Rights for cohabitants remains a “hot topic”, generating debate in Parliament, amongst those affected by this issue and regularly appearing in press reports. Today, family units exist in many forms that were not commonplace when the Matrimonial Causes Act – the main law governing the court’s powers in dividing up finances upon divorce – came into force nearly forty years ago now, in 1973.
Many couples cohabit, without taking the actual step of marriage. In reality, they live together and regulate their finances in exactly the same way as they would do if they were married, but they do not have the same rights or protection as married couples if a relationship breaks down.
You will no doubt have read, in the press, about the Cohabitation Bill, which has received a very mixed reception. Organisations such as Resolution (of which the family solicitors at Mills & Reeve LLP are members) consider the law is “out of step” with modern family life, and are consequently running a campaign, Living Together, for more legal protection for cohabitants upon relationship breakdown. Opponents feel people should have the choice of cohabiting – often their conscious decision - without there being any lasting financial responsibility to their partner upon separation.
There are many ways in which cohabitation may affect families. In this short note, the focus is not on the broader implications, but on a particular facet: the legal position of an individual paying maintenance to their former spouse (the “payer”) in the event that former spouse (the “payee”) subsequently cohabits with a new partner.
In family orders regulating financial matters upon divorce, courts have the power to order one spouse to pay ongoing maintenance to the other. Maintenance orders are most commonly made when one spouse in the marriage earns a much higher salary than the other, and particularly when the payee has stayed at home to look after the parties’ children. Maintenance orders can either be for the parties’ joint lives, or for a finite period, which may be extendable or for set period of time. Maintenance automatically comes to an end upon the payee’s remarriage, but not if the payee begins to cohabit. Many people who have been through a divorce make a conscious decision not to remarry, but are quite content to cohabit with a new partner. This presents an obvious issue for the payer, who may view the cohabitation as akin to a marriage, and accordingly, in their view, result in their ongoing obligation to pay reducing or ceasing.
So, where do the parties currently stand in this situation?
If the payer believes that because of cohabitation, the payee no longer requires the same level of financial assistance, they can try to reach an agreement with their former spouse. In the absence of such agreement, the payer must make an application to the court. This can be an expensive, time consuming and potentially draining exercise – and therefore the payer will wish to have confidence of success before taking such a step.
In this area, judges are constrained by the powers given to them by the Matrimonial Causes Act 1973, and are consequently calling for Parliament to introduce changes. In the meantime, what judges can do is apply the factors they must consider in their decision making process, as best they are able, in the context of the prevailing social climate. This allows some recognition of change, but is not flexible enough for issues such as this one, in which the judges call upon Parliament to make clear change. In considering a payer’s application, the court has a list of specific criteria it must consider, known as the section 25 checklist (see our Finance Section on the website – “What the Court Considers”).
As well as the section 25 checklist, the court will also need to determine whether cohabitation exists. Some helpful criteria was set out by the court in a case known as Kimber & Kimber, in 2000:
- Do the parties live together in the same household?
- Do they sharing daily tasks and duties?
- Is there stability and permanence in their relationship?
- How do they organise their financial affairs?
- Is there a sexual relationship?
- Are there children?
- Having an understanding about the motivation of the relationship.
In this case, the court Order (agree by the parties by consent) stated the payer would stop paying maintenance if the payee cohabited for longer than three months. The payee became engaged, and began to cohabit with her new partner, at which point the payer indicated he would stop paying maintenance. The payee then arranged for her fiancé to lodge with a friend. He stayed with her regularly, was involved with her business, the household and the care of her child. The court found there was cohabitation.
In 2004 came the more senior Court of Appeal judgment of Flemming. In this case, the judges referred to an earlier case in 1988 and stated that cohabitation was not to be equated with marriage, despite changes in society. They held that the impact of cohabitation must be assessed as part of the overall circumstances of the case, including the financial consequences of any variation to the level of maintenance the payer should pay. The payer’s appeal was allowed, maintenance was reduced, and would come to an end after a specified term.
In 2006, the High Court gave judgment in the case of K & K. The tone of the judgment signalled change could be afoot. The judge acknowledged no likely prospect of Parliament introducing changes soon, and in the absence of such change, said the court must address the issue as best it is able. In the case, the payee was arguing her cohabitation was irrelevant to the payer’s application to decrease the maintenance he paid on the grounds of his reduced income and the payee’s cohabitation. The court acknowledged the social revolution, for which cohabitation can now be considered, in many circumstances, as akin to a marriage. The length of the cohabitation was considered to be relevant, as was financial commitment and interdependence. The judge indicated the payee’s overall financial and household position to be relevant, to include the new partner’s financial position. The outcome was to order a payment of the maintenance upfront (known as capitalising maintenance), and to reduce the payee’s entitlement by about 20%, to take account of her cohabitation. The judge did in fact go further, and stated that had there not been such a disparity in the capital positions of the parties, he would have preferred to reduce the payee’s periodical payments to nil, or a nominal level, after a given number of months’ cohabitation.
This issue was considered again in 2009 in the case of H v H. The High Court judge in this case stated any change in approach must come from Parliament, or the highest courts, who can give the lower courts clearer guidance. The payee in this case had a new partner, was pregnant by him, and did not disclose this to start with. She was, however, not actually cohabiting with her new partner. The judge held that any cohabitation with her new partner would not affect her income award.
Concluding remarks
There is no doubt that social change and attitudes towards cohabitation are now completely different to the prevailing social views at the time the Matrimonial Causes Act 1973 was enacted in 1973. The High Courts are indicating there is a limit to how far they may apply the section 25 checklist in the context of today’s social climate, so as to recognise cohabitation as being akin – in many cases – to a marriage. Parliament, or the highest courts, are called upon by the High Court judges to bring about change.
Claire Molyneux