‘Post Marriage Cohabitation and Maintenance’

Financial remedies cases frequently raise the issue of cohabitation after a marriage has ended in cases involving awards for maintenance, whether in the initial proceedings, on appeal or variation applications later, under S31 MCA 1973. Common to them all is, the court determines that issue as one of the relevant factors in the case. Where cohabitation is denied, the court has to make a finding as to whether or not that is the case.

How to establish whether or not there is cohabitation? Although the case of Kimber v Kimber [2000] gave a long list of pointers to look for in deciding whether or not a party is cohabiting, the truth is, all cases have to be decided on their specific facts. In Grey v Grey [2010], the husband went to the trouble of employing a surveillance agency to track the wife’s partner over a number of weeks, so as to establish that he was living at her residence. It got worse for the wife during cross examination as she was forced to admit then that she was seventeen weeks pregnant !

The impact of an admission or a finding of cohabitation in cases involving maintenance will also depend on the facts of the case. A new partner is not legally obligated to maintain a cohabitee and the courts have reinforced in the case of Fleming v Fleming [2003] that cohabitation is not the same thing as marriage, despite comments made in K v K [2005]. What the court has to do is investigate the financial consequences fully of the new relationship, taking into account that there is an obvious motive to avoid pooling of income. The real question is not what the new partner is contributing, but what he ought to contribute. The new partner taking home the minimum wage will differ markedly from the one who earns above the average income, with no responsibilities, depending on the case.