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Cohabit in Haste, Repent at Leisure?

08.04.2011 Family & Matrimonial

David  Ruck

David Ruck Partner

As society’s attitude towards marriage changes, and a significant proportion of the population decides to cohabit rather than ‘tie the knot’, the law in this area is becoming increasingly outdated.

One of the greatest areas of contention in family law is the failure of the law to recognise that cohabitees who have a settled and permanent relationship should have the ability to make claims against each other, particularly if, on the breakdown of a relationship, one partner becomes significantly financially disadvantaged. In this respect, the position of cohabitees differs vastly from married parties, and this means that a woman who has lived with a man for many years and borne him a number of children, will have no right whatsoever to make any claim against him for financial support for herself after a relationship breakdown although she may be able to launch claims on behalf of her children.

The Law Commission is due to report on the whole area of cohabitation in the near future, but this particular area of law throws up another question, namely what should happen to an existing maintenance order, which has resulted from divorce proceedings, where the receiving party is in a permanent cohabiting relationship.

When there is a divorce, and one party pays the other maintenance i.e. a monthly income, that maintenance order is automatically terminated when the receiving partner re-marries. However, as the law stands a maintenance order will not be automatically dismissed on cohabitation unless provision is specifically made for this at the time of the divorce. The court will not impose a “cohabitation clause” unless the parties are in agreement.

As many divorced people will subsequently cohabit rather than re-marry, the vexed question now frequently arises as to the effect on a maintenance order of the receiving party cohabiting permanently but not re-marrying.

Frequently, the paying party is male and he will see this as unfair, particularly if he feels that his ex-spouse is cohabiting and not re-marrying simply so that she continues to receive maintenance.

As far as the receiving party is concerned, this is fair, given that if her maintenance was dismissed, and then very shortly afterwards her cohabitation broke down, the law gives her no claim against her ex-cohabitee. She will not only have lost any support from her cohabitee but will also have lost the maintenance she was receiving from her ex-spouse. Many would argue that it is therefore fundamentally unfair that an ex-spouse should lose her maintenance simply as a result of her having cohabited.

This is further exacerbated by the even greater difficulty of defining exactly what cohabitation is and, indeed, there is no present statutory definition of cohabitation, although on occasion judges have tried their best to do so.

The case of Kimber- v- Kimber [2000] 1FLR 383 goes some way to defining the elements that ought to be available for there to be cohabitation which include:

  • the parties are living together in the same household
  • they share daily tasks and duties;
  • there is stability and permanence to the relationship;
  • their financial affairs are indicative of a permanent relationship;
  • there is a sexual element to their relationship.

This makes it clear that it may be extremely difficult to decide whether parties are genuinely cohabiting or whether that cohabitation has the necessary permanence to justify an irrevocable alteration of one party’s financial position.

This means that justifying any radical change in the law which meant that cohabitation resulted in an absolute dismissal of a party’s right to continuing maintenance from an ex-spouse could be very difficult.

At present, the courts tend to deal with this difficulty simply by treating cohabitation as a factor which can justify a downwards variation of the maintenance to be paid to the cohabiting ex-spouse, and, where the new cohabitee is of substantial wealth and is clearly supporting the ex-spouse, the variation could be reduced to a nominal amount (£1 per annum). Crucially, there is very rarely a dismissal of the maintenance, meaning that the lowered or nominal amount can be reinstated to a material amount should the cohabitation break down.

However, a word of warning: in the recent case of Grey v Grey (2010) [to be reported] the impact of a [former] wife’s cohabitation on the level of her maintenance payments was considered. Although the judge did not reduce the payments to a nominal level he carefully considered the financial contribution the wife’s new partner was or should be making to their household. The level of the wife’s maintenance was reduced accordingly. However, not only did the judge reduce her payments, he also ordered her to repay the overpayments made by the husband during the course of her cohabitation! Whilst this is a rather draconian order and each case is determined on its own facts, it remains to be seen whether other judges will follow suit in the future.

Therefore the opposing positions are difficult to reconcile, although one answer may be a change in the law to provide for there to be an automatic reduction or suspension of the maintenance during any period of permanent cohabitation, meaning that the potential recipient could go back to court at a later date if her cohabitation broke down, seeking reinstatement of the maintenance, presumably with the burden being upon her to justify reinstating the maintenance payments.

Of course this still begs the question of when the cohabitation will be treated as having adequate permanence to justify the reduction or suspension.

Article authors:

David Ruck