Cohabitation Rights

What rights do cohabiting couples have upon separation? It is very different to matrimonial law and at present the weaker party financially has to rely on land law, and if there are children, an application under the children act for the benefit of the child is possible.

There is a private members bill going through the House of Lords at the moment. This will give qualifying cohabitees the right to make a claim for financial assistance and the right under the law of intestacy to inherit if their partner should die.

However, there is an opt out clause.  This means that the parties can choose to be excluded from the legislation provided they have had legal advice. No doubt, if the bill is passed, a large majority of cohabitees who are aware of it will take advantage of this opt out. 

Why do we need such a law?  A large number of cohabitees in long term relationships are vulnerable to be left homeless and with nothing should the relationship break down. This is unfair - especially if there are children involved. However, marriage would move the unfairness over to the wealthier partner so it is not difficult to understand why cohabitation is so popular.

What is fair? Matrimonial Litigation is based upon seeking a Judge's interpretation of that. Unless the new law, if it passes, is prescriptive, as in the Child Maintenance Assessment, which will of course result in unfairness to some, then the courts will be awash with new claims. No legal aid will be available for such matters so litigants in person and delay are likely.

If you live with someone and move into their house and make no financial contribution to the purchase or capital contributions to the mortgage then at present when the relationship breaks down you have no right to remain in the house or claim a capital lump  sum in order to rehouse. Some could have purchased a home in their own right but instead paid for holidays and carpets, food and entertainment, clothes furniture etc. The financial contribution they made was not towards the asset - the bricks and mortar  so it is ignored when the asset is left to be divided. No share but thank you for everything you have paid for. This is relationship disadvantage.

Some move in and pay for nothing. Live off their partner for years and expect it to continue.  These people will benefit from the new law also if it is passed.  Obtaining fairness for some results in unfairness for others.  It is a bit like vaccination - the public policy will always result in a minority of losers.

The headline cases are the women who move in, have children, run the household and then when the children are older are left with nothing when the relationship ends and their partner goes off with a younger model and begins the cycle all over again.

The law cannot legislate to assist people in making better life choices, but it can assist with resolving the financial mess such choices can result in.

Is It Worth getting a Pre Nuptial Agreement

Nobody wants to see a bride cry but YES it is worth getting a Pre Nuptial Agreement.

Here's why:

It is one of the factors that will be taken into account upon divorce.

Is it decisive?

No.

However...

If...

1. Both parties have been given the opportunity to take legal advice

2. Full financial disclosure has taken place

3. There has been no fraud or mistake

4. It is fair in the circumstance

5. There has not been a fundamental change since it was drafted

Then...

It is likely to be upheld.

It is soo unromantic...

My partner will say I do not love him/her if I ask for such a thing...

Here is your reply:

"Darling... I am sure you love me and are not marrying me simply for my money so there is no loss to you in signing this. I love you more than space and this will just prove to little, old insecure me that you love me too.  You have no idea how awful it has been being pursued by gold diggers up until now.  I am soo relieved that we have found each other and our love is real."

Use your own words but you get my drift...

Nobody gets married with the intention of divorce...

Actually that is not true. Gold diggers do and they are some of the best actors in town

I knew one decades ago.  She was young, attractive, loud and confident.  Not drop dead gorgeous but a 7 out of 10.  She was dating a very, wealthy man. He was a 3 out of 10 if he was lucky and she had a mean nickname for him. Each time he saw her he bought her a designer handbag. She loved the bags but he thought she loved him.  He had just got divorced.  He had poured his heart out to her.  He had married a beautiful blond and before they were married she was all over him.  On their wedding night she said "Don't make a marathon of it." The tale gets worse and he caught her inflagrante and was recovering from a very expensive divorce.  What did he do? Console himself with the next one.The only change he had made was the hair colour. It was another sad ending. I wanted to call and warn him but knew he would not believe me.

Don't let this happen to you.  Get a pre nup. Call me...

The Little Book of Divorce Questions

 

 The Little Book of Divorce Questions  is available now on Amazon .

In an agony of indecision?

Can't decide whether to stay or go?

Scared?

Anxious?

