11th Aug 2020

Divorce: The impact of a new partner

By Carla Ditz

Divorce and the impact of having a new partner

It is not unusual for new relationships to develop whilst clients are in the midst of a divorce. Having a companion who can provide emotional support during this time can be invaluable. Unfortunately, it can also serve to heighten tensions between you and your former partner particularly if you have children.

It may be that the relationship has been ongoing for some time and existed prior to separation. Whatever the situation, does having a new partner impact on the divorce proceedings and divorce settlement itself?

Divorce proceedings: Old law, new law

The Divorce, Dissolution and Separation Act 2020 is the biggest news in divorce law for some time. The Act received Royal Assent on 25th June 2020 at which point it formally became an Act of Parliament. But what’s new?

The current law

The current divorce law is governed by the Matrimonial Causes Act 1973 (‘MCA 1973’). This Act provides that there is only one ground for divorce, namely that the marriage has broken down irretrievably. This must then be proved by one of 5 facts:

  1. Adultery on the part of the respondent spouse
  2. Unreasonable behaviour, namely that the respondent has behaved in such a way so as to mean that the petitioner can no longer be reasonably expected to continue living with them
  3. Two years’ separation with the consent of the respondent
  4. Five years’ separation
  5. Desertion by the respondent

Owing to this ‘fault-based’ system for divorce, if a party wishes to start divorce proceedings immediately (provided they have been married for a minimum of 1 year), they will need to either rely on the adultery or unreasonable behaviour of their spouse as the basis for the divorce. Having to place the blame at someone’s door as a reason for the end of the marriage can be an unwelcome start to an already difficult and emotionally-charged situation.

It is important to understand that the basis for the divorce is purely a means to an end. It will have no bearing on the overall divorce process no matter how aggrieved a petitioner may feel which, for many, will feel unfair. When the new law comes into force however, alleging fault in this way will become a thing of the past.

The new law

As part of a long campaign to end the ‘blame game’ in divorce proceedings, the new legislation no longer requires a party to state the fact, as set out above, as evidence that the marriage has broken down. Instead, the statement that the marriage has broken down irretrievably will suffice with no need to allege fault on the part of you or your spouse. Additionally, there will be an option for the couple to jointly apply for the divorce and there are fewer grounds for a spouse to contest the divorce.

In terms of time frames, the new law will introduce a minimum 20-week period from the commencement of divorce proceedings to the making of the provisional divorce decree called the Conditional Divorce Order (formerly the Decree Nisi). This period will not only provide couples with a cooling-off period but crucially, time to resolve the financial matters (and practical arrangements regarding any children) before the divorce is made final (the ‘Final Divorce Order’ previously Decree Absolute).

All in all, this represents a welcome change for those striving to promote a more amicable and future-focused process and lessen the conflict between separating couples from the outset, particularly where children are involved.

However, whilst the new law eradicates the need for one party to potentially ‘blame’ the other for the breakdown of the relationship, the provisions of this Act are not expected to come into force until Autumn 2021 to allow for administrative matters to be ironed out. Still, the Divorce, Dissolution and Separation Act 2020 represents a momentous shift in attitude and progression in divorce law, the impact of which will be widely felt.

Financial proceedings

In so far as a new relationship is concerned, it becomes relevant only in so far as the impact it may have on you and your former partner’s respective financial needs going forwards.

The financially weaker spouse:

If you are in a serious relationship with a new partner, this will not automatically result in a reduced divorce settlement. However, it is certainly a factor that a judge will consider as part of the overall circumstances of the case, especially where financial resources are limited. For example, if you and your new partner live together, there is an argument that your outgoings will be shared so your financial needs may well be reduced. Judges have a wide discretion as to what financial orders can be made but it is well within the realms of possibility that a new partner’s financial resources will be taken into consideration on account of it being a resource available to go towards day to day household living expenses, therefore affecting your ‘needs’ (pursuant to section 25 MCA 1975 – the ‘section 25 factors’). Cohabiting with a new partner (or whether you intend to cohabit with your new partner), is a relevant factor to be disclosed to the court for this reason. If you fail to disclose that you are cohabiting (or intend to cohabit with your new partner after your divorce) and a financial award is assessed on the basis of you funding your living expenses in their entirety, your former spouse may be able to apply to the court to vary the order.

Importantly, maintenance payments will come to an end if the receiving party were to remarry.

The financially stronger spouse:

If you are cohabiting with a new partner (or intend to cohabit with your new partner), similarly, this may well have an impact on your financial needs. A court will consider whether outgoings can be shared between you and your new partner, leaving additional resources available to be diverted to your former spouse on the basis of their needs.

It is important to note that no claim can be made against the assets or income of your new partner.

To illustrate the point further with a couple of examples, please see our earlier blog ‘Will I get less on divorce if I have a new partner?’ found here.

If you would like more information on the topics covered in this blog, including the new provisions of the Divorce, Dissolution and Separation Act 2020, or for information on how we can help you with your family law case, please contact any of our top London divorce and family lawyers on E: hello@flip.co.uk or T: 020 7420 5000 for advice.