Courts considering cohabitation are considering whether one of the parties is actually living with a new partner who might be expected to provide them with financial support.  It is an issue which can make parties very emotional.  It is important however, to consider whether it actually makes a difference on the facts of the individual case.

For this subject we will use the example of a cohabiting Wife, in other words a wife who has a new “boyfriend”

The first question will be whether cohabitation can actually be proved.  In a case called Kimber v Kimber [2000] 1 FLR 383 the following factors were suggested as being relevant:

“(1) Living together in the same household

Generally this means that the parties live under the same roof, illness, holidays, work and other periodical absences apart. Where, as here, the wife [and her new partner] were doing so but are no longer spending every night together, the reasoning behind the change needs to be analysed: in other words, the ‘why' posed by Woolf J (as he then was).

(2) A sharing of daily life

Living together seems to me to inevitably involve a mutuality in the daily round: a sharing of tasks and duties.

(3) Stability and a degree of permanence in the relationship; that it is not a temporary infatuation or passing relationship such as a holiday romance.

(4) Finances.  Is the way in which financial matters are being handled an indication of the relationship?

 (5) A sexual relationship

 (6) Children

 (7) Intention and motivation

 (8) The ‘opinion of the reasonable person with normal perceptions'”

To those points might be added some more specific questions.  Some of them are obviously similar to the ones in Kimber:

• How long has the Wife been in the new relationship?
• Are there any plans for the Wife to marry the new partner?
• Do they go on holiday together?
• Is there any evidence of them living together?
• Do they have a joint bank account?
• Do they share living expenses?
• Does the new partner help out with care of children?

Cohabitation might be relevant in a number of ways:

• It might suggest that the Wife does not need as much maintenance from the Husband because she has financial support from her new partner;
• It might affect how much money the court thinks the Wife needs to buy a house.  Again if the Wife has financial support from her boyfriend it may be that after the divorce is finished, the Wife and the boyfriend will put their money together to buy a house or perhaps they will just live in a house owned by the boyfriend.

Sometimes the difficulty for the court when taking cohabitation into account is that there is no guarantee that the Wife’s relationship with her new boyfriend will last.  A court will be concerned about saying the Wife can meet her needs with help from a new partner when the reality is that the relationship with the new partner could end.  In a case called Grey v Grey [2009] EWCA Civ 1424 the Court of Appeal made the point that unmarried people do not have any rights against each other:

“As the law now stands the wife has no legal entitlement to financial contribution or benefit from her new partner either during the relationship or on its breakdown. The argument is superficially attractive but in my judgment does not run unless and until the applicant has acquired a statutory claim against the new partner.”  (Lord Justice Thorpe at paragraph 41)

In the same case, the Court of Appeal gave guidance about how the fact of cohabitation might be relevant:

"Post-separation cohabitation with a third party is a relevant factor for the court to take into account when considering the level of maintenance pending suit and / or periodical payments which the cohabiting spouse or former spouse should receive from his or her spouse or former spouse. In some cases, the fact of cohabitation will weigh heavily in the scales: in others, it will not. As Thorpe LJ rightly states in paragraph 28 of his judgment, the real question for the court is usually not what the third party is contributing but – as here – what ought he to be contributing?" (Lord Justice Wall at paragraph 51)