Category: Legal

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.

Fraudsters on the Road

‘Crash For Cash’ (CFC) scams are officially defined by the Insurance Fraud Bureau (IFB) as a scam that aims to “stage or deliberately cause a road traffic collision solely for the purpose of financial gain. Crash For Cash scams are a very serious and widespread issue in the UK. It’s estimated the scams cost motorists around £340 million a year, and over the years these CFC scams have become more and more sophisticated.  It’s bad enough having to be alert to email and internet scams all the time without having to dodge criminals on the roads too but that is the world we now live in.

There are numerous criminal gangs staging road traffic accidents and the following (potentially very dangerous) methods are just a few examples of the ways in which the average driver can be swindled:

Waving
Most commonly happens when there’s a lot of traffic. The other driver waves for you to merge into their lane. As you join it, the car speeds up and collides with your vehicle. The other driver will then deny offering you the right of way and will assert that you were at fault for ‘cutting them up’.

Swooping and squatting
This scam requires two fraudsters. As you’re driving along, a car will pull out on the driver in front, forcing them to brake suddenly. Even if you’re moving at a slow speed there’s still a high risk of a collision. The car that pulled out in front will be the ‘swoop’ and they will leave the scene quickly. The car in front of you will be the ‘squat’ and is likely to be filled with passengers that all claim injury if you have the misfortune to run into the back of them.  You can practically see the pound signs in their eyes!

Flashing
Also called ‘flash for cash’. When trying to pull out of a junction, a driver will ‘flash’ their lights indicating that he/she is letting you out. As you pull out, the driver will accelerate and crash into you. As you’re pulling into a lane of oncoming traffic, you’re at fault.  How you deal with the aftermath of such a collision is critical to a good outcome for you and your insurance company.

Slamming on
The fraudster will disconnect their brake lights (a brazen act of illegality) and then slam them on for no apparent reason. You won’t realise until it’s too late and a collision has occurred.  Of course, he or she will blame you for not maintaining an adequate distance but brake lights are fitted for a very good reason, to warn other motorists, and you would be a victim in such circumstances.

To protect yourself from these types of frauds, remember to always keep a safe braking distance from the vehicle in front of you and drive responsibly. If you’re unsure of another driver’s signalling to you be very cautious; protect yourself always.

If you do get involved in a suspicious road traffic accident take your time and make sure you have as many details as possible of the driver and passengers, and any witnesses at the scene.  If possible, take multiple pictures of the damage to both vehicles, the general layout of the road, and some of the driver and any passengers might not be a bad thing either.  Not letting anyone drive off until you have all the details might make them think twice about pursuing a dodgy claim anyway.  If you are suspicious that you’re being set up as the target of a fraudster, do not for a second hesitate to contact the police to attend the scene.

If you believe you’ve become victim of “crash for cash” fraudsters contact Michael McGhie today on 01202 877400 or via his email michaelmcghie@newnham-jordan.co.uk!

Fraudsters on the Road
Drink Driving and the Festive Season

Drink Driving and the Festive Season

It’s December again.  The season of good cheer for most and the opportunity to get together with friends and family and have a good time.

Sadly, it’s also the time of year when the Government runs a fresh and usually extremely brutal new anti-drink drive TV campaign and it tends to be a time of year when people get caught for drink driving – with many bad consequences for themselves, and possibly for others.

However, it’s not all bad news.  An examination of the statistics for the most recent year available [2016] shows us that there are fewer drink drivers than ten years ago.

In 2016, 3,424 people failed a breathalyser test following an accident, a 42% decrease from 5,873 in 2006. The decrease in failed test results correlates with fewer drink-driving related accidents over the years.

Drink-driving accidents have been recorded from 1979 and the number of alcohol-related accidents has also dropped by 71%.

