Author: Fiona PawseyFiona has been practicing family law for over 12 years initially as a Legal Executive and then subsequently as a solicitor. Fiona is a trained collaborative solicitor, as well as a Resolution Panel Member. She is experienced in advising clients going through divorce or family breakdown, including financial settlements and disputes over children, in particular complex contact and residence issues. In addition to family law Fiona also deals with litigation, property transactions and residential Conveyancing

The Myth of the Common Law Spouse

The Myth of the Common Law Spouse

As a family lawyer of a many years, I find it interesting when I hear co-habiting couples make comments like…..“I’ll be ok as I’m a common law spouse”.

It appears that there still is perpetuated the myth of the “common law spouse”. I say myth because that is exactly what it is. The “common law spouse” does not exist and has no recognition in law and neither party has any rights over the other, their property or assets.

More worryingly a vast number of such co-habiting couples fail to realise that there is only limited resolution in law for them if their relationship breaks down, unless they are married or a civil partner, which are covered by the Matrimonial Causes Act 1973 and the Civil Partnership Act 2004 respectively.

Let us look at a scenario. We have Jane and John. They have been married for 20 years. Their assets are mixed between jointly owned property, sole accounts and other investments/savings in their sole names. There may be some joint and/or some sole debts such as credit cards. Potentially all assets and debts are matrimonial, and the starting point is 50/50 division subject to any reason for a court to depart (such as young children, significant health issues).

Similarly, this is the situation where parties are Civil Partners and registered under the Civil Partnership Act 2004.

Now let’s look at the same situation where Jane and John are not married but have lived together for over 20 years. They have several children. For assets let us assume the house is owned by John with a mortgage. John and Jane have separate bank accounts. John has savings of £20,000 and Jane has savings of £5,000. John works and has a pension worth £200,000 and Jane has been a stay at home mother with no pension provision other than state pension. She has recently started a part time job and pays her wages into her sole account. John bought the house before they met and has always paid the mortgage from his own account into which his income is paid. There is no joint account.

If John and Jane separate, Jane has potentially no entitlement to John’s assets (the house, his savings and pension). The only avenues in law open to Jane to seek help is through the Trust of Land and Appointment of Trustees Act 1996 (TOLATA) and/or the Children Act 1989 (but only if any of the children are still under the age of 18 years).

Dealing firstly with claims under the Children Act 1989 Jane might be able to seek to remain housed if a Court is satisfied that John can house himself or can provide a house for Jane whilst the children are under the age of 18 years. However, there is a caveat that when the youngest child attains the age of 18 years that property would revert back to John and Jane would have no further claim.

Under TOLATA Jane would have to see if she could satisfy one of the trusts that may arise in law to enable her to make a claim against the property as it was the family home, but these are complex. Unless Jane can prove that she put substantial capital in (for example if they bought the house together and she had paid capital towards the purchase for example paying a deposit for a property). Even in these types of matters the Court simply look at value of interest and are not concerned as to whether it will allow either party to rehouse themselves. This is unlike the situation
where there is a breakdown of a marriage or civil partnership where the needs of the parties (and any children) are paramount. Jane would also have no interest in John’s pension as there is no ability to make a claim on this unless you are married or a civil partner.

Although the Law Commission has considered changes to this for a number of years in order to create more equality we are left in a situation where this is unlikely to happen. This is particularly so following recent case law in relation to the Civil Partnership Act 2004 R(on the application of Steinfield and Keidan)(Appellants) v Secretary of State for the International Development (in substitution for the Home Secretary and the Education Secretary)(Respondent) [2018] UKSC 32 where judgment was given to say that the Civil Partnership Act 2004 was contrary to human rights and should be extended to heterosexual couples.

The result of this, is that the many cohabiting couples who don’t marry as they don’t feel the need for that “bit of paper” are likely to feel the same regarding the idea of entering a civil partnership. Therefore, there is no change in the law for co-habiting couples and the Myth of the Common Law Spouse, remains a myth.

If you would like further advice on this topic, please contact us on 01202877400.

Divorce and Pets?