Unhappy?

Making such a decision is usually choosing the least worst option.  It is a bit like deciding whether to have an abortion - you don't want an abortion or a baby. Both choices are not what you planned in life.  In order to escape choosing what you don't want you live on in anxiety and pain.  Pondering, pondering... should I stay or should I go? For some people this process can go on for many years.  They turn to addictions to support them - alcohol, food, shopping, work, exercise.

Information is power. Working out what your options are can help you decide what you want.

Often money is a major consideration - even the very rich don't want to be less rich and there are lots of extremely wealthy people who are still together because they don't want to split their empire. So a question to ask yourself:

If the genie was before you and doubled your assets so that you could both have what you have now - would you leave?

A question for the less wealthy:

If you won the lottery would you:

A. Use it to build a new life with your partner.

B. Split it 50/50 and divorce.

C. Hide it from your partner and divorce.

Your honest answer to the above will tell you what you want.

My new book will answer a lot more questions like this.

Making such a decision is not an easy one and sometimes people choose to stay together because they cannot face the thought of an uncertain future with insufficient money. At least you can make the decision and then live with it - rather than anxiously considering if you are doing the right thing all the time. 

The choice to separate and divorce will affect the rest of your life - make an informed choice from a position of strength. try to give yourself a break from the pressure and to allow yourself to accept that you are not perfect and that divorce and separation is not a sign of failure but a sign of strength and growth.

There are lots of resources to help people cope. Counselling can be a great support - provided you find the right counsellor for you. 

There are also lots of resources online to help your children  Bastows Children's Page has some useful links.

Whatever choice you make - be kind to yourself.  There are no mistakes in life - only lessons.

The Little Book of Divorce Questions

Coming soon...

How do you know if it is time to get divorced?
What should you do?
How do you decide?
What are the legal considerations?
What is the emotional impact?

If you are considering getting divorced this is one of the most difficult and traumatic decisions of your life.  Bereavement is traumatic but it is not your decision. Choosing to divorce means taking the decision to radically change the course of your life and those closest to you.  The emotional impact of such a decision should not be underestimated.

Extract from my new book:

If you have purchased this book, you are probably facing the agonising decision of whether to change your life dramatically and divorce your spouse. This is not a decision to be taken lightly or quickly. Most people agonise over this decision for many years. The process of indecision is the primary cause of pain. It is possible to uncover what you really want and assess whether remaining with your husband or wife, or divorcing them is the right decision for you.

 

The reason the decision is so painful is the fear of the unknown and the uncertainty as to whether either decision will be the right one. It can be compared to the agonising decision over an abortion. Many people end up in a position whether they neither want to have a child or an abortion. Uncovering your emotional response and the true choice which is the right outcome for you, is a similar process when you are getting divorced.

 

What choice are you facing? Whether to remain unhappily married or to obtain a divorce and face the future alone, perhaps without ever meeting another partner and perhaps being equally unhappy.

I hope that my book will help you work through one of the most important decisions you will ever have to make...

If the Answer is yes I do want to divorce... then The Little Book of Divorce is there to help you with the next step.

Children Aged 10 and Over to have a say in the Family Courts

The Government have decided to allow children to have a voice in the family courts.  Where parents are arguing over what is best for their children the Governement will now allow the children themselves to voice their opinion direct to the Judge - rather than be interviewed by CAFCASS or ignored completely if no CAFCASS report is commissioned.

Is this a good idea?

Yes. The Government have selected the age of 10 because that is in line with other legislation - for example the criminal age of responsibility - if children are deemed old enough to take punishment for their actions they should be old enough to have a say in their own life.

A child's wishes and feelings are one of the factors to be taken into account when the court determines what is in the child's best interest.  It is not necessarily determinative - a child not always knowing what is in their own best interest - for example most children would choose not to go to school or the dentist.

The factors taken into account are called the Welfare Checklist as detailed here  Children Act Matters and include the following:

- The wishes and feelings of the child, in light of the child’s age and understanding. - The child’s physical, emotional and educational needs.
- The likely effect on the child of any change in their circumstances.
- The child’s age, sex, background and any characteristics the court considers relevant.
- Any harm the child has suffered or is at risk of suffering.
- How capable each of the child’s parent’s (and any other relevant person in relation to whom    the court considers the question to be relevant) is of meeting the child’s needs.
- The range of powers available to the court.

