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The risks of cohabiting before divorcing

February 2018

An extra marital affair is one of the most common reasons for the end of a marriage. But much to the surprise of many, the adulterer will not automatically receive a lesser financial settlement because of their infidelity. The outcome may be different however if there is a new relationship leading to cohabitation before the divorce process is complete. 
 
Firstly, the party cohabiting will have to answer questions about their intention regarding the new relationship, such as whether they intend to remarry. They will also have to disclose any information they have about their partner’s financial position.
 
Arguably, from a practical perspective, the cohabiting spouse does not have as big a need of a share of the matrimonial money and/or property because their need for housing is already met. They may also be pooling resources with their new partner in terms of funds and mortgage capacity. 
 
However, cohabitees do not acquire the same financial rights as if they were married. This means if the relationship breaks down they may be left in financial difficulty. In a recent case, a judge said that the presence of a new partner does not lessen needs and a person should not be forced to marry for financial reasons. Even if one party cohabits with a new partner, their former spouse’s financial obligations can still continue after divorce.
 
However, every case is different and each scenario will be individually considered. Judges have a great deal of discretion and in some cases may decide that the cohabitation should have the effect of reducing the financial award for one party.
 
Cohabiting after divorce may bring an end to any spousal maintenance payments the now cohabiting party may have been receiving. However, if the cohabitation starts within a year or so after the divorce, there is a risk that the other party may try to revisit the financial outcome on the basis that the cohabiting party had not been honest about their intentions when the settlement was reached or the Judge made their decision.
 
As it is still a grey area with valid arguments on both sides, the decision as to whether to cohabit is a potentially difficult one to make.

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.

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