Marriage, civil partnership, engagement, cohabitation, settled cohabitation, seeing one another, dating, living together, being ‘an item’……the labels – old and new – used to describe the particular nature and degree of adult relationships are infinitely varied. Reports Andrew Commins
For the romantic, love, as Shakespeare saw it, may, in its purest form, be an ever-fixed mark. However, the labels we try to attach to describe love’s expression and commitment in society may change or remain static: “relationships, like Rome, are not built in a day. Maybe more than many human pursuits and endeavours they may embark tentatively or at full tilt. They may stop and they may start, they may founder and they may rekindle. Over days months or years they may wax and wane. They take innumerable forms and no one size fits all” [Grey v. Grey [2010] EWHC 1055 per Singer J at para 22]. In most family cases, the designation at any particular point in time is simple and descriptive: in some, it is complex and interpretative…….an ever-moving target.
Grey v. Grey [2009] EWCA Civ 1424 saw the Court of Appeal returning the bitterly-fought battles of Lara and Richard Grey to Singer J’s court. The Husband’s appeal had succeeded to the extent that (1) the judge’s original conclusions as to the Wife’s relationship with Mr. Thompson were inadequate and imprecise, and (2), as a result of their being a ‘couple’, the financial contribution that Mr. Thompson ought to have made [to the Wife’s finances] should have been assessed within any final award as to [spousal] periodical payments.
Avid followers of this courtroom saga will recollect that the Court of Appeal rejected a further strand of the appeal: that cohabitation with a third party should raise a presumption that substantive maintenance for the cohabiting spouse should cease. The developing case law cannot offend the statutory demarcation between [re]-marriage (which automatically terminates maintenance obligations) and cohabitation (which does not). The legal impact of cohabitation is not a new debate, of course. In 2005, Coleridge J in K v. K (Periodical Payments: Cohabitation) [2006] 2 FLR 468 asked himself whether “cohabiting payees [should] continue to have their cake and eat it by, perhaps cynically, refusing to remarry to avoid the automatic financial consequence of the cessation of an existing periodical payments order?” [para 4]. In K v. K (as in Grey), the Husband requested that the court order only a nominal level of maintenance given his impending income-drop and the Wife’s settled cohabitation. In K v K, cohabitation was conceded by the Wife with significant intermingling of financial responsibilities with her partner. Coleridge J was keen to articulate his uneasiness with the judicial reliance upon “current legislation enacted against an utterly different social fabric” [para 87].
The first instalment
In his original judgment, Singer J assessed the fair level of ongoing spousal periodical payments at £125,000 per annum. Child maintenance was agreed at £15,000 p.a. The Husband’s contention throughout was that the Wife’s cohabitation and relationship with Mr. Thompson should reduce or extinguish his obligation to maintain her.
Singer J’s original comments as to the nature of the relationship between the Wife and Mr. Thompson – at best – presented an unfortunate dichotomy. The Wife’s presentation of her relationship was incredible in the face of ongoing enquiry-agent evidence to the contrary, as was her concealment of a pregnancy until the rigours of cross-examination. However, Singer J felt constrained to conclude that “they may or may not cohabit – an unsatisfactory word and concept, in my long-held view, vague as to quality and duration and not a reliably valid indicator of anything long-term” [para 71 of original judgment]. In contrast to the judge’s overall conclusions, it will be recalled that at points in her own evidence, the Wife had herself described her relationship with Mr. Thompson as ‘fixed’, ‘permanent’ and ‘committed’.
As to the nature and degree of their relationship, the Court of Appeal preferred finally to assess the two adults as a ‘couple’, looking critically at the mutual commitment offered and provided.
As a reminder, in the Court of Appeal, Thorpe LJ at [26] concluded the following:
i) The unchallenged evidence established actual cohabitation throughout the five weeks of surveillance and the commencement in November 2006 of a situation in which Mr. Thompson was a regular member of the household.
ii) The wife had presented a false case both in preparation for trial and at the trial itself. She was caught out in her deception by the husband’s investigations through his agents.
iii) The wife’s only motive for her false case was to protect her periodical payments claim from reduction to reflect the arrival of Mr. Thompson in her life.
iv) The explanation for Mr. Thompson’s presence as a member of her household throughout the five weeks preceding trial was fundamentally implausible.
v) The judge should not have accepted the wife’s evidence on this topic without corroboration and if any inferences were to be drawn they were to be drawn against the wife and stated that these conclusions should have led Singer J “to a clear finding that, whatever the future might hold for them, the wife and Mr. Thompson were a couple and the financial consequences of that development had to be investigated and assessed” [para 27].
Now, a nervous first-timer may run a million miles from a girlfriend who wants so desperately to become a ‘couple’. A seasoned veteran, however, may be equally keen to be appreciated as a ‘couple’ for fear of loss and for reasons of security and assurance. These examples are demonstrative of the dangers inherent in a labelling exercise. Once again, trying neatly to compartmentalise family relationships for ease of reference or to support the application of legal principle can turn quite quickly to semantic mush: Singer J rhetorically enquires, “How long does it take, I ask myself without finding any definitive response, for two adults engaged in a social and sexual relationship and spending time in each other’s homes to be regarded as ‘a couple’ or (to adopt another and unsatisfactorily vague but contemporary description) ‘an item’ such that a wife’s periodical payments should be reconsidered in the light of what the man should be contributing to her economy?” [para 21].
