District Judge Roger Bird assesses the complex world of cohabitation and legal costs

There are many things about the law that matrimonial clients find difficult to understand.

The husband whose wife has left him to live with another man will say, ruefully, 'at least I won't have to pay her maintenance'.

The wife whose husband lives with a wealthy woman may instruct, 'find out what she is worth and take her to the cleaners'.

How best does the solicitor explain that it might not be so easy?

A party's entitlement to periodical payments ends on their remarriage, but the simple truth that may stick in the other party's throat is that cohabitation is not to be equated with remarriage.

Cohabitation can be defined as living with someone as if in the relationship of husband and wife, a definition that obviously covers a wide range of situations and domestic living arrangements.

In deciding whether people are cohabiting, the court must look at several factors.

These include whether they live together in the same household, the extent of the sharing of daily life, stability and the degree of permanence, sharing of finances, the sexual relationship, the existence of children, their intention and motivation and 'the opinion of the reasonable person with normal perceptions' (see Kimber v Kimber [2000] 1 FLR 383).

However, the essential difference between marriage and cohabitation is that whereas a husband and wife can look to each other for financial support, cohabitants cannot do so.

If a relationship breaks down, the parties have no legal redress against each other.

This arises solely as a result of their cohabitation (unless, oddly enough, one of them dies; death would enable either of them to claim from the estate of the other if they could satisfy the court that they were a 'dependant').

The law was well set out in the Court of Appeal's decision in Atkinson v Atkinson [1995] 2 FLR 356.

Mr Justice Thorpe, as he then was, stated the principle that cohabitation was not to be equated with marriage and said that neither was cohabitation to be given any decisive weight when the court considered the statutory factors contained in section 25 of the Matrimonial Causes Act 1973.

It is one factor to be considered with others, and is a relevant factor in that it bears on the financial circumstances of the parties, particularly on the assessment of the wife's financial needs.

Mr Justice Thorpe added these words of caution: 'But to me it seems above all that the court should strive to discern the realities in determining what weight to give to the factor of cohabitation, particularly since the subjective presentation of the parties often seeks to disguise or distort the realities.'

This guidance has recently been upheld and approved in Fleming v Fleming [2003] EWCA Civ 1841, where it was also said that in considering the termination of periodical payments the court should have regard to the overall circumstances, including the financial consequences of cohabitation.

So where does this leave the solicitor advising one of the clients with whom we opened? The first thing one must say to the husband is that, if the wife wishes to retain a nominal periodical payments order for herself in case the relationship goes wrong, she will normally be allowed to do so unless he is able to buy her out.

As to whether he will actually have to pay her anything, this will depend on a comparison of her reasonable needs with her ability to meet those needs from her own resources.

Her own resources would normally be taken to include the contribution to her shared living expenses which she could reasonably expect to receive from her cohabitant.

The husband might be asked to meet the shortfall, provided he could afford to do so.

The court would have to 'strive to discern the realities' of the situation, rather than what the parties said they were.

Regarding the wife who seeks to involve the 'other woman', the position is more or less the same but in reverse.

The deserted wife's reasonable needs would first be ascertained, and the court would then consider the husband's ability to pay.

It is a settled principle that the husband cannot be reduced below poverty level; put another way, he has to be left enough on which to live.

However, in deciding what are his reasonable needs, the contribution that his cohabitant should reasonably be expected to make to their shared living expenses must be taken into account.

Again, the court must discern the reality.

But what happens where there is a dispute about the means of the cohabitant? In principle, the exact amount of those means should not matter, but they may become relevant where the cohabiting spouse alleges that the new partner is indigent and has to be supported by them.

The cohabiting spouse should, in his statement of financial relief in form E, specify what support or financial contribution he receives from his cohabitant.

Where this is clearly less than adequate or fair, he should state what he understands the means of the cohabitant to be.

Where he says he does not know what these means are or there is a dispute over this, the other party's only remedy is to apply for an order for an inspection appointment under the Family Proceedings Rules 1991 rule 2.62(7).

This is a two-stage process.

First, the applicant must apply to the district judge on notice to the respondent (but not the third party) for an order.

The application must be supported by an affidavit setting out the grounds for the application and stating the documents or information required.

The court must be satisfied that the documents or information relate to a relevant issue in the proceedings.

Then, once the order is made, it is served on the third party who is required to attend court and to produce documents.

The two most important decisions relating to inspection appointments are Frary v Frary [1993] 2 FLR 696 and D v D (Production Appointment) [1995] 2 FLR 497.

Together, they establish that the effect of rule 2.62(7) is merely to bring forward the date on which a witness is required to attend court to give evidence.

Evidence must relate to the issues in the case and there is no justification as such for requiring a third party to disclose personal information.

Proper disclosure must be given where it is relevant.

District Judge Roger Bird sits at Bristol County Court and High Court District Registry