Your former partner generally cannot stop paying automatically. However, your divorce agreement may contain a cohabitation clause; some courts, such as Zurich, include these in model agreements. Depending on its wording, maintenance may be reduced or discontinued if the recipient cohabits. This raises questions about the definition of cohabitation and the clause's validity.
What is cohabitation?
A marriage-like relationship lasting at least five years is generally presumed to constitute established cohabitation, though the nature of the relationship matters more than duration alone. This definition applies if the clause does not specify otherwise. It is advisable to define expressly when reductions or cancellation begin, for example after more than 5 years living with a new partner.
A St. Gallen court held that savings from living together could be considered after 6 months. In a second step, after approximately 2 years, it may be assessed whether the new partner has a mutual commitment of support. If so, post-divorce maintenance may be suspended.
Validity of a cohabitation clause
A divorce agreement always requires court approval, including any cohabitation clause. A clause is permitted if it is not manifestly inappropriate and complies with the applicable safeguards.
Shortfalls are a particular limitation. A shortfall exists where appropriate maintenance cannot be covered despite the payments made: it is the difference between the amount needed and the amount actually affordable. In such cases, payments cannot simply be reduced further. The reduction must first be applied to the appropriate maintenance requirement. If the resulting requirement still exceeds the actual payment, that payment cannot be reduced. Cohabitation clauses may therefore have no practical effect where finances are limited.
A cohabitation clause must not apply to child maintenance. Caregiving maintenance, which compensates for reduced earning opportunities resulting from childcare, also forms part of child maintenance and must not be reduced on this basis.
Legal commentators also disagree about other aspects of validity. Savings from cohabitation, such as sharing rent, do not necessarily justify a flat-rate reduction or cancellation. A new assessment of needs and income should generally take account of actual savings and form the basis for recalculation. In practice, this often occurs only when a spouse challenges the clause.
In short: Like the rest of a divorce agreement, a cohabitation clause requires court approval. Approval is refused if it is manifestly inappropriate, for example because it also affects child maintenance. A shortfall recorded in the divorce judgment may prevent enforcement.