‘MY EX IS SAYING SHE IS MOVING TO SCOTLAND WITH OUR KIDS.

Under English law you are not permitted to take a child out of the jurisdiction of England and Wales without the permission of everybody who has Parental Responsibility for that child. As a result, the non-resident parent will be required to provide his/her consent to any attempt by the resident parent in moving the children to Scotland.

If the non-resident parent is refusing to provide consent to the proposed move to Scotland, it will be necessary for him/her to make an application to the court for a prohibitive steps order prohibiting such removal. This action, clearly, should be made prior to the resident parent moving to Scotland.

Once an application has been made to the court, there are specific guidelines laid out in law which the Court would have to consider before making a decision on whether permission should be granted to remove the child from the jurisdiction. The following factors are in the forefront of the Judge’s mind when considering the application:

The reason for the planned relocation.

The effect of a refusal to allow the planned relocation.

The circumstances of the proposed move.

The wishes of the child in light of their age and understanding.

The effect on contact with the non-resident parent.

The questions that the Judge is likely to ask are as follows:

Is the resident parent’s reason for wishing to remove the child from the jurisdiction genuine or is it motivated by a desire to exclude the other parent from the child’s life?

Are the reasons for the relocation realistic? The Judge will want to know that the plans are practical, well researched and investigated.

The court will give careful appraisal of the non-resident parent’s objections and again whether  they are motivated  by a genuine concern for the child’s welfare or some ulterior motive.

What effect would the relocation have upon the non-resident parent’s relationship with the child and the relationships with any extended family?

How would a refusal impact on the relocating parent and their life?

If the resident parent can show that they have links with Scotland, for example, they have close family there, they have a job there, they have investigated appropriate  schools  for the children and they have suggested a practical amount of contact between the  child(ren) and the non-resident parent (to perhaps include longer stays during the school holidays and regular facetime contact) then, unfortunately, any application by the non-resident parent to prohibit the relocation is likely to fail in the long term.

If, however, the non-resident parent can show that the resident parent has no such plans in place, no close family in Scotland, no job and no support network then it is likely that the court would believe that they were moving for the sole purpose of denying the non-resident contact and therefore a relationship with their child(ren).  Under these circumstances it is highly likely that the court would prevent the resident parent from making such a move.

The question of where a child should live is one of the most difficult for the court to decide and, as a result, it is always advisable to try to speak to your  ex partner  in order to ascertain the reasons for their proposed move prior to issuing an application to the court.  The two main authorities in respect of removing the child from the jurisdiction are Payne v Payne [2001] EWCA Civ 166; [2001] fam 473 and, more recently, Re F; DF v M B-F [2015] EWCA Civ 882; [2016] 2 F.C.R. 368; [2016] Fam.Law 565.

It must be remembered that every case will turn upon its own facts and it is therefore essential that, prior to making an application to court, if possible, a dialogue is opened between the parties in order to establish the facts and reasons for any potential relocation.

 

‘MY EX IS SAYING SHE IS MOVING TO SCOTLAND WITH OUR KIDS.

Under English law you are not permitted to take a child out of the jurisdiction of England and Wales without the permission of everybody who has Parental Responsibility for that child. As a result, the non-resident parent will be required to provide his/her consent to any attempt by the resident parent in moving the children to Scotland.

The question of where a child should live is one of the most difficult for the court to decide.

If the non-resident parent is refusing to provide consent to the proposed move to Scotland, it will be necessary for him/her to make an application to the court for a prohibitive steps order prohibiting such removal. This action, clearly, should be made prior to the resident parent moving to Scotland.

Once an application has been made to the court, there are specific guidelines laid out in law which the Court would have to consider before making a decision on whether permission should be granted to remove the child from the jurisdiction. The following factors are in the forefront of the Judge’s mind when considering the application:

The reason for the planned relocation.

The effect of a refusal to allow the planned relocation.

The circumstances of the proposed move.

The wishes of the child in light of their age and understanding.

The effect on contact with the non-resident parent.

The questions that the Judge is likely to ask are as follows:

Is the resident parent’s reason for wishing to remove the child from the jurisdiction genuine or is it motivated by a desire to exclude the other parent from the child’s life?