Divorce and Pets?

A common question asked nowadays on divorce is not about the children but more who gets to keep the dog?

For many families the pet dog is an integral part of family life. So what happens when the marriage breaks down?

Surprisingly the law in England & Wales is that a pet will be treated as an item of personal property such as a piece of furniture, artwork or jewellery. The solution to the dispute can come down to as simple as who paid for the purchase of the pet. This can however seem very unfair where the other person has perhaps spent the majority of their time caring for the said pet.

Often the arguments of the pet can be emotive and lead to the pet being used as a bargaining chip. There is also the financial aspects of a pet (for example vets costs, food etc., and in cases of horses the livery costs etc can be significant). Shared care is rarely seen as practical and a Court is unlikely to be embroiled into an argument over contact. Whilst a party having day to day care over a pet may have some sway often legal ownership will prevail in the majority of cases.

It should be noted however that a recent case in Alaska in January 2017 may pave the way of a change to a welfare based approach to pet ownership similar to that of the care of children. We will need to watch this space to see whether this impacts significantly on English Law.

For further advice or information on this please contact Fiona Pawsey on 01202 877400.

Coping With a Broken Relationship on Christmas

One of the hardest things for families to cope with is Christmas. It is an emotive time of the year particularly for separated families with young children. Each parent will want to have their children with them on Christmas Day and, as we all know, sometimes that is simply impossible. This can be due to something as simple as logistics of travel depending on the distance, or in the alternative one parents view of “we have always had Christmas with my parents and so the children should be with me”.


When it comes to Christmas and separated families sadly the whole issue of who should have what can become contentious and at this time of year it is not uncommon to see the Court’s lists full of applications for contact for children. Parents need to consider that contact is for the benefit of the child, rather than the parent. It is the child’s right to have a full and good relationship with both parents and the only way that this can happen is if Mum and Dad can communicate constructively and be prepared to compromise. The Court’s position on Christmas and New Year is that it should alternate between the parents and that on the year that one parent has the New Year then they celebrate their Christmas at that point. If you ask a child who they want to spend Christmas with, probably in the first instant they would say with you both. Pragmatically however, as long as they get to see you they don’t really mind and hey they get to celebrate Christmas twice – which to any child is pretty fantastic. What they won’t thank you for is arguing and causing upset (which then makes them potentially have to choose sides).

Conflict between parents is known to significantly impact on children’s abilities to form relationships in the future and this is not what any parent should want for their child. If you are struggling with this then there are many ways forward. The first and most pragmatic is to try to sit down and talk reasonably, being aware that compromise is necessary for your children’s welfare. If you don’t think that would work, then mediation (which is where you and your former partner/spouse can sit down with a trained mediator who will help you to compromise things). The final alternative is to seek help from lawyers and the Court, being very much aware that a Court ultimately may make an order that neither of you will be happy with.

If you need further help and advice then please don’t hesitate to contact our Family Team on 01202 877400 or family@newnham-jordan.co.uk – because your family matters to us and we are here to help.

Coping With a Broken Relationship on Christmas
Relocating with a child – Does the parent need permission?

Relocating with a child – Does the parent need permission?

So you’re thinking about moving. It may be within the UK or abroad. As at March 2017 some 134,000 British citizens* chose to emigrate abroad. However, if you are a family where the parents no longer live together then emigrating is not so easy.

Moving in the UK

If you wish to leave the UK with your child to live abroad on a permanent basis (and are separated from the other parent) you will need the permission of the other parent to do so. If that parent withholds their agreement, then you will have to apply to the Court to obtain permission.

According to Resolution there are currently 1,200 cases a year involving relocation applications. The majority of these are brought by the maternal primary carer.

