When OnlyDads received a ‘phone call from a Dad last week, asking if it “was OK to start an affair before his divorce was finalised”, I initially took it as a moral question!!
Rather, what this dad was asking was whether doing so might have legal and financial implications. I wasn’t sure of the answer, so turned to our good friend Amy at Myers Lister Price for some advice. Take note!
For many married couples separating it can be difficult to reach the final decision that the marriage has irretrievably broken down. Inevitably during this period of time, or indeed once the decision has been made many people move on and form new relationships. It is therefore natural to wonder whether any new relationships might have an impact up divorce proceedings.
The first way in which an affair/ relationship with someone other than your spouse may be relevant is in relation to divorce proceedings. Whilst there is only one ground for divorce which is the irretrievable break down of the marriage this must be supported by one of five facts. The two most commonly used are adultery and unreasonable behaviour. Case law defines adultery as voluntary sexual intercourse between two persons of the opposite sex, one or both of whom is married, but not to each other. It is therefore possible to commit adultery whilst you are married even though you are separated. This will however of itself have no impact upon how financial matters or issues to do with the children are treated.
If your new relationship has progressed to cohabitation this might have an impact upon how financial matters relating to the divorce are dealt with. It is important to note that unlike remarriage, cohabitation does not automatically bring spousal maintenance to an end.
Cohabitation is most likely to be relevant when considering the issue of spousal maintenance. Spousal maintenance is different to child maintenance which will usually be paid in accordance with the Child Support Agency’s guidelines. Spousal maintenance may be necessary if one party’s reasonable outgoings cannot be satisfied by their income and the other spouse has capacity to assist them.
If it is established that a party may require spousal maintenance, the court will consider, amongst other things:
- Whether that party lives under the same roof as their partner and whether they share tasks and duties within that home?
- The financial arrangements and the degree of sharing of obligations will be scrutinised. Do the parties share the outgoings on the property and if not would it be reasonable to expect the co-habitee to do so?
- The duration of any cohabitation. The longer the period of cohabitation, the more likely the court is to find it to be a permanent and stable relationship.
- The more permanent the relationship, the more likely it will reduce the duration of spousal maintenance or remove the obligation to pay it altogether.
The assets of the co-habitee may be relevant if the parties are living in a house belonging to one of the parties as it may be relevant to the issue of housing needs.
Outcomes are dependent on the individual facts of each case. If you would like any advice regarding divorce, separation, cohabitation or maintenance please do not hesitate to contact a member of our family department on 0161 926 9969. We are running a series of free 30 minute appointments throughout the autumn. For further information email firstname.lastname@example.org