Can I stop paying maintenance if my ex is living with their new partner?

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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

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

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 [2000], the court set out a non-exhaustive list of potential factors that may suggest cohabitation, including:

  • living together in the same household
  • living together involving a sharing of daily tasks and duties
  • the level of stability and degree of permanence in the relationship
  • finances—is the way in which financial matters are being handled an indication of the relationship?
  • a sexual relationship
  • children—what is the relationship between the cohabitant and the payee’s children; is there a bond?
  • intention and motivation, and
  • whether there is sufficient evidence that the cohabitation would be considered to exist in the opinion ‘of the reasonable person with normal perception’

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[1987] 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 [2003] 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 [2010] 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.

 

10 responses on “Can I stop paying maintenance if my ex is living with their new partner?

  1. My ex partner who received payments from me each month has a substantial amount of cash in the bank to the tune of £150K vs me who has £0. Is there anything I can do as I find it hard to justify paying someone who doesn’t need it

    1. Thank you for your comment. We are unable to provide specific advice within this forum, and the answer to your query will depend on a number of factors including whether the payments you are referring to making to your ex-partner are spousal periodical payments or child maintenance, whether you have a financial order (either by consent or as a result of financial remedy proceedings) and the terms of that financial order or any other written agreement between you. I would strongly advise you seek legal advice from a Resolution specialist to discuss your circumstances with you further. If we can assist on a formal basis, please get in touch.

  2. If a father who is paying CM and is on a low income, still pays child maintenance, yet his new partner has a child with special needs and can’t work lives with him and there is change in circumstances where they are now claiming joint universe credit and his new partner is claiming carrers allowance. Does this now change his child maintenance as he is now supporting his new family?

    1. Dear Mike, thank you for getting in touch. The article you have read relates to spousal maintenance as opposed to child maintenance. We would recommend that the ‘father’ contacts the Child Maintenance Service to ask them to assess his situation. A change in his income and where he may be supporting other children is likely to impact his child maintenance liability.

  3. I female (no children), and My partner male (2 children), who is paying maintenance to his Ex partner (not married) for his 2 children. If we was to get married would his ex partner be able to claim my money in extra maintenance if she was to enquire? Me and my partner are looking to get married eventually. But his ex partner does not work and claims benefits and maintenance for the children. Myself and my partner have a house together and have the 2 children 3 days a week. I just want to know if once married, would this effect how much his ex gets from us and would she be able to claim more once we share the same name and legally are bounded to one another?

    1. Thank you for getting in touch. Child maintenance is generally dealt with through the Child Maintenance Service (https://www.gov.uk/child-maintenance-service ) it is only your partner’s income that will be taken into account when assessing his child maintenance liability. Your income will not be taken into account.

  4. Hello, If my ex wife jointly buys a house with her new partner, should I assume that would that be considered strong enough evidence of cohabitation?

    1. Thank you for getting in touch. We wouldn’t advise assuming anything when it comes to providing evidence on this issue and as you will have read cohabitation with another person does not mean that spousal maintenance would automatically cease to be payable. We would recommend seeking advice from a family lawyer as soon as possible to discuss your situation in more detail and the best approach for opening up the conversation with your former wife – for example Mediation may be a good first approach.

  5. My ex-wife has remarried under religious law but not a civil registry and is cohabiting with her new partner. As the religious marriage is not legally recognised in UK, I want to know if I should still be paying her spousal maintenance as she has a child with her new partner and they have been living together for at least 2yrs. I have also remarried and have a child with my new partner. Will this be taken into account when applying for removal of spousal maintenance to my ex?

    1. Thank you for getting in touch. We would recommend seeking advice from a family lawyer who is a member of Resolution to discuss the options available to you. Whilst spousal maintenance is dismissed automatically by law upon the recipient’s re-marriage, this does not apply in the case of cohabitation. However, cohabitation may provide grounds for an application to vary/dismiss the original order as could potentially your change in circumstances. If we can assist, please get in touch.

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