The case of Grey v Grey, reported in the Telegraph today, highlights the perennial problem of proving whether or not a party is cohabiting. Mr Grey is paying maintenance of £125,000 per annum to his ex-wife, despite the fact that she is now pregnant by another man, with whom Mr Grey alleges she is cohabiting. Mrs Grey, on the other hand, denies that she is cohabiting and says that the pregnancy was not intended.
Mr Grey is appealing against a decision of Mr Justice Singer in the High Court, who ruled that Mrs Grey's relationship did not amount to cohabitation. The Court of Appeal is not expected to give its judgment until the new year.
The report states that Mr Grey (presumably through his counsel, Martin Pointer QC) has asked the Court of Appeal to look again at the rules on cohabitation of divorcees. However, it is difficult to see what can be done in terms of a rule change - in the end, it simply boils down to evidence: does the evidence prove that this person is cohabiting? Unfortunately, it is extremely difficult to prove what is going on behind closed doors in someone's personal life, and there is also of course the problem that any cohabitation is likely to be suspended if the cohabiting party gets wind of the fact that their ex knows about it.
It will be very interesting to hear what the Court of Appeal has to say.