However, drink-drivers are more prevalent on some roads than others.  The majority of drink-driving offenders have been caught on rural roads, with 35% testing over the limit.  Newnham & Jordan cover road traffic clients charged with drink driving (as well as speeding and other offences such as careless driving) both in urban and rural areas, particularly concentrating on Dorset and Hampshire, but extending into Wiltshire and Somerset.  It’s a sad fact that rural roads are generally more dangerous than urban roads and motorways which are normally better lit, better surfaced, wider and (at this chilly time of the year) much better gritted.

Another key statistic is the rise in the number of older drivers finding themselves convicted of drink driving.  From a total of 1,295 over 65s convicted of drink driving in 2005 this jumped to 1,435 in 2015.  An AA spokesperson opined that older drivers may have got away with it in the past and believe they can still drive while “half cut”.

At the end of the day there is no safe level of alcohol in one’s system and all drivers take a significant risk if they choose to drive after having a drink.

Have you been involved in a road traffic accident? Call Michael McGhie on 01202 877 400 for a practical, sensible solution!

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
What Does an Executor Do?

What Does an Executor Do?

Many aren’t aware of the obligations that come with being an Executor of someone’s Will. Executors have a number of duties, depending on the complexity of the deceased person’s financial and family circumstances.

An Executor’s first task would be to find the deceased person’s property and manage it until it’s shared amongst the beneficiaries. This may involve deciding whether to sell land or securities owned by the deceased person. Making enquiries with both asset and liability holders and obtaining valuations for property, land, and personal chattels is the Executor’s requirement. After the enquiries have been made it will be clear to the Executor whether or not a Grant of Probate would be needed for dealing with the administration of the estate

A Grant of Probate is a document which authorises the executor to deal with the estate of the deceased. It enables them to deal with certain aspects of administering the estate like closing bank accounts and selling or transferring property. A Grant of Probate is not required to deal with the handling of all estates, however it is often the case that one would be required.

Once the assets and liabilities of the estate have been determined, the Executors will be required to submit an Inheritance Tax return which will confirm whether there is any Inheritance Tax due from the estate. The Executors will need to make sure that any reliefs have been applied and that the right sum of Inheritance Tax is paid. The Executors will also need to consider any lifetime gifts which the deceased made in the 7 years prior to their death as well as any trusts which they may have benefited from.

After completing the Inheritance Tax return the Executor will need to sign and swear an Oath. The Oath sets out information of the deceased and how the Executor has the right to deal with the administration of the estate. The Oath is submitted to the Probate Registry once it has been both signed and sworn. The Grant of Probate is normally issued in two weeks.

After receiving the Grant of Probate you would be able to progress with collecting in the assets of the estate. You will be able to arrange the closure of bank accounts and the sale and transfer of the property.

After all of the assets have been collected in and all of the liabilities have been paid, the Executors will then be able to distribute the estate according to the Will, or if there was no Will and the deceased died “intestate” then the estate will need to be distributed in accordance with the Rules of Intestacy.  A set of Estate Accounts should be produced and –  if requested – should be made available to beneficiaries and creditors of the estate.

The distribution of the estate to the beneficiaries is the Executor’s final task regarding its administration. An Executor is not required to administer an estate before the expiration of one year from the date of death (the “Executor’s Year”). However, if all of the assets have been collected in and all liabilities settled then there is no reason to delay paying the beneficiaries.

If you have been appointed as an Executor and you require any assistance in dealing with the administration of an estate please contact Angie Newnham on 1301202 877 400!

The Stamp Duty Land Tax Change – A Huge Relief for First-Time Buyers

It was announced yesterday that Stamp Duty Land Tax will be scrapped immediately for first-time buyers of homes up to £300,000. The move was made in an attempt to reduce the ever growing gap between homeowners and first-time buyers and is set to benefit 95% of first time buyers. The move will likely abolish Stamp Duty for about 80 % of them. It’s predicted that thanks to this change 300,000 homes would be built by the middle of the next decade and that more than one million young people would take advantage of this change over the next five years.

The Stamp Duty Land Tax Change – A Huge Relief for First-Time Buyers