Getting your divorce finalised – together with any financial settlement –takes time. Particularly at present with the family courts under pressure as never before. It’s not unusual then, for people immersed in the divorce process to meet a new partner. With some divorces taking years to complete, 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.
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 ultimately receive less if they move in with someone else?
The first thing to say is that the courts have a wide discretion to decide what financial settlement is appropriate. So 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 might affect how a judge applies these factors when deciding on a financial settlement. The assets of your new partner, and the nature of any financial support you receive from him or her will certainly be relevant. Be in no doubt that you will be required to disclose these details to the court. The reasoning is that your new position as a cohabitee could have a bearing on your financial needs after your divorce.
Of course 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 relevant in any financial reckoning by the court.
Remember, 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 reached 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.
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
How any new living arrangements will impact arrangements for children will depend on the circumstances of each case.
Will Cohabitation Affect The Grounds Of Divorce?
It’s still open to your estranged spouse to petition for divorce on the grounds of your adultery if you start to cohabit with someone else ahead of your divorce. While this won’t affect your financial settlement in any way it could have other repercussions. For example it’s unlikely that your new partner will welcome the fact that he or she could be named in court documents. In addition, including adultery as the ground for divorce rarely if ever makes a divorce more amicable. On the contrary it can inject acrimony and lead to financial discussions becoming more prolonged and costly. Note however that with the advent of no-fault divorce the question of adultery will no longer arise in divorce petitions.
Consequences of cohabitation for you
If you do start living with someone you should be aware that, despite proposals for reform of the law in this area, at present you have very limited property and financial rights if you separate form your new partner. And it is unlikely you would be able to ask the court to re open a financial settlement that was reached in the context of your cohabitation. As a result we would advise you to consider drawing up a cohabitation agreement to protect your interests as far as possible.
Cohabiting After Divorce
We’ve been examining how cohabitation might affect your divorce if you start living with your new partner during the divorce process. 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.
From the courts 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. So you should always be aware of the potential impact cohabitation could have on any payments you receive from your ex-spouse. And note – if you remarry, any spousal maintenance will automatically end.