How Does Cohabitation Affect Divorce Proceedings

By Lin Cumberlin

When a couple begin living together and enter into a long-standing living arrangement they become cohabitees.  Their relationship is similar to that of a married couple except they have no marriage licence. Cohabitation will be taken into consideration within divorce proceedings.

Cohabitating before marriage

When seeking legal advice, your divorce lawyer will usually ask, when evidence gathering, if you cohabited with your spouse before you married. The reason for this is because when a couple cohabitate before marriage and the cohabitation seamlessly leads into marriage, the length of time they lived together will be taken into consideration when decisions are made on the division of their matrimonial assets on divorce. It is not unusual for a marriage to fall apart when a couple marry after many years of cohabitation. When this happens, the court will look not only at the length of the marriage but also the total length of the relationship.

Post-separation cohabitation and new relationships

When married couples separate and enter into a relationship with a new partner, the new relationship could lead to problems within the divorce proceedings. It is not at all unusual for divorcing spouses to embark on a new relationship, particularly when they have been separated for some time before their divorce is finalised. The new relationship however could have a significant impact on any financial settlement within their divorce. It can be quite difficult to prove cohabitation during separation is taking place when it is not glaringly obvious. 

Cohabitation could affect spousal maintenance paid by one spouse to the other following a separation/divorce as cohabitation can be an event that triggers the termination of their spousal support. As is often the case, the cohabiting spouse will deny that they are cohabiting and go to great lengths to disguise it because they don’t want to risk losing their maintenance. Similarly, the paying party will want to stop paying maintenance if they suspect that cohabitation is taking place.  Unsurprisingly, in these circumstances, proving cohabitation can be quite difficult. The reality of the situation will be scrutinised to understand if the current living arrangements prove that a cohabitating relationship exists:

• how often is the new boyfriend/girlfriend staying at the spouse’s home.
• are they involved in caring for the children of the family?
• are they providing financial support to the spouse?
• are they contributing to the household?

If cohabitation can be proved, it will not necessarily lead to an automatic and immediate cessation of that spouse’s claims to spousal support, unless both parties have previously agreed that this is what will happen. Where a financial remedy/consent order exists, and contains no reference to cohabitation being a “triggering event” to terminate the spousal maintenance, it is likely that the paying spouse will apply to court to vary the maintenance arrangements because the receiving spouse is cohabitating.

The mere existence of cohabitation is unlikely to make much of a difference to the principle of sharing of the marital assets.  It will, however, make a difference when the parties’ income needs are taken into account as, where there are two incomes in one household and the household costs are shared, the income needs of the spouse who is cohabiting will, most likely, be adjusted accordingly.

Within divorce proceedings, both parties are obliged to provide full and frank financial disclosure to each other by the completion of financial statements in Form E which is an ongoing obligation. Form E asks that the parties confirm whether they are, or intend to be, cohabiting after divorce. As Form E is endorsed with a statement of truth, if a party knowingly lies when completing their Form E, they will be committing perjury and could face serious consequences for withholding information or misleading the court.

NB – this guide contains general information only and does not constitute legal advice.

For more information on this or any Family Law issue please contact Lin Cumberlin atThis email address is being protected from spambots. You need JavaScript enabled to view it. or on 01722 820937.  Our Family Law team offer a free initial 30-minute consultation.

Lin Cumberlin