Are the reasons for the relocation realistic? The Judge will want to know that the plans are practical, well researched and investigated.

The court will give careful appraisal of the non-resident parent’s objections and again whether  they are motivated  by a genuine concern for the child’s welfare or some ulterior motive.

What effect would the relocation have upon the non-resident parent’s relationship with the child and the relationships with any extended family?

How would a refusal impact on the relocating parent and their life?

If the resident parent can show that they have links with Scotland, for example, they have close family there, they have a job there, they have investigated appropriate  schools  for the children and they have suggested a practical amount of contact between the  child(ren) and the non-resident parent (to perhaps include longer stays during the school holidays and regular facetime contact) then, unfortunately, any application by the non-resident parent to prohibit the relocation is likely to fail in the long term.

If, however, the non-resident parent can show that the resident parent has no such plans in place, no close family in Scotland, no job and no support network then it is likely that the court would believe that they were moving for the sole purpose of denying the non-resident contact and therefore a relationship with their child(ren).  Under these circumstances it is highly likely that the court would prevent the resident parent from making such a move.

The question of where a child should live is one of the most difficult for the court to decide and, as a result, it is always advisable to try to speak to your  ex partner  in order to ascertain the reasons for their proposed move prior to issuing an application to the court.  The two main authorities in respect of removing the child from the jurisdiction are Payne v Payne [2001] EWCA Civ 166; [2001] fam 473 and, more recently, Re F; DF v M B-F [2015] EWCA Civ 882; [2016] 2 F.C.R. 368; [2016] Fam.Law 565.

It must be remembered that every case will turn upon its own facts and it is therefore essential that, prior to making an application to court, if possible, a dialogue is opened between the parties in order to establish the facts and reasons for any potential relocation.

 

Things To Consider When A Child Changes Home

If a child moves home, from a mother to father, or to another carer, there are administrative things you need to think about sooner rather than later. This is a very brief guide to the most important of those things:

School (or nursery)

Aassuming the child is remaining at the same school you need to let the school know the child’s new address and any change in arrangements of who will be dropping off and picking up from school.

Consider too if there needs to be a change in wrap-around care because the new carer has different work patterns. Remember to think about payment of school fees / after school clubs / lunches.

If the child needs to change schools think about the best time of year to undertake that change and research local schools in your area and go and speak to them.

If the child is not yet school age, think about nursery provision – from the age of three upwards some nursery provision is funded (and in certain circumstances from the age of two). The best place to look is your local authority’s web page as they should provide a list of local nurseries, their Ofsted reports, and other registered childcare providers.

GP, dentist, optician etc 

Again, if the child remains with the same medical practitioners you need to tell them their new address and inform them of the change of carer. If they need to change find out about local provision through the NHS Choices website: www.nhs.uk

Consider too any specialists your child may be seeing and make sure you know when their appointments are. If in doubt your GP should know if they referred the child to the hospital or other specialist.

Friends, clubs etc

moving house can be a difficult time for any child so don’t forget that they may wish to continue to see the same friends and go to the same clubs. Find out what they do on a regular basis and decide if it is practical to continue. Try and make sure they bring favourite toys and clothes with them.

 Contact with other significant adults

– you may have some reservations about the child seeing their other parent, or grandparents, but you need to think about ways in which that can continue safely. The Courts recognise that every child has a right to contact with their parents as long as it is safe. There are ways of supporting and supervising contact to ensure it benefits the child. If in doubt speak to a family solicitor.

 

Benefits – you need to contact the benefits agency and begin the process of changing who the child benefit is paid to and checking what other benefits you may be entitled to.

One difficulty is that the benefits agency may require proof of the change of home so how do you prove it? By doing the things listed here – any of the agencies listed will be able to confirm in writing when you informed them of the child’s move – which is why it is one reason it is so important to deal with these things quickly

 

Child maintenance – were you paying or receiving child maintenance? Perhaps this needs to change or you need to make a claim. You can contact the CSA or speak to a local solicitor.

