I last visited to seek advice prior to my Final Hearing with a cohabitation clause as it was looking like a Joint Lives arrangement. I recieved great advice (especially from LittleMrMike) and managed to finalise the deal prior to the Final Hearing and got a form of cohabitation clause agreed.
My ex (who remains in the unsold family home) is now in what could be described as a cohabitation.Her partner lives in the house between 4-6 nights per week.We have one child who lives with me 6 days every 14.
The court order states:
"The payments (SM) shall continue during the parties joint lives or until the Applicant should remarry or the Applicant should cohabit for a continuous period of 12 months or further order"
Within the order there is a note / clause reference when the cohabitation should be deemed to commence as follows:
1. The Applicant advises the Respondent that she has commenced cohabitation. - She won''t do that Im sure!!
2. The applicant does not accept the fact of cohabitiation whereupon the respondent shall be at liberty to apply to the court to vary the amount of maintenance order.
I want to put the stake in the ground that cohabitation has begun and say in 12 months time (31st August 2013) I will cease SM assuming the cohabitation still exists.
Please advise how I can present the most effective facts that cohabitation exists. Can I use a P.I. She still remains in the matrimonial home. Its been on the market for some time and trying to attain viewings for prospective buyers has been a problem throughout.
The problem you have is proving that they are cohabiting. Your ex can have him stay 5/6 nights, probably every night and if he is paying rent/mortgage elsewhere then it is difficult. Have you checked to see if he is registered for council tax anywhere?
Excuse my ignorance what is th best way to find out re her partner paying council tax elsewhere?
I fully understand that its very diffciult to prove cohabitation and that each court it can vary. I could use P.I but would prefer not to. I assumed if it was for a peiod of 5+ nights a week there is a chance a court would consider it cohabitation. There living our matrimonial home so I guess he might not be contributing to costs as I pay for them!
My position is that I want some stake in the ground, even if just a solictor letter that could be referred back to. So if in 12 months the situation is the same or even more concreate re facst then a court might go my way.
In family law cohabitation is far from black and white, in fact if you were to read to fore most case law which is Santos v Santos its as clear as mud.
Don`t think PI, they are very expensive and the results are often poor, its more about checking the electoral role and credit checks to see if the guy is registered at the property, also do they live as a couple do they shop together, does he cut the grass, you get the idea, the number of nights spent at the property does not always show cohabitation.
Build a picture and make it easy for the judge, what you need to show is that even if he has his own address for all intent and purpose they live together and do all that entails, often as time goes by people become lax, he may buy a telly in dixons and use your old address as his home, he may park his car there all week every week, you old neighbors may assume he lives there because well he does.I do know a few wiki members who have sent recorded delivery mail in a guys name to see if he signs for it, personally i thought it a poor idea but it seems added to the melting pot some judges have taken note, allowed it as evidence that they probably do live together.
This is about putting a seed of doubt in the judges mind when it does come to discharging the order, PI`s tendto fail after charging eye watering sums.
We had a guy spent £XXXXX`s for a PI to produce so called evidence and the judge chucked it out because it covered a few weeks, but a diary and start to gather information now, then when the time comes you can produce a file, which often when presented to your ex means they agree the discharge without need for court.