In my previous post I set the scene in a hotly disputed area of law: maintenance payments and the ex-husband who resents paying after his former partner begins living with another man.
The Court of Appeal has issued a judgement (Grey v Grey (2009EWCA Civ1424)) that should help to resolve this grey area, even though it will mean wives who choose to cohabit could stand to lose their maintenance. Put starkly, in line with changing social attitudes the pendulum has swung away from dependent wives. They may now be faced with very tough choices post-divorce: do they live with someone, or keep their maintenance?
Grey v Grey
This case involved a wealthy couple in their thirties, whose 10-year marriage had produced one daughter. When they divorced the capital was divided equally between them, and the judge set Mrs Grey’s maintenance at more than £100,000 per annum.
The husband subsequently appealed this award, on the basis of his ex-wife’s relationship with a man called Mr Thompson. The wife hotly contested the claim that she was cohabiting. Unfortunately for her, she lived on the same street as her former in-laws. Mrs Grey’s former father-in-law and an enquiry agent carried out observations which showed she was indeed living with him, a fact that she persistently denied through her solicitors and later in court.
Worse still for Mrs Grey was that her former husband had also discovered that she was pregnant. His legal team ambushed her with this revelation during cross-examination in court. She admitted her pregnancy and that she was “in a fixed, committed relationship” that was permanent in nature. (At which point I can imagine her legal team fiddling with ties, looking intently at blank bits of paper and staring, stony-faced, into the distance!)
Insufficient information was produced about Mr Thompson’s financial position for the court to make an overall determination about the case, so they allowed Mr Grey’s appeal on the basis that Mr Thompson and Mrs Grey were cohabiting. The case was then sent back to the court that had made the original maintenance order, for a rethink.
The judgment
In his judgment, Lord Justice Thorpe clearly set out the law.
It is often difficult to establish that a couple is cohabiting, and this was the first question that he addressed.
His Honour Judge Tyrer reviewed the criteria used by social security authorities, and which were called upon to demonstrate a state of cohabitation in Kimber v Kimber (2001)1FLR383:
(a) the parties were living together in the same household;
(b) the living together involved a sharing of daily tasks and duties;
(c) there was stability and permanence in the relationship;
(d) the financial affairs of the couple were indicative of their relationship;
(e) their sexual relationship was admitted and on-going;
(f) there was a close bond between the third party and the wife’s child;
(g) as regards the motives of the couple it was clear that the wife had denied cohabitation and acted as she had so as to continue to enjoy the payment of maintenance from her husband;
(h) there was sufficient evidence that cohabitation existed in the opinion of a reasonable person with normal perceptions.
The next step was to consider the legal consequences of cohabitation.
Firstly, as I explained in my first post about maintenance payments and a new partner, there is no automatic provision in English law for termination of maintenance because of cohabitation, unless a court order expressly provides for this. Very few orders do, because it requires the wife’s consent. Furthermore the law does not equate remarriage with cohabitation. Upon remarriage, maintenance payments cease.
Current law therefore requires a review of all the circumstances, but not an automatic cut-off of maintenance payments simply because a couple is living together.
In reaching his conclusion, Lord Justice Thorpe quoted the comments of that modern thinker, Mr Justice Coleridge:
Coleridge J, who in K-v-K (2006)2FLR468 criticised “this troubling and messy area of law and current legislation enacted against an utterly different social fabric…not adequate to deal with it, and invited the Court to “grapple with this point as there is no (early) prospect of statutory change …and this issue will not go away”
In response and considering the position overall, Lord Justice Thorpe stated:
This dynamic area of the law should not be out of touch with generally accepted notions of fairness:
The solution to this issue is, we suggest, as follows:
(a) If settled cohabitation be established then, as a matter of ordinary practice that ought to lead to no substantive maintenance order being made: or if it be a variation application the previous periodical payments order being abrogated.
(b) Secondly in a case where the court has continuing concern as to the dependent’s ability to be or become self-sufficient and has no obvious recourse against the cohabitant, then a nominal order should be made.
What does this mean for divorcing couples?
Well, it means that if a woman is found to be cohabiting, the discovery will not be ignored, even if she is not being funded by her new partner.
