Does living with a new partner affect the divorce settlement?

This is an oft repeated question when negotiating a divorce settlement, and there is no one silver-plated bullet-proof answer. This is because each situation is unique, and the specific circumstances need to be carefully considered on a case by case basis. This article will provide you with a flavour of what the court considers in relation to a new partner and the divorce settlement.

What is defined as a new partner?

Cohabitation or intending to cohabit are the circumstances when a partner is most likely to be considered as potentially affecting a divorce settlement. But what is the legal definition of cohabitation? The case of Kimber v Kimber set out the following guidelines for the courts to follow:

• Those living together in the same household
• Living together involving sharing daily tasks and duties
• Level of stability and degree of permanence in the relationship
• How financial matters are being dealt with, e.g., jointly
• A sexual relationship
• The bond, if any, between the new partner and any children
• Intention and motivation
• Evidence that the cohabitation would be considered to exist in the opinion of “the reasonable person with normal perception”.

Providing full and frank disclosure

The Form E that each party completes setting out their financial position, asks for full and frank disclosure, including providing brief details of any new partner. It is important to state that if during financial negotiations, there is an intention to cohabit, it should always be disclosed. If this does not happen, and cohabitation happens soon after the finances are finalised and the consent order approved, there may be grounds for a former spouse to challenge the settlement if there is reason to believe full and frank disclosure was not made.

When will a new partner be considered in the divorce settlement?

There is no fixed rule regarding new partners and divorce settlements. The court must consider the impact of a new partner, but whether this influences the final decision depends on several factors, including:

• The stability and length of the new relationship. Typically, the stronger it is, the more likely it will impact on the final settlement.
• Is there enough in the matrimonial pot to meet the financial and housing needs of the former couple without including the new partner’s assets? If the answer is yes, then they may be excluded by the court.
• Does the new partner have assets or an income worth taking into account? If their assets are modest, they are likely to be excluded. However, if the new partner is wealthy, it will probably be considered.

For example, if your former husband moves in with a wealthy new partner and they own their own home. It is possible the court could take the view that the former husband has his housing needs met and, as a result, his living costs are significantly reduced because they are shared. Therefore, he has more disposable income. In this situation, you may be awarded more of the matrimonial assets than you would have received if your ex was single.

In another scenario, perhaps your wife moves in with a partner who is on a low income with very modest assets. This will have a minimal impact on the finances of your ex, and so it is possible her new partner would be discounted.

In either case, if there are sufficient matrimonial assets to meet the housing needs of both parties, the court may not consider the new partner, as their wealth, or lack of it, has no bearing on the financial settlement.

How can I prove my ex has a new partner?

Perhaps you have seen social media posts or the disclosure of bank statements as part of the divorce process has thrown up expenditure anomalies, such as unusual hotel stays or larger than normal cash withdrawals, making you suspect they are in a new relationship. How can you prove it? It is best to seek legal advice about the relevance of proving whether your ex has a new partner before you devote time and money to obtaining evidence of its existence. This is because, as described in the examples above, in some situations, the existence of a new partner makes no difference to the outcome of the divorce settlement.

Can my ex claim money from my new partner?

There is no situation where an ex could claim money directly from your new partner as part of the divorce settlement.

What happens to my divorce settlement if my new relationship ends?

In some cases, it is possible to apply to court for variation of a divorce settlement if your circumstances change. So, if you were cohabiting with a new partner and they provided financial support, your needs may change if that relationship ends.

Will getting remarried affect my divorce settlement?

Many people are not aware that if they remarry before a financial settlement is finalised from a previous marriage, they may lose their ability to make an application for a financial remedy. This is commonly referred to as the “remarriage trap”. However, it can be avoided by following our helpful tips:

• Make sure you obtain legal advice before taking the plunge to ensure all financial claims are resolved before marrying
• If you intend to marry during ongoing divorce proceedings, you should issue your financial application without delay in order to protect your position.
• If you are the applicant in divorce proceedings, ensure you have shown your intention to pursue financial claims on your divorce application. This will be sufficient for the court to deal with financial claims even after you marry.

Should you marry without issuing a financial application, you may still be able to make an application under either the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA) or schedule 1 of the Children Act 1989. These are complex areas of law, and it is advisable that you seek specialist legal help if you find yourself caught out by the remarriage trap.

If you have concerns about your divorce settlement and you feel you need legal advice, contact specialist family solicitor Mark Heptinstall of Slater Heelis. He is recognised as a ‘Leading Individual’ in The Legal 500 and ranked in Chambers UK, and is described as having “the amazing ability to bring calm into troubled waters”.