How to assess the relationship
What we should do, apparently, is to consider the “mixing-bowl of objective relationship appraisal” [para 22]. The ingredients ‘in the mix’ are as varied as the type and flavour of the cake eventually produced (a poetic-licensed-metaphor-extension by the author). Essentially, it is a fact-based decision (as all are in financial remedy litigation) but “mutual commitment [is clearly regarded] as a very important factor in the context of financial responsibility for another’s household” [para 22]. The task for the practitioner, therefore, is arguably not to be strictly wedded to notions of cohabitation or checklists of factors but rather to survey the whole course of the relationship, as alleged, and to query the duration of it and the level of commitment demonstrated by the evidence, financial and otherwise. Actual cohabitation in one home as a family will most likely be decisive. It is not, however, an absolute necessity, as the most recent instalment of Grey shows. The unenviable task in these cases it to try to asses the ‘value’ in maintenance-diminishing terms of the relationship as it develops or has developed. Singer J was faced with this exercise with the benefit (and, arguably, equal disadvantage) of retrospection.
Furthermore, it is of course impossible precisely to assess the day on which a pair of lovers who enjoy dating become a ‘couple’; who go from informality and independence to formality and a level of inter-dependence, such that the financial consequences of that development come to be investigated and assessed.
Objective vs. Subjective
What strikes the reader at this point must be the battle between objectivity and subjectivity. The subjective, personal and private nature of a relationship outside court does not offer good ground for trying to make an objective assessment of the label to be attached to it in court. What the parties to a relationship think, say, whisper and acknowledge through secret glances is in their domain; how they express their relationship is their concern. They may retain their own houses and therefore not cohabit on a permanent basis but they may still regard themselves as a committed couple with plans….. How can the court then win? “The degree of their commitment is their subjective business: the opinion of observers as to whether they are domestic partners or not may coincide, but if it is different then the categorisation of the relationship should surely primarily depend upon the subjective (if honestly-expressed) view of those within it” [Singer J, para 42]. On any assessment, the Wife and Mr. Thompson’s expressed view as to their relationship was not honest but rather coloured by partiality, presenting a subjective construct rather than an objective reality, motivated by a desperation to hold on to a maintenance award in any event.
In K. v K (above), Coleridge J highlighted the objective assessment of the impact of cohabitation by considering the layman’s view: “I do not shrink from saying that, in my judgment, nowadays the man on the Clapham omnibus (perhaps more likely now to be found on the crowded underground train) regards it as wholly anomalous and unfair for a cohabiting ex-wife in the circumstances of this wife to continue to receive income provision from a former husband indefinitely, perhaps for the rest of her life or until she chooses to remarry. If cohabitation is to be a social norm surely financial independence from a previous partner, whether married or not must go with it?” [para 88]. Cohabitation raises not only the question of how the evidence should be assessed in the courtroom but also how that label should reflect the realities of modern society outside of it. In the final calculation – and despite significant financial inter-dependence in K v. K – Coleridge J made a rough and ready 20% reduction for the fact and financial impact of the Wife’s cohabitation.
Recent Grey
In the recent Grey instalment, Singer J finally assessed Mr. Thompson’s ongoing annual contribution to the Wife’s finances, i.e. what he ought to contribute, as €16,000 p.a. Singer J was bound to consider Mr. Thompson’s proper contribution given the Court of Appeal’s determination as to his relationship with the Wife. On the basis of Mr. Thompson’s proper contribution, a reduction of the Husband’s liability to a nominal order was inappropriate given that Singer J continued to assess the Wife’s annual needs at ‘more or less’ £100,000 (from all sources). A reduction to reflect Mr. Thompson’s contribution (as assessed) was made alongside an increase in the child periodical payments figure to take account of the Husband’s increased earned income since the original trial.
Conclusions
So what conclusions can we draw – if any – as to labels, investigations and assessments?
a. labels are difficult to apply with any certainty. “The mixing bowl of objective relationship appraisal” provides no scientific construct for determining the nature of a particular relationship. This appears to be a term of art for trying to make allowances for the myriad circumstances of human relationships. It is always going to be a fact-based determination on the basis of the peculiarities of each individual case.
b. if justifiably raised, cohabitation remains to be tested as a factual finding against the guiding [non-exhaustive] factors identified in Kimber v Kimber [2000]1 FLR 383. Firm factual conclusions should be drawn, one way or another, by the judge. As in fact-finding exercises, it is a binary distinction: either the fact is proved on the balance of probability or it is not.
c. mutual commitment is an important element of any assessment as to whether – in principle – A. N. Other should contribute financially.
d. actual full-time ‘cohabitation’ is not the only designation of a mutually committed relationship that may lead to a reduction in spousal maintenance payments (although it arguably remains a primary and principal stage of enquiry): the mutual commitment and dependence of an adult pairing or a ‘couple’ may be assessed and brought into account even if there is no express intention to live together on a permanent basis.
e. the court can reflect social and moral shifts in relation to ‘cohabitation’ and unmarried couples by applying the principles in Fleming v. Fleming [2004] 1 FLR 667. Therefore, cohabitation is not to be equated with marriage. However, the impact of the cohabitation or of the ‘coupling’, its financial consequences and its duration are all factors that can be weighed in the balance by a court fairly considering and assessing all the circumstances of the case within the statutory wording.
Love may well be an ever-fixed mark. To Shakespeare, it may even have been a star whose worth was unknown. In the absence of further parliamentary intervention, unenviably, lawyers and judges must, somehow value ‘it’, financially and domestically, in order to calculate its worth.