Category: Cohabitation articles

by Sarah Ashcroft

A survey assessing the support of same-sex marriage in Scotland was “deeply flawed”.

This is the view of the Roman Catholic Church which argued that the poll asked leading questions which invalidates the responses given.

Speaking to the BBC, Peter Kearney, spokesman for the Roman Catholic Church in Scotland, was commenting on the Ipsos Mori survey which found that the majority of Scots approve of marriage for same-sex couples.

Of the 1,003 people asked, 68 per cent agreed that religious organisations should be able to marry same-sex couples.

The poll also found that 64 per cent support the right of same-sex couples to marry.

“When you begin your question by saying should someone have the right to same-sex marriage you automatically have distorted the result,” he told the news source.

“To be honest the poll that matters is the three-month-long consultation that took place at the end of last year and in that one we know that the vast majority said marriage shouldn’t be redefined.”

Mr Kearney added that the public are generally wary and unlikely to impose restrictions on people’s rights.

But although this consolation looked at just Scotland, the same debate is raging on throughout the whole of the UK.

The government consultation into same-sex marriage closed last week and garnered hundreds of thousands of responses, proving how passionately people feel on the issue.

Same-sex marriage would give gay couples the exact same rights as their heterosexual counterparts.

At the moment, as civil partnerships are not legally defined as marriage, if one partner is adulterous the other partner cannot sue for those reasons when it comes to dissolving the relationship.

Couples in a civil partnership can only dissolve the relationship on the grounds of unreasonable behaviour, long-term separation and desertion. Unlike divorce, adultery is not recognised.

Same-sex marriage would also mean couples who move overseas are more likely to have their union recognised, something that can be a problem with civil partnerships.

• Solicitor-approved Pre-Civil Partnership Agreement: A prenup for civil partners. Includes template agreement and expert advice

 

Published on: June 18, 2012

by Sarah Ashcroft

Couples who are unmarried yet live together can often have greater legal rights to each other’s income and capital if they split up than married couples.

This is a claim made by the Law Society, which explained that cohabitation agreements can help unmarried couples prepare for all eventualities.

“Unlike prenuptial agreements for married couples, cohabitation agreements are recognised by the courts in England and Wales as being legally binding,” explained John Wotton, president of the Law Society.

Speaking to the Daily Telegraph, he emphasised that cohabitation agreements are now more important than ever since the government decided not to give live-in couples the same rights as those who are married.

This will affect all sorts of situations, such as when a spouse dies and their partner automatically gains ownership of an estate, even if a will is not in place.

Cohabitation agreements are commonly drawn up when high-value estates are at stake.

Other information

• Play it safe with a cohab agreement
• Cohab agreements ease fear of living together

 

Published on: October 3, 2011

While prenuptial agreements have long been an option explored by some, the Law Commission has recommended that they are introduced as a legal necessity in England & Wales.

The Commission, a statutory independent body that advises on law reform, has proposed that prenuptials should become legally binding in divorce settlements subject to stringent qualifications.

The current legal status of prenups

Prenuptial agreements are currently recognised by the English & Welsh courts as enforceable under divorce law.

The principle was established by a case in 2010, which involved German heiress Katrin Radmacher. She wanted to protect her £106m fortune in the event of her marriage breaking up.

After the couple’s split the court ruled in her favour and took into account the prenup that her and her investment banker husband signed before they got married.

The case set a legal precedent, with judges now having to take prenuptial agreements into account in divorce cases.

The Law Commission’s new proposals

1. Qualifying nuptial agreements

The Commission’s new report, entitled Matrimonial Property, Needs and Agreements, includes a draft bill which calls for the introduction of ‘qualifying nuptial agreements’.

These would allow both married couples and civil partners to draw up a precise agreement of how they would split any property or finances they have to their names in the event of splitting up.

However, a qualifying nuptial agreement would only be legally binding once the needs of any children involved in the relationship have been met.

What’s more, the prenup would only be binding if both adults had revealed all the relevant information and received legal advice.

