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It is perhaps unsurprising that someone who has been ordered to pay maintenance to their ex-partner, following their divorce or civil partnership dissolution, would feel aggrieved at having to continue to do so in circumstances where their ex has started living with a new partner. In this article, I address the impact of living with another person after divorce on maintenance payments.
Child maintenance remains payable whether or not your ex is living with a new partner. The obligation to pay child maintenance continues regardless of your ex’s circumstances. If, however, your circumstances change e.g. you lose your job or you have another child, then it may be possible for the level of child maintenance to be re-assessed by the Child Maintenance Service.
Spousal maintenance automatically ends when a person who is receiving the payment chooses to remarry. It does not automatically come to an end if the person receiving the payment decides to live with a new partner.
The original court order will set out how much maintenance is payable and the circumstances in which it will come to an end. It may be that the order says that spousal maintenance will end on cohabitation which is often stated to be a set period in any 12 months. It is rare to see this in an order and more commonly spousal maintenance is ordered to end at a specified time, for example – once the youngest child of the family reaches 18 and/or on the death of either party.
Cohabitation is considered much more uncertain than being married and as such people who live together do not have the same financial claims against one another in the event of their relationship breaking down.
Your ex-partner cohabitating with another person, may, however, justify either a variation or termination of a spousal maintenance order following an application being made to the court to vary the original order [see previous blog]. This is because living with a new partner could arguably result in a reduction of the recipient’s ‘needs’ on the basis that they are receiving support or a contribution from the person they are living with or where it is cheaper for two people to live together in one household than separately.
When deciding whether an order should be varied the court will consider ‘all the circumstances of the case’, with first consideration being given to the welfare of any children. The ‘circumstances of the case’ will include any change to anything which the court would be required to have regard to when the original order was made e.g. cohabitation. The court must consider whether it would be appropriate to vary the original order and in doing so whether it would enable the recipient to adjust without undue hardship.
Before embarking on an application to the court to reduce or terminate the spousal maintenance order on the basis of cohabitation, the applicant will need to be fairly certain that their ex is in fact living with a new partner. What amounts to cohabitation is uncertain and so ‘proving’ it can be very difficult.
Unless a couple are living in the same house for seven days a week, it can be difficult to know for certain whether they are cohabiting or not. In the case of Kimber v Kimber , the court set out a non-exhaustive list of potential factors that may suggest cohabitation, including:
The court will need to be satisfied that the ex-partner is actually living with a new partner and if so will go on to consider what impact that has on his or her financial circumstances. The new partner’s financial circumstances will be looked at and the court will consider what they should be contributing to the household. Therefore, if the new partner is without an income then it follows that their assumed contribution is likely to be minimal. That said, the court can infer a notional income based on what he or she could likely earn if they had a job.
There have been a number of cases that have grappled with this issue:-
In Atkinson v Atkinson it was found that the wife’s cohabitation with another man was not necessarily a reason for reducing or terminating her maintenance as “cohabitation cannot be equated with marriage”.
In Fleming v Fleming  the Judge said that “the proper course to be followed remains for the court to assess the impact of cohabitation and in doing so have regard to the overall circumstances including the financial circumstances”. The length of the cohabitation is also a relevant factor to the court to consider the exercise of its direction.
In Grey v Grey  the wife denied that she was living with her new partner and so the husband hired a private investigator whose report concluded that she was cohabiting. However, no evidence was produced to the court of the new partner’s financial circumstances nor his contribution to the household The court, therefore, attributed an earning capacity for the new partner of £16,500 per year (the husband was earning c£1.3m pa at the time). As such the wife’s maintenance was not terminated but instead the Judge increased the children maintenance from £16,500 per year to £27,500 per year and reduced the wife’s spousal maintenance by the same amount.
As can be seen from the above embarking on an application to reduce or terminate spousal maintenance on the basis that your former partner is living with someone new is fraught with risk and should be carefully considered with the benefit of legal advice from an experienced family lawyer.
Equally, if you are thinking about moving in with your new partner and are receiving spousal maintenance, you should carefully consider the financial impact of doing so in the event that your ex makes an application to vary the original order. Obtaining legal advice at an early stage will be crucial.
Lisa Burton-Durham is a Specialist Family Lawyer, Collaborative Lawyer and head of our Brighton team. To contact a member of our team and have a confidential conversation about your individual circumstances please click here.