Definition "Living as Man and Wife" regarding Co-habitation

Hi,

My situation at my recent FDR divorce hearing at court resulted in the following position amongst others:

1 Marital Home is transferred to Ex-wife.

2 I have to stay on the mortgage.

3 Trigger event forcing the sale of property was laid down as ex wife living with her partner "as man and wife" for a period in excess of 6months

Question is, what is the precedent for determining the definition of "As man and wife". My Marriage lasted for 13years, and for the last 10years of that marriage i worked away in London from Monday to Friday and lived in the marital home only at weekends.

My Exwife has been with her boyfriend/partner now for over 9months whereby their relationship has consisted of them living together only at weekends, i.e. exactly the same as the prior 10years of marriage with me.

Can I apply to the court and have this trigger event actioned?

Please give me some good news, I beg of you.

Regards

M

Hi M, Did a solicitor

Hi M,

Did a solicitor represent you in your Divorce or did you represent yourself?

I am a Legal Advisor employed by Sarginsons Law and specialise in Civil Litigation matters. I deal with disputes between individuals and businesses including Landlord and Tenant issues, debt recovery and property disputes.

Telephone 02476553181

Profile: I specialise in the following areas: All types of civil litigation / dispute resolution including - Wills and Estate Disputes (Challenging Wills, Claims under the Inheritance Act), Property Disputes, Commerical Disputes, Debt Recovery, Residential Landlord and Tenant Disputes (including issuing Housing Act Notices (Section 21 and Section 8) and recovering property for Landlords) Website: www.sarginsonslaw.co.uk Firm: Sarginsons Law LLP

Hi I was represented.

Hi

I was represented.

Profile: Accountant age 38 recently got completely shafted at FDR and looking for loopholes for damage limitation

Have you raised your question

Have you raised your question with your solicitor? I ask because obviously this would appear to be the most sensible thing to do as presumably the solicitor was present at the FDR. Also I would have thought that the solicitor would have explained all of this to you after the hearing?

I am a Legal Advisor employed by Sarginsons Law and specialise in Civil Litigation matters. I deal with disputes between individuals and businesses including Landlord and Tenant issues, debt recovery and property disputes.

Telephone 02476553181

Profile: I specialise in the following areas: All types of civil litigation / dispute resolution including - Wills and Estate Disputes (Challenging Wills, Claims under the Inheritance Act), Property Disputes, Commerical Disputes, Debt Recovery, Residential Landlord and Tenant Disputes (including issuing Housing Act Notices (Section 21 and Section 8) and recovering property for Landlords) Website: www.sarginsonslaw.co.uk Firm: Sarginsons Law LLP

Seems that i is a grey area,

Seems that i is a grey area, She said take the view of a man on the bus as the basis of the norm, which doesnt help much because the man on the bus next to me has to commute over 60miles to get to work, noone works and lives in london. they cant afford to.

Oh well. I though I would ask.

Cheers

M

Profile: Accountant age 38 recently got completely shafted at FDR and looking for loopholes for damage limitation

Hi M, I presume your

Hi M,

I presume your solicitor was referring to "the man on the Clapham Omnibus" which is an expression used in law to refer to the "reasonable man", presumably she was saying that a court would give the expression "living together as man and wife" the meaning the reasonable man would attach to it.

Clearly courts must have defined this expression in past cases and I'm sure one of the other forum users will be able to provide you with a definition later. However if I were you I would go back to your solicitor and ask him or her to give you the definition of the the phrase as defined in previous cases.

When was the FDR hearing and were your ex wife's living arrangements not discussed at the hearing?

I am a Legal Advisor employed by Sarginsons Law and specialise in Civil Litigation matters. I deal with disputes between individuals and businesses including Landlord and Tenant issues, debt recovery and property disputes.

