In England  and Wales, maintenance orders and other financial remedy orders made on divorce or dissolution may be varied if there are material changes in circumstances.

One of the common types of change is that the former spouse (payee) begins cohabiting with a new partner, which might reduce their financial need, because the new partner may contribute to living costs and housing. But what happens if you don’t tell your ex you’ve moved in with your new partner and they’re still paying spousal maintenance?

What counts as cohabitation in this context?

“Cohabitation” for the purposes of maintenance / variation is not defined in statute with a rigid checklist. The court will look at the facts: whether the former spouse is living with a new partner “as if they were a couple,” sharing households, finances, responsibilities, whether the relationship is stable or long-term.

  • Merely being in a new romantic relationship does not automatically count as cohabitation.
  • The court often focuses on whether the new partner is contributing towards the payee’s household running costs and other household expenses. Sometimes even if the partner does not financially contribute, what they should contribute is considered.
  • The duration and stability of the relationship matters: how long it has been going, whether shared accommodation is permanent or temporary, whether the couple share bills, responsibilities, whether children are involved, whether the new partner lives in the same household etc. Courts often look for a “settled and permanent” relationship.
  • Sometimes court orders (including consent orders) will themselves include clauses stipulating that maintenance ends if the recipient cohabits for a certain period (e.g. 6 months). But these are not universal, and many orders do not specify this.

So for the question “what counts as cohabitation” in a way that might matter to a maintenance/variation order is basically down to whether a new partner is sharing life in such a way as to reduce the payee’s financial needs relative to what was contemplated when the order was made.

How one spouse might prove a relationship was concealed

If a payor (the one paying maintenance) believes that the payee (or ex) has cohabited with a new partner in a way they concealed—e.g., failed to disclose or misrepresented the situation—the payor would need to gather evidence to show that cohabitation existed, that it was material, and that it was deliberately or negligently concealed.

Possible evidence could include:

  • Proof of joint household or shared address: utility bills, rental/tenancy agreements, council tax, letters addressed to both/at same address etc.
  • Witness statements: neighbours, family, children etc who can attest to the partner living there, involvement in household tasks etc.
  • Financial records: joint bank accounts, joint expenses, contributions to mortgage / rent / bills, statements showing shared purchases or support.
  • Social/photographic evidence: social media, photos, attendance together, events, holidays, etc.
  • Correspondence or messaging, or testimony, showing the nature of the relationship, expectations etc.
  • Evidence of the partner contributing money or resources to the household (or at least expected to do so).

To prove concealment, it is not strictly required to show that they succeeded in tricking the other spouse, but rather that:

  1. the relationship existed in the relevant way
  2. the other party did not know, or the disclosure was insufficient
  3. that the lack of that knowledge made a material difference at the time of agreeing the settlement or order.

Also, if there was a duty to disclose something (for example, in Form E in financial proceedings), failing to do so may amount to non-disclosure / misrepresentation.

Implications of concealment

If it is proven that a payee concealed a cohabiting relationship that was material to the maintenance need, then possible legal consequences include:

  • Variation or discharge of the maintenance order — The payor can apply to the court under s.31 MCA 1973 to vary downward or even terminate the maintenance, if there is sufficient change in circumstances.
  • Backdating of variation — If the concealment began earlier, the variation may be backdated to the date when cohabitation commenced (or when the payor became aware) as judicial discretion allows backdating.
  • Repayment or recovery of overpaid maintenance — In some circumstances, if maintenance was paid during a period of cohabitation (concealed) where the payee arguably did not need all or parts of the payments, the payor might be able to claim repayment of sums overpaid during that period. But this is more difficult: courts are reluctant to leave the payee in hardship, especially if the payments were in place under a valid order.
  • Setting aside or challenging a consent order — If the original financial order was based on non-disclosure or misrepresentation, it may be possible to have the consent order set aside or varied, or for parts of it to be rescinded. But this is a high bar: courts position is to preserve the finality of orders.
  • Costs and possible penalties — If there is fraud or deliberate misrepresentation, the misleading party may face cost orders, possibly indemnity costs, or other sanctions, though imprisonment is rare in this context.
  • Clean break / capitalisation — Sometimes the court may decide that changing to a clean break (lump sum payment instead of continuing maintenance) is more appropriate.

If the spouse ends the relationship to conceal it — does that make a difference?

Ending the relationship once discovered might be an attempt to avoid exposure, but whether it helps legally depends on timing, permanence, evidence, and intentions.

  • The court will look at the whole timeline. If there was a period of cohabitation that was valid for the purposes of reducing maintenance, ending a relationship afterwards doesn’t necessarily erase the earlier period. So if concealment existed for some time, that period may still count.
  • The fact that the relationship ended might be relevant to whether the cohabitation was “settled and permanent” enough to trigger a variation, or whether it ever met that threshold. If someone ends it before reaching permanence, a court may accept that no variation should be made or that the payee did not enjoy the benefits of cohabitation long enough to reduce need.
  • If the ex ends the relationship precisely to hide it (e.g. to avoid the maintenance payer discovering it), that could suggest the ex was aware of the legal significance, and that adds to the credibility of the claim of concealment.

The court will require evidence; pretending to end the relationship may not be enough if the evidence shows that cohabitation continued in substance (e.g. living together, shared finances etc).