The latest figures published by the Office of National Statistics (in December 2012) estimate that 42% of marriages in England and Wales end in divorce. Many of those whose marriages have ended form relationships with new partners which may well lead to cohabitation. The percentage of all UK households comprising a couple living together rose from 14% to 17% in the 10 years to 2011 while the percentage of households made up of married couples fell from 70% to 65% over the same period. This article focuses on some of the potential legal implications arising from new relationships after divorce.
Introducing a new partner
When or even whether a new partner should be introduced to their children can sometimes be a contentious issue between separated parents. Organisations such as Gingerbread, Relate and the Parent Connection all offer useful guidance. The Parenting after Parting workshops (PAPs) organised throughout the country by Cafcass and Resolution offer a specialist programme for separated parents to learn how children of different ages typically react to separation. They also guide parents on ways of minimising conflict with their ex-partner to ensure the children’s best interests are prioritised. Following the advent of the Child Arrangements Programme (CAP) on 1 April 2004 the courts are increasingly requiring parents to attend PAPs before any application concerning a child can proceed.
Another useful resource is the revised Parenting Plan published by Cafcass last year ( www.cafcass.gov.uk/grown-ups/parenting-plan.aspx ). This gives parents the opportunity to work out arrangements together which they consider will be best for their children. The plan encourages parents to agree and record issues such as how they will share important information with each other (regarding the children) and how to introduce new partners to their children’s lives. It was recognised following the Family Justice Review that parents are best placed to make their own decisions when it comes to their children. Another aspect of the CAP programme is that before any application is made by a parent to the court for a child arrangements order they will be expected by the court to have co-operated with each other over a parenting plan.
The presence of a new partner as an integral part of a child’s household is a reality which the family courts are dealing with on an increasing basis. In Children Act proceedings where the court has ordered a Cafcass report, the new partner/cohabitee will often be interviewed by the Cafcass officer particularly if they are part of the child’s household. Obviously the child’s relationship with the new partner may well be relevant to their welfare and potentially a significant aspect of the s 7 report. Concerns over safety issues can sometimes also arise where new partners are concerned.
In the case of Re D (Child)  EWHC 2376 (Fam),  All ER (D) 28 (Aug) the court had to consider an application by Cafcass for safeguarding checks to be completed on the stepfather of two children aged 14 and 10 who were the subject of contact proceedings brought by their father. Following a difficult family history the children were joined as parties to the proceedings and represented through a Cafcass children’s guardian. When interviewed they told the guardian that they did not like their stepfather and found him controlling. At a preliminary hearing Cafcass raised the question of safeguarding checks on the stepfather. The stepfather refused to be subject to safeguarding checks and Cafcass therefore made an application for an order requiring Cafcass to carry out the checks and requiring the children’s mother to provide all requisite information to enable the checks to be conducted.
In his judgment Mr Justice Bodey said that Cafcass should seek co-operation from partners in respect of safeguarding checks and if consent is not forthcoming it should be flagged up to the court before the First Hearing Dispute Resolution Appointment (FHDRA). The judge hearing the FHDRA should then consider the situation and if necessary adjourn the hearing to enable the individual concerned to be given notice and to make representations. The judge also recognised that it was not easy or necessary for the court to be prescriptive about whether safeguarding enquiries concerning new partners (who are not parties to the proceedings) should be routine. He indicated that much would depend on the precise circumstances of the various relationships and that in practice one would expect that co-operation for those enquiries would generally be sought in respect of partners of the parties and if a partner did not give his or her consent then an application to the court would usually be made by Cafcass in its discretion.
Impact of new partners on maintenance payments
In many cases particularly where there are young children, maintenance is payable to the wife as part of the divorce settlement until she re-marries, dies or “further order”. If the wife subsequently cohabits with a new partner this is likely to result in her ex-husband applying to vary the maintenance order as provided under s 31 of the Matrimonial Causes Act 1973. The maintenance can be increased or decreased on variation and can also be capitalised to enable a clean break to take place. While cohabitation comes within “all the circumstances of the case” which fall to be considered under s 25(1) of the Matrimonial Causes Act 1973 it carries no greater weight than any of the other factors. It can often be difficult for ex-husbands to accept that their ex-wife’s cohabitation does not automatically disentitle her from receiving maintenance under the court order.
In the 1995 case of Atkinson v Atkinson  2 FCR 353,  2 FLR 356 the wife moved in with a man a few months after receiving her financial settlement which included maintenance. The husband applied to vary the order down to a nominal sum due to her cohabitation. In his judgment Mr Justice Thorpe (as he then was) stated: “In assessing the relevance of the cohabitation factor, it seems to me as much – if not more – weight must be given not to the presence of the cohabitee as to his financial circumstances, and his capacity to make a reasonable contribution in return for the benefits of the provision of a home.” He went on to reduce the maintenance from £18,000 to £10,000 to reflect what the cohabitee should have been contributing.
