Does cohabitation affect spousal maintenance provision?
The payment of spousal maintenance is often a tricky issue in divorce cases. It becomes even trickier when the receiving party, usually the wife, starts to cohabit and the husband feels that it is not fair that he should be expected to continue to support his ex. Is the fact of cohabitation grounds for the maintenance to come to an end and the wife’s claims dismissed once and for all?
As the law stands, if a wife has a spousal maintenance order, it can take the following forms:-
- A term order namely payable until a certain event occurs for example when the youngest child has reached the age of 18 or finished their full time secondary or tertiary education, whichever is the later.
- Payable on joint lives, namely, until one or the other dies.
All spousal maintenance orders end on the remarriage of the recipient. They do not end automatically by law on cohabitation. A term order can be worded on the basis that, once the term has expired, the wife is barred from applying to extend that term.
It is unusual to find an order that states the maintenance will end on cohabitation as it is unlikely that the wife would agree to such a condition.
Cohabitation could lead to a variation of an Order
The fact of cohabitation can be the catalyst for the husband to ask for the maintenance to be reviewed or indeed terminated. If the wife does not agree to her maintenance ending (which is usually the case) then the husband would have to make an application back to the court for a variation of the original order. The court has to consider all the “circumstances of the case” and the fact of cohabitation has to be taken into account. The court also has a duty to consider whether there should be a financial clean break between the parties.
However, the court has to look closely at the financial circumstances of the new partner and what they ought to contribute to the household. If the new partner is impoverished and has no job then it follows that their contribution is going to be minimal. However, the court can infer a notional income based on what it is likely he would be earning if in work. That said, the court has to consider the credibility of the evidence of the earning capacity. There may be an implied criticism of the wife’s choice of partner but that in itself does not mean that she should be cut loose from the financial support of her former husband.
Capitalisation of maintenance
On an application for variation the court can consider capitalising the wife’s maintenance namely paying her a lump sum to achieve a clean break. If this is an option, first the court would consider whether the original order should be varied downwards and then a formula is used to calculate what would be an appropriate lump sum payment. In one particular case, on application by the husband for a variation he agreed to capitalise the wife’s maintenance in return for a clean break. The wife said that she was not cohabiting and did not intend to cohabit. However, seven months after she received the lump sum, she married her partner. She said at the time the Order was signed off, she did not expect to remarry. However, her partner proposed to her out of the blue and she accepted. The court refused the husband’s appeal and said that the lump sum payment was not contingent upon the wife not re marrying, namely, she did not have to pay any of it back. The risk of her re marrying after payment was one the husband had accepted.
This decision may seem harsh on the husband but then again the court cannot legislate for every eventuality. It is important to remember that at the heart of each divorce case are very personal issues and one size does not fit all.
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