Professor Elizabeth Cooke, the Law Commissioner for property, family and trust law, said: “We believe that married couples and civil partners should have the power to decide their own financial arrangements, but should not be able to contract out of their responsibilities for each other’s financial needs, or for their children.

“The measures we are recommending would help couples understand and meet their financial responsibilities and, where appropriate, achieve financial independence.”

“Qualifying nuptial agreements would give couples autonomy and control, and make the financial outcome of separation more predictable,” Professor Cooke added.

2. Standard formulas

Another of the Law Commission’s ideas is for the introduction of standard formulas to help resolve disputes over financial settlements and publication of official guidance on what constitutes legitimate “financial needs”..

The formula would work out precise financial needs and is based on a rule which already exists in Canada.

According to the organisation, there is already evidence in place that there are inconsistencies surrounding the way courts deal with break-ups, and in particular the financial needs of those involved.

Family lawyers generally have a good understanding of the law, but there is very little clarity for the general public regarding how they will be treated in these circumstances and what financial consequences they are likely to face upon separating from a partner.

Professor Cooke went on to promise that the Commission has already considered and included safeguards within its proposal to ensure that nobody can use qualifying prenuptial agreements to plead hardship or escape responsibility for any children.

The Law Commission is now awaiting the government’s response to its recommendations and suggestions.

Other information

• Is a prenup right for you?
• Do I really need a prenup?
• All you need to know about prenups

External link 

• Law Commission: Matrimonial Property, Needs and Agreements

Published on: March 31, 2014

Getting engaged can be one of the happiest times of your life. Whether you have got down on one knee to pop the question or were on the end of a romantic proposal, it’s sure that you will be in a dream-like state in which you wouldn’t even dare to think that something could go wrong.

But the sad reality is that many engagements and marriages do take a turn for the worse at some point and the UK’s divorce rate has increased over the years. With this in mind, you might be well advised to consider all the legal options open to you prior to tying the knot and potentially signing away some of your rights and assets.

So what can you do from a legal standpoint to strengthen your position prior to saying ‘I do’ to the one you love?

1. Make a cohabitation agreement

One option is to enter into a cohabitation agreement. This means that all your finances and future plans are out in the open with your partner, but should you split there shouldn’t be as much of a mess to deal with.

As such, it’s no surprise to find that cohab agreements are popular with many Britons.

• Why invest in a cohab agreement

2. Write a will

Another legal option that is available to everybody is to make a will, which will protect your interests should you pass away.

Remember that marriage can make your existing Will invalid, so getting a new Will drawn up to outline your current circumstances is vital.

It’s worth remembering that your assets will automatically be passed to different relations depending on whether you’re married or not, so if your wishes differ from the legal guideline it’s essential that you invest in this process.

• Life events: when you need to make a new will

3. Know your rights

Children are, of course, a huge issue in any long-term relationship. As a parent, you will have equal rights if you’re married, but the situation can be more complicated if you’re not. Again, you must think long and hard about your personal circumstances and what you want in the future.

• Find out your parental rights as an unmarried couple

4. Take your time

Marriage is for life, so you shouldn’t rush any of these decisions. Spend plenty of time considering your options and talk through the matter with those who are closest to you. Taking on board advice from a solicitor is another wise move, prior to making a decision that could have huge consequences in the years ahead.

5. Make a prenup

You will also have heard of prenuptial agreements, which are typically popular among the rich and famous. This is a way of protecting your assets and ensuring that they will not be taken by your partner should you split.

But they are not only useful if you’re wealthy, as they can also help you overcome obstacles should it be a second marriage, or there is a large age gap between you and your spouse.

Getting married is a time when a lot of your legal positions change, so ensuring everything is how you want it to be is essential.

• Do you need a prenup?

Published on: October 3, 2012

More couples are living together as a permanent replacement for marriage, as the percentage of cohabiting couples with children is now at the same level as married couples. 

A recent academic study by Leeds University found that for the first time ever, the percentage of cohabiting couples with children equals that of married couples with children.

In 2011, 38 per cent of cohabiting couples were parents – the same percentage as married couples with children – and 31 per cent of live births in 2010 were to women cohabiting with but not married to their partner, up from 25 per cent in 2001.