In Fleming v Fleming  EWCA Civ 1841,  All ER (D) 215 (Nov) the husband appealed against an order allowing the wife to extend a term maintenance order on the grounds that (inter alia) the judge had not given sufficient weight to the “settled relationship” between the wife and her cohabitee with whom she had lived for over five years. The Court of Appeal stated that cohabitation should not be equated with marriage even though society’s attitudes had changed and when assessing the impact of cohabitation the financial consequences of the variation must be taken in to account. It also stated that in a case where there had been lengthy cohabitation the range of discretion held by the judge allowed him to place considerable weight on that factor. The Court of Appeal upheld the appeal as it found that on an application to extend the term of maintenance there was an obligation to consider whether this could be achieved without causing undue hardship to the payee. Given that the wife was earning and cohabiting so that her combined income with her cohabitee met her outgoings without her having to use savings there was no justification for an extension of the term.
In the case of Re Grey (No 3)  EWHC 1055 (Fam) the wife was reticent about disclosing her relationship with a man by whom she was pregnant. It only emerged in the wife’s cross-examination that she was a) pregnant and b) in a fixed and committed relationship with the new partner. Even though Mr Justice Singer criticised the wife for her non-disclosure, he held that even if she were cohabiting this would not affect her income award and granted her spousal maintenance of £125,000 per annum. Unsurprisingly the husband appealed.
The Court of Appeal took the view that the judge’s finding of fact on the cohabitation issue was inadequate. It agreed that judges have a duty to “investigate and assess the financial consequences of cohabitation” and to take account of any such relationships in the order made. The appeal was allowed and the case was remitted for hearing on the cohabitation issue to Singer J as it was found that he had not properly investigated the financial circumstances of the wife’s partner. The case of W v W (Periodical payments: Variation)  EWHC 3076 (Fam) concerned a wife’s application to increase and capitalise her spousal maintenance order of £18,000 per annum, following the husband’s sale of his company for £11.4m net. Even though the wife was cohabiting Mr Justice Moylan varied her maintenance upwards to £40,000 per annum and capitalised it at £625,000. In his judgment Moylan J stated that the wife’s entitlement to maintenance would not be brought to an end by her cohabitation. Nor did he consider the wife’s needs to be a valid argument for limiting the level of the maintenance.
More recently in the case of AB v CB  EWHC 2998 (Fam),  All ER (D) 152 (Sep) Mr Justice Mostyn has warned wives of the potential legal difficulties arising from entering into new relationships before their financial settlements on divorce are determined. In this case the parties were married for 10 years and had two adopted children. In 2005 they moved into a farmhouse owned by the husband’s wealthy family. In 2009 a trust was set up in respect of the farmhouse, the principal beneficiary of which was the husband and the main discretionary beneficiaries the children.
After the trust was established the parties spent funds on refurbishing the property. In 2012 the marriage broke down and the wife (who was a journalist) went to live with her parents, the husband remaining in the farmhouse where he lived with his new partner. Mostyn J found that the wife knew it was intended that the farmhouse would stay in the husband’s family and after it had been used by them it would revert to the family estate. The wife did not disclose the fact that she had a new relationship and this was only discovered by “investigations” by the husband’s lawyers. The wife claimed that nonetheless she had no intention of cohabiting. She was awarded £23,000 from the trust outright (in respect of her contributions) and £134,000 on the terms of a life tenancy. In his judgment Mostyn J stated: “Relationships like this always are a significant fly in the ointment in the assessment of need. One cannot make assumptions, if it is not a full-blown cohabitation akin to marriage, that it will grow into that, because if it does not, the wife may be left stranded between Scylla and Charybdis if the assumption is wrongly made. On the other hand, if one makes a needs assessment on the basis she is a single woman and she soon cohabits, then the paying party…can rightfully feel significantly aggrieved.”
Taking all the factors into account the judge concluded that £250,000 would be enough to meet the wife’s needs stating that he could not “ignore the existence of her relationship”.
In conclusion it is clear that if a spouse (most often the wife) is found to be cohabiting, the existence of that relationship will not be ignored, even if no financial support is being provided by the cohabitee. The case law shows that the court’s approach is to focus on what the cohabitee should be contributing rather than his or her actual contribution. This is obviously a factor many ex-wives in particular need to take into account before moving in with a new partner.
This article was first published in New Law Journal, 6 February 2015 and is reproduced with kind permission.