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.
Are the children affected by cohabitation?
Children will inevitably be affected by the introduction of a new significant adult into their life. 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 being the reason for the breakdown of their parents’ marriage. Even if not the reason for the breakdown, they may 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.
Tips on how to settle your children :
- Do still spend time with your children without your new partner always being there, particularly if there are specific activities or hobbies that you have historically enjoyed together.
- Don’t expect your children to be affectionate towards your new partner, give them time to form their own relationship and let them decide when it is appropriate to, for example, hug and kiss hello and goodbye.
- Do be honest with your children if they ask questions about your new relationship. It will cause resentment if, for example, you claim the relationship started later than it did and they subsequently realise that you have lied to them.
- Don’t put your children in a difficult and unexpected situation, for example if they come in to see you in the morning and find that you are sharing a bed with someone else, this can be embarrassing for all.
- Do plan fun activities that all will enjoy, particularly for the first few meetings to try and distract from any awkwardness.
- Don’t impose long periods of time together too soon. If, for example, you are going on holiday with your new partner, think about whether it would work for you and the children or your partner to go off for a period of time
What is the impact of cohabitation on a financial settlement?
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 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 well not impact the financial settlement at all. If however it is a case where 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.
Top tips on communicate with your ex-partner:
- Do be open with your ex if you have formed a new relationship. If they find out from someone else, or through their own enquiries, they are more likely to be suspicious and think that you have something to hide.
- Don’t introduce the children to a new partner without making your ex aware of the position. This not only leads to resentment, but can also be confusing and unsettling for the children.
- Do be honest on the Form E about your partner’s financial position so far as you are aware. The duty of disclosure is the same as with regard to your own financial position and when people say they have no idea as to what their new partner’s assets and income position is, this may lead to the suspicion that they are wealthier than they actually are!
- Don’t tell your new partner that your ex is after his or her income as the reality is that is not what happens in divorce cases. It is simply that their financial position is relevant in assessing what you can afford to pay or receive.
Alternatively, you can read our frequently asked questions on living together & cohabitation here.