Tag Archives: property

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.

What is a Restrictive Covenant?

A restrictive covenant is an agreement made by Deed between land owners which restricts the way land may be used and developed. It is usually imposed by the seller of the land who wishes to retain some control over what happens after the land is sold.

Before you purchase a property with Restrictive Covenants you should make sure you are aware which ones have an expiry date (if any) and which run into infinity and whether there have been any breaches of the restrictions.

The landowner can put any restrictions they want, as long as they are reasonable (for example it might restrict the future use of the land, or restrict the ability to build on the land or add to existing buildings).

If there is a breach of restrictive covenant, the landowner who benefits from the covenant can apply to the court for damages against the current owner of the (servient) land and, if successful the owner of the (servient) land could end up having to pay compensation.   If land that you own is subject to restrictive covenants and you considering carrying out work that would potentially breach the covenants, then it is advisable to get the dominant land owner to sign a deed of release which would release the land from the burden of the restrictive covenant.  It is likely that the dominant landowner would require some form of monetary compensation in order to provide the release.

If the property deeds are old or the land has been transferred and split multiple times it is sometimes hard to determine the beneficiary of the restrictive covenant. In circumstances like these the servient land owner would be advised to take out an indemnity policy.

An indemnity policy can protect you in case you breach a restrictive covenant. The price of the indemnity insurance would depend on the value of the property and the time in which you take out the policy. It’s important that you read it carefully and understand what it covers.  However, it should be noted that a standard indemnity policy will only cover prior breaches and not future breaches and is only a “litigation” tool.

For any property-related questions or queries do not hesitate to contact our Conveyancing team on 01202 877400.

What is a Restrictive Covenant?
Why Should You Register Your Land?

Why Should You Register Your Land?

There are two land systems In England and Wales – registered land and unregistered land. If a piece of land and ownership of it is recorded on the Land Register it’s registered land. When a property gets registered, the title is “guaranteed” by the Land Registry. The Register is open to the public and can be accessed by anyone.

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The Winter Season – A Great Time to Sell Your Property!

The Winter Season – A Great Time to Sell Your Property!

Not too many people know that January and February can be two of the best months for putting your property on the market! The fact is that most sellers wait for better weather in Spring and frequently there really isn’t enough stock to meet demand during the winter months. As a seller you can use that to your advantage. You can potentially attract a large number of buyers with a good presentation and a fair guide price.

 

Clean Inside and Out!

Cleanliness is next to godliness, as they say! Make sure that your property is clean both inside and outside! If you own a house you need to make sure front gardens, paths and doorways are all spruced up – they’re the first things your potential buyers will see before entering the property. In case you’re selling a flat, you’ll need to make sure to sweep the stairs and banisters!

 

Make it cosy!

A blazing fire in your fireplace can make your property feel really cosy during the cold winter season. Psychologists also suggest that it creates a feeling of warmth and being reminded of childhood and feeling comfortable, safe and loved. Combine that with some soft music playing in the background and a warm cup of tea or fresh coffee.

 

Check Your Light Bulbs!

Make sure that all the lights inside your home are working so your home is well lit throughout! If you have any outside lights and security lights, remember to check if those are working as well, in case potential buyers are interested!  In order to ensure a better score in the Energy Efficiency section of the Home Report replace traditional light bulbs with LED ones, if you haven’t done so yet!

 

Have Your Boiler Maintained!

Have the boiler maintained prior to putting your home on the market! Many buyers will check when the boiler was last inspected and a sticker or magnet marking the date of the last inspection can add peace of mind for potential buyers.

 

Update the Photos!

Don’t use old pictures of your property as clients might think it’s been on the market for a while. Don’t take any photos if you’ve already decorated your home for Christmas – do it after you’ve taken your decorations down as they can make the rooms look cluttered!

Thinking of selling your home? Call our Conveyancing specialist Luke Hunt on 01202 877 400 today!

Dying Without a Will: What Could Possibly Go Wrong?

Dying without a Will makes life even harder for those left behind following a bereavement and can be the cause of all kinds of disputes and family rifts. The law decides who gets what and how much when you don’t leave a will when you die – it doesn’t matter what your relationship with those people was like when you were still alive.

With the modern family things get even more complicated. Without a Will, your spouse or civil partner may not  inherit ALL of your estate automatically and common-law partners may not receive anything at all even to the extent of being forced out of their home.   Add to that, not having a Will can cause lengthy delays for your state dictated beneficiaries.

A good example of the possible issues that can arise from not having a Will is the case with Jimi Hendrix. The American rock star did not leave a Will after he died in 1970.  As a result of that his father Al Hendrix inherited his son’s £51 estate and left it to his step-daughter, which prompted a lawsuit by Jimi’s biological son.

Dying without a valid will is called intestacy or dying intestate.

The law about exactly who gets what is different in England & Wales, Scotland and Northern Ireland, but there are some common problems wherever you live.

Potential problems in case you don’t have a Will:

 

  • Your partner is not legally entitled to anything when you die if you’re not married and not in a civil partnership.
  • If you’re married, your spouse might inherit most or even all of your estate and your children might not get anything (except in Scotland). This is the case even if you are separated but not if you’re divorced.
  • If you have children under the age of 18, you need to appoint Guardians within a Will otherwise in the even of the death of both natural parents they children will become Wards of the Court who will decide where they live and how they are educated and this will not necessarily be with the people or family that you would have chosen for yourself.
  • If you have children or grandchildren, how much they inherit will depend on where you live in the UK – but if you make a Will you can decide this yourself.
  • Any Inheritance Tax that your estate has to pay might be higher than it would be if you had made a Will.
  • If you die with no living close relatives, your whole estate will belong to the Crown or in other words – to the government. This law is called bona vacantia.

 

Any assets that you own jointly with someone will pass by survivorship to the surviving joint owner and not under the intestacy rules. It’s important that you understand whether you own an asset as “joint tenants” or as “tenants in common” in order to establish who will inherit the asset or your share of the asset.

It is also important to ensure that you obtain professional advice when preparing your Will and that it is correctly drafted in accordance with your wishes, making the best use of the various IHT saving incentives available.   You should also ensure that your Will is drafted by a qualified and regulated professional (not an unregulated Will-Writer) and be wary about using “free Will Writing Services” as you are unlikely to be given proper professional advice upon the draft and sadly by the time a problem becomes apparent you may well have past and are unable to make any rectification to the problem but have left a problem for your beneficiaries.

It’s safe to say that everyone who has any type of asset which he/she would wish friends, relatives or charities to benefit from should have a Will. For any questions and queries regarding Wills, Probate and LPA contact Angie Newnham today on 01202877400 – Option Private Client/Wills & Probate.

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.
Dying Without a Will: What Could Possibly Go Wrong?