The Kimber factors are a list of points to have regard to when determining whether a couple are cohabiting as a matter of family law, often on divorce. The question as to whether a couple are cohabiting (i.e. living together outside of marriage) can be of crucial importance in family law and specifically finances on divorce.
Cohabitation when assessing the length of the marriage
When dealing with financial matters on divorce, one of the issues that must be considered under the factors of s.25 of the Matrimonial Causes Act 1973 is the length of the marriage. This does not cover just the period from the date of the marriage is celebrated until the date of the final divorce order.
The courts will consider the starting point of the marriage to be the time when the couple began seamlessly cohabiting.
Cohabitation as a trigger within a consent order
Some consent orders agreed between a husband and wife on divorce might include triggers dependent on the date of any subsequent cohabitation. Common examples of this might be the payment of maintenance ending on cohabitation or a property being sold at the point of cohabitation.
These types of triggers can be crucial to understanding whether a particular provision that has been ordered by the court has come into effect or might have ceased having effect.
The cohabitation definition
The difficulty in all these considerations is that the question as to whether cohabitation has commenced or not is seldom ever black and white. Couples may begin dating and spending occasional overnights together to varying degrees. They might each have differing (unaired) views as to whether they are living together or not. The point of “permanent” cohabitation in divorce or cohabitation as a point of trigger is therefore going to be hard to identify and define from one couple to the next, particularly if one or both primary witnesses to it, i.e. a divorcing couple, might have competing interests in it being earlier or later in time.
The Kimber factors
The case of Kimber v Kimber [2000] 1 FLR 383 concerned a dispute over periodical payments following a divorce. The husband was seeking to amend a maintenance order, arguing that his ex-wife was cohabiting with another man and that this should reduce the level of maintenance he should be required to pay. His Honour Judge Tyrer sitting in the High Court outlined several factors that might determine whether cohabitation is taking place or not.
These “Kimber factors” are not exhaustive but intended to provide a structured means of assessing whether there might be cohabitation or not. They include:
- Shared Residence: Whether the couple lives together in the same household.
- Financial Arrangements: The extent to which the couple shares financial responsibilities, such as bills, rent, or mortgage payments.
- Public Perception: How the couple presents their relationship to the outside world, including friends, family, and the community. Social media could prove important here.
- Sexual Relationship: The existence of a sexual relationship between the couple.
- Stability and Duration: The length and stability of the relationship.
- Children: Whether the couple has children together and how they are cared for.
- Domestic Arrangements: The sharing of domestic tasks and responsibilities.
No single factor from the above list is determinative. These Kimber factors are applied on a case-by-case basis, with courts considering the overall picture arising from their application to the facts of a given case
Challenge and Criticism
Whilst the Kimber factors provide a useful framework, they are not without their critics. Some argue that the factors can be unnecessarily intrusive, requiring detailed examination of personal lives at a time when court proceedings were never contemplated. Others point out that the factors may not fully capture the nuances of modern relationships, which can be complex and varied. Just as the cohabitation starting point might be different from couple to couple, the factors determining whether cohabitation might be said to have commenced might also be different from couple to couple.
The Kimber factors do remain a vital tool in family law for assessing cohabitation and are applied as a tool to better determine the cohabitation date. They offer a structured approach to the courts, but might be said to provide the necessary flexibility for the court to provide differing weights to discrete elements that might be considered more determinative in the cohabitation assessment.