 

Legal responsibilities – you need to consider the legal effect of this move. Do you have Parental Responsibility for the child? If you don’t there are restrictions as to what decisions you can contribute to automatically. The most important one is medical treatment as only an adult with Parental Responsibility can consent to or refuse medical treatment for a child. Parental Responsibility can be obtained through an agreement or a court order. If in doubt, speak to a family solicitor.

 

If the previous carer had a court order such as a residence order, special guardianship order or care order, you need to take legal advice in relation to the move.

 

Who to contact for advice? Family lawyers can apply to join an organisation called Resolution and by doing so they commit to promoting a non-confrontational approach to family problems focussed on the best interests of the child. You can find a local member on their website: www.resolution.org.uk or you can use the Law Society ‘find a solicitor’ search.

 

Emily Boardman

Partner & Head of Family Department

Turpin & Miller LLP

www.turpinmiller.co.uk

 

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Things To Consider When A Child Changes Home

If a child moves home, from a mother to father, or to another carer, there are administrative things you need to think about sooner rather than later. This is a very brief guide to the most important of those things:

School (or nursery)

Aassuming the child is remaining at the same school you need to let the school know the child’s new address and any change in arrangements of who will be dropping off and picking up from school.

Consider too if there needs to be a change in wrap-around care because the new carer has different work patterns. Remember to think about payment of school fees / after school clubs / lunches.

If the child needs to change schools think about the best time of year to undertake that change and research local schools in your area and go and speak to them.

If the child is not yet school age, think about nursery provision – from the age of three upwards some nursery provision is funded (and in certain circumstances from the age of two). The best place to look is your local authority’s web page as they should provide a list of local nurseries, their Ofsted reports, and other registered childcare providers.

If a child moves home, from a mother to father, or to another carer, there are administrative things you need to think about sooner rather than later.

GP, dentist, optician etc 

Again, if the child remains with the same medical practitioners you need to tell them their new address and inform them of the change of carer. If they need to change find out about local provision through the NHS Choices website: www.nhs.uk

Consider too any specialists your child may be seeing and make sure you know when their appointments are. If in doubt your GP should know if they referred the child to the hospital or other specialist.

Friends, clubs etc

moving house can be a difficult time for any child so don’t forget that they may wish to continue to see the same friends and go to the same clubs. Find out what they do on a regular basis and decide if it is practical to continue. Try and make sure they bring favourite toys and clothes with them.

Contact with other significant adults

You may have some reservations about the child seeing their other parent, or grandparents, but you need to think about ways in which that can continue safely. The Courts recognise that every child has a right to contact with their parents as long as it is safe. There are ways of supporting and supervising contact to ensure it benefits the child. If in doubt speak to a family solicitor.

Benefits

You need to contact the benefits agency and begin the process of changing who the child benefit is paid to and checking what other benefits you may be entitled to.

One difficulty is that the benefits agency may require proof of the change of home so how do you prove it? By doing the things listed here – any of the agencies listed will be able to confirm in writing when you informed them of the child’s move – which is why it is one reason it is so important to deal with these things quickly

Child maintenance

Were you paying or receiving child maintenance? Perhaps this needs to change or you need to make a claim. You can contact the CSA or speak to a local solicitor.

Legal responsibilities

You need to consider the legal effect of this move. Do you have Parental Responsibility for the child? If you don’t there are restrictions as to what decisions you can contribute to automatically. The most important one is medical treatment as only an adult with Parental Responsibility can consent to or refuse medical treatment for a child. Parental Responsibility can be obtained through an agreement or a court order. If in doubt, speak to a family solicitor.

If the previous carer had a court order such as a residence order, special guardianship order or care order, you need to take legal advice in relation to the move.

 

 

When The Ex Threatens To Call Social Services

My ex is saying I don’t look after the kids and is threatening to phone social services. What should I do?

Unfortunately, when people separate their relationships can rapidly deteriorate and allegations can be made by one person against the other.  Whilst it is impossible to control what the other party is saying about you, the first thing to remember is not to panic and not to get drawn into a back and forth with them. It will be possible to mitigate and address their allegations.

It is important that you do not treat social services as the enemy and remember they are just doing their job.

