Your ex-wife has moved on and is now happily living with a new partner. They are in a stable, supportive relationship and he doesn’t seem short of cash. So why are you still paying her regular maintenance?

Maintenance payment is one of the most divisive issues in family law. Over the course of two posts I’m going to consider why maintenance orders exist and the emerging case law which means they might be more readily challenged in the future.

Most financial settlements between divorcing couples consider only the “reasonable needs” of the parties involved. They or the court will share out the assets – capital and income – ‘fairly’ so they can both cope financially as they move forward with their new lives. In such cases, there often isn’t any surplus money to fund a “clean break” between them. The wife has no income, or earns far less than the husband, and so needs maintenance payments from her husband to support her. Sometimes these payments have a cut-off point in the future, by which time the wife is expected to be self-sufficient, but often the order is left open-ended because she has care of the children, or has no realistic prospect of earning a reasonable living in the future – or both.

Maintenance therefore remains payable by an ex-husband to his ex-wife, often with an automatic uplift linked to the Retail Prices Index, until the wife remarries, dies or the court makes a further order. Until then she receives tax free maintenance, which she regards as the income earned as a result of their marriage.

This doesn’t happen in mainland Europe, there maintenance is not payable to an ex-wife. She is expected to manage with an equal split of matrimonial assets and if necessary go to work. The husband keeps his income intact save for child support payments. There is no doubt that this causes great financial hardship, and in England the law recognises this fact and provides accordingly.

But suppose both parties move on with their lives and they both acquire different partners?

Let’s suppose that an ex-wife now has a boyfriend. She could be more or less living with him full time and gives him free rein of her house. He keeps his clothes in her wardrobe and his razor and toothbrush in the bathroom. He pays for their food and he might give her some money “to tide her over”.

To all but the keenest eye they are living together as man and wife. Yet they have decided not to marry, not now, or perhaps not ever.

On his part this could be because he is already married or can’t afford to get married. The wife’s reasoning may also be straightforward. She is desperate not to lose the hard won maintenance payments from her ex-husband, which she considers to be earned by virtue of her contribution during the marriage.

The ex-wife therefore rejects an approach from her increasingly frustrated ex-husband to vary the court order and reduce or even stop her maintenance because she is in a relationship with another man. She fears that she might have no long-term security with her new partner and hangs on grimly to her maintenance cheques. Her furious ex-husband (possibly egged on by his new wife or partner who is bitter about the continuing cost of the on-going, open-ended maintenance payments) consults his lawyers and asks: “Do I still have to pay maintenance to her?”

The original court order will usually provide no automatic cut off point in the event of cohabitation. If he wants to reduce his maintenance he will have to persuade the court that cohabitation does exist, and furthermore, that it should be taken into account.

On one hand it seems an open and shut case. Why should the former husband pay to maintain his ex-wife whilst she is living with her boyfriend? Surely she can’t eat her cake and have it too?  Furthermore, if cohabitation prior to marriage was taken into account when considering the length of their relationship during the divorce so that his wife could enhance her claims, why should it now be ignored in relation to her maintenance payments?

There is of course another side to this argument; one that is largely supported by the law.  The husband and wife jointly made the decision to raise a family and thus affected the wife’s ability to earn her own living. In many cases, as I have outlined above, there is insufficient capital to fund a clean break so maintenance payments are the only option. Also the wife has no claims against her new partner as they are unmarried and legally there is no cause for maintenance to end if the recipient is cohabiting. So is it right to leave her high and dry whilst she may only be “testing the water” in a new relationship?

These arguments for and against continue to rage. Now the Court of Appeal has waded in with much needed guidance on the subject. In my next post I will be looking at a recent, colourful case called Grey v Grey (2009EWCA Civ1424), which may have implications for partners past and present when maintenance orders are disputed in future.

Image credit: ingorrr