What rights have spouses to maintenance when they begin to cohabit with a new partner

1. What rights have spouses to maintenance when they begin to cohabit with a new partner? Margaret Hatwood Partner Anthony Gold Solicitors, London

2. Introduction Historically: Maintenance could be “dum sola” until remarriage; or “Dum casta” until the wife committed an act of unchastity And now ? Cohabitation is not even mentioned in the MCA

3. Cohabitation is not a factor in S25 At best comes within “all the circumstances of the case” (S25) or “ a change" of circumstance in S31 which deals with variation

4. Introduced by Matrimonial and Family Proceedings Act 1984 Encouraged the court to consider a clean break …the duty of the court to consider whether it would be appropriate to exercise powers so that the financial obligations of each party towards the other will be terminated as soon as the court considers just and reasonable.

5. When does the issue of cohabitation arise? Prospective cohabitation – when the wife may have a settled relationship but is not cohabiting -Consent order that a wife’s maintenance will end on wife’s cohabitation as in Kimber v. Kimber [2000] 1 FLR 383 Negligent! On appeal when wife cohabits within a short time of an order being made Actual cohabitation – when the wife cohabits after the original maintenance order made and husband applies to vary

6. Actual Cohabitation: how much should the new partner contribute? Ancient history MH v. MH [1982] 3 FLR 429 - Four years’ cohabitation with chartered accountant maintenance reduced from £3,900 to £500 PA. Joint lives order remained. Suter v. Suter and Jones [1987] FAM 111 H had parted with a lot of capital. £1200 PA reduced to nominal order. Ten-year term remained. Reasonable to expect C to make a reasonable financial contribution (docker).

7. Actual Cohabitation:2 More recent history: Atkinson v. Atkinson [1988] 2FLR 353. Court of Appeal held that a 5-year cohabitation should not be equated to marriage. Though W and C (nurseryman) mixed finances and bought jointly owned property Maintenance reduced from £6,000 to £4,500 per annum Reduction only justifiable if the period of order sufficient to enable payee to adjust without undue hardship

8. Actual Cohabitation 3 Atkinson v. Atkinson (No 2) 1995 2 FLR 356 A cougar case (W aged 55 and C aged 33) - cohabitation started 4 months after AR hearing! Original order £30k joint lives reduced to £18k One year later on further application reduced to £10k as PA C’s income had improved. Joint lives maintenance order remained

9. Extension of term maintenance ? Fleming v. Fleming [2004] 1 FLR 667: W cohabiting for 5 years sought to extend maintenance order Court of Appeal allowed H’s appeal against the extension due to inconsistency in judge’s approach to extension not because of Mrs Fleming’s cohabitation. Very much a case on its own facts.

10. K v. K [2006] 2 FLR 468: A heretical approach? If cohabitation the norm then financial independence from previous partner should be allowed – Coleridge J PPs of £16k RPI joint lives reduced to £12k W 3 years’ cohabitation Capitalised to £100k (would have been £175K)

11. H v. H [2009] EWHC 494 (Singer J) It emerged in cross examination that W was in a relationship with another man (M) and pregnant with his child H alleged cohabitation. W admitted that she was in a fixed committed relationship but judge made no finding of cohabitation Judge sympathised with view of Coleridge in K v K but said change must be from Parliament Judge ordered spousal pps of £125,000 PA

12. Grey v. Grey [2009] EWCA 1424 Appeal of H v. H Not sufficient for judge to say “they may or may not cohabit an unsatisfactory word and concept…vague as to quality and duration and not a reliably valid indicator of anything long term” Especially inadequate considering W would have claims against L under Schedule 1 Children Act.

13. Grey 2 : Analysis of decision Unchallenged evidence of actual cohabitation for 5 weeks prior to trial W presented a false case explanation implausible W’s only motive to protect her substantial PPs Finding should have been that W and C were a couple and the financial consequences had to be investigated and assessed

14. Grey 3: further analysis No evidence of financial contribution Such cases clear motive to avoid pooling! Question should be “not what he is contributing but what ought he to contribute” Interesting that very experienced QC appearing for H did not ask any questions as to C’s remuneration or financial circumstances

15. Grey 4 H’s QC said C as a resident within Irish Republic was not compellable witness However that did not prevent investigation Judge had to require that W produce evidence of C’s means or risk the drawing of adverse inferences Per Thorpe LJ judge not confined in the search for fairness by the nature of counsel’s submissions

16. Grey 5 Analysed previous case law in particular K v. K. Per counsel for H in K v. K, Miss Hussey: “If cohabitation equates with marriage in the context of an assessment of “contribution” why should it not also in a decision about the continuation of a periodical payments order?” Taken up by Jackson on Matrimonial Finance and Taxation (quote para 39 judgment)

17. Grey 6 Judges Thorpe Wall Patten all agreed appeal should be allowed remitted to Singer J Note the Court of Appeal of A aware H had issued application for variation of PPs

18. Grey v. Grey No 3 [2010] EWHC 1055 Singer J decreased spousal maintenance increased child maintenance From November 2007 the quality of the new relationship was such as to require an assessment of what the W’s partner should contribute to her domestic economy Assessed contribution at £16,000 PA H’s income had increased substantially in 2008 and 2009 but this did not lead to increased PPs. H’s further appeal against this order was refused on 28/1/11!

19. Cohabitation (or re-marriage) within short time of order Williams v. Lindley [2005] 2 FLR 710 Consent order 14/11/02 of 70/30 in favour of W made after W denied any relationship with a named man (her employer) Soon after she married that man 8.5.03(engaged in early Dec) H’s application for a re hearing allowed by Court of Appeal (Thorpe LJ) when approaching the supervening event greater flexibility needed; the court should move away from prescription and reconsider all S25 factors

20. Cf Dixon v. Marchant 2008] FLR 665 CA Original order 1993, 2005 H asked if W cohabiting she said no H capitalised PPs@£125k later claimed he had done so as W said she was not cohabiting and did not intend to. However W remarried 7 months of capitalisation order Appeal not allowed Why not? Court said must show common assumption held by parties that for an indefinite period to be measured in years not months that W would not remarry

21. Actual Cohabitation: Capitalisation W v. W [2009] EWHC 3076 (Moylan J) 1 year cohabitation 2 years’ marriage 1 child AR order 2004 H’s capital £130k PPs for W £18k. Housing fund £478k much on mortgage January 2005 W and C start to cohabit. Full Duxbury £930k Judge awarded £625k

22. Questions If a W is cohabiting should maintenance end? Would this be unjust when W does not obtain rights against C Or, should the norm be a nominal maintenance order? What about a long period of cohabitation where no clean break should a cohabiting W be able to come back for capitalised PPs

23. Margaret’s case W left H to cohabit with C in June 1989 W had kept her lump sum awarded C£105k in bank account! House in C’s name worth INRO £275,000 Jointly owned house in France modest value Cohabitee not much money No clean break no nominal order undertaking not to claim until 60 What would you do????