If the other party is threatening to contact social services but has not yet done so, you could try and enter into discussions with them about their concerns.  One of the main reasons for children applications being made to court is a breakdown of communication between the child’s parents and it is best to try and re-establish communications if at all possible. This does not have to be face to face communication and often, having a separate method of communication for parenting conversations can help to diffuse the situation. For example, having a separate email address or a notebook in which things are written down.

Another forum to encourage communication is family mediation, with the assistance of a neutral third party to offer some guidance to the discussions. You might want to consider making a referral to your local mediation service. Family mediation involves the parties sitting down and discussing their concerns and trying to broker an agreement with the assistance of the mediator.  Legal aid is available in qualifying circumstances for mediation, so it is also a good method of keeping costs to a minimum.

If the other party has already contacted social services or is unwilling to mediate and subsequently makes a report, it is important that you do not treat social services as the enemy and remember they are just doing their job.  Social Services are there to provide protection for children and, unfortunately, in some circumstances the reports they get are validated, so they have an obligation to investigate in every situation.   In order to demonstrate to social services that the reports made by the other party are unsubstantiated or unfounded, you should cooperate with them and be open and honest.  It is wise to avoid mudslinging although, of course, if you have genuine concerns about the other party’s care of the children, you should raise these.

On the basis that social services do not progress the matters further, it makes sense to consider what can be done to avoid similar reports being made in the future.  This, again, comes down to re-establishing some level of communication with the other party.   It is always difficult to be the more reasonable person but in doing this, you will demonstrate that you can prioritise your children over the dispute with your ex and focus on their best interests.  At this stage, you could consider mediation if you have not previously done so; you could attempt negotiation directly or via solicitors or consider implementing a parenting plan.   A sample parenting plan can be found on the CAFCASS (Children and Family Court Advisory Service) website.

Ultimately, you may feel that you need to make an application to court for a defined Child Arrangements Order that sets out the arrangements for the children and would offer you some protection against reports in the future. Within the court proceedings, it is likely that a CAFCASS (Children and Family Court Advisory Service) report would be directed and this would fully investigate both parties’ positions and make recommendations to the court. This will provide a written record of the CAFCASS Officer’s views on any allegations being made and would be something that could be referred to at a later date if similar reports were made again. It is important to note however, that an order can still be varied in future if the circumstances change or if there are new allegations that can be substantiated. Information about Child Arrangement Proceedings can be found on our family law website.

Irrespective of which option you choose, you should consider keeping a diary and following up agreements and discussions in writing, by text or email, as this will give you some evidence to refer to at a future date if further false allegations are made against you.

Top tips

Don’t panic.

Work openly and honestly with professionals.

Consider how communication can be re-established with your ex.

Don’t get drawn into mudslinging.

It is impossible to control what another person says about you but your conduct and reaction to allegations will give professionals and the court an indication of your character and will show that you can prioritise your children and what is in their best interests.

 

 

 

Will My Husband’s Private Pensions Form Part Of The Divorce Settlement?

There are usually a number of financial issues to be resolved following the breakdown of a marriage. These often include dividing capital assets and pensions and the provision of maintenance for either party of the marriage or any children of the family.

The Court has the power to make Orders including maintenance for one of the parties (and in certain circumstances for any children of the family), property adjustment orders, lump sum orders and pension sharing or attachment orders.

The starting point in any financial settlement is to establish the nature and extent of each parties income, assets and liabilities.

The court has very wide discretion and takes various factors into account when considering what Orders should be made. The Court will consider all the circumstances and will give first consideration to the welfare of any children of the family. The court will then have regard to the following factors:-

  • The income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future
  • The financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future
  • The standard of living enjoyed by the family during the marriage
  • The age of the parties and the duration of the marriage
  • Any physical or mental disability of either of the parties to the marriage
  • The contributions which each of the parties has made or is likely in the foreseeable future to make for the welfare of the family
  • The conduct of the parties

The starting point in any financial settlement is to establish the nature and extent of each parties income, assets and liabilities. Both parties will be expected to provide full and frank financial disclosure of their respective financial positions whether you reach a voluntary agreement or not. The Form E Financial Statement is a good template to use to ensure that all the relevant information is provided.