Telephone 02476553181

Profile: I specialise in the following areas: All types of civil litigation / dispute resolution including - Wills and Estate Disputes (Challenging Wills, Claims under the Inheritance Act), Property Disputes, Commerical Disputes, Debt Recovery, Residential Landlord and Tenant Disputes (including issuing Housing Act Notices (Section 21 and Section 8) and recovering property for Landlords) Website: www.sarginsonslaw.co.uk Firm: Sarginsons Law LLP

Hi, FDR was last thursday and

Hi,

FDR was last thursday and no the living arrangements were not discussed.

:-(

Profile: Accountant age 38 recently got completely shafted at FDR and looking for loopholes for damage limitation

There isn't a specific

There isn't a specific English definition of cohabitation - it is generally taken to mean living together in a relationship akin to marriage. It is usually assessed on the specific facts of the case, and a judge can make a determination, even if the couple deny cohabiting.  Anything less than four nights a week would almost certainly be decided at the discretion of the judge.

If the couple both maintain properties of their own, receive post at their own properties, pay bills, are registered to vote/pay council tax etc, then they might be seen as not cohabiting - but if they do not have separate addresses, they will be deemed as cohabiting even if they only spend a couple of nights together (as per your own marriage).  A financial link between the two might be an indicator of cohabiting, even if separate addresses are maintained.

 

Profile: Independent (self-employed) legal professional: 25+ year work history incl. 10 years in child protection - seven years legal experience in non-molestation/occupation orders; housing law (tenant/landlord); mortgages; possession hearings and family proceedings. Advice is provided for the purpose of answering the questions posed, based on the information given.

thankyou, very interesting.

thankyou, very interesting. sadly doesnt leave me much scope for any kind of pursuit.

cheers

M

Profile: Accountant age 38 recently got completely shafted at FDR and looking for loopholes for damage limitation

Not necessarily - if you

Not necessarily - if you believe your ex-wife to be living with someone, you are entitled to ask for it to be considered.

However, even if successful, if there are children involved, it may not necessarily result in the sale of the house.

Profile: Independent (self-employed) legal professional: 25+ year work history incl. 10 years in child protection - seven years legal experience in non-molestation/occupation orders; housing law (tenant/landlord); mortgages; possession hearings and family proceedings. Advice is provided for the purpose of answering the questions posed, based on the information given.

Whether two parties are

Whether two parties are living together is a question of fact.

 IN Kimber v Kimber (2001)1FLR383 the judge set out the following criteria which would demonstrate cohabitation:-

(a)  the parties were living together in the same household;

(b) the living together involved a sharing of daily tasks and duties;

(c) there was stability and permanence in the relationship;

(d) the financial affairs of the couple were indicative of their relationship;

(e) their sexual relationship was admitted and on-going;

(f) there was a close bond between the third party and the wife’s child;

(g) as regards the motives of the couple it was clear that the wife had denied cohabitation and acted as she had so as to continue to enjoy the payment of maintenance from her husband;

(h) there was sufficient evidence that cohabitation existed in the opinion of a reasonable person with normal perceptions

 I cannot find a report of that paticular case but it was cited more recently in a 2009 case - Grey v Grey.

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2009/1424.html&query=Grey+and+v+and+Grey&method=boolean

These cases will assist you in deciding whether in the full circumstances here you have a arguable case to suggest your wife is living with her partner as man and wife.

Profile: I joined Sarginsons from university as an articled clerk in 1970. I am now the managing partner and have wide experience in all aspects of the law normally dealt with in private practice. I believe that a modern high street practice must adapt to the hefty demands of clients and deliver it's services according to the clients wishes.

By the way even I as a lawyer

By the way even I as a lawyer very often leave court feeling I have been stuffed.

You are not alone in that!!

Profile: I joined Sarginsons from university as an articled clerk in 1970. I am now the managing partner and have wide experience in all aspects of the law normally dealt with in private practice. I believe that a modern high street practice must adapt to the hefty demands of clients and deliver it's services according to the clients wishes.

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