“Why do I have to tell my ex-wife that I am in a new relationship, for our financial remedy proceedings, and will my new partner’s house and money get dragged into it?”
“My ex-husband is living with his new partner, but he is lying about it – what can I do?”
I get asked these questions quite frequently. The issue of involvement of new partners, and how they might affect the position on financial issues arising from a divorce is understandably sensitive. It is not possible to give a simple one-word answer because there are a number of points to bear in mind. Let’s start with some basic rules.
Firstly, you are under an obligation to give full and frank disclosure of any intention you may have to remarry or cohabit with another person. It is important to do that, partly because it is a requirement of the court rules. Also, if you fail to disclose such an intention, it can give problems at a later stage, and any agreement you reach without disclosing your intention could potentially be set aside.
Secondly it is important for me to say that there is no question that a new partner could be required to make any financial provision for your ex-wife or husband. Nor could your ex be required to make financial provision for your new partner.
Thirdly, your new partner is under no obligation to give your ex-wife or husband any information about their financial or other circumstances. But you are obliged, if you say that you intend to live with her or to marry her, to outline her financial circumstances to the best of your knowledge. Technically, in court proceedings the judge would have power to compel a third party (ie your new partner) to disclose information, but that is not common, the power is used very sparingly
Fourthly, and perhaps most importantly, would it make any difference to the outcome of your financial negotiations with your court proceedings, in the unlikely event that it comes to that? The answer is that, as stated in my second point above, there is no question that your new partner’s property or income could be directly taken into account in any division between you and your ex-wife or husband. But, where someone is arguing that they need additional financial provision from their husband/wife, to meet their reasonable financial requirements, then the fact that they are cohabiting with a new partner may affect the extent of their need, and so lead to a reduced settlement. It is generally fair to say that where it has an effect it tends to be marginal.
But the simple rule is that when you are discussing a financial settlement you are legally obliged to disclose your financial and other relevant circumstances fully and frankly. That applies whatever method you are using – mediation, negotiations through solicitors, court proceedings or just a direct conversation between yourselves.
An intention to remarry or cohabit is one of those other relevant circumstances. So, you can have a girlfriend or boyfriend – that makes no difference - but if you form an intention to remarry or cohabit you have to say so. And then you have to outline your new partner’s financial situation briefly, to the best of your knowledge and belief.
When it comes to you filling in a form E (or a form D81 financial statement where you are applying for a consent order) it just requires you to state, honestly, your intentions as they are today. It would be perfectly possible to have no intention at all to cohabit today but to change your mind tomorrow.
But who knows what anyone intends, because no one else can see into your head? And does it make any difference?
The answer is that it can become an issue if your ex-husband or wife wants to try to overturn your financial agreement or court order a little while after it has been approved. They might say "he said he didn't intend to cohabit but then three weeks later he moved in with someone else, so he was lying." The next question would then be what difference does it make? I.e. would the agreed arrangement have been any different if it had been discussed on the basis that you were going to cohabit.?
The answer to that is that it would only really make a difference to someone who is being given more than they might otherwise get because they need to rehouse on their own, who then goes and lives with someone who has plenty of money, and so they didn't need that extra help with rehousing.
But I appreciate that this whole issue can be particularly sensitive, and you need to tread carefully and perhaps to take specific advice about your own situation.
Health Warning: This post is intended as a general guide only – It is important to obtain expert advice about your own situation, I can certainly accept no responsibility for any loss you might suffer as a result of relying purely on the information on this website.
John Pratley is an expert divorce lawyer, who has more than 25 years’ experience advising clients purely about divorce and related family law issues, such as the financial consequences of separating and divorcing. After establishing the first niche family law practice in Bristol and going on to senior management roles in a national firm, John set up Apple Tree Family Law in 2018. Apple Tree Family Law solicitors specialise in advice about divorce and financial issues.
We are based in Bristol and Exeter, but we have clients all over the UK and further afield. We offer, simply, clear and accurate advice about divorce and family law issues, and the very best client service, for a clear and reasonable price.