It is important that pensions are not overlooked when considering a financial settlement on divorce as consideration will need to be given to how both parties needs can be met on retirement.

It is important that pensions are not overlooked when considering a financial settlement on divorce as consideration will need to be given to how both parties needs can be met on retirement. If either party has any pension funds then they should be considered. Details of the pension fund including the cash equivalent value should be obtained from the pension provider along with information about any other benefits. The cash equivalent value reflects the capital value of the pension benefits which have been accrued to date or which are already in payment. With some schemes the transfer value may be different to the actual fund value and advice will need to be sought from a pension expert.

When considering if a private pension will form part of the divorce settlement there are three main ways of dealing with pensions on divorce:-

Pension sharing – this allows a percentage share of a member’s pension to be transferred into a pension scheme in the ex-spouses name as their own pension fund

Offsetting – this involves balancing the value of a pension against another asset. For example if one party retains their pension fund the other party retains a bigger share of the other assets

Attachment – this is where a percentage of a member’s pension is set aside for the ex-spouse to claim on retirement

There are situations where a private pension would be more likely to form part of a divorce settlement. For example one party may have taken time out of work to care for children and not had the opportunity to build up their own pension where the other party may have built up a significant fund.

In some cases the pension may be the only significant asset and in some cases the pension fund may be even more valuable than the family home.

In some circumstances it may be appropriate for there to be an unequal division of the pension capital. For example if one party has a greater income need in retirement due to a health problem or disability.

There are situations where a private pension would be less likely to form part of a divorce settlement. For example where there is a short childless marriage or where the parties divorcing are still both young and retirement is some time in the future.

A pension might not be considered as part of a divorce settlement where one party has other non-pension income available to them in retirement that is sufficient to meet their needs.

Pensions are complicated and expert assistance will often be required from an actuary and an independent financial advisor.

Top Tips

It is important that you try and resolve financial issues amicably without Court proceedings. There are a number of options available from direct negotiations, lawyer led negotiations, mediation and collaborative law.

If you can reach an agreement then a Consent Order should be prepared to outline the agreement reached to ensure that it is legally binding.

Not all cases are settled by voluntary agreement and if an agreement cannot be reached within a reasonable period of time, or if one party will not co-operate or provide financial disclosure, then it may be necessary to commence court proceedings.

You can also visit the Chafes Hague Lambert Family Department, we have a range of useful information sheets which can be accessed here.

The Family Justice Council has prepared a useful guide designed to help litigants in person called Sorting out Finances on Divorce. The guide provides a general overview of the law and some explanation of issues that may arise including pensions. You can access the guide here.

 

 

Pre & Post Nuptial Agreements. When Would You Use One?

Pre and post nuptial agreements (together called ‘nuptial agreements’) are agreements made either before or after marriage, setting out how the parties to a marriage will deal with some or all of their matrimonial assets. They are particularly useful for preserving assets that were acquired before marriage (for example, shareholdings in family companies, or particular family assets and heirlooms), and also for regulating what may occur in the future if one or both parties inherit assets and heirlooms from their own side of the family.

Is The Law Catching Up?

Nuptial agreements are a rapidly developing area of family law. It is a useful example of how society eventually forces the law to adapt and change.

The Past: The Background

Over 20 years or so ago nuptial agreements were not generally enforceable in English law. There were two fundamental problems. Firstly, Judges were not allowed to give effect to agreements that contemplated the possibility of a future divorce, and were therefore void because they might encourage the breakdown of marriage. Secondly, Judges were not allowed to give effect to agreements that might interfere with the Courts’ own powers and way of doing things at a later date.

The Present

Gradually, however, there have been various landmark legal cases which have opened up the ability of the Courts to deal with nuptial agreements, and in a 2010 in a ground-breaking case (Radmacher V Granatino) the Supreme Court said that, amongst other things, provided each person has a full appreciation of the implications of the agreement, then the Court should give effect to those agreements unless it would be unfair. These principles are more or less identical to the principles applied in most divorce financial settlements.

Current Practice

Accordingly, it is possible to make nuptial agreements either before or after the marriage, and provided that they are fair and that they also meet various other conditions and guidelines, they are likely to be enforced by the Court. One difficulty remains, and that is whether the parties have children.

