The impact on maintenance when cohabiting

The case X v Y (Maintenance Arrears: Cohabitation) (2012) considered the definition of cohabitation. This was a case where the husband and wife entered into a consent order in 2007 which included the provision for periodical child maintenance payments to the wife; the same was to come to an end upon the wife’s cohabitation with a new partner for a period of 6 months or more.

This is a term fairly often included in consent orders but less commonly ordered in contested proceedings. In February 2011 the husband concluded that the wife had been cohabiting for more than 6 months with her new partner and therefore stopped paying her maintenance. The wife subsequently applied for an order for back payment of the arrears.

The consideration for the Judge was whether or not the wife was cohabiting with her new partner. The wife’s new partner had purchased a property in his sole name and the wife was living in the property. The wife contributed £50,000 to the purchase price, but the mortgage was in her new partner’s sole name and he was responsible for the mortgage payments. The wife had a tenancy agreement with her new partner and therefore paid rent to him. The new partner retained his own home and did not contribute to the household bills of the wife’s home.

In the first instance, the Judge placed emphasis on the case of Kimber v Kimber (2000) which set out a list of relevant factors to consider when deciding whether parties are cohabiting. That case suggested that the factors to consider are living together in the same household, sharing daily life, shared finances, sexual relationship, stability in the relationship, children, intention and motivation and finally the “opinion of the reasonable person with normal perceptions”.  The Judge at first instance concluded that the wife and her new partner were not cohabitating because only 2 of the aforementioned relevant factors applied.

The husband appealed and it was held that the wife was cohabiting. This decision was made on the basis that the factors set out in Kimber v Kimber (2000) should not be used as an exhaustive checklist, but rather the Judge’s role is to look at all the evidence before them and come to a “common sense decision”. Each case is fact specific and therefore “there can be no cut and dry test” when considering whether a couple is cohabiting.

On appeal, it was decided that the wife was dependent on her new partner and that the wife’s partner had made a considerable financial contribution to the wife and her children.

Each party has an obligation in their Form E to outline their position in respect of cohabitation and remarriage and there is an obligation to provide details of the new partner’s financial situation within Form E. Many argue that cohabitation should have a greater impact on the financial claims of the cohabiting party, however, at present, the current authority states that cohabitation does not equate to remarriage which would terminate financial obligation. Therefore until there is legislative change cohabitation with a new partner can only constitute a change under s. 31(7) Matrimonial Causes Act 1973 or possibly conduct which would be inequitable to disregard under s. 25(2)(g) Matrimonial Causes Act 1973.

Cohabitation is ultimately a matter for each Judge to consider in each case and use their discretion as to how much weight the cohabitation will have on the financial outcome of the case. What is obvious is that cohabitation is not an absolute bar to continued spousal maintenance and it does not provide an automatic entitlement to the non-cohabiting spouse to a greater share of the capital.