Tag Archives: Divorce

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.

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!

Q&A with Fiona Pawsey

Q&A with Fiona Pawsey

 

Hi Fiona, tell us about yourself!

Hello! I’m 47 years old, married with three children, and I’ve been working in law for several years. In the beginning of my career I was a secretary. But, I studied whilst I worked to qualify first as a Fellow of the Institute of Legal Executives and then finally I qualified as a Solicitor.

I see! You must have worked on quite a few cases throughout your career. What are the biggest challenges you’ve faced in terms of the professional services that you provide?

There have been a vast number of cases over the years and there are invariably some challenging ones. I’ve found that financial remedy cases can be very challenging for two reasons:

  1. Often there are limited assets and there isn’t enough to meet the needs of both parties fully, particularly where there are young children involved.
  2. It can be hard managing people’s expectations of what can be achieved. What they might think is morally just and what the law can do for them can often be quite different.

 

What has been your most successful case this year?

The highlight of this year has been the successful defence of a challenge by a former husband to overturn a financial settlement made in 2010. My client lived outside the UK which could have made communication and instructions challenging. Despite this, even though we only had the chance to meet the client for the first time at trial, we succeeded in retaining our client’s assets and were awarded costs.

For me, successful cases are when the parties can find a way to compromise and form a resolution that works for them both – especially when there are children to think about.

What’s the secret to your success?

I like to look for solutions. I’m mindful of costs and I try to help my clients look at the wider picture. I always keep in mind, for example:

  • the available assets;
  • the parties’ incomes;
  • capacity for a mortgage;
  • what properties each party could live in.

It’s information like this which helps us find the way forward and reach a successful resolution.

Why family law?

Oddly enough, I fell into law on a Youth Training Scheme (a bit like apprenticeships in those days) and I loved it from day one. The human element in family law is what makes my job interesting as well as the variety of cases. It’s all about giving people time to tell their story and finding a solution to help them move forward at a time when emotions are often high.

Why use Newnham & Jordan Solicitors?

I like to think we give our clients time to make them feel comfortable, especially if there’s something embarrassing they need to talk about. That’s why I don’t set a fixed period of time for a free interview.

I also believe it is important to get people to look at the whole picture (rather than just looking at themselves). To do so helps them to consider ways forward and often presents solutions they may not have previously considered.

What does Fiona Pawsey do outside the office?

I like to spend time with the family. My youngest daughter has just started to get interested in cooking so we have a lot of fun with that. I also enjoy reading – my favourite author at the moment is Patricia Cornwell.

In my spare time, I sing in a local choir. It makes me relax after a stressful day. I enjoy running as well and am an active core group member of Weymouth Parkrun and Weymouth Junior Parkrun.

Any advice for anyone who has a family dispute?

There are several ways you can help yourself:

  • Get information about what assets you have, get information of mortgage capacities that are affordable. Look at the cost of rehousing and how this can work practically. Don’t forget Shared Ownership (Part Buy/Part Rent) as options when looking at finances.
  • Try to keep the lines of communication open. It is hugely important for your children to see that Mum and Dad can communicate. Don’t bring your kids into the argument – the impact on children of being involved in family arguments can be everlasting.

Family law, finances and needs

Most people contemplating divorce will initially think about when to separate from each other, swiftly followed by a “How am I going to live?”.

As we all know one pot of money which can meet the needs of two people living together in one household is unlikely (in most circumstances) to stretch well to meet two households.

That’s where a good solicitor comes in. Whilst often thoughts are with divorce “I’m going to take everything” or “I’m going to have nothing” the law in fact provides for both parties (regardless of how the marriage ended – although there are some very rare exceptions).

Section 25 of the Matrimonial Causes Act 1973 is referred to by lawyers as “The Welfare Checklist” and this is something that the Court has to have regard to when looking at the financial settlement either agreed by a couple (or in the alternative ordered by the Court). This checklist requires all parties to consider the following:

  • Income and earning capacity of both parties;
  • Their needs and obligations (such as care of young children);
  • Standard of living;
  • Age of the parties and length of the marriage;
  • Health needs including disabilities;
  • Contributions by parties;
  • Conduct (in very rare circumstances);
  • Value lost by divorce (usually interests in pensions for example – ie. the loss of a future widow’s pension).

 

It may surprise people to know that the number of cases that go to a final hearing where the judge decides a settlement is in fact very few. The majority of cases will often settle, sometimes with help from a District Judge, with the aid of good and sensible solicitors and good preparation.

So, where do you go from here? The first thing to do is for the parties to exchange financial disclosure. This includes the value of any assets (such as property or savings and pensions), the amount of any debts (such as credit cards and loans). This is important as we need to know what there is before we can help advise how it can be divided between you.

We also advise clients to look at the housing market as to suitable properties for not just themselves but also their spouse. We look at all aspects of housing from, staying in the property and buying the spouse out of their interest, shared ownership (with a housing association), normal purchase of a home or renting.

The options are often limited by the amount of capital available to both parties and may be affected by whether there are children to rehouse with one party. This helps parties to be realistic about what should happen.

To be able to look at housing needs we also need to know your mortgage capacity and that of your spouse. The Court would consider a mortgage capacity to be an asset of sorts in that it assists the decisions on the division of capital from the marriage (i.e. if one spouse has a greater mortgage capacity then this may free up capital to help the other spouse with a lower mortgage capacity to be equally housed).

Pensions are generally shared between spouses on divorce (although where there is greater capital available it may be with agreement that there is an offsetting of pension interest by the payment of a greater share of capital).

As for income, a non-resident parent has a duty in law to pay maintenance for his children. This is based on a percentage of gross income. Parties can either reach agreement or if not then the question of maintenance will go through the Child Maintenance Service (formerly the CSA). For information on calculation of maintenance click here.

Depending in circumstances there may be a liability for maintenance to a spouse. This would be if there are young children or some disability or where there is a shortfall in their income versus their outgoings. If the spouse is in good health then a Court may limit the time for maintenance (for example to enable perhaps a spouse to retrain for employment) as the Courts are required under Section 25A of the Matrimonial Causes Act 1973 to achieve a clean break at the earliest possible time.

If any of the above affects you, we offer a free initial meeting when we can consider your matter and advise on the way forward. For an appointment please ring the Family Team on 01202 877400 (Ferndown Office) or 01305 470051 (Weymouth Office).

Family law, finances and needs