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Will my spousal maintenance end on cohabitation?

Charlotte Percy

19.11.2018

We are often asked by clients, and individuals who come for initial appointments, how the complex issue of maintenance payments works.

In essence, when a couple divorce, financial claims can be made against each other’s capital assets, pension and income.  One of the financial claims often considered by divorcing parties is the payment of spousal maintenance, that is, the money paid by a husband or a wife to their former spouse following a divorce.

But what exactly is spousal maintenance? It is income payable by one spouse or former spouse to the other, in their own right and in addition to, not instead of, any child maintenance. There is no automatic entitlement to spousal maintenance on divorce or dissolution - lots of factors come into play.

In order to decide whether or not the payment of spousal maintenance is appropriate, the Court will consider specific criteria laid down by statute (the Matrimonial Causes Act 19073 (section 25)):

  • the length of the marriage
  • age and state of health
  • family’s standard of living
  • income, earning capacity, property and financial resources now and in the foreseeable future
  • financial needs, obligations and responsibilities
  • contributions made to the family
  • value of benefits that would be lost on divorce

The level of maintenance paid will mainly depend on the couple’s financial needs. In very simple terms, the objective of maintenance orders is to enable a transition to independence, to the extent that it is reasonable bearing in mind the points outlined above.  In addition both parties’ income and expenditure will be considered, in order to determine whether there is a shortfall for one party in being able to make ends meet on a monthly basis. 

If a spousal maintenance payment is agreed between divorcing parties and/or ordered by the Court, there are usually terms upon which these maintenance payments will stop. These terms might be:

  • linked to a specific amount of time to enable the receiving party to retrain in another employment role
  • until the children of the family reach a certain age
  • if the receiving party remarries

All spousal maintenance orders automatically end on the remarriage of the recipient, but they do not end automatically by law on cohabitation, because cohabitation does not create a legal commitment. Which means the decision whether or not cohabitation will affect the payment of spousal maintenance will be determined by the terms of the Financial Order made and the circumstances at the time.  Consideration may need to be given to:

  • the length of the cohabitating relationship (the longer the period of cohabitation, the more likely the court is to find it to be a permanent and stable relationship)
  • the financial arrangements and degree of sharing of obligations and outgoings on the property

After consideration of all relevant factors, there can be a number of outcomes: the maintenance payment may be reduced, the length of time maintenance is to be paid may be shortened, or the maintenance payments are stopped entirely.

Emotions can and do run high when it comes to the subject of maintenance, which is why my colleagues and I advise you take legal advice as early as possible in proceedings, and should you be considering cohabitation, again, please come to McAlister Family Law and we will guide you towards the best possible outcome for you and your family.

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