Baroness Hale (as she was then) in Re D  (a Child), A Hague Convention case, explains the importance of the views of a child in general terms, emphasising that it is the child more than anyone else who has to live with the reality of any order that the court makes:

 ‘There is a growing understanding of the importance to the children involved in children’s cases.  It is the child, more than anyone else, who will have to live with what the court decides. Those who do listen to children understand that they often have a point of view which is quite distinct from that of the person looking after them.  They are quite capable of being moral actors in their own right.  Just as the adults may have to do what the court decides whether they like it or not, so may the child.  But that is no more a reason for failing to hear what the child has to say than it is for refusing to hear the parent’s views’

The announcement of the legislation can be read here...Simon Hughes speech at the Voice of the Child Conference

 

What's The Deal with Holiday Contact for the non resident parent?

This can be an area of never ending dispute.Something that should be a pleasure turns into a battle. When parents separate some find it hard to accept that the other parent - who has different parenting values, skills and attitudes has a say in their child's upbringing. Couples who stay together argue over their differing parenting styles so this can become so much more acute when they are no longer a unit. The battle can be over winning - proving that they are right and they lose touch with the fact that a child is in the middle - suffering.

Here's what  happens:

1. Mum wants to know every detail of who is travelling, where they are staying etc but thinks nothing of moving her new boyfriend into her home without dad being told anything about him. 

2. Mum refuses to release the passport.

3. Mum refuses to allow the child to go skiing with dad.

4. Mum considers it is her right to veto what dad chooses to do.

5. Dad refuses to allow a change in the contact order (child care arrangements order Since April 2014) so that mum can take the children to Disneyland for 2 weeks

6. Dad refuses to allow the children to miss school and this is the only time mum can afford to go.

This is about the child's life. In every case if asked the child would respond:

"I want to go and I don't want to be in the middle and I don't want my parents to fight.  It's all my fault - if I had not been born they would not be fighting".

If the parent's cannot agree there is only one solution - an emergency Court Application. This can be effective and Judges are well used to dealing with such disputes. The Government likes people to Mediate - particularly in Children Act Applications.  Sometimes there is not time to Mediate. Sometimes the other party can deliberately delay matters with no intention of Mediating. Whatever the circumstances a Court Application can be made quickly if appropriate. Each case is decided on its own facts and the overriding principle is what is in the child's best interest. Where parent's views differ sometimes a judge is needed to decide.

Is £700,000.00 legal fees value for money?

Here is a post that was lying fallow in my draft box:

A Judge has expressed despair over a wealthy family that have legal fees in excess of £700,000.00 and their case is still focused on a preliminary issue as reported in The Telegraph

This is a long marriage of 43 years and involves the wife objecting to the husband gifting assets to their son which she deems unfair to her and her daughters. The husband lacks capacity and may need to be represented by the official solicitor.  He is worth £50 million, so perhaps the cost of £500000 each to gain millions is a price worth paying, or maybe they just need to fight.

Litigation involves a dilemma of mindset. The wife has a claim.  In simple terms her claim may be £80 out of a total of £100. She would accept £70. The husband believes she is due no more than £50 so he will risk £30 to avoid the guaranteed loss of £20. The wife will accept the guaranteed loss of £10 for the guaranteed gain of £20 in her offer. The closer the litigation gets the more likely the wife is to settle and the more likely the husband is to gamble.The dilemma of the defendant - although the risk of loss is a greater probability the thought of victory takes over.

What would you do if it was the last day of your life?

Settle or gamble?

Family litigation is a gamble.

Life is a game.

Make sure you are playing by the same rules.  When the knives are out they are out and turning back can become an impossibility.

You may win but at what cost?  And I am not talking about money...

What I do:

Outline the best and worst case.

Give you the odds.

Give my advice and opinion.

If you pay for advice the choice of whether you follow it or not is yours... after all it is only money.