As family lawyers, we are often asked whether or not dating during the divorce process will have a potential impact on their case.
It is commonly known that adultery is one of a number of grounds upon which a spouse can rely to obtain a decree of divorce in the Island. However, what is less well known is that in the event that a new relationship is started before a divorce is finalised, such can have financial implications for you, this particularly so when you commence co-habitation with a third party. If, therefore, you find yourself in a new relationship and your divorce is not finalised your spouse could present a divorce based upon your adultery with your new partner and such partner may be named within the divorce documentation. Even if nothing happened until you separated it may surprise you to know that you are still married and financial implications and costs issues (particularly in the context of the divorce proceedings) have the potential to arise.
It is important for people going through a divorce to recognise that, contrary to what might be believed, the fact that someone has committed adultery will not entitle them to a greater financial settlement than they would otherwise have had but for the adultery. In other words, there is no financial benefit to a party in bringing proceedings for divorce on the basis of adultery as opposed to bringing proceedings on any other ground.
If you commence co-habitation, whether or not adultery is taking place, there will be a requirement for your new partner’s financial situation to be disclosed whilst you either attempt to resolve financial matters through your lawyers, via the mediation process or via the Court. Such might be considered in some quarters to be unjust or indeed irrelevant but it can be a significant factor in taking into account your ability to rehouse or meet your outgoings, post-divorce. This is because where otherwise the person committing the adultery might be living alone and thus having to meet his or her own outgoings in their totality, where that person is co-habiting , those outgoings will properly be shared between your spouse and his or her new co-habitee, so potentially affecting the extent of financial provision to be made for that person.
You may have wondered that when you do commence a new relationship and live with that person whether that person may gain rights over property owned by you by virtue of such co-habitation, such as entitlement to partner’s income, pension, savings or property. In such a scenario, you may find it of some comfort to learn that you do not have the same rights as against such assets as you have when you are a married couple. However, if you have had a child or children together, you may be in a position to seek financial provision on their behalf.
In the event that you wish to co-habit with a third party, you may wish to consider entering into a co-habitation agreement. Such an agreement will ensure that there is a mutual understanding as to ownership of any property in which you may choose to co-habit, how you will meet the day to day outgoings and indeed what the intention would be in terms of division of such assets in the event of a separation.
If you find yourself wondering whether it is “safe” to enter into a new relationship and live with a third party whilst you still remain married to your spouse then Benest & Syvret would be delighted to provide advice as to how best to achieve your objectives.
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