According to the figures, the total number of cohabiting families with dependent children increased by 292,000 between 2001 and 2011, whilst the number of married couples with dependent children decreased by 319,000.

The report suggests that more couples are raising children outside of marriage, suggesting that many couples are not using it as a “trial run” before they tie the knot but instead as a replacement for marriage when having a long-term relationship and raising children.

30 per cent of those polled said they would live with a partner to “test the strength” of a relationship before marriage, but 20 per cent said that they never wished to get married and 21 per cent said they would do it simply to reduce bills.

Social acceptance 

The study highlighted that cohabiting is becoming more socially acceptable, as 52 per cent of people now believe that marriage isn’t important provided the parents are in “a committed relationship”. Only 27 per cent now believe that couples should get married before having children.

But the report suggested that couples with children who live together are less stable than married couples with children, as a higher proportion of all family breakdowns involve young children from unmarried parents.

Confusion over legal rights 

But although unmarried couples are more likely to break up, a quarter of couples surveyed wrongly believed that they had the same legal rights as married couples.

26 per cent of adults believe that unmarried couples have the same legal rights as married couples when it comes to child custody, 22 per cent when it comes to property and 21 per cent when it comes to finances.

But couples living together don’t have the same legal protection and the idea that unmarried couples are protected by the law because it’s considered to be a ‘common law marriage’ isn’t true.

The law is complicated when unmarried couples break up, even if they have been living together for a long time and have children.

For example, assets which are in the ex-partner’s sole name (including property) remain their assets, meaning that the parent with responsibility for a child after the break-up may find themselves in serious financial difficulties.

Couples who live together are advised to draft a cohabitation agreement in order to protect themselves and their rights should they break up at a later date.

If you want to find out more about your rights – or lack of them – as an unmarried couple, Lawpack’s book Living Together – An Essential Legal Guide can help. Written by a family law solicitor, it’s packed with expert advice on how you can protect yourself.

For more information on your legal status and parental rights when cohabiting, see our articles below.

 

Related articles

• Why invest in a cohabitation agreement?
• Cohabitation and your lack of legal rights
• What to consider when you move in together
• Your parental rights as an unmarried couple
• 6 steps to protecting yourself financially

 

Published on: September 25, 2012

So you have met your perfect other half and plan to walk down the aisle with them before enjoying your very own “happily every after”, reminiscent of an array of romantic comedies you have watched.

While gazing into your partner’s eyes fills you with love and satisfaction, it is easy to lose sight of the potential for the sweet to turn sour, and while no one wants that to happen, the reality is that divorce is relatively common.

The latest figures from the Office for National Statistics (ONS) showed the number of divorces in England and Wales totalled 119,589 in 2010, representing a rise of 4.9 per cent on the year previously.

As such, the current divorce rate lies at around 11 per cent, meaning more than one in ten couples will see their marriage end in divorce, despite their best intentions at the beginning of the love story.

Divorce tends to occur more frequently in older couples, with the ONS figures revealing the number of divorces in 2010 was highest among men and women aged between 40 and 44.

Under the Matrimonial and Family Proceedings Act 1984, newlyweds cannot file for divorce within the first year of marriage, giving them a full 12 months to resolve their issues before calling it a day.

Of course, there is truth behind the age old saying “prevention is better than cure”, so protecting your monetary assets against divorce proceedings that could see you lose half your wealth is surely common sense.

Many loved-up couples wince at the mention of a prenuptial agreement but these can be vital in pleading your case in court if the relationship has turned nasty and you need to defend your right to finances you earned.

While prenuptial agreements are legally-binding in Scotland, the same cannot be said for England and Wales. However, they hold a lot of weight in court and are likely to heavily influence the judge’s ruling.

When you draw up a prenuptial agreement, you should only focus on money matters, so mentioning a promise by your spouse to clean the house every Saturday should not be included and could devalue its viability.

Similarly, the judge will make his or her own mind up regarding the future of any children involved in the case and as such, the issue of who will take primary care for them should not be written into a prenuptial agreement.

