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How do I prove my ex is cohabiting with a new partner while I’m paying spousal maintenance?

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A common question that arises for those paying spousal maintenance is whether spousal maintenance payments stop if the receiving party begins to live with a new partner. But unless you return the matter to court, or the spousal maintenance order has specific terms for payments ending on cohabitation, it must continue. For those paying spousal maintenance, it can feel very unfair that those payments carry on when their ex is living with someone else.

What is defined as “cohabitation”?

Cohabitation is typically described as an intimate relationship in which two people live together in a shared residence and share their domestic life, such as cooking, cleaning, and other household responsibilities. They may also share finances, although not always, and make joint decisions about their lives together.

The court approaches cohabitation very differently to remarriage. This is because marriage is viewed as a sign of commitment and a receiving party may have access to their new spouse for financial support and provision if it breaks down; however, a cohabiting relationship comes with no such rights. So, when reviewing whether spousal maintenance should continue, the court must consider two key points:

  • Is the ex-spouse cohabiting with a new partner?
  • If the ex-spouse is cohabiting, does that cohabitation justify a change in spousal maintenance payments?

Is your ex-spouse cohabiting with a new partner?

Many of those who receive spousal maintenance will wish to keep their relationship on the down-low, particularly as the relationship becomes more serious and living together permanently is a real possibility. It can often be difficult to prove that an ex is cohabiting, particularly if they give the impression they are not. Gathering evidence at an early stage is therefore critical if you are to prove your ex is cohabiting with a new partner.

There are many factors that may lead the court to determine whether an ex is cohabiting, but our list below provides a helpful guide as to the factors a court may consider relevant:

  • Whether the parties are living together in the same household.
  • Whether the parties share daily tasks and duties.
  • The stability and permanence of the relationship.
  • The financial affairs of the parties.
  • Whether it is a sexual relationship.
  • Whether there is a close bond between the third party and the children of the family.
  • The intentions and motives of the parties.
  • Whether a reasonable person with normal perceptions would consider that the parties were in a cohabiting relationship.

The court will look at all the evidence before it as to whether there is a cohabiting relationship in existence. Evidence that could help in proving such a relationship includes, but is not limited to, joint bank accounts, plans to marry the new partner, and the sharing of childcare responsibilities.

What evidence do I need to prove my ex is cohabiting?

Various pieces of evidence can be used to prove that two people are living together. Below are some of the most commonly used:

  • Photographs – photographs showing the couple together in their shared residence or at events and activities they have attended together.
  • Financial records – records such as bank statements, credit card statements, and utility bills that show the couple’s shared expenses can be strong evidence of living together. If you suspect your ex is living with someone else, then you could make an application to court to vary/revoke the spousal maintenance. The judge may then order your partner to produce various pieces of evidence to support their position they are not cohabiting.
  • Witnesses – people who have observed the couple living together can testify to their relationship. This could be neighbours, friends, or family members. Although, you should be prepared for people to not want to get involved.
  • Lease or rental agreements – these documents may show the couple as joint tenants and therefore prove they are cohabiting.
  • Communication logs – emails, text messages, or social media posts showing the couples communication and plans can also be used as evidence.

The burden of proof is on the person claiming the two people are living together, so it is crucial to gather as much evidence as possible to support your case. It is also important to consider the gathered evidence must be admissible and credible according to the law. If you have trawled through your ex’s bin, for example, be prepared for the court to rule the evidence inadmissible. You could even find yourself charged with a criminal offence.

Could I hire a private investigator?

If you can afford it, hiring a private investigator may help you prove your ex is living with their new partner. Private investigators are skilled in gathering evidence and will know the best and legal methods to use while following ethical and legal guidelines. Since private investigators are costly, ensuring the evidence they gather must be credible and admissible in court is essential. In addition, you will also have to ensure the private investigator has the proper licence and insurances in place.

Does cohabitation justify a reduction in spousal maintenance payments?

If the court decides that your ex is in a cohabiting relationship, then it must determine whether this justifies a change in the spousal maintenance payments. It is important to note that establishing cohabitation can be difficult and, even then, is not decisive, meaning it will not automatically lead the court reducing or stopping the maintenance payments.

The court will look at the overall circumstances of the case and whether varying or stopping  the maintenance payments will result in undue hardship for the receiving party. One key question the court will ask is not what the new partner actually contributes, but what they should be contributing, having regard to the financial circumstances of the parties. Each case is taken on its own facts, and whilst the court, as a starting point, does not need to consider both parties finances completely from scratch, the level of disclosure and analysis will depend on the complexities of the case.

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