Dating and living in sin* during divorce

Cohabitation|Divorce|July 31st 2018

Depending on your age, the first thing you may think of when you hear the term ‘living in sin*’ is the 80s classic hit by the band Bon Jovi.  (If you are too young, Google them.)

Your second thought maybe – oh that’s when you live together but are not married. Thankfully you probably know of it as cohabitation as the term ‘living in sin’ is rarely used and very old-fashioned.

But what happens if you choose to move in with a new partner before your divorce is finalised?

Sarah Jane Lenihan, Senior Solicitor at our London Victoria office joins us on the blog to walk us through some of the key implications.

“I am often asked by clients about dating during divorce and the potential impact on their case. Whilst I am certainly not qualified to give dating tips, I have seen first-hand the impact that new relationships can have on the divorce process, sometimes railroading what was once a smooth and amicable path.  There are also a number of legal implications you must consider and it is these that I focus on below.

A new ground for divorce

It is commonly known that adultery is one of the five reasons you can use to prove your marriage has broken down irretrievably in English law. What is less known is that starting a new relationship before a divorce is finalised can have financial implications particularly if you ‘live in sin.’

Adultery in a divorce, and I quote from the case of Dennis v Dennis in 1995, is ‘a voluntary act of sexual intercourse between the husband or wife and a third party of the opposite sex’.  (The last two words may surprise you that today the definition still requires the sexual intercourse to take place between two people of the opposite sex – but that’s a blog post within itself.)

So, if you are in a new relationship and your divorce is not finalised, your ex-spouse could present a divorce based on your adultery and the person you are having an ‘adulterous’ relationship with maybe named in your divorce documentation.  Even if nothing happened until you separated. In the eyes of the law, you are still married and this can have financial implications and incur costs.

An important thing to dispel here is the myth that if someone has committed adultery you will get more in the financial settlement. This is not the case – there is no financial compensation for adulterous behaviour and the saying ‘I’ll take every penny’ is simply not possible.

The potential impact of ‘Living in sin’

If you cohabit with a new partner, whether or not adultery is taking place, there will be a requirement for your partner’s financial situation to be disclosed whilst you either attempt to resolve via solicitors, mediation or the court.  You may believe this is unfair or irrelevant but in fact, it can be an important factor in taking into account your ability to rehouse and meet outgoings if for example there are two salaries coming into the household.

If you, therefore, move into your new partner’s home following separation and they pay for all of your outgoings you may be penalised; especially if there is not enough to go around and your ex-husband or wife is on their own.  You also need to think about what happens if you separate from your new partner after the financial settlement has been agreed.  If your finances have been resolved by a court order whether this is an agreement or Order of the Court it is unlikely there is much you can do.

Even if you are still living under a separate roof from your new partner, if you share each other households this could be classed as living together and again affect how the court views your financial needs for the future.

Your new rights

In your new relationship, you should be aware that you do not have the same rights as a married couple and the law is very different.  Cohabitants are not entitled to any of their partner’s income/pension/savings or property unless you have made a financial contribution to the capital value of the property.  If you have had a child/ren together you may be in a position to seek financial provision on their behalf.

You may, therefore, wish to consider entering into a Cohabitation Agreement before you do take this next step to make sure there is a mutual understanding from you both as to the ownership of the property you choose to cohabit in and how you will manage the bills and what the intention is in the event of a separation.”

You can read more about cohabitation and the myths that surround it here. 

Do any of these issues effect you?

If you are dating during divorce and considering moving into together please do speak to your solicitor or you can get in touch with me here. The best advice is get early advice before it’s too late.

* Just to let you know I see absolutely nothing sinful about cohabitation. Thanks for reading my blog.

Sarah advises on all areas of family law (divorce/dissolution, cohabitation, domestic violence, children) and has worked with a broad spectrum of clients both nationally and internationally.

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