabitation in any combination:

• Whether the man and woman are members of the same household;
• Whether the relationship is stable;
• Whether there is financial support;
• Whether there is a sexual relationship;
• Whether they have children;
• Whether there is a public acknowledgement.

Echoes of this ‘signpost’ approach can be seen in Kimber v Kimber (2000); the issue with which was whether cohabitation was established on the facts as the original order provided for periodical payments, ‘until the wife’s cohabitation with another person for more than three months’. In this case, HHJ Tyrer advanced eight hallmarks of cohabitation, namely:

• whether the parties were living together in the same household, save for instances of illness, work or separate holidays;
• whether there was stability or permanence in the relationship;
• whether their living together involved a sharing of daily tasks and duties;
• whether the financial affairs of the couple were indicative of their relationship;
• whether a sexual relationship was admitted or ongoing…but…presence or absence was not determinative in itself;
• whether there was a close bond between the new partner and any child;
• whether there was a motive to deny cohabitation;
• whether there was sufficient evidence that cohabitation existed in the opinion of a reasonable person with normal perceptions (that is from an external viewpoint).

However, as was observed at first instance in Grey v Grey (2009), there can be no cut-and-dried test. In a number of situations, reliance on the opinion of more than one ‘reasonable person with normal perceptions’ could lead to different conclusions.

McCartney v Mills-Mcartnery (2008)

An example of how these principles have been applied in practice is McCartney v Mills-Mcartnery (2008). In this case, Bennett J faced competing arguments as to the start date for cohabitation between the parties, which was relevant when assessing the length of their relationship.

The wife alleged that cohabitation had begun in March 2000 and moved seamlessly into marriage. The husband denied pre-marital cohabitation and dated the relationship from June 2002. Bennett J rejected the wife’s claims that the couple lived together from March 2000. While he accepted that from 1999 they spent many nights together, holidayed together, became engaged and that they had a close relationship, he did not equate that a settled, committed relationship moved seamlessly into marriage.

Of particular significance were ‘arms-length’ loans made by the husband to the wife and repayments made under them, such a financial arrangement being inconsistent with a mutual commitment to build a life together. The relationship was volatile; having both good times and bad times.

Other than the wife being given a second credit card 7 months before the marriage, there were no mingling finances. Looking at cohabitation generally, he observed:

Cohabitation, moving seamlessly into and beyond marriage normally involves, in my judgement, a mutual commitment by two parties to make their lives together both in emotional and practical terms. Cohabitation is normally but not necessarily in one location. There is often a pooling of resources, both in money and property terms. Loans between cohabitants may be forgiven.

Baynes v Hedger (2008)

Baynes v Hedger (2008) dealt with claims brought by the same-sex partner and the goddaughter of the deceased under s1 of the 1(PFD)A 1975. The same-sex couple had a close and intimate relationship for over 50 years. In looking at whether the same-sex partner and the deceased had lived in the same household for the relevant two years proceeding death, the court stressed that this was a question of fact and was not simply a question of whether the parties had lived under the same roof.

Fatally to the same-sex partner’s claim, public and private acknowledgement of their society and mutual protection were absent. Some of their friends knew of the relationship but to most others it was hidden. Equally significant was a requirement for the relationship to be one of ’emotional and lifelong mutual commitment’ rather than simply one of ‘convenience, friendship, companionship or the living together of lovers’. The High Court did qualify the test by making it clear than the fact that the two people living in the same household became physically separated, did not necessarily put an end to the arrangement.

Take a look at our Ability to Terminate Maintenance Based on Cohabitation to follow on from this information.