Clearly, if the parties make a nuptial agreement, then go on to have children together, but the nuptial agreement does not make proper financial provision for those children then the Courts will override the Agreement in order to provide for the children, but that is, and always has been, the Courts’ priority, and in a sense there is nothing new or unusual about the Courts taking such a view (it is probably what we would want the Courts to do!).

Current & Future Guidelines

Combining the current practice and future guidelines, it is recommended that the following are observed:-

  1. Ensure that any agreement that you draw up is contractually valid and enforceable (there are certain legal rules to be followed before a contract becomes legally valid).
  1. Ensure that the agreement is also drawn up in the format of a deed, and is executed as a deed.
  1. Ensure that the agreement contains a statement signed by each party that he or she understands that the agreement will restrict the Courts’ discretion to make financial orders.
  1. Ensure that the agreement is not made during a period of 28 days ending on the day in which the marriage (or civil partnership) is formed.
  1. At the time the agreement is formed each party must have made full written disclosure of all information about their finances to the other.
  2. Ensure that there is an option to review the nuptial agreement at specific “trigger events” such as the birth of a child, purchase of a replacement property or, for example, every 5-10 years to ensure it remains relevant.
  3. At the time the agreement is formed both parties must have received independent legal advice, and a compelling statement to that effect should be contained on the face of the agreement.

The Future of Nuptial Agreements

It is interesting that lawyers have moved to catch up with society’s needs, but what is now needed is for the politicians to move too and to bring a draft bill relating to nuptial agreements into effect. There have been moved towards this but a significant change in legislation is still yet to occur.

However, even before the draft bill comes into effect, do please remember that agreements which follow the guidelines set out above are still likely to be viable and accepted by the Courts today, provided that they also meet the overall objective of being fair.

 

Is There Such A Thing As Common Law Marriage?

A survey in 2013 found that more than two thirds of MPs agreed there was a mistaken belief in the existence of common law marriage amongst their constituents.

This belief is not hard to understand. Many people would think that a relationship based on commitment and love and during which property has been jointly acquired and children born would have similar legal consequences, whether or not the couple had gone through a ceremony of marriage.

The fact is though that entering into marriage or a civil partnership makes a huge legal difference which can lead to very different outcomes if, sadly, the relationship ends.

Since more than 6 million people live together in the UK, this is a rather important issue.

The most important differences concern property rights although it is important to point out there are many differences which cannot all be listed in this short article.

Both married partners have a legal right to stay in the family home until either divorce or the court orders one of them to leave. This is true regardless of who is named as the legal owner.

Unmarried couples have no such rights. Legal and more crucially beneficial ownership (i.e. who is entitled to receive the sale proceeds) can have dramatic and painful consequences for those partners who believed and trusted they would be protected by the law. For example, one partner may find they have no right to stay in the family home after years of living together because the family home was bought and paid for by the other partner alone. This can be true even if the relationship has resulted in children. I once represented a lady who found herself in this position after 20 years, with a child and caring for two step-children.

Married couples have a legal duty to support each other, unmarried couples do not. The vows one so often hears being recited at weddings, “in sickness and in health”, are not accidental but reflect the nature and obligations of the new legal relationship being created. This is why only married couples can claim spousal maintenance.

Upon divorce, the family court has discretion to divide and share marital property in the way it considers to be fair. The court has much more restricted powers if the couple are unmarried. The legal and beneficial ownership of property is often decisive and the court is powerless to alter outcomes in the context of “fairness” for the family.

The only way in which this can be done is to join the property proceedings to an application for financial relief for a child(ren) of unmarried parents. Such a claim may enable the children to continue living in the family home for a defined period.

However, if there are no children and property ownership is in dispute, it may be necessary to navigate the complicated waters of trust law and land law principles. It is important to point out that unmarried partners may have valuable interests in property even if their name is not on the title deeds, but these interests would need to be establish by way of an express or implied trust which is complicated and always requires expert legal advice to be taken.

Put simply, there is no law for co-habitees.

