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Whats it worth to put a ring on it!
Nearly everyone knows Beyonce’s song “Single Ladies (Put a ring on it)” and it has to be said that it is the majority of little girls dreams to be a Princess on their Wedding Day and live happily ever after with their Prince. But what it is worth to “put a ring on it”?.
Perhaps the starting point to answer this question is to explore couples who are living together as this has dramatically increased over the recent years. As Family Lawyers, we are seeing an increase of instructions by clients in a cohabitating relationship. They often seek advice about setting up home with their new partner or what their legal rights are upon separation.
The majority of such clients are of the view that there is such a thing as a “common law spouse” or “common law wife/husband” as these terms are commonly used. For example, when applying for car insurance there is the option to select “common law spouse” to confirm your relationship status. Unfortunately, these terms have no legal recognition and the truth of the matter is cohabiting couples do not have the same rights as a married couple.
It is not all doom and gloom for cohabitating couples as there are (limited) options available to them to assist in protecting their positions. For example, if one person has contributed more towards the purchase of a property there is the option of recording this in a Declaration of Trust. Therefore, if the property has to be sold upon separation a Declaration of Trust should confirm exactly how the sale proceeds are to be divided between them.
A cohabitating couple should also consider setting out their living arrangements, as well as establishing rights should the relationship breakdown in a Cohabitation Agreement.
A Cohabitation Agreement is entered into as contract between the parties and is somewhat flexible as to what can be included within it. For example, ownership of real or personal property, payment of bills/mortgage/rent, children arrangements.
If a cohabiting couple is considering entering into this type of agreement, it is advisable that they seek legal advice to ensure it has been correctly drafted to avoid any implications should it be necessary to enforce any of the terms upon separation.
Cohabitating couples should also be made aware of the situation where one party moves into a property solely owned by the other party. In this situation, the presumption is that party owns all of the beneficial interest and the other party will have a fight on their hands to establish a claim in the property. These types of claims are not easy to make as the other party will need to show either a direct contribution towards the purchase price or that there was a common intention to share ownership which they have acted upon to their detriment.
When comparing the position of a separating cohabiting couple to a separating married couple it could be said that it is worth “putting a ring on it”. This is because the law relating to the financial provision on marriage breakdown is very different and both parties acquire rights for the very fact they are married.
When a married couple seek to formalise their marriage breakdown by commencing divorce proceedings, the Court obtains powers to make financial orders. The extent of the Court’s power means that they are able to re-distribute assets irrespective of who they are owned by.
The Court will look to consider what is fair, taking into account all the circumstances of the case including both of spouse’s needs, incomes, earning capacities, resources, length of marriage, standard of living, conduct and contributions. Where there are children, the needs of any child are considered paramount.
The above approach taken by the Court when determining how to distribute assets upon marriage breakdown could be said to be more balanced and fair compared to a separating cohabitating couple that could potentially be leaving a relationship with nothing unless they can prove they have a claim.
This article is by all means not suggesting that cohabitating couples should rush to “put a ring on it” just because of the rights they acquire upon marriage. However, the article has very much highlighted the difference of rights available upon separation. It has to be said that due to the increasing amount of cohabitating couples it is crying out for there to be a change in this area of law.
If you are engaged to be married you may wish to consider a pre-nuptial agreement and we would recommend that you speak to Ms Olive McCarthy based at our Hertford Office on 01992 558411 who is one of the few Family Solicitors in the country to become a Family Law Arbitrator.
There is an option for everyone and please do not hesitate to contact us to obtain friendly, efficient and affordable legal advice about your situation.
Samantha Murphy – (Assistant Solicitor) – A Graduate of the University of Hertfordshire, who then completed her Legal Practice Course at City University Law School in London. Samantha qualified as a Solicitor in April 2012, working in a local High Street firm. Samantha specialises in family and matrimonial matters, including divorce, separation, children, finances, and cohabitation disputes.
Samantha is passionate to ensure people can obtain access to justice by providing correct and practical legal advice in order that people can make informed decisions. Samantha is committed to resolving disputes in a non-confrontational manner by adopting the Resolutions Code of Practice.