As both Lord Justice Thorpe and Lord Justice Wall have made very clear, the question is not what the new partner is contributing but what he ought to be contributing – and if he can afford to pay, he will be expected to do so. It is a matter for each court to make its own assessment based on all the facts. If they judge that no further maintenance should be paid, then no further maintenance will be paid.
There is clearly a greater risk now for those women who wish to cohabit, as they stand to lose their valuable, tax-free maintenance payments. If they do not want to be grilled in court about the nature of their new relationship they should be certain not to cross the line and live with their partner until they are completely and utterly sure.
The risk of starting a new, post-divorce relationship is no longer restricted to emotions. Now an ex-wife must also take into account the possible financial impact of cohabiting with a new partner.
Socially, morally and legally this all sounds sensible.
However, what of the dependent housewife who has given up her own career to raise children, and who now finds herself staring into the unknown with hands tied, asking two questions:
Do I jump without a parachute? If I do, what kind of landing will I have?
Image credit: divemasterking2000.
February 22nd, 2010 at 12:30 pm
At last a sensible family decision from the Court of Appeal.
England and Wales are known as the divorce capital of the world – this is something we shouldn’t be proud of. Few other countries on this planet are as indulgent to the poorer spouse and unjust to the richer. Our system encourages lethargy in the dependent spouse post divorce and gives her no incentive to get herself back on her own two feet whilst punishing the richer spouse indefinitely with joint lives maintenance.
The courts in this country have ignored the intention of Parliament in diluting the clean break doctrine with layer upon layer of indelible judicial gloss. Marriages end – it’s a sad fact of life – but let’s have a legal system which, as far as is possible, allows them to move on and be free of each other, not to be chained together indefinitely by maintenance.
Apologists for wives usually come out with the old mantra: “What about wives who have given up careers to look after the children?” In those limited circumstances where the parties have both decided that the wife will give up her high flying career to be a stay at home mum, then yes, I certainly see the justice in longer term and more substantive maintenance for her. But in my experience as a family lawyer, most of the divorce cases I have acted in involve wives who gave up nothing – they never had the qualifications, the training, the experience or even the acumen to earn anything near what her husband earned. Yet she gets to live her married life in the lap of luxury, and then force her poor husband to pay her generous maintenance for life, whilst at the same time she sometimes even gets to go on to cohabit with another rich man and get further subsidy.
Grey v Grey is a start, but our terrible divorce law regime still has a long way to go before it’s fit for purpose.
March 1st, 2010 at 2:05 am
I gave up a well-paid career to have my children. I had the opportunity to return to a part-time consultancy position when the first two children were small but my then husband was not prepared to take any active part in supporting this decision or me through shared responsibility for a house which we were renovating at the time, or shared care of the children, even at weekends. Given the circumstances at the time – he was travelling a lot too – I felt it was in the best interests of us all for me to be the backbone of the family and the full-time mother that my children needed in addition to actively supporting my husband’s career which was so important to him. I put my career on hold for the benefit of the family. We had a third child and I had plans to re-train in a career more conducive to family life with young children. My ex-husband left when the children were 9, 7 and 3. He went abroad to live with the woman he had been having an affair with. She was, and is, a successful business woman who, as he put it, was more use to him than me. She had been his boss. My ex-husband made no financial provision for the first 18 months and it took 3 years to finalise the financial settlement, one which he contested even after the final judgement. He lost his appeal. My children were distressed at losing their father and their home. It has taken 3 more years to reach stability and even now my middle child struggles with the fact that his father lives abroad and he cannot see him as he would like. Despite a desire on my part to work, not only for my own self-esteem but because I would dearly love to be financially independent from my ex who continues to use payments to me as a means of control, it has not been possible due to the enormous stresses of the last few years care of protracted divorce proceedings and because the well-being of my children comes first and they have needed me to be fully available. I met a wonderful man two years ago but notwithstanding any reservations I may have about re-marriage, I would not co-habit since I do not see why he should be financially responsible for me so that I can raise another man’s children. I feel strongly that maintenance for the wife should be paid until the youngest child is 18, regardless of co-habitation or remarriage. My new partner is still financially responsible for his ex-wife, and their two adult children. He simply could not afford to support me too. So, much as I would like to be financially independent of my ex-husband, I am mindful that marriage is a contract and the obligations ensuing from that, when children are involved, should be fulfilled. My ex-husband, by the way, is now engaged and living with his ex-boss and they lead a very comfortable life with her son, who enjoys a standard of living far greater than that which our children enjoy. I only wish that I had the same freedom to live with my partner, should I choose to do so, without my children being compromised financially even more. I don’t, so I won’t. And I am, frankly, shocked to read that the comments above are posted by a family lawyer. I assume he only represents like-minded men.