The judge is likely to dismiss any claims that fall outside financial matters, with this being of particular importance when it comes to children.

In an article for The Guardian, law partner at Turcan Connell, Philippa Cunniff, said: “[A prenuptial agreement] may be the last thing on your mind while you’re planning your lavish honeymoon to the Bahamas, but it is the most practical solution if there’s a significant gap between the wealth of the bride and groom.”

While there is a strong argument for drawing up a prenuptial agreement, it is also vital for happily-married couples to ensure they have provisions in place to distribute their assets and wealth once they have died.

As such, a Will should be created by spouses to ensure the right property, assets and monies go to the intended persons, which a judge will not necessarily recognise as the living spouse.

Many make the mistake of believing that marriage is testament enough to where assets should go once a spouse has passed away, however, without a will, it is up to the judge’s discretion to determine where this wealth is distributed.

Ms Cunniff concluded: “Having a will drawn up is inexpensive and can save a great deal of heartache and confusion further down the line.”

See Lawpack’s prenuptial agreement and DIY Will for more information.

Related articles

• Is a prenuptial agreement right for you?
• Prenuptial agreements: All you need to know…
• Do I really need a prenup?
• 8 reasons why you should be making a will today
• Life events: when you need to make a new will

 

Published on: March 16, 2012

It is a sad fact of life that relationships break down regardless of initial intentions of happily-ever-after endings.

It is this very aspiration that can prevent couples in love from taking the best steps to protect their investments from an unequal divide should they split.

While married couples have the benefit of all that a nuptial agreement entails, unmarried couples, either heterosexual or homosexual, face a barrage of obstacles in the wake of a breakup if they are not adequately covered.

A cohabitation agreement sets out to cover how the couple would divide their assets if they split up, broaching a range of topics that include joint bank accounts, mortgages, pensions and other items.

While it is not a legally-binding document, a cohabitation agreement still holds a lot of weight in the courts and has more impact than other joint agreements, should a couple decide to go their separate ways.

One of the best ways of illustrating its importance is in the case of Kernott versus Jones – an unmarried couple whose experience through the courts exemplified the many ways in which UK law is failing to deal with relationship breakdowns for cohabiters.

Leonard Kernott was a 51-year-old ice-cream salesman who lived with his partner, 56-year-old Patricia Jones, between the years 1985 and 1993.

In that timeframe the couple had children and used a joint mortgage to purchase a property in Essex.

However, for whatever reason, the relationship broke-down and Mr Kernott left his family and home, using another policy to buy his own property.

In the ensuing 13 years, Ms Jones, a hairdresser, paid the mortgage and raised the kids in their family home.

It is worth noting at this point that both Mr Kernott and Ms Jones had equal shares in the property.

Still, this 50/50 divide became less vivid the longer Mr Kernott was away, with Ms Jones footing the mortgage bill at the end of each month.

By the mid to late noughties, property prices hit a peak and Mr Kernott returned to his previous family home to claim his stake in the value of the house, which by then had accumulated about £245,000.

The battle was not straightforward, with four separate courts all taking varying stances on whom should get what percentage of the value of the home.

Under their initial agreement, a halfway divide seemed amicable, yet Ms Jones’ 13-year payments led some judges to feel she had put more of a stake into the house than her husband, despite both names being on the joint mortgage.

In the end, the Supreme Court took precedence, ruling that Mr Kernott would receive just ten per cent of the property’s worth, with Ms Jones claiming the remaining 90 per cent.

This was not a clear-cut ruling, but its ambiguity arose from the fact there were no indications of what the couple’s true intent was regarding who should take what stake in the event of a break-up.

Judges involved in the proceedings could only make inferences about the couple’s intentions based on their actions, however, little documentary evidence was in place to sway the ruling one way or another.

A cohabitation agreement, typically drawn up before the couple moves in together, would have outlined the couple’s intentions about what should happen in certain circumstances. It is a defence procedure.

Mr Kernott was unsurprisingly displeased with that ruling, as he thought that he was entitled to 25 per cent of the value of the property based on his contributions.

He said at the time: “When I lived there, I paid for everything and I completely refurbished the place. I have been painted as this ogre who walked out on his family.

