Divorce and cohabitation are relatively common bedfellows (no pun intended). Cohabitation is a long standing living arrangement which to all intents and purposes is similar to a marriage, except there is no marriage licence. Cohabitation is relevant in divorce proceedings in the following ways.
Did the couple cohabit prior to marrying?
When divorcing, it is necessary to know if the parties cohabited before the marriage. If cohabitation seamlessly traversed the great divide into married life then the period of cohabitation is taken into account when considering how one should deal with the division of assets on divorce. It is sometimes the case that parties may well have cohabited for years prior to the marriage only to find that once married the relationship falls apart. In these situations the court would look at the length of the relationship as a whole and not just the length of the marriage.
Have the parties cohabited post-separation?
The issue of cohabitation becomes more opaque when the separated parties enter into a relationship post separation. When does the boyfriend/girlfriend become a cohabitee and does it really matter? The answer to the latter is yes but proving it may be tricky. If, for example, the ex-wife has a maintenance order in her favour and one of the terminating events is her cohabitation with another, then it is likely that she is going to want to maintain the facade that she is not living with the boyfriend as that would result in the termination of her maintenance. The court would look at the reality of the situation: how many nights does the boyfriend spend at the wife’s house? Is he involved in the children‘s child care? Does he financially support or contribute to the wife’s outgoings?
Cohabitation does not automatically end maintenance claims
The fact of cohabitation does not automatically bring one party’s maintenance claims to an end, unless it is specifically referred to as a condition in any Court Order. In the absence of any reference being made in an Order as a triggering event for termination, it is likely however to form the basis of an application by the payer back to the court for a variation of the maintenance arrangements.
How does cohabitation affect the division of assets on divorce?
The short answer is that it should not make a great deal of difference to the sharing principle. Even if one party is living with another, they may have no right or claim over their new partner’s assets or income.
However, it would make a difference when assessing their income needs. It is obvious that if there are two incomes coming into a household and the costs are being shared then the income needs (i.e. maintenance) is likely to be adjusted accordingly.
How do you prove a party is cohabiting if they deny it?
In divorce proceedings, the Form E financial statement requires the parties to state whether they are cohabiting or intending to cohabit. This statement is endorsed with a statement of truth. If one lies in the form then they have committed perjury, which is clearly a serious matter. The parties are under an ongoing obligation to make full and frank disclosure and to be honest.
Therefore, following on from the Form E, questions can be raised concerning the new partner. In some cases the new partner could be joined into the proceedings. A production appointment could be applied for relating to any documents or financial information about the new partner which would prove helpful to the court.
In a nutshell the parties need to be honest with their dealings with the Court and the information presented. The truth generally prevails and if a person were found to have been less than truthful, they would find the consequence somewhat severe .
When Cohabiting Couples Separate addresses what can be done to avoid problems when cohabiting parties separate.
Property Ownership for Cohabitees – Common Myths puts to rest the principle misconceptions many people hold in this area of law.