Should you start a new relationship during your divorce?

It can be tempting after your marriage has broken down to dive straight into a new relationship. But would that be wise? What impact can a new relationship have on your divorce and, in particular, the financial settlement?

If you are living with someone else, the court will take this into account when assessing your housing needs and living expenses.

This blog is not about the emotional impact of one party beginning a new relationship, although that impact can be significant. I have seen many divorces start off amicably only to turn nasty following the revelation during the proceedings that one or other spouse has a new partner.

The first thing to consider is what effect a new relationship can have on the divorce petition. There is only one ground for divorce, which is that the marriage has irretrievably broken down. To prove this, the party presenting the petition needs to establish one of the five facts: unreasonable behaviour, desertion, two years separation with consent, five years separation (no consent required) or adultery. Most divorces proceed on the basis of two years separation or unreasonable behaviour (which is rarely challenged).

Adultery and the divorce petition

Adultery is defined as voluntary sexual intercourse between the husband or wife and a third party of the opposite sex. So, even if the parties are no longer living together or are separated, until the divorce is finalised sex with someone else will be adultery.

If the petitioner relies on adultery, the other party should not be named when issuing the divorce petition. If, however, the adultery is denied, then the other party will have to be named.

Adultery and the financial settlement

It's a myth perpetuated by Hollywood movies that the 'guilty' party is penalised for his or her adultery in the financial settlement. The parties' adultery during their marriage has no impact on this. The court will simply try to determine what is fair, taking into account the individual needs of each partner and the welfare of any children they may have.

Housing needs and expenses

In making the financial settlement, the court will consider each of the parties' assets, income and expenses. This is where a new relationship may be relevant, especially if you or your ex are living with a new partner. If you are living with someone else, the court will take this into account when assessing your housing needs and living expenses. Even if you live separately, but share some of your expenses such as food bills, this too will be considered. The court will require your new partner to disclose their financial situation (income and assets).

In a case a few years ago (AB v CB [2014] EWHC 2998 (Fam)), a judge warned wives against having a relationship "on the rebound" while their divorce was ongoing. (The same would be true of husbands, but in this case it was the wife who had a new partner.) The case concerned a couple in their 40s. The wife worked as a journalist, and the husband had almost no income but had inherited millions from his wealthy parents.

Before the divorce was finalised, the husband discovered that the wife had met someone else, a fact she had failed to disclose. The wife told the court she had no plans to live with her new man, but despite this the fact she was in this relationship put a significant dent in her financial award.

Mr Justice Mostyn said in his judgment: "Relationships like this always are a significant fly in the ointment in the assessment of need. One cannot make assumptions, if it is not full-blown cohabitation akin to marriage, that it will grow into that, because if it does not, the wife may be left stranded between Scylla and Charybdis if the assumption is wrongly made.

"On the other hand, if one makes a needs assessment on the basis that she is a single woman and she soon cohabits, then the paying party can rightfully feel significantly aggrieved."

The judge awarded the wife a lump sum of £250,000 but said it would have been more "if the wife were assuredly single".

Cohabitation agreement

One brief side note. If you do live together with someone outside marriage, you should consider entering into a cohabitation agreement. The concept of a common law husband or wife does not exist, and you would be wise to enter into a formal agreement to protect yourself, as you can read about here.

If you would like to discuss an issue relating to divorce, please contact Mark Goldstein at [email protected] or on 020 7616 5322.