“I love my family. I didn’t want to leave, but it was made unbearable for me to stay. It’s a sad day for men who are left in a similar position to me and it feels like the law will always side with the woman.”

The issue here was less about which sex the law sided with, and more about what it understood the couple’s original intentions to be.

Get your intentions in writing with Lawpack’s solicitor-approved cohabitation agreement template. Available to download.

Other information

• What to include in a cohab agreement
• How to draw up a cohab agreement

External information

• Wikipedia
• The Guardian: Q&A: living together agreements
• The Motley Fool: Cohab agreements

 

Published on: November 25, 2011

When you move in together the last thing you want to think about is drawing up a legal document such as a cohabitation agreement.

But if you split up, you won’t have the same rights as a married couple and you could end up with nothing. So it’s even more important that you make one.

It’s an essential financial agreement for all cohabiting couples. Find out more on how unmarried couples can draw up a cohabitation agreement:

1. Obligations

Discuss with your partner why you want one. Most cohabiting couples draw up an agreement to record their financial obligations towards each other.

2. Assets

List your assets, liabilities and income with your partner so that you both have an accurate picture of each other’s finances before your draw up your cohabitation agreement.

3. Liabilities

Show each other your assets, liabilities and income details and be honest about how you want to arrange your domestic finances. This will form the basis of your cohabitation agreement.

4. Outgoings

Decide with your partner who will pay the outgoings (electricity and water bills, etc.). How will home repairs and improvements be funded? You can put this in your cohabitation agreement.

5. Property

If you are going to buy property together, you need to decide how you are going to own it. Speak to your conveyancing solicitor for advice.

If you own property, you need to decide in what circumstances the home will be sold? If the home was bought in your partner’s sole name and the proceeds of sale are to be divided between you, you should first seek legal advice to ensure that your interest is put on the title deeds; otherwise your partner could sell the home without your knowledge.

6. Finances

Decide whether you will have a joint account and how it will be operated. Will you have joint credit cards?

7. Get advice

It’s important for both parties to have received independent legal advice before they enter into a cohabitation agreement. Any agreement is then less likely to be rejected by the court.

8. Make a Will

You should both make a Will. Remember if you don’t make a Will, then your cohabiting partner will get nothing when you die!

9. Use a template

Draw up an agreement using Lawpack’s cohabitation agreement template.

10. Sign the agreement

Sign the cohabitation agreement and insert your full names in the presence of an independent witness, who should also sign and include their full name and address.

11. Revise your agreement

If anything significant happens in your relationship such as the birth of a child; one of you becomes seriously ill; one of you becomes disabled; one of you is made redundant; your financial circumstances change or one of you receives a large inheritance, then you need to revise your cohabitation agreement.

 

Other information

• What should be included in a cohab agreement
• Cohabitating couples: Your legal rights, or lack of them
• Why ‘common law’ marriage doesn’t exist
• Your parental rights as an unmarried couple

 

External information

• The Guardian: Q&A: living together agreements
• The Motley Fool: Cohab agreements

 

Published on: July 12, 2011

Most people assume that there is something called a ‘common law wife’. This is a myth. Cohabitants have no special legal rights over each other.

That’s why it’s so important, if you’re unmarried, to get a cohabitation agreement drawn up or you could end up with nothing if they split up.

Married couples have many rights to each other’s property, but as a cohabiting couple you have no rights to maintenance for yourself from your partner; no rights to property that is not in your name; no inheritance rights if your partner doesn’t make a will; no rights to your partner’s pension and if you’re an unmarried father you have no automatic rights to parental responsibility, which means you have no say over the way your children are brought up!

