It is not unusual for a divorce settlement to include a spousal maintenance order, requiring one spouse to pay maintenance to the other.

Unless they state otherwise, spousal maintenance orders last until the death of either party, or until the spouse receiving the maintenance remarries.

As we will see in a moment, spousal maintenance orders do not normally say anything about what should happen if the receiving spouse cohabits with a new partner. Accordingly, in such circumstances the order will continue until the court says otherwise.

So if you are paying a spousal maintenance order and you think the order should stop because your ex is living with a new partner, you will usually have to ask the court to bring the order to an end.

How the court approaches such a request was explained in a recent case in the Family Court at Oxford.

Capitalisation of maintenance

The case involved a couple who were divorced in 2014. They had two children, now aged twelve and ten. A financial settlement was agreed at the time of the divorce, and incorporated into a consent court order.

The order provided for the husband to pay spousal maintenance of £52,000 a year for five years, thereafter dropping down to £40,000 a year. The maintenance was to be payable until the youngest child reached the age of eighteen, or finished school.

Early in 2020 the wife entered into a relationship with another man. We are told that by the time the Covid lockdown was put in place in March 2020, she and her new partner were spending most of their time living in the same household (they did eventually get married, in August 2022).

Notwithstanding this, the wife applied to the court in January 2021 to have the maintenance capitalised (i.e. converted into a lump sum payment, thereby bringing the maintenance order to an end).

The husband responded by claiming a repayment of the spousal maintenance in relation to the period during which the wife was cohabiting.

Effect of cohabitation on maintenance

Before the case went to court the wife accepted that she no longer had a claim for spousal maintenance, but the court still had to decide whether the husband was entitled to a repayment.

Despite finding that the wife had failed in her duty to disclose her new relationship, and that there was a long period of cohabitation during which the wife was receiving spousal maintenance that arguably she did not need, the judge declined to award the husband a back-payment of maintenance.

The judge came to this decision for the following reasons:

1. An ex-husband is not required to insure his ex-wife against all eventualities, including the consequences of the breakdown of all future relationships. However, at the same time, a person should not be so fearful of the loss of the financial security intended to be provided for them by a spousal maintenance order that they feel restricted in taking steps to enter into a relationship, or to allow it to progress in stages towards a greater commitment. There must be a period of time before a cohabiting relationship has become settled and permanent where it remains justified for spousal maintenance to continue.

2. It was open to the parties to decide for themselves what period of time of cohabitation would trigger the end of spousal maintenance (the judge suggested a period of six months or longer), but they did not provide for that in their order.

3. The judge said that she had to look at the circumstances as they were at the time, accepting that the obligation of an ex-spouse does not necessarily stop immediately when a cohabitation starts. She accepted that a two year ‘testing phase’ is probably at the extreme end of the spectrum, particularly in this case where the wife was plainly in a long-term, committed relationship by at least the spring of 2021. However, the impact of Covid was significant. The first eighteen months of the relationship coincided with the pandemic, when many relationships were put on fast-forward. The options for many new couples were to accelerate their new relationship and move in together, or else barely see one another, and miss the chance to develop the relationship at all.

4. Lastly, the husband did not make his application for back-payment of maintenance until the day before the final hearing.

In short, you do still have to pay spousal maintenance of your ex moves in with a new partner, and should to continue to do so until the court says otherwise. If the court considers that the cohabitation is settled and permanent, it will bring the maintenance to an end.

And, as indicated, all of this could be avoided if the maintenance order states that the maintenance should end after a specified period of cohabitation.

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