The re-partnering of a spouse following separation or divorce can impact an existing spousal support order. If a new partner is helping provide for the recipient spouse’s financial needs, there may be grounds for revisiting the entitlement to support and adjusting the quantum or duration of support. Issues surrounding the new partner’s financial disclosure and privacy interests may also arise when new partners are forced into support disputes.
Entitlement to spousal support may be revised for a variety of reasons, including the recipient’s remarriage or re-partnering, which can impact the quantum or duration of support. However, section 16 of the Spousal Support Advisory Guidelines (the “Guidelines”) clarifies that re-partnering does not automatically terminate support obligations, although support will often be reduced or terminated.
What happens to a support award will depend on “whether support is compensatory or non-compensatory, as well as the length of the first marriage, the age of the recipient, the duration and stability of the new relationship and the standard of living in the recipient’s new household.” In Shedden v. Shedden, the Court remarked that it is not marital status which terminates support, but a change in a party’s financial affairs may give rise to a variation.
The significance of re-partnering and its impact on a spousal support award will vary on a case-by-case basis. The Guidelines acknowledge that when a recipient spouse re-partners with someone who has a similar or higher income than the former spouse, support would be extinguished. As no specific formula applies, courts are left with flexibility and discretion.
Re-partnering will be one factor that is considered when assessing or reviewing entitlement and quantum of support. However, the significance of any re-partnering will depend on a number of factors, some of which were identified by Justice Murray in Boland v. Boland, and include:
Re-partnering does not mean that spousal support will automatically be terminated. However, the amount of support may be reduced, particularly if the entitlement to support is based on need rather than compensation. In Kelly v. Kelly, Justice Barrow noted that the effect of remarriage on needs-based support will generally be more significant than in compensatory or contractual support. This is because remarriage “does not compensate the receiving spouse for that which was foregone during an earlier marriage.” As compensatory support is intended to compensate for economic loss or disadvantage caused by a relationship, the court in Cassidy v. Cassidy, found that in circumstances where the original entitlement was based on compensation, re-partnering is unlikely to constitute a material change in circumstances. Consequently, the impact of re-partnering in the context of compensatory support may be limited.
Different principles apply in the case of needs-based support, which is founded on the “basic social obligation model of marriage” as Justice McLachlin termed it in Bracklow v. Bracklow. This posits that where a former spouse has demonstrated need, the primary responsibility falls on the former spouse to provide for the ex-partner. Adapting this reasoning, Justice Barrow in Kelly v. Kelly found that where a spouse with need remarries, the obligation shifts to the new spouse to meet any needs. “The burden does not shift in its entirety at the moment of remarriage, but it begins to.”
The longer the subsequent marriage, the larger the obligation of the new spouse to provide for the needs of the new partner. In this context, where entitlement arises from economic hardship, re-partnering may constitute a material change in circumstances giving rise to a variation in support, as the new partner may meet the need that arose from the breakdown of the previous relationship.
Some disclosure from the new partner may be required to determine how the financial needs of the recipient spouse are being met. Payor spouses have sought disclosure of income and other financial information from new partners, which requires balancing the privacy interests of third parties against the interests of parties to the family proceeding. This was an issue in Politis v. Politis, where the payor spouse argued he was entitled to understand the new partner’s full financial picture. Justice Kristjanson recognized that compelling the production of income and financial information of new partners is highly invasive and minimally relevant. Proportionality is a consideration, with the production of information from non-parties subject to controls.
In Politis v. Politis, the Court considered the distinction between the obligations of a spouse after the breakdown of a marriage and those of a new partner. The new partner was not under legal support obligations, and any contribution made to the recipient spouse was voluntary. Consequently, interfering with the new partner’s privacy interests were not warranted.
Nevertheless, following a remarriage, some level of disclosure will frequently be required. In Angulo v. Angulo, the Court held that disclosure from a new partner, where a couple equally shares expenses, will typically be sufficient to address financial circumstances. Therefore, there is no right to disclosure beyond those essential facts.
The family law lawyers at NULaw in Toronto regularly advise clients with respect to spousal support awards and obligations. Our team is dedicated to helping clients move through challenging life circumstances and obtain the best possible outcome. When it comes to maintaining a spousal support award after re-partnering, things can become complicated. If you have questions about spousal support or are entering into a remarriage, contact us online or call us at 416-481-5604 to find out how we can help.