March 4th, 2010 at 7:29 pm
With respect Clare, I did caveat my views specifically referring to your kind of case as an exception to the rule. Actually, your case is a fairly extreme one and one where you clearly do deserve substantive spousal maintenance for a term given that you have three young children to look after alone and without any help for your ex-husband, given that he can clearly afford it, and given that you gave up a successful career, amongst other things.
The criticism I have with the law (and I see this all the time) is that there are many ex-wives who have not worked for longer than needed – sometimes 20 years or more (i.e. during the entire marriage), who have children who are in their teens and don’t need round the clock care, and who could, if they really wanted to, go out and work, but instead the court automatically gives them substantial joint lives maintenance, so that the poor husband has to subsidise them indefinitely, whilst himself has to slog his guts out at work, and he even has to share care to some extent of the children, and sometimes she even has a co-dependent relationship with another earning man.
I’m sorry that you don’t see the injustice in that. I’m not speaking for men, I’m speaking for justice, and I’m speaking from many years of experience. Your view that wives should always get spousal maintenance until the youngest reaches 18 notwithstanding remarriage or cohabitation is baffling and not one based on any sensible rational I can see (unless you’re confusing spousal maintenance and child maintenance?). And I think even Marilyn Stowe would agree with me there.
March 31st, 2010 at 9:54 pm
Thank goodness for Sam. I am a second wife, i work full time and have no choice to change as my earnings appeared to matter to the judge at my husbands recent FDR. His ex-wife fits Sam D’s description perfectly of someone who has enjoyed the life of luxury created by a hard working man who the courts now expect to work in excess of 60 hours a week ( at the age of 53 years)while she has no obligation to support herself, holidays frequently as a lady of leisure. There are no dependent children she denies cohabitation inspite of telling her ex that she intended to sell both her homes and move abroad with her partner of 3 years. She sold both her houses but now denies in court that she ever told her husband of her intentions. she denies cohabitation. Our barrister takes the view she cant be expected to work, ( she was 46 at seperartion 5 years ago) and that cohabitation makes no difference. She wants more than double the PP she agreed in the order 2007. ie more than i earn as a full time NHS consultant.
The distress this process causes to all concerned and the ability for lying under oath such as the form E has astounded me. In my work I see many women divorced who struggle to juggle childcare jobs with minimal financial support. These richer wives are an anomaly who do not need sympathy and pity just a reality check that the law needs to address. Where are the civil/human rights of the man who made a mistake but is tied to his ex for life. One partner working very hard while the other is having a laugh.
I have no confidence when this goes to a final hearing as the Judges seem to pity these ex wives the men don’t seem to stand a chance.
I dont think you only represent like minded men Sam D I can assure there will be plenty of hard working second wives and their friends who will be pleased to hear that the law may be waking up to modern society.
Afterall what do we teach are daughters… forget work do what it takes to trap a wealthy man marry well have a couple of kids and your laughing if marriage fails or work hard in school achieve success at university work hard contribute but if you get married and it fails expect nothing from the ex.