Things to Consider

When considering any such application the Court have to look at certain principles that have been drawn from case law and legislation in these matters. This includes:

  1. The child’s welfare is paramount;
  2. The Court should consider with which parent the child should live, taking account of plans of each parent as to where the family should live;
  3. No presumption in favour of the applicant parent;
  4. Reasonable proposals of the parent with a residence order wishing to live abroad will carry great weight;
  5. There must be a genuine motivation for the move and not an intention to bring contact between the child/children and the other parent to an end;
  6. The effect of refusal on the parent seeking leave to move and their new family;
  7. The effect upon the child of denial of contact with the other parent (and in some cases the wider family members);
  8. The opportunity for continuing contact with the parent left behind;
  9. The child’s wishes and feelings.

 

What does the above mean? If a child is having regular contact and involvement with the other parent (for example shared care) then the Court are going to be concerned as to the impact of this being terminated (for example, a move to Australia is clearly going to severely restrict contact).

What are the reasons for moving? If they are seeking to “go home” (ie. back to their country of origin where they have family support) then that is a powerful factor for the court to consider as opposed simply a lifestyle choice.

Making a Successful Application

To have a successful application there needs to be a genuine reason for the move and the applicant parent needs to ensure they have conducted the necessary research to ensure they provide detailed information regarding how and where they will live, the support available to them and the child/children (both financially and practically), how contact can be facilitated (including cost and transport) – this is particularly important to ensure that the relationship with the parent left behind is sustained. Failure to do any of these things could lead to a rejection.

For the other parent it is important to highlight and maintain the commitment to contact. If you have been having regular contact that is easy to evidence, if not then you need to be able to show why this has not happened (for instance, is the resident parent preventing this?). Are there any medical issues that may impact upon a child if a move to a less developed country? Each case will turn on its own facts and it is important to carefully scrutinise any application and statement in support carefully.

Hidden Issues

Equally people will often simply move about within the UK to suit themselves without a thought as to the impact upon a separated family. For example, people think that simply moving from say London to Cornwall is fine. A Court however, can be asked to consider the nature of such a move in a similar way to a relocation outside the UK.

The main issues regarding relocation in the UK is whether it is for a genuine reason or whether it is designed to frustrate contact. For example a move from London to Cornwall can make travelling significantly difficult, particularly for a parent reliant on public transport. If the former, then it is likely to be granted but if the latter a Court can make conditions on any residence order to ensure that a move does not take place.

The key thing to all of the above is that the welfare of the child or children is paramount and, to the writer, the most important thing you can do for your child is be able to communicate sensibly. It is often at these times when communication is so important that it is lost with the parents becoming polarised in their positions. Both mediation and more particularly Reunite** (a specialist mediation service for these types of matters) are available to parents to try to help them resolve matters in the best way for their child.

If anything mentioned above affects you and you would like further information, please contact Fiona Pawsey at family@newnham-jordan.co.uk or 01202 877400.

*Migration Watch UK

** http://www.reunite.org/

This article is intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.

What is “Unreasonable Behaviour”?

As a divorce lawyer I am often asked what is “unreasonable behaviour”. When someone in England or Wales is contemplating a divorce they have to consider what reason they will proceed. Under English law a divorce is based on irretrievable breakdown but has to be proved by one of five facts, including amongst other’s “unreasonable behaviour”.

So, what does this mean? Well from a lawyer’s perspective it is both subjective and objective. For the client it is what behaviour they find unreasonable. It can be as simple as feeling there is no communication, no real love or affection from their spouse, perhaps feeling unsupported (even if the spouse would say this is not the case). It can also be specific – if there has been domestic abuse for example.

The benefits of an “unreasonable behaviour” petition is that the person receiving it (known as the Respondent) doesn’t have to accept or admit to the alleged behaviour. They can say they don’t accept or admit it but agree that the marriage has broken down which will allow a divorce to continue.

The objective side to “unreasonable behaviour” is that a District Judge has to be satisfied that the marriage has broken down irretrievably and so he needs to consider the reasons given by the person issuing the petition (the Petitioner) is sufficient to satisfy this test.

Often “unreasonable behaviour” petitions are used because a marriage has broken down but the parties have not been separated a sufficient period to divorce on separation (minimum of 2 years) and sadly at present English Law does not give any other options for a swift no fault divorce.

For a initial consultation about divorce call Fiona Pawsey today on 01202 877400!