Tag Archives: law

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.

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
Finding a Divorce Solicitor

Finding a Divorce Solicitor

 

I was asked a question recently about how to find a Divorce Solicitor? There are of course the obvious answers: Google Search, asking friends, looking on the Law Society or Resolutions “Find a Solicitor”, etc. However, finding the “right” divorce solicitor for you is entirely different. As a woman I would equate it almost to like finding the right pair of shoes … an odd analogy you may think but it’s all about the fit.

When advising on divorce and the subsequent financial settlement we are dealing not just with facts and figures but people’s lives and emotions and these can be a big factor in what they decide. A client recently came to me having obtained their divorce via an online web service. I asked them what had attracted them to the online service – their immediate reply was cost. However, this particular client hadn’t realised that they had only dealt with the divorce and several years after the divorce had been finalised they discovered that their ex-spouse was now pursuing a financial  settlement. The client had believed that this had been dealt with (all for a mere few hundred pounds) – sadly and unsurprisingly this was not the case.

With the aid of an experienced divorce solicitor, like ourselves,  the financial information can be rapidly gathered and we can facilitate the negotiating of a financial settlement on divorce that both parties can live with.  I should be clear that in family law, contrary to popular opinion, it’s not about winning or losing but about meeting needs and sharing.

Often, we find there is simply not enough money to go around and a good divorce solicitor will be able to “think outside the box” and help you explore other solutions. Equally the solicitor should look at meeting the needs of both parties, otherwise how can you persuade your spouse (or indeed the Court) that your proposal is the better one. Mediation is also an option that parties may wish to consider (which enables direct discussion between them). To help mediation work a good divorce solicitor will help with guidance on the provision of financial disclosures needed to enable direct discussions. A mediator can guide you on proposals, provide legal advice as the matter progresses and discuss ideas on the way forward to achieve a fair divorce settlement.   A good divorce solicitor can ultimately help with drafting up the Consent Order to reflect any agreement reached to ensure protection for your future.

At Newnham & Jordan we believe in dealing with divorce and financial settlement holistically and looking at how both parties can move forward.   We believe this approach helps parties to move forward, is practical and puts our client’s in the best position to reach a settlement swiftly with a saving both financially and emotionally.

To speak to us about your options please contact Fiona Pawsey on 01202877400 (Ferndown) or 01305 470051 (Weymouth) or via email on fiona@newnham-jordan.co.uk for a free initial appointment.

4 Countries With Strict Baby Naming Laws

Naming Laws

Here in the UK you can almost name your baby anything (within reason), but did you know that some countries around the world have laws regarding the naming of new born babies. That’s why this Funny Law Friday we are taking a look at 4 countries with strict and interesting naming laws.

Germany

Germany is a very practical and forward thinking country, this also shows in their baby naming laws. When naming your child in Germany you must be able to tell the gender of the child by their first name, and then the name must also not have a negative effect on the wellbeing of the child. The First name must also not be a last name, an object or a product. The name you choose has to be approved by the Standesamt (German civil registration office). If the office rejects your chosen name you can appeal the decision. But if you lose the appeal a new will have to be chosen. Each time you submit a name you pay a fee, so it can get costly.

Denmark

Denmark have a very strict law in place for personal names. This is to protect children from having odd names. Denmark have a list of 7,000 pre-approved names that parents can choose from. If the parents wish to name their child something that is not on the list. They will have to get special permission from their local church, and the name is then reviewed by governmental officials. Like Germany the law states that the first name must indicate the gender of the child, also the first name must not be a last name. There are also laws in place that to protect rare Danish last names.

Sweden

In Sweden first names must be reported to the Tax Agency for approval. First names will not be approved if they can cause offense or can cause discomfort. it can also be rejected if it is not suitable as a first name. In Sweden you are allowed multiple first names, but if later in life you wish to change your first name you must keep at least one of your original first names. For example, if you were called Matt and you wanted to change your name to Luke, your new name would be Luke Matt. Also you can only change your name once.

Iceland

Iceland have a naming committee which decide whether a given name will be acceptable. If parents wish to choose a name that is not on the National Register of Persons, they must apply for it to be approved. For a name to be approved it must pass a few tests. It must only contain letters in the Icelandic alphabet, and must also fit grammatically with the language. Other points are: it must not embarrass the child in the future, it must be gender specific and no more than 3 personal names are allowed.


This article is intended for general information purposes only and  shall not be deemed to be, or constitute legal advice. Newnham &  Jordan Solicitors cannot accept  responsibility for  any loss as a result of acts or omissions taken in  respect of this  article or any external articles it may refer or link to.


 

 

4 Countries With Strict Baby Naming Laws
Funny Law Friday

Funny Law Friday

IN CALIFORNIA, IT IS ILLEGAL TO EAT AN ORANGE IN YOUR BATHTUB

It was made in the 1920’s, when people believed that the citric acid in the orange would mix with the natural bath oils and would create a highly explosive mixture.


This article is intended for general information purposes only and  shall not be deemed to be, or constitute legal advice. Newnham &  Jordan Solicitors cannot accept  responsibility for  any loss as a result of acts or omissions taken in  respect of this  article or any external articles it may refer or link to.


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