April 1st, 2010 at 11:48 pm
There really is a grey area when considering if cohabitation can indeed effectively be considered ‘remarriage’ by the courts. I should have frozen my ex’s business assets and insisted on a clean break at the time of divorce. Instead I listened to his argument about not wanting to break up the company we both started and agreed to not touch his large pension so that he could continue to pay me in regular life-time installments. The caveat of death or remarriage I was told by my solicitor was ‘normal’ and not advised that it could come back to bite me if I began to co-habit. I have been with my partner for almost 3 years and whilst I am in a relationship, I do not have confidence in the stability of the relationship that my ex has with his partner of 7 years. The evidence for this is the fact that my partner pays rent and we share no joint financial assets – as opposed to my ex husband who owns three houses amounting to approx. 2m jointly owned with his new partner who also has her own business and a £2,500 per month in maintenance from her own ex husband. I think Sam’s comments about ex husbands easy money creating lethargic women is rather narrow minded and somewhat offensive. Whilst I appreciate that this may be true in some cases, women are an easy target in situations like this. I gave up a career (like so many women) to start a business with my husband. I had no income and no job when we split. It has taken me 5 years to train in order to achieve my MSc in clinical psychology. Women are mostly blamed for parental alienation but in my case on top of trying to study to make something of my life, I have had to put up with a narcissistic man who interferes with every relationship I try to have by alienating my children. This new law aims to be fair when considering both parties but how much are the courts prepared to consider in the name of fairness? There is a human story here too.
May 6th, 2010 at 1:54 pm
Jenny, as I said to Helen, there are caveats to my view. If you’re saying that you let your ex keep the family business which you helped set up, and which was your only source of income, and as a quid pro quo he agreed to pay you maintenance, then of course it’s perfectly just and reasonable you get maintenance.
In fact, I see you agree with me that husbands’ easy money can create lethargic women. Jenny, trust me, it happens all the time.
We’re on the same page.
May 7th, 2010 at 1:06 pm
I was divorced several years ago and ordered to pay maintenance on the basis my ex-wife was caring full time for the children. She now works and is co-habiting as confirmed by my teenage children who live with their mother. Their relationship clearly conforms to the criteria outlined in the article above. My issue is that they live in a very rural area and I have no idea how to prove the co-habitation. I cannot afford to pay expensive detectives nor an expensive legal bill with no guarantee of success. Is there a low cost way to collect needed evidence?
May 10th, 2010 at 6:09 pm
Andrew, hiring a private investigator is actually not that expensive. What they do is set up a 24 hour hidden camera outside the house and let it roll for a week or however long you need. One of my client’s did that recently and the cost of a week’s footage was a few hundred pounds. Probably worth it by the sounds of it.
May 11th, 2010 at 11:14 am
Thanks Sam I look into this. How much evidence is needed?
May 11th, 2010 at 12:53 pm
NB the fact that she now works is itself a reason for you to reduce/stop paying spousal maintenance (as opposed to child maintenance which you would pay either way). But you don’t need a private investigator for that. You are entitled to ask her to disclose her recent wage slips and or other doc evidence of her earnings and she should oblige under the threat of you issuing proceedings if she doesn’t. Maybe you should do that before hiring the private investigator to find out whether she’s cohabiting, as her new earnings alone may be sufficient to terminate spousal maintenance.
If you do need to hire a PI to evidence that she is cohabiting (eg. if it transpires that she is not earning v much), what would be useful for you to capture would be both habitually spending nights at the home, so, footage of them returning to the home after work and then leaving to work the following morning. Weekend overnight stays too. Ideally the footage would pick up signs of affection between them, perhaps sharing the same room. The more footage the better, to be honest, but cost is of course a limiting factor. Ideally you would want footage that spans a couple of consecutive weeks.
May 12th, 2010 at 8:10 am
This is ironic because my firm is currently defending a number of applications to vary maintenance downwards, because former husbands are arguing that their income has substantially reduced. Some cases post recession are clearly genuine, but some appear not and have occurred I believe because of an increasing resentment at having to continue to maintain the former spouse when she is no longer part of their life.
I think the exchange of correspondence above demonstrates the far reaching views of those who are involved – husbands, wives and even lawyers and thanks to everyone for entering into the debate.
At the end of the day however it is a matter for the court exercising its discretion.
Where there is room for improvement, is the current procedure for variation of a maintenance order which requires the same process as a full blown financial application. Its a pity we cant devise a swifter, more economical system which would enable a court to deal with the more complicated applications which cant be heard in the Magistrates Court.
Could I finally warn that it is not advisable simply to stop paying under a court order even if you believe you have strong grounds to do so, because that leaves you open to expensive enforcement proceedings, additional costs and interest.
May 12th, 2010 at 11:17 am
I agree with Marilyn. The procedure for varying maintenance is problematic: it’s very long winded and expensive. I don’t blame laymen for believing that the court process is designed to make lawyers money (although it’s not true). Sadly I doubt parliament are going to do much to simplify the variation process in the near future.