The difference between marriage and living together continues after death. A surviving spouse will automatically inherit at least a part of their deceased spouse’s estate if their spouse has died without leaving a will. An unmarried partner may be able to go to court to claim property from the estate if they have not been left enough to live on but has no automatic rights of inheritance.

There are also important differences in how married and unmarried couples are treated by the Inland Revenue in relation to income and capital taxes and differences in how pension schemes benefit married and unmarried partners.

Therefore the important message is that marriage makes a significant legal difference and it therefore makes a great deal of sense to take legal advice before you start living together.

If nothing else, it is absolutely essential to spell out in writing the shares in which you and your partner own the family home if it is not clear from the title and any other properties you buy together. This must be done in a formal document at the time of purchase and is an issue which must be raised with your conveyancer whether or not they raise it with you.

It may also be a good idea to make a co-habitation agreement with your intended partner setting out who owns what and what is to happen if the relationship ends. Although there are some legal doubts about the enforceability of such agreements, they represent good evidence of intention, and therefore can avoid painful and expensive arguments if things do not turn out as you hope.

Finally, it is nearly always sensible to take legal advice from a specialist family lawyer (preferably one with Resolution membership) if your relationship ends or is in serious difficulties. This is true whether or not you decide to get married. Early advice from an expert can save a great deal of misunderstanding and cost. It is always a good idea to find out where you stand.

If you are in need of a family lawyer to advise you on any of the issues raised in this article or any other family law issue, contact Simpson Millar today.

Is There Such A Thing As Common Law Marriage?

A survey in 2013 found that more than two thirds of MPs agreed there was a mistaken belief in the existence of common law marriage amongst their constituents.

This belief is not hard to understand. Many people would think that a relationship based on commitment and love and during which property has been jointly acquired and children born would have similar legal consequences, whether or not the couple had gone through a ceremony of marriage.

The fact is though that entering into marriage or a civil partnership makes a huge legal difference which can lead to very different outcomes if, sadly, the relationship ends.

One partner may find they have no right to stay in the family home after years of living together because the family home was bought and paid for by the other partner alone.

Since more than 6 million people live together in the UK, this is a rather important issue.

The most important differences concern property rights although it is important to point out there are many differences which cannot all be listed in this short article.

Both married partners have a legal right to stay in the family home until either divorce or the court orders one of them to leave. This is true regardless of who is named as the legal owner.

Unmarried couples have no such rights. Legal and more crucially beneficial ownership (i.e. who is entitled to receive the sale proceeds) can have dramatic and painful consequences for those partners who believed and trusted they would be protected by the law. For example, one partner may find they have no right to stay in the family home after years of living together because the family home was bought and paid for by the other partner alone. This can be true even if the relationship has resulted in children. I once represented a lady who found herself in this position after 20 years, with a child and caring for two step-children.

Married couples have a legal duty to support each other, unmarried couples do not

Married couples have a legal duty to support each other, unmarried couples do not. The vows one so often hears being recited at weddings, “in sickness and in health”, are not accidental but reflect the nature and obligations of the new legal relationship being created. This is why only married couples can claim spousal maintenance.

Upon divorce, the family court has discretion to divide and share marital property in the way it considers to be fair. The court has much more restricted powers if the couple are unmarried. The legal and beneficial ownership of property is often decisive and the court is powerless to alter outcomes in the context of “fairness” for the family.

The court has much more restricted powers if the couple are unmarried.

The only way in which this can be done is to join the property proceedings to an application for financial relief for a child(ren) of unmarried parents. Such a claim may enable the children to continue living in the family home for a defined period.

However, if there are no children and property ownership is in dispute, it may be necessary to navigate the complicated waters of trust law and land law principles. It is important to point out that unmarried partners may have valuable interests in property even if their name is not on the title deeds, but these interests would need to be establish by way of an express or implied trust which is complicated and always requires expert legal advice to be taken.

Put simply, there is no law for co-habitees.

The difference between marriage and living together continues after death. A surviving spouse will automatically inherit at least a part of their deceased spouse’s estate if their spouse has died without leaving a will. An unmarried partner may be able to go to court to claim property from the estate if they have not been left enough to live on but has no automatic rights of inheritance.

