Going through a divorce can be an overwhelming process whereby those involved are seeking answers and security during a time of uncertainty. A question often asked by divorcing spouses signing up to spousal maintenance orders in favour of their soon-to-be former spouse may be, “what happens if they cohabit? Surely I will not have to continue to pay maintenance in these circumstances?”. And the answer is that you might.
Such a response can be met with a sense of outrage that a party may have to continue paying maintenance for a former spouse even while they cohabit with a new partner, rather than consideration of the wider implications of the automatic termination of spousal support upon cohabitation.
However, unlike remarriage, a former spouse or civil partner’s cohabitation will not automatically bring their maintenance to an end, unless they can be convinced at the time of settlement to sign up to a consent order under which their cohabitation would terminate periodical payments, and much will depend on:
- The circumstances of all parties (including the cohabitant) at the date of any variation application;
- The approach of the individual district judge hearing the application.
Laws Involving Cohabitation Spousal Support
The traditional approach under the Matrimonial Causes Act 1973 (MCA 1973) involves treating cohabitation as a factor to bring into consideration when looking at needs and, as such, its impact has always depended on the extent of the former spouse’s cohabitant’s resources.
Cohabitation is to be taken into account but not to be treated as marriage. Depending on individual circumstances, the financial position of the new partner in the equation may be considered. If one spouse has been cohabiting for a number of years and a stable relationship is evident, the courts may well take this change in circumstance into account.
Significant Cases Showing a Change Towards Cohabitation
Atkinson v Atkinson (1988)
In Atkinson v Atkinson (1988), the wife moved in with her cohabitant within months of the settlement under which she had received a capital sum and maintenance. The husband applied to vary/discharge the maintenance and, at first instance, obtained a 25% reduction based on the projections of what the wife’s cohabitant could generate, income wise. The husband unsuccessfully appealed. The Court of Appeal were keen to stress that, while the decision not to marry and to simply cohabit was conduct, that it would be inequitable to disregard. Cohabitation was not to be given ‘decisive weight’ nor ‘equated with remarriage’. They found that equating cohabitation with remarriage would, ‘unjustifiably fetter the wife’s freedom to live as she chose post-divorce’, and that any further reduction would force her into poverty.
Atkinson v Atkinson (1995)
Another Mr and Mrs Atkinson (Atkinson v Atkinson, 1995) came before the court in 1995. This Mrs Atkinson commended cohabitation around four months after being awarded the former matrimonial home and £30,000 in periodical payments, per annum. The husband applied to vary and was successful in part – in first instance, the district judge reduced his maintenance obligation to £18,000 per annum. On appeal, the High Court further reduced this, following fresh evidence as to the upturn of the wife’s cohabitant’s business, to £10,000 per annum. However, Thorpe J reiterated that cohabitation was not to be equated with marriage and that it was merely a factor to take into account, particularly when assessing his needs.
Fleming v Fleming (2003)
In Fleming v Fleming (2003), the wife applied for an extension to the four-year term on her maintenance order. She had been cohabiting for more than five years. At first instance, the judge found that the income of the wife and her cohabitant met their living expenses, but that to terminate periodical payments would cause, or risk causing, substantial financial hardship. The maintenance was reduced from £1,000 per month to £500 per month, but extended to a joint lives basis. The husband appealed. The Court of Appeal allowed his appeal. On the question of cohabitation, they commented that the Atkinson (1988) decision remained good law and that the different treatment between remarriage and cohabitation would require parliamentary input if rights for cohabitees were over introduced. The wife in effect failed because she could not show exceptional circumstances to be able to successfully extend the term – not least as her and her cohabitant’s income met their needs.
K v K (2005)
However, a judge challenged the rulings of these previous cases with K v K (2005). During this case, it was stated that the Court should bring itself up to date with society, with cohabitation being regarded as the same level as remarriage. It was decided that the wife’s cohabitation was indeed relevant, and the wife’s maintenance was subsequently varied downwards and capitalised. The capitalised Duxbury figure was then reduced by 20% to reflect her cohabitation and would have been reduced further had it not been the wife’s entitlement to a share of the husband’s pension that had built up during the marriage.
However, placing such a large authority on cohabitation was not completely followed in similar cases after the rulings from K v K (2005). However, in Grey v Grey (2009), it was decided that, although cohabitation does not equate marriage, it is still relevant. After being taken to the Court of Appeal, the case returned to a Judge Singer and it was decided that an assessment of what the new partner should contribute to the wife’s household was required. This was found to be £16,000, which was then deducted from the maintenance required by the husband. The wife was then also required to repay to the husband an equivalent amount to that which the partner should have contributed for the two years leading up to the order. This case clearly demonstrates that cohabitation can affect maintenance.
In regards to the query, ‘how does cohabitation affect divorce settlements?’, it is clear from the mentioned cases that, although cohabitation will not bring an end to the obligations of the payor, cohabitation can be taken into account and can affect divorce settlements and maintenance. For more information on cohabitation spousal support, do not hesitate to get in touch with our legal team.