Cohabitation or second marriage?

In the past, it has always been clear that former wives who continue to receive ongoing maintenance from their former husbands should not remarry, but should instead cohabit. The reason? If remarried, claims against the former husband automatically cease and cannot be resurrected. If she cohabits, then the claims would not be dismissed by the court, although they may be reduced, leaving it open to her to apply to increase them again should her new relationship fail. In addition, it also gives her the option of applying to later capitalise her claims, therefore giving her the opportunity to obtain a second lump sum.

The above has been the case for some time, but the recent case of W-v-W  has sent out a warning that this situation may not continue for much longer. Mrs W had ongoing maintenance. Her former husband had become somewhat wealthier during the five years since their separation and she made an application to vary and capitalise. The court did increase the level of Mrs W’s maintenance and then applied the usual formula to capitalise the same, but, before doing so, made a substantial discount (approximately one-third) to reflect the fact that by the time of the hearing she was in a settled relationship, which had already been ongoing for some five years. Mr W quite reasonably, but unsuccessfully, argued that:

(a) there must come a time when his former wife made a choice, whatever the consequences for her financially;

(b) his former wife’s maintenance should at the very least be subject to a cut-off date in light of her cohabitation, rather than the calculation being done on the basis of a joint lives order.          

This appears to be at least a step towards minimising the continuing claims of former wives who choose to cohabit rather than remarry. So, which is the right option? Obviously much will depend upon individual circumstances. However, certainly it is worth bearing in mind that once married for the second time, there are of course claims against that second husband in the event that relationship breaks down. In light of the courts seemingly changing attitude towards former wives who cohabit, maybe this should be borne in mind when contemplating cohabitation v second marriage.