The thorny problem of cohabitation by John Bolch

Once of the most difficult questions facing family lawyers is whether or not a particular person is cohabiting. I certainly recall many instances of this leading to considerable argument.

Such was the case in the county court judgment X v Y (maintenance arrears – cohabitation), decided back in February 2012, but only recently appearing on Bailii.

The couple separated in 2006 and the two children remained with the wife. They were divorced in 2007. In May that year a maintenance order was made by agreement. This specified that the husband was to pay maintenance to the wife at the rate of £1000 per month until she either remarried or lived cohabit with another person for a continuous period of six months, or until the 25^th May 2014, whichever came first. In 2009 the order was reduced to £650 per month.

By February 2011 the husband was convinced that the wife had been cohabiting for more than six months. He therefore informed the wife that he would be stopping the payments.

The wife registered the order in the magistrates’ court and asked for take enforcement. In October 2011 the magistrates’ court ordered the husband to pay arrears of £4550, plus costs. The husband appealed against this order.

The wife accepted that she had been in a relationship with a Mr A since 2008, but denied that she was cohabiting with him or that he was financially supporting her. However, when in 2010 the wife had to move with the children it was agreed that she would contribute to the purchase of a property by Mr A, and then rent the property from him. The rationale for this arrangement was that Mr A had provided most of the purchase price, largely by way of a mortgage, although the wife’s cash contribution to the purchase had actually been greater than Mr A’s.

Mr A retained his own home, although he admitted sometimes staying the night at the wife’s home.

Obviously, it was difficult for the husband to prove that the wife was cohabiting. He had often seen Mr A at the wife’s home when collecting and returning his daughter for contact, but that was not proof. Accordingly, as so often happens in these cohabitation cases, he instructed an enquiry agent to observe the wife. The enquiry agent found that Mr A’s car was parked outside the wife’s home most nights.

Despite the husband’s evidence, the magistrates had found that the wife and Mr A were not cohabiting, and that their financial affairs were quite separate.

The man’s appeal was heard by His Honour Judge Clifford Bellamy in Leicester County Court. Unusually, he allowed two pieces of additional evidence to be admitted, neither of which had been seen by the magistrates. The first was a statement by one of the children from early 2010 saying Mr A was living with her. The second was a statement by Mr A made in the course of proceedings relating to the children, in which he said that he ‘spent a considerable amount of time’ with the wife and the children.

After considering all of the evidence, Judge Bellamy concluded that the magistrates’ decision was wrong. In particular, he found that their conclusion that the purchase of the property by Mr A was not actually ‘a disguised form of joint purchase’ was not consistent with the evidence and was ‘fundamentally flawed’. Other findings included the two pieces of additional evidence.

“In the final analysis,” he said, “making a finding that cohabitation is taking place is a matter of impression based on an assessment of all of the available evidence. In the circumstances of this case I am in no doubt that by February 2011 at the very latest the wife and Mr A were cohabiting and that they had been cohabiting for more than six months within the previous twelve months.”

Accordingly, the maintenance order had come to an end. The appeal was therefore allowed, and the order of the magistrates’ court was set aside.