John Hooper & Co

Solicitors

Newsletter 23 – The effect of cohabitation upon the quantum of maintenance payable by one spouse to the other

COHABITATION AND MAINTENANCE VARIATION

In spite of a significant rise in the number of people who live together outside of marriage, the law has been particularly slow to respond. The government has failed to address the issue with new legislation (see earlier articles) and the Judiciary has regularly found itself “hamstrung” by the restrictions of the current legislation and previous decisions of the higher Courts.

One important aspect of the whole cohabitation issue concerns the situation where a former spouse, who is in receipt of maintenance, cohabits with another person.

Should the maintenance provision be reduced in these circumstances? If the receiving spouse remarries, the maintenance Order will come to an end – but this is not so with cohabitation. Previous decisions have supported the position that “cohabitation is not to be equated to marriage”.

That edict has prevented many disgruntled maintenance payers from receiving a reduction of payment even where their former spouse is in a stable, long term cohabitation relationship.

They may now take some encouragement from the recent decision of the Court of Appeal in Grey v Grey.

In that case the first Judge in the proceedings had failed to make a proper finding as to whether cohabitation was actual and he had then gone on to conclude that there was no evidence before him of financial contribution by the former wife’s partner.

The Court of Appeal reaffirmed that only Parliament could determine whether cohabitation was to be given parity with marriage; the Judge was plainly wrong not to have found that cohabitation was taking place and he should not have concentrated on what the cohabitee might or might not have been contributing but on what he ought to have been contributing.

The Court of Appeal has sent the case back to the first Judge for him to reconsider the matter in light of their comments.

Whilst the decision is not ground-breaking it does signify a change of emphasis in addressing the vexed cohabitation question. In this respect, the Court of Appeal has said “it was plainly open to the Judge to discount the periodical payments applying the “orthodox” authorities culminating in Fleming as that decision is sufficiently flexible to enable the Court to do justice and to reflect social and moral shifts within our society”.

March 2010

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