Getting your divorce finalised – together with any financial settlement –takes time. How long depends largely on the approach of the parties and how far apart they are on the key issues. However, if a financial remedy hearing proves necessary court backlogs mean some cases will take years to resolve. It’s not unusual then, for people immersed in the divorce process to meet a new partner, and it’s inevitable that some will start to cohabit before settling all the issues in their divorce.
Here we look at the key things to consider if you are thinking about moving in with someone during your divorce. We also look at the position when you start to cohabit after you have reached a financial settlement and the divorce process is complete.
The Financial Settlement
The question of how cohabiting with a new partner will affect the financial settlement is perhaps the issue of most concern to our clients. Will they receive less if they move in with someone else?
The courts have a wide discretion to decide what financial settlement is appropriate. There are no hard and fast rules. But there are guidelines for judges, contained in s.25 of the Matrimonial Causes Act, 1973. And these will have a significant impact on the way you carry out negotiations with your ex-spouse on money matters. The s.25 factors include:
- The income, earning capacity, property and other resources which each spouse has or is likely to have in the foreseeable future
- The financial needs, obligations and responsibilities which each spouse has or is likely to have in the foreseeable future
- The standard of living enjoyed during the marriage
It is certainly possible that cohabiting with a new partner will affect how a judge applies these factors when deciding on a financial settlement and the amount of spousal maintenance that should be paid. The assets of your new partner, and the nature of any financial support you receive from him or her are therefore relevant.
The Cohabitation Question and Form E
Form E contains the financial details you are required to provide when making a financial claim during divorce. It asks if you are cohabiting or intend to cohabit with a new partner in the next six months. As with all aspects of Form E you must be truthful in your answers. It’s your responsibility to make full and frank disclosure of your financial affairs. Failure to inform the court that you are cohabiting could well leave any settlement or court decision vulnerable to review further down the line. For example your ex-spouse could apply to vary the settlement or even have it set aside. You could also leave yourself open to criminal charges for fraud.
If cohabitation, or the possibility of cohabitation, is confirmed on Form E your ex is free to ask for more information about your new partner, your living arrangements and your new partner’s assets.
The reason that cohabitation is raised in Form E is that your new position as a cohabitee could have a bearing on your financial needs after your divorce. Your new partner’s financial support will be more relevant if the marital pot up for division in your divorce is limited. If however there are sufficient matrimonial assets available to meet the needs of you and your ex-spouse (and any children) the assets of your new partner will become less significant in any financial reckoning by the court.
The requirement to disclose cohabitation – or an intention to do so – means that it can be tempting to delay moving in with a new partner until maintenance has been agreed. You should be cautious in doing so however, as we discuss below.
Cohabiting After Divorce
What happens if you begin to cohabit after the financial settlement and all other issues have been finalised? Remember your financial needs will have been assessed on the basis that you weren’t cohabiting and were self-supporting.
Moving in with a new partner shortly after your divorce is finalised could give your ex legitimate grounds to argue that the settlement was based on incomplete financial disclosure on your part. And even if you do not begin to cohabit until well after your divorce it’s always possible that your spouse can apply to vary any maintenance order or ask to stop paying maintenance altogether.
From the court’s perspective, just because you start cohabiting does not mean your ex-spouse can automatically stop paying you any agreed maintenance. However, your new living arrangements could amount to a change in circumstances that your ex-spouse could rely on to ask the court to reduce or stop your maintenance payments entirely.
From previously decided cases it is clear that maintenance orders should only be made for the duration required for the claimant spouse to adapt to independent living. While the law states that maintenance will end on remarriage (or death of the recipient) it does not automatically end on cohabitation. That said, cases such as Kimber v Kimber (2020) show that cohabitation in appropriate circumstances can be a reason for maintenance to be stopped.
So you should always be aware of the potential impact cohabitation could have on any payments you receive from your ex-spouse.
What About The Children?
The courts will still decide arrangements for children in line with the principles set out in the Children Act, 1989 – whether or not you are cohabiting with a new partner. The Act is clear that:
- If there’s a dispute over child arrangements the child’s welfare is the paramount consideration
- Any delay in reaching agreement on child arrangements is not desirable
- It’s in the best interest of children to be involved with both parents following a divorce unless this involvement would not further the child’s welfare or would pose a risk of harm
How any new living arrangements will impact arrangements for children will depend on the circumstances of each case. Child arrangements can be changed at any time either by agreement or by seeking a Child Arrangements Order from the court. It’s conceivable that one parent moving into a larger property with a new partner (where there are separate bedrooms for children for example), could impact any decision on where the children should reside or the time they spend with each parent. But, as we’ve highlighted, these decisions will always be made in the best interests of the child.
Will Cohabitation Delay The Divorce Process?
The no-fault divorce regime in England and Wales means cohabitation with a new partner won’t affect your ability to apply and obtain a divorce in any way. It could complicate discussions around child arrangements and, if the other spouse is unhappy about you moving in with a new partner they may be less inclined to cooperate on financial matters. Inevitably this could delay a final agreement,
Consequences of Cohabitation for You
If you do start living with someone you should be aware that, despite growing calls for reform of the law in this area at present you have very limited property and financial rights if you separate from your new partner. Where your financial claim has been reached on the basis that your living and accommodation costs are less because you are cohabiting it will be difficult to reopen the settlement in the future. As a result, we would advise you to consider drawing up a cohabitation agreement to protect your interests as far as possible.