It has been reported that in a recent written ruling in relation to a family court case Mr Justice Mostyn indicated that the financial settlement which he awarded to the wife was influenced (and reduced) by her being in a new relationship. What is unclear (without knowing all of the circumstances of the case) is whether or not he was perhaps influenced by other factors in making his decision. It appears that the wife initially denied the existence of the relationship (until it was uncovered by the husband) and during the hearing of the divorce case indicated that she had no intention to cohabit. Mr Justice Mostyn took the view that cohabitation was a real possibility. He may have been influenced in his decision by the wife’s overall demeanour and / or creditability as a witness.
The justification for a party receiving a lower settlement on divorce due to a new relationship is that if a party does intend to cohabit then his or her needs in terms of housing and so on will be lower because he or she can share the burden of purchasing any property and running that property with another person.
The problem is that cohabitees do not have any legal rights or claims against the other in the same way that married couples do. In the event that they separate then a wife who has been given less on divorce due to an examination of her needs based on the fact that she will be cohabiting may find herself unable to purchase a property or run that property in her own right which cannot be a fair outcome.
The issue of cohabitation as distinct from marriage is an important one in the realms of spousal maintenance as well. There is often an issue as to whether or not spousal maintenance (i.e. maintenance paid form one party to the other) should end upon cohabitation. The justification for this is again in relation to needs and the problems remain the same in terms of what happens if that relationship breaks down. It is arguably less of a problem with maintenance because it is always variable (unless and until it ends). Spousal maintenance will always end on remarriage because the receiving party will gain rights as against their new spouse.
If you have any queries specifically about spousal or child maintenance you can see further information on our child maintenance page.
It is usually the case that any period of cohabitation prior to a marriage is seen as part of that marriage by a court determining a financial settlement on divorce. Therefore, in theory at least, a couple could live together for 20 years and be married only 1 before separating and the court would see that as a 21 year marriage.
The length of a marriage is one of the factors set out in section 25 Matrimonial Causes Act 1973 to which the court must have regard when deciding what the financial settlement should be on divorce.
This is where the law becomes confusing and perhaps unfair.
Cohabitation will not necessarily bring spousal maintenance to an end and therefore a party could be receiving maintenance from an ex-spouse whilst cohabitating with another partner for a significant period. If that spouse then later marries their cohabitee and they divorce the settlement will, under current family law, take into account the very period for which they were receiving spousal maintenance from the first spouse. This feels like double counting.
If you would like more information about financial settlements on divorce generally please visit our finances page.
It is inevitable that separating parties want to (and should) move on with their own lives. In my experience the impact of a new relationship in most cases is less likely to be in relation to the financial settlement each receives on divorce and more likely to be in relation to the emotional impact on the other spouse and the effect that has on the way they deal with ongoing financial relief proceedings and the breakdown of the relationship generally.
The judiciary do have a wide discretion in relation to deciding financial entitlement on divorce but it perhaps seems a little unfair if it was the case that this particular wife in this particular divorce case was penalised for simply moving on with her life and the concern is that this may lead to people having to potentially vet new partners in the wake of a marriage break up to see whether or not they are worth putting their financial settlement at risk for.
The other issue with this is that the courts have sought to steer away from engaging in factual disputes involving the conduct of both parties on divorce and/ or during a marriage (notwithstanding it remains as part of the factors relevant under section 25 Matrimonial Causes Act 1973 and referred to above) but if the existence of a relationship can now be seen to reduce a parties settlement then it seems inevitable that what will follow is a number of cases where parties are arguing about whether they factually do or will cohabit with another person and / or the nature of their relationship.