There are also important differences in how married and unmarried couples are treated by the Inland Revenue in relation to income and capital taxes and differences in how pension schemes benefit married and unmarried partners.

Therefore the important message is that marriage makes a significant legal difference and it therefore makes a great deal of sense to take legal advice before you start living together.

If nothing else, it is absolutely essential to spell out in writing the shares in which you and your partner own the family home if it is not clear from the title and any other properties you buy together. This must be done in a formal document at the time of purchase and is an issue which must be raised with your conveyancer whether or not they raise it with you.

It may also be a good idea to make a co-habitation agreement with your intended partner setting out who owns what and what is to happen if the relationship ends. Although there are some legal doubts about the enforceability of such agreements, they represent good evidence of intention, and therefore can avoid painful and expensive arguments if things do not turn out as you hope.

Finally, it is nearly always sensible to take legal advice from a specialist family lawyer if your relationship ends or is in serious difficulties. This is true whether or not you decide to get married.

 

My Ex Is Saying I Can Only Have Supervised Contact.

My ex is saying I can only have supervised contact, will the court agree?

One of the first factors a court will look at in determining or reviewing child arrangements is whether you have parental responsibility for your children. This is defined in the Children Act 1989, which governs applications to court relating to children, as “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property”.

All mothers and most fathers have parental responsibility for their child. A father has parental responsibility if he was married to the mother when the child was born (divorce does not end that relationship) or if he is registered on the child’s birth certificate if the child was born on or after 1 December 2003.

It is not for the mother to dictate the level of contact. It is for all those with parental responsibility to make suitable arrangements.

Even if the father does not have parental responsibility, this does not mean he cannot have contact with his child. It is not for the mother to dictate the level of contact. It is for all those with parental responsibility to make suitable arrangements. In the event of a dispute, the court will be asked to decide. When the court is asked to decide, the child’s welfare must be the court’s paramount consideration

When looking at whether contact should be supervised, the court will have to be satisfied that there is a risk to the child if contact is not supervised.

The child can be living with either parent or share time between both under a shared care arrangement. There is a clear preference for parents to be able to make their own arrangements. If they cannot, then the court has a checklist of seven criteria they look at when making the decision for the parents:

  1. The wishes and feelings of the child
  2. The child’s physical, emotional and educational needs
  3. The likely effect on the child of a change of circumstances as a result of the court’s decision
  4. The child’s age, sex, background and any other relevant characteristics
  5. Any harm the child has suffered or is at risk of suffering
  6. Capability of the child’s parents of meeting the child’s needs
  7. The powers available to the court

When looking at whether contact should be supervised, the court will have to be satisfied that there is a risk to the child if contact is not supervised. This means a real risk of harm, such as physical abuse, neglect or being exposed to drug/alcohol issues. The court will not agree to supervised contact unless there is a good reason; that reason is not because your ex doesn’t like you and wants to cause you a problem. It is all about what is best for your child and it is not usually best for their wellbeing and depth of relationship if that can only supervised contact with you.

The court use the services of CAFCASS (Children and Family Court Advisory and Support Service) to assist in their decision making. Each family going through this process is assigned a CAFCASS officer, who has a social work background and is there to gather more information about the child’s experience. They do this by contacting schools and other relevant organisations, as well as through meeting with the children if they are old enough to express informed wishes and feelings. All of the information gathered is passed on to the court to help with an assessment of the above criteria.

It is often the case that one parent claims the other is abusive and it is always difficult to prove either way. If your ex is likely to do this, it is a good idea to make sure any conversations are in writing, text or email. Don’t be goaded into responding to abuse from your ex as phone calls can be recorded and can come across as one-sided. The same applies to texting or emailing in response to a phone call as there will only be a record of what you have written.

The main advice we can give is – these are your children. You know them and you are responsible for their happiness. Don’t do anything that will upset them, including arguing with your ex in front of them. Listen to what your ex says as they may actually have genuine concerns you need to address. If things get nasty, step back and seek legal advice.

We have produced a number of helpful leaflets on family law matters, including specialist advice concerning children, which are available on our website at qualitysolicitors.com/yatesandco.

 

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