May 24th, 2010 at 9:33 pm
How low can some women get. I think the law should be changed. I don’t understand why some women don’t or should I say won’t stand on their own two feet. What happened to the independent woman? oh i forgot only when it suits!
If there are no children involved I dont see why any man should have to support a woman. At divorce they should settle all assets and move on with their lives. It serves no benefit to have that constant tie to each other.
I dont understand why the law of the land should expect any one to continue to provide maintenance once that divorce is through, if there are no children to support.
Its awful and degrading that you can work all your life and end up with nothing because someone else is literally taking the piss.
May 31st, 2010 at 11:04 am
Very instructive to read up on Grey vs Grey, thank you to Marilyn Stowe for this important step forward into modern society. I am shocked to see how much an ex-spouse is encouraged to take advantage of the flexible UK laws/system, which allows one to live comfortably and without taking personal responsibilities at any determined point. However, I do have a question… As an example, after a long union to which a 10 year marriage and two young children are part of the family, irreversible difference lead to divorce. Capital is shared generously towards the new non-working ex-wife, which allows her to buy a mortgage-free home, along with child support (since the children remain with their mother) and spouse maintenance is also awarded. Three months after the separation, the ex-wife cohabits discretely but permanently under her new roof with her new partner, shortly after which a baby is born and the couple is living as a new “recomposed” family (now for more than three years). The ex-husband who continues to pay for child support with due personal responsibility, does not think it just to continue to continue to provide spouse maintenance to his ex-wife. How can the UK law assist and reconsider this maintenance fee in this case & scenario? Thank you for sharing your experience and thoughts.
June 3rd, 2010 at 7:03 pm
Thank you for your enquiry. Maintenance payments to the ex wife in such circumstances should stop. In practice, the former husband would approach his former wife and ask her to agree that the maintenance order should be dismissed. If she refuses he should make sure this is recorded by him in writing. He should then apply to the court for all her financial claims against him to be permanently dismissed and that she pay his costs of the application. The court has jurisdiction to depart from the usual ‘no order’ principle in relation to costs, and to make a costs order against the former wife. I hope this assists you.
June 11th, 2010 at 12:37 pm
Hi Marilyn
My partner and his ex-wife have been seperated for over 10 years and divorced for 8. They were married for a total of 7 years when they seperated. There are two children from the marriage age 17 (and currently at college full time) and 14 and they live with their mother. He has regular access to the children. He pays child support for the children as assessed by the CSA and this continues whilst they are in full-time education
My partner has an order to pay his ex-wife spousal maintenance until she dies, remarries or co-habits for a period of 6 months
The ex-wife has a boyfriend who has been living at her home for at least the past 3 years. He too is divorced with two school-aged children who live with their mother. These children regularly stay over at the ex-wife’s home – often sharing the bedroom with my partner’s son
The boyfriend registers (electoral roll check) at his mother’s address and my partner’s ex-wife registers (electoral roll check) as the sole adult occupant at her home
Over the years my partner has gathered and documented anecdotal “evidence” – such as the male’s vehicle regularly being at the address when the children are dropped off or collected, the fact that the male answers the telephone at the address – including on occasions when he is the only person at home. Driving the ex-wife’s car, letting himself in to the property etc etc
In addition we have all the information the children regularly (innocently) offer – including a scenario a couple of years back when there was a “row” between the ex-wife and the boyfriend resulting in her asking the children how they felt about him “coming back” to the address. He cooks meals for the children – often when their mother is at work and has made several “home improvements” at the address
My question is – how much weight will a judge be likely to give to the above if my partner makes the attempt to have the maintenance stopped? It seems totally unfair that potentially my partner will have to be financially bound to his ex-wife for ever due to her being dishonest and reaping the benefits of that
Will this recent appeal success in any way give more hope to people in our situation ?
We have spoken with private investigators, and for ordinary people like ourselves (who are already finding it hard to make the payments of CSA/spousal maintenance difficult) their services are almost unreachable
June 11th, 2010 at 2:58 pm
I think it boils down to this. Can you establish that they are living together as a couple? Even if you cant I wouldnt despair.
