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A new relationship may be the catalyst for ending a marriage or, if it was not your choice to end the marriage, you may find that after a period of living on your own you want to, and are ready, to start a new relationship. It is important to think about how your new relationship will impact on your ex and your family and below are the answers to common questions and some tips from Kirstie Law – a Partner in the Family team at Thomson Snell & Passmore LLP.
Children will inevitably be affected by the introduction of a new significant adult into their lives. Whether this effect is positive or negative will depend on the circumstances. Your children are likely to pick up on negative feelings that the other parent has towards a new partner.
They may also independently feel resentful if they regard the new partner as the reason for the breakdown of their parents’ marriage. Even if not the reason for the breakdown, they may also perceive the new partner as being an obstacle to their parents getting back together if this is what they are hoping for. It is therefore sensible to introduce the new partner once your children have adjusted to your separation and ideally with the full support of the other parent.
If you are planning to cohabit or remarry then this should be disclosed both on the Form E, (the disclosure form that is required when an application is made to the court to resolve financial matters and which it is also not unusual to complete if you are hoping to resolve matters amicably - e.g. through mediation or collaborative law,) and also on the summary Statement of Information form, which is filed with the court if you reach an agreement and ask the court to approve a consent order.
On the Form E you are required to disclose to the best of your knowledge, information and belief of your cohabitee’s financial position (capital and income).
The extent to which a cohabitee’s financial position is relevant to a financial settlement does depend. If it is a long marriage, where you and your spouse have similar earning capacities and are dividing the capital equally with a clean break settlement, then the fact that one or other of you is cohabiting may not impact the financial settlement at all.
If however, one spouse is claiming maintenance from the other, then an intention to cohabit is relevant because you would expect the person with whom you are cohabiting to make a contribution towards your joint outgoings which may mean you can afford to pay more or receive less maintenance.
The level of contribution expected will depend on the cohabitee’s income position. In practice, it is not unusual where a former spouse is living with someone on a reasonable income who can afford to pay towards the joint outgoings for this to mean the spousal maintenance is just paid at a nominal 5p a year level to keep the claim open in case the relationship ends, but so that an ex-spouse is not effectively supporting a new partner.
People often ask whether there is a legal definition of cohabitation and the answer is no. It is not the case that spending a certain number of nights a week under the same roof will lead to a finding that there is cohabitation. Courts do sometimes apply the ‘but for’ test.
This is best explained as “were it not for the fact that the ex-spouse is receiving maintenance, would they be cohabitating” and if the answer to that is yes, the court may well make the decision to not order substantive maintenance (more than 5p per year) or, if it is an application to vary maintenance, to reduce it to a nominal amount.
If you are the spouse who is, or is likely to be, ordered to pay substantive maintenance to an ex-spouse, then again the position of your cohabitee is relevant in the sense that he or she should be contributing towards your joint outgoings.
The court would never expect a new partner to effectively pay maintenance to an ex-spouse, but you cannot, for example, say that your income is needed to pay all the household outgoings which means you cannot afford to pay maintenance, whilst your new partner is retaining their income, or spending it on luxury items, such as fast cars and holidays.
Until April 2022 there is only one ground for divorce which is that the marriage has broken down irretrievably. “Irretrievable breakdown” is evidenced by proving one of five facts and if you have not lived separate and apart for over two years, the only facts that can apply are adultery and behaviour.
If you are living with someone else this does not in itself prove adultery. The strict legal definition of adultery is sexual intercourse between a man and woman. It can therefore be hard to prove without video camera evidence or a child, but even the presence of a child without DNA evidence may not be conclusive.
As such, if you are living with someone else, it is more likely that your ex will petition on the basis of behaviour and cite the fact that you have deprived them of love and affection and are choosing to live with a new partner as a reason.
If your marriage has broken down to the point that you are living with someone else, then it would not normally make sense to delay the divorce so my advice would be to avoid defended proceedings and agree some behaviour examples that are acceptable to you, or to agree that you will admit adultery on the basis that your new partner is not named, so not a party to the divorce proceedings.
Being the respondent to a behaviour or adultery petition does not in itself impact on the financial settlement, although the costs of the actual divorce may be claimed. If you and your ex-spouse agree to deal with the divorce paperwork yourself (rather than paying solicitors to do so) using the online Government portal (https://www.gov.uk/apply-for-divorce) the only cost will be a £550 court fee, which could be paid from a joint account or you could agree to
As explained above, the fact that you are intending to cohabit is also relevant, so as such it will not impact on the financial settlement as to whether you are already or are intending to divorce. If however your ex has taken the issue of the new relationship badly, then it may be better to wait a period of time before setting up home with someone new, particularly if the children are struggling to come to terms with the end of their parents’ marriage.
Statistically you are both likely to cohabit following your divorce. With human nature being the way it is, it can cause increased feelings of resentment, jealousy, and even self-loathing if your ex forms a new stable relationship before you do.
It is therefore sensible to be sympathetic if your ex is struggling with your new relationship and do think about how you would feel in his or her position. Think about how you would feel seeing your children spending time with your ex and a new partner.
It often helps to agree ground rules, including how long a new relationship needs to last before the children are introduced, whether the children will ever go into the bedroom and find mum or dad in bed with someone else, and with young children whether a new partner will be excluded from parental roles like bath-time activities and changing clothes.
There are no rights or wrongs to these questions, but if you and your ex can agree and be consistent, it may avoid resentment and burdening your children with being caught in the middle of issues unnecessarily.
Finally, if you are struggling as a result of your own or your ex’s cohabitation it would be worth involving a mediator, relationship counsellor or family therapist early on to help the two of you to navigate, in particular, the co-parenting issues that arise from cohabitation.
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PHOTO CREDIT: GARY BARNES FROM PEXELS