Financial settlements on divorce usually consider the reasonable needs of the divorcing couple and will seek to enable both husband and wife to move on. Often the best outcome is a clean break settlement. However, this is not always possible and spousal maintenance payments have to be agreed. The court will consider the length of the marriage and can take into account any period of living together before marriage and will look at:-
• Whether one spouse needs more income because they are the residential parent and have childcare costs or are restricted in the hours they can work because of childcare;
• Whether one spouse worked part-time to care for children and allow the other spouse to progress their career;
• Sharing assets of the marriage, e.g. if it was expected that the full-time working spouse would share their pension with the part-time working spouse.
Where spousal maintenance payments are agreed, these can be for a specified period at which point the spouse receiving maintenance will be expected to be self-sufficient, or can be open-ended. If spousal maintenance payments are open-ended, the spouse paying maintenance will continue paying until either another order is made or the spouse receiving payments remarries or dies.
This leaves a grey area where the spouse receiving maintenance may meet a new partner but be reluctant to remarry as this will mean the maintenance will stop. The spouse paying maintenance may then seek to vary the ancillary relief order to reduce payments on the grounds that the financial contribution the new partner should be making ought to be taken into account and the spousal maintenance payments should be reduced. The spouse receiving maintenance may not feel that this is fair because the new partner may not be making any financial contributions and, if the new relationship ends, there can be no claim for spousal maintenance against the new partner because they were not married.
In Grey v Grey [2009] EWCA a husband was given leave to appeal against an ancillary relief order that did not take into account the fact his ex-wife now had a new partner and was cohabiting with him. The husband and wife had separated after nine years of living together. Their first marriage ceremony, which had taken place abroad, was invalid and they did not actually get married until two years before their separation.
The wife had moved back to her home town with their daughter to live in a house awarded to her as part of the financial settlement, which was also in the same street as her ex-husband’s parents. As part of the financial settlement, she was also to receive periodic payments. During the financial settlement hearing, her ex-husband had alleged his former wife was cohabiting with a new partner, as observed by both his father and an enquiry agent. He also alleged his former wife was pregnant by her new partner, a fact she was forced to admit during the hearing. The Judge at the original hearing had decided that neither of these allegations should have any bearing on the wife’s financial settlement.
The husband requested permission to appeal as he felt the judge had failed to make proper findings of fact on his wife’s cohabitation and that any contributions or contributions that should be made by her new partner should be taken into account.
The husband’s appeal was allowed. Although the Court of Appeal found no evidence that the wife’s new partner was making any financial contribution, the court was not bound by evidence put before it in making its decision and can take into account what a new partner should be financially contributing. No evidence was put before the court about Mrs Grey’s new partner’s earnings, but these could have been investigated during the proceedings. The court felt that cohabitation with a new partner should not have been ignored in this case.
Any former spouse in receipt of spousal maintenance payments needs to be cautious before cohabiting as living with a new partner may result in the spousal maintenance payments being varied and possibly reduced.
If you have any queries regarding spousal maintenance or ancillary relief after divorce, please contact James Haworth on 0116 212 1080 or Alistair Dobson or Janet Hopkins on 01858 445480 or complete one of the on-line forms.
