Breaking Cohabitation News
One of England’s Senior Judges this week has declared that the involvement of husbands and wives in new relationships were a “significant fly in the ointment” for Family Court Judges who were deciding how much money parties should get in matrimonial settlements.
One of the parties to the marriage, the wife, was in a new relationship with a man who was about to buy a house. The wife’s relationship with her new partner had lasted for 9 months.
A Judge recorded that the wife had said that she was not going to live with the new partner, even though it was obvious that the relationship that she was in was strong. He made the point that a relationship of this nature was a fly in the ointment in the assessment of need.
The Judge made the point that one cannot make assumptions if it is not a full blown cohabitation akin to marriage that it will become that. On the other hand if one makes a needs assessment on the basis that the wife is a single woman and she soon cohabits then the paying party can rightfully feel significantly aggrieved.
The Judge said that if he could be clear that the wife were assuredly single and that he could foresee that continuing then he would have no doubts in making an appropriate award. On the other hand however the Judge went on to say that he could not ignore the existence of the relationship and accordingly he was more convinced that a certain amount would meet her sufficient needs. In other words it was easier for the Judge to award the wife less because he thought she was likely to cohabit.
Solicitors and other legal interpretation of this decision is that perhaps there is going to be a movement on the question of maintenance and capital division with a bit more rigour and realism. Previously before now it’s been felt that the husband has had a relatively rough ride in this respect.
Obviously there are dangers here because new relationships may not last and then a wife or husband may face having a reduced award (on the prospect of living with somebody else shortly thereafter) only to find that that relationship does not work out. It is still true that all cases depend upon the individual facts of that particular situation but this is definitely a wakeup call for anybody considering rushing into new and strong relationships before the financial proceedings have even been determined.
Some traditional lawyers are arguing that Mr Mostyn is wrong and that anything short of clear permanent relationships and cohabitation should be ignored. This does not however appear to be what Mr Mostyn was hinting at. Accordingly Judges discretions are very wide and it may well influence a Judge in the earlier negotiations hearings as well as any final evidential hearings.
There is a very strong possibility that parties might now consider using process servers and private investigators in order to try to prove the existence of post separation permanent relationships so that at final hearings evidence can be adduced. This is likely to add to costs rather than reducing them.
What’s making people take notice in the legal community is that Mr Justice Mostyn is a well known opponent of new developments within the law. This is why it seems to be pushing the boundaries of what was previously established namely that unless a wife was cohabiting, or intended to do so, courts would not take into consideration the finances of a new partner.
The old approach was always to advise that it was probably not worth trying to increase the animosity and/or costs by proving a new relationship because it was so difficult to prove and might not be accepted by the Judge hearing the case anyway.
