Latest blog from Jane Tenquist, Partner and Head of Family Law

In a recent curious decision, Mr Justice Mostyn declared that dating during divorce was a “fly in the ointment” for family judges asked to determine how much money husbands should give to their wives following marriage breakdown. He went on to say that women who date during their divorce might come out of the divorce worse off, because judges might assume that the new relationship is a permanent one.

The decision seems chauvinistic, out of date, and assumes too much. It also begs the question as to what line the court is likely to adopt if the husband dates during divorce.

Unmarried partners have no legal obligation to maintain the other financially. You can date as much as you like, (but introducing new partners to your children is an extremely sensitive topic and should be handled with great care). Moving in with someone new during the divorce process should be avoided wherever possible. This is because your new partner’s income and capital position may affect what your income and housing needs are. For example, if your new partner is affluent and you share a house together, this might reduce the amount you receive from the marriage by way of capital.

However, living with a new partner who has their own children can actually reduce your child maintenance liability, if you are liable to pay child maintenance for your own children and they do not live with you.

You are under an obligation to disclose to the court whether you have any current intention of remarrying or cohabiting when the financial consent application is submitted to the court during the divorce process. What does “current “mean? : it is difficult to give a definite answer to this, but I would have thought within 6 months of the date of the financial consent order. If you remarry or cohabit in haste without such disclosure, your aggrieved ex- spouse may have the right to seek to review the financial settlement reached upon the basis that you misled the court about the nature of your new relationship. However, such a claim is only ever likely to succeed if the financial settlement would have been materially different had the court known about the cohabitation or intended remarriage at the time the order was made.

If you cohabit during the divorce process, you are obliged to provide information ( but not documentary evidence in support) of your new partner’s income and capital position in a Form E. (This is the financial document used to provide information about each party’s financial position during the financial negotiation process prior to divorce.) The court also has powers to compel the new partner to attend court to give evidence on oath as to his or her financial position or to provide a statement. Once again, this is only likely to happen if the new partner’s financial position impacts significantly upon terms for financial settlement.

To conclude, if you are separated and/or going through the divorce process, you should be cautious about cohabiting and, indeed, dating a new partner. The courts can, and in the above instance, did make far reaching assumptions which might reduce your potential financial claims.

If you require any family law advice, please contact one of our solicitors on 0161 941 4000.

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