Other Family Matters

Cohabitation

There is no legal recognition of “common law” husbands and wives. When a cohabiting couple end their relationship, there is no concept of fairness offered in law with regard to the division of property and there is no legal provision for maintenance.

Resolution recognises that, for a variety of reasons, couples may choose not to marry. While supporting marriage, Resolution believes that the law should be reformed to achieve fairness and protect vulnerable cohabitants.

Currently, unless property is jointly owned and the deeds are in both the partners' names, being awarded a share in any property depends on being able to establish ownership which is extremely difficult as the law in this area is something of a minefield.

As a member of Resolution, emeryjohnson supports the call for a new cohabitation law, separate from matrimonial legislation, which would define cohabitation as a 'personal relationship (other than a legal marriage) between two adults in which each provides personal or financial commitment and support for the material benefit of the other'.

The proposed new law should enable:

• the courts to take into account all the circumstances including the level and extent of the commitment between the couple with the presumption that, as far as possible, both people should be self-supporting.
• cohabitants to apply for financial relief where cohabitation has continued for a minimum period of two years if there are no children.
• the courts to make lump sum and property adjustment orders and award short-term financial support from the date of separation.

Resolution recommends that cohabitants should have the right to make an informed choice to 'opt-out' of this legal framework by means of a cohabitation contract.

In the meantime, a cohabitation agreement can encourage you to think clearly about what you want to happen if your relationship ends. It might also offer useful evidence of a common intention to share property when attempting to establish ownership.

Your emeryjohnson solicitor will be happy to help you draw up an agreement, covering financial and property matters, which your partner can take for independent legal advice before signing.

Any agreement will form a legal document so you should consult your emeryjohnson solicitor before signing any papers you may have drawn-up between yourselves or with the help of your partner’s solicitor.

The fact that you have each sought legal counsel before signing any document will demonstrate that you intend to be bound by the agreement.

You should be aware that currently a cohabitation agreement can cover only financial and property matters and if it is unclear or refers to other living arrangements, it may be unenforceable. Further, these agreements have not yet been fully tested in court and until they have, or until the law is changed in line with Resolution’s recommendations, there is no indication of what attitude the courts will take to them.

Your emeryjohnson solicitor will be familiar with the latest court rulings and case histories and she will apply up to date thinking to advise you on the best course of action.

Pre-Nuptial Agreements

Agreeing what you would want to happen in the event that your relationship breaks down is not going to be the most romantic part of your wedding preparations.

However, trends show that the average age for first marriage is steadily increasing and second marriages and beyond mean that each of you may be bringing substantial assets into your marriage.

You may already have made decisions about joint or separate bank accounts, mortgages and other financial investments and debts, and it would be logical to discuss now what you believe would be a fair division of interests should your relationship breakdown. A pre-nuptial agreement can then simply be an extension of sorting out your finances as you go into your marriage. But don’t leave it too late; you must sign the agreement at least 21 days before you actually get married. Your emeryjohnson solicitor will be happy to help you draw up an agreement, which your partner can take for independent legal advice before signing.

Any agreement will form a legal document so you should consult your emeryjohnson solicitor before signing any papers you may have drawn-up between yourselves or with the help of your partner’s solicitor.

Although a pre-nuptial agreement will not be automatically enforced, the court will give weight to the terms of the agreement and the fact that you have each sought legal counsel before signing any document will demonstrate that you intend to be bound by the agreement.

As well as financial and property matters, which may include provision for children of either partner, a pre-nuptial agreement can cover any other issue which is important to you; from who will care for the children to who empties the cat litter tray.

You may wish to set a date or event on which to review the agreement for example if you have children or retire.

Same Sex Couples & Civil Partnerships

Under the Civil Partnership Act 2004, couples who form a civil partnership will have the legal status of ‘civil partner’ and enjoy equal treatment with married couples in a wide range of legal matters, including:

• tax, including inheritance tax
• employment Benefits
• most state and occupational pension benefits
• income related benefits, tax credits and child support
• duty to provide reasonable maintenance for any children of the family
• ability to apply for parental responsibility for your civil partner’s child
• inheritance of a tenancy agreement
• recognition under intestacy rules
• access to fatal accidents compensation
• protection from domestic abuse
• recognition from immigration and nationality purposes

You can form a civil partnership at a register office or an approved premise, after first giving notice to the Registrar. You must then wait 15 days.

You may wish to consider an agreement similar to a pre-nuptial or cohabitation agreement.

This does not mean that you enter into your partnership believing that it will end, but can be a natural extension of discussions about joint or separate bank accounts, mortgages, investments and loans as well as who will look after the children and who will walk the dogs.

Take a look at the sections on pre-nuptial agreements and cohabitation agreements for more information.

Your emeryjohnson solicitor will be happy to help you draw up an agreement, which your partner can take for independent legal advice before signing.

Any agreement will form a legal document so you should consult your emeryjohnson solicitor before signing any papers you may have drawn