What is the effect of cohabitation on spousal maintenance?

Obviously a financial settlement on divorce can require one party to pay maintenance for the other. Such spousal maintenance orders will, unless stated otherwise, last until the death of either party, or the remarriage of the recipient spouse.

But what if the receiving spouse cohabits with another person without remarrying? What happens then?

A recent case demonstrates the answer.

The case concerned a couple who were married in 2010 and had two daughters, now aged twelve and ten.

The couple separated in 2012. Divorce proceedings then took place and a financial remedies order was made by agreement in 2014.

The order provided, amongst other things, for the husband to pay child maintenance of £20,000 a year and spousal maintenance of £52,000 a year for five years, thereafter dropping down to £40,000 a year, that sum payable until the youngest child reached the age of eighteen or finished school.

The wife entered into a new relationship in early 2020, and by the time the Covid lockdown came in March 2020, she and her new partner were spending most of their time living in the same household. The wife and her new partner did eventually get married, in August 2022.

Meanwhile, in January 2021 the wife applied to vary the financial order, initially seeking a capitalisation of the spousal maintenance and an increase in the child maintenance.

The wife subsequently accepted that she no longer had a claim against the husband for spousal maintenance, but she continued to seek an increase in the child maintenance.

The husband in turn claimed a repayment of the spousal maintenance in relation to the period during which the wife was cohabiting. It is how this claim was dealt with by the judge that is interesting as far as this post is concerned.

The judge made the following points:

1. The obligation of an ex-spouse to pay maintenance does not necessarily stop immediately when a cohabitation starts.

2. There must be a period of time before a cohabiting relationship has become settled and permanent, where it remains justified for spousal maintenance to continue.

3. It was open to the parties to decide for themselves what period of time of cohabitation would trigger the end of spousal maintenance, but here they did not provide for that in their order.

In all of the circumstances the judge decided not to award a back-payment of maintenance.

Clearly, the moral of this story is that if you are to pay spouse maintenance and are concerned about your former spouse cohabiting you should insist upon a time limit (say, six months) on how long cohabitation should last before it triggers the end of the maintenance.

You should also of course seek expert legal advice. We can find you an expert that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

The full report of the case can be found here.

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Image: Public Domain, via Piqsels