What the cohabitation agreement should cover

You should make a cohabitation agreement to record your financial obligations towards each other. It should cover the following:

• Will you buy or rent a house and how will it be owned?
• Who will pay the outgoings (e.g. electricity, water bills, etc.)?
• How will home repairs and improvements be agreed?
• How will those repairs and improvements be funded?
• In what circumstances will the home be sold?
• Will you have any joint accounts and how will the joint accounts be operated?
• If you have any joint credit cards, how will the joint credit cards be operated?
• What are your intentions regarding your property and assets after your death? Remember that you will also need to make a Will. You can get a Last Will & Testament Kit from Lawpack.
• Who is responsible for any school fees?
• Will you each enter into a Lasting Power of Attorney (Property and Affairs) or a Lasting Power of Attorney (Personal Welfare) so that you can deal with your partner’s assets or make decisions about their healthcare when they are not capable of doing so? You can get a Power of Attorney Kit from Lawpack.
• How will your possessions be divided?

When to revise your cohabitation agreement

As time goes on, your relationship may change and significant things will happen in your life that may make your cohabitation agreement unfair.

If it’s clearly unjust, it’s unlikely that it will be upheld by the courts. Therefore, if anything significant does happen in your relationship, it’s wise to consider redrafting the cohabitation agreement; such a reason may be:

• the birth of a child;
• one of you becomes seriously ill;
• one of you becomes disabled;
• one of you is made redundant;
• a significant change in your financial circumstances or the financial contributions you each make towards your relationship and your home;
• one of you receives a large inheritance.

Remember that if you decide to marry, the cohabitation agreement will not be treated as being a prenuptial agreement.

In this instance it will only provide evidence of what your intentions were towards each other when you were living together. This is because marriage is itself a contract and it supercedes any pre-existing contract.

Other information

• How to draw up a cohab agreement
• Cohabitating couples: Your legal rights, or lack of them
• Why ‘common law’ marriage doesn’t exist
• Your parental rights as an unmarried couple

 

External information

• The Guardian: Q&A: living together agreements
• The Motley Fool: Cohabitation agreements

 

Published on: July 12, 2011

Prenuptial agreements could soon acquire legal force under new proposals from the Law Commission.

Prenups have long been a trend for savvy couples that want to be spared the pain of long divorce proceedings, if things fail to work out in the long term.

A recent landmark Supreme Court ruling in favour of a German heiress who shared a prenuptial agreement with her husband Nicolas Granatino has recently led the way for prenups to have a legal basis.

Katrin Radmacher famously didn’t tell her husband, a banker turned student, that she stood to inherit billions from her wealthy family.

The husband’s attempt to claim more money after finding out her real worth failed because Radmacher had made him sign a prenuptial agreement.

While few people are likely to face losing such huge amounts of money, a prenup can certainly guarantee that individuals don’t spend more money fighting over goods than they are actually worth.

In light of the recent increase in prenups being made and the major ruling, the Law Commission is currently conducting a consultation on prenuptial agreements.

Since the process began it has decided on a number of proposals which could make prenuptial agreements become an officially accepted measure in court proceedings.

When making a prenup each party must make a “full and frank disclosure” of their financial situation, the Law Commission advises.

While the details of the prenuptial agreement are clearly determined by the couple’s individual circumstances, the Law Commission has suggested that no prenup should be enforceable if it doesn’t take into account the situation of any dependants.

In addition, any prenuptial agreement that means one party would be forced to live off state benefits should not be acceptable under law.

Professor Elizabeth Cooke, the lead law commissioner on the consultation, said that prenuptial agreements “need to be handled with care” as any legislation must recognise that couples want more control over their lives, while preventing the possibility of exploitation or enforced hardship.

She added that getting that balance is proving a challenge, owing to opposing views as to what extent courts should become involved in enforcing and legislating on prenuptial agreements.

“Some feel that where couples have reached agreement, the courts should not be involved; yet the courts’ approach is primarily protective, and some feel that they should not be wholly excluded”, Ms Cooke said.

One of the best ways to write a prenup and reduce solicitor fees is to use Lawpack’s Prenuptial Agreement Kit.

The Prenuptial Agreement Kit includes the legal form, plus expert guidance from a family lawyer which discusses the contents of the prenup, what might happen to shared property, maintenance payments, and costs.

A key piece of advice which will help couples put together a potentially legally binding prenuptial agreement is to focus primarily on financial matters as other demands related to domestic life – such as washing up or taking the bins out – could affect how seriously the prenup is taken in court.