Financial claims and the new partner
Divorce courts generally consider the financial outcomes of divorce from two perspectives:
- Who is entitled to what according to property and matrimonial laws – “what share has each spouse earned”?; and
- What does each spouse need?
Missing from that list (in the vast majority of cases) is any consideration of who was to blame or, in adultery cases, which partner broke their marriage vows. This can be difficult for those who anticipate that the divorce settlement should somehow reflect fault.
The reality is that the Court is not interested in the reasons for the break-down of the marriage. They will want to focus on the future instead – and in particular the needs of the two parts of the family. For this reason the presence of a new partner, regardless of whether that new relationship began during the marriage or after separation, will usually make little difference unless the new partner has an impact on the parties’ respective needs.
A couple of examples may help to demonstrate the Court’s approach:
- Janet and John separated after John discovered that Janet had been having an affair with a wealthy friend of the family, Ray, for several years.
- Janet and John agree that the children will live with Janet when she moves in with Ray.
- The Court will still order that Janet should receive a share of the capital assets that have been built up during the marriage, even though John is convinced that it is her fault that the marriage ended.
- What she receives will be decided following consideration of Janet’s contributions to the marriage. In addition, Janet’s ongoing and future contribution in playing a role as the children’s primary carer will also influence what she might get. Her relationship with Ray, and cohabitation with him, is unlikely to make any difference.
- The Court will also consider John’s own contribution and needs and try to balance these concerns wherever possible. Where there are limited finances available then ensuring the children are provided for will be the first consideration.
- The maintenance that John pays the children may be calculated in accordance with the child maintenance scheme or agreed between Janet and John. Either way, the amount that John pays will not be reduced by Janet’s cohabitation.
- It is unlikely that Janet would get any spousal or “wife’s” maintenance while she cohabits with Ray other than a possible token sum of £5 per year. If, however, Janet and Ray separated, John could be vulnerable at that time to a claim from Janet for increased maintenance from £5 up to whatever she could demonstrate she needed – and no more than John could afford.
Meanwhile, if John formed a relationship with Sasha, who has a similar income to John, then the Court may approach matters as follows. In this scenario, Janet has no new partner.
- The Court cannot make an order which will have the effect of Sasha maintaining Janet; however, the fact that Sasha and John will be living together is relevant.
- There will be a small increase in the costs of living for John and Sasha, above the costs that John had for him alone, but it will be nowhere near double. Furthermore there is now a second income coming into John’s house to put towards the costs which may mean that John is able to pay a higher level of maintenance.
- For example, John might have been paying out, say, £1500 to live in a property and feed himself and that £1500 would not have been available to pay maintenance to Janet and the children. Once Sasha moves in with John, the living costs between them might increase from £1500 to £1800. A Court would be likely to take the view that Sasha should be paying her own half, say, £900 of the increased amount, reducing John’s costs of living from £1500 down to £900. In these circumstances, John will have freed up £600 a month that otherwise he would have been paying on his own living expenses.
- Even if John and Sasha decide to have children and Sasha gave up work to look after them, the Court may say that Janet should not be any worse off as John took up these new obligations with his eyes open to the difficulties that would result. In effect John should have considered Janet and their children as a priority.
- Any child maintenance payable is likely to be reduced when John and Sasha have children in accordance with provisions set out by the Child Maintenance Scheme.
- In summary, there might be a case to suggest that Janet’s maintenance should not be reduced to divert more of John’s income to Sasha but that children’s maintenance may well be reduced to recognise that John, as a father, now has more children to support.
At Family Law in Partnership our specialist divorce lawyers, mediators and family consultants deal with all matters flowing from divorce or separation. We are experts in financial arrangements on divorce and child support payments. If you, or anyone you know is considering a divorce, do get in touch with us on 020 7420 5000 or by emailing our team of expert family lawyers at E: firstname.lastname@example.org.