Given what you say there may well be the chance of success if your partner makes an application to vary maintenance downwards/extinguish the payments. He can argue that with the passage of time since the divorce, the age of the children, the existence of the boyfriend, his ex wife has had the opportunity to readjust and he should not continue to be regarded as a meal ticket for life in these circumstances.
Even if the Court doesnt stop the maintenance immediately there may be a good chance it will vary the payment downwards and/or make an order for maintenance to cease at some near point in the future.
It depends on the figures also – so I would suggest your partner gets some legal advice straight away. Many firms of solicitors offer some form of free initial advice.
Best wishes.
June 11th, 2010 at 3:35 pm
Hi Marilyn
Many thanks for your prompt response
When you say can we establish that they are living together as a couple what does this actually require for proof? As already outlined – we “know” (or reasonably suspect) that they live together and have been for some time – but how do we (without expensive P.Is) prove that in Court
The ex-wife has now taken a job (albeit part-time so she continues to reap the benefits of certain tax credits) There is no reason for her not to work full-time now given the ages of the children
My partner has sought some advice from two solicitors and you are the first thus far to actually offer a positive stance in respect of success of achieving a cessation – or at least downward variation – of the maintenance order
One solicitor warned that revisiting the maintenance could ultimately mean a fresh appraisal of my partner’s finances from scratch – which – as they described it – would put everything “back on the table” for consideration
This has obviously alarmed my partner a great deal because the maintenance order was agreed on the understanding that his ex-wife would not then make any claim on his pension. In hindsight – with the maintenance possibly going on indefinitely this may not have been the best choice but we cannot change that
I know you cannot offer any guarantees but with your experience and with what I have provided you (albeit not in absolute detail) would he have a reasonable chance of success or is it still just a very slight chance?
Many thanks again for your time
Kind regards
June 11th, 2010 at 4:51 pm
Why not arrange a telephone conference with me, no charge.Let’s see if I can give you some detailed advice.
Please contact my assistant Paul Read on 01423 532600
June 11th, 2010 at 9:17 pm
Thank you so much for your kind offer Marilyn – we shall be in contact
July 16th, 2010 at 10:20 am
One thing that strikes me here is the failure to mention Child Support payments. These are statutory and designed by Parliament to provide both maintenance for children’s immediate needs and an element of compensation for the resident parent.
Except where we are talking about very large money cases, I can see little reason why there should be further spousal maintenance payments on top of this when Parliament has set and determined a level. Furthermore, the ex-wife has typically had a capital settlement, which with children will be in excess of 75% of marital assets.
There are unfortunate cases where one spouse has contributed well to the other’s success – and there are since McFarlane ways to account for that. However, financial relief almost certainly breaches every rule in the equality book. Retained inheritance rights – on one party are unfair, they either both stay or should both go, ongoing maintenance claims should be achievable by both parties – what if the husband turns around and says “Hey I’ve worked my socks off for 20 years, I’ll look after the kids and you go to work ?” A perfectly fair split of duty.
Also I ask those complaining – what would you do if your husband lost his job/went bankrupt/fell into hard times during the marriage. You would be bound to trying to help to support each other – which includes taking a hit to your lifestyle.
Neither should success of one partner be necessarily seen as a function of the success of the other. Typically very successful people are just successful because that’s what they are.
August 19th, 2010 at 1:57 pm
I was just wondering where we stand with the law. My husband divorced 10 years ago after a 9 year marriage with no children. They lived in Scotland as her parents lived there. The ex-wife had MS and was diagnosed 6 years into the marriage. They divorced and a settlement out of court was agreed for her to keep matrimonial home and contents (plus ex-husband to pay mortgage until ex-wife took over – amounting to 1.5 years). In addition Spousal maintenance was agreed at around £500 per month whilst paying mortgage then £750 per month thereafter. My question is, how is it acceptable that the ex-wife gets this huge amount of money regardless of the ex-husbands financial position or responsibilities. He now has remarried and has 2 young children to support. Living in the South East (where the money/jobs are) means a higher cost of living/property price/council tax etc. If the ex- husband and ex – wife divorced through both couples being unfaithful, how is it that her MS seems to be the ex- husbands responsibility. ??