When a financial settlement is made between a couple that is divorcing they are based on the ‘reasonable needs’ of the parties involved. Their assets are shared out ‘fairly’ so that both individuals can cope financially as they set up their new lives. If, for example, the wife has no income or is earning far less than the husband she is deemed to require maintenance payments from her husband to support her.
The court sometimes tells the person with the higher income to make regular maintenance payments to help with the other person’s living costs. This is called a ‘maintenance order’. A maintenance payment can be set for a limited period of time or until one or other dies, marries or enters into a new civil partnership.
There is no automatic provision in English law for termination of maintenance because of cohabitation, unless a court order expressly provides for this. Very few maintenance orders do, because it requires the wife’s consent. Wives are often unwilling to consent as they deem themselves entitled to the hard worked for payments as they had to give up their careers/take time out to have children and so on and rely on the payments to make ends meet. The law also doesn’t equate remarriage with cohabitation. When someone remarries, maintenance payments cease, but in cohabitation the rules are different.
Current law therefore requires a review of all the circumstances, but not an automatic cut-off of maintenance payments simply because a couple is living together.
What does happen if both parties move on in their lives and both find new partners? For example, the ex-wife now has a boyfriend who is living full time in her house and contributes towards foods and some of the bills, but they are not married. The ex husband would feel pretty frustrated that he is still making maintenance payments and wants to return to the issue and reduce or stop the maintenance because she is in this other relationship. On the flip side, the law generally supports the idea that the husband and wife jointly made the decision to raise a family and thus affected the wife’s ability to earn her own living.
In many cases, there is an insufficient lump sum of money available to a couple when they split to fund a ‘clean break’ so maintenance payments are the only option. The wife also has no claims against her new cohabiting partner as they are unmarried and legally there is no cause for maintenance to end if the recipient is cohabiting. So by cutting off the maintenance payments whilst the wife is just setting out in a new relationship could be seen as unfair.
So, if the original court order does not provide the cut off point for the maintenance payments in the event of cohabitation with another, the court will have to be shown that cohabitation is happening and that it should be taken into account.
The fact now is that if a woman is found to be cohabiting, this will not be ignored, even if she is not being funded by her new partner. But if an ex partner has been instructed to pay maintenance payments and if he can afford to pay, he will be expected to do so.
It is a matter for each court to make its own assessment based on all the facts. If they judge that no further maintenance should be paid, then no further maintenance will be paid.
This is a matter to be discussed with experienced family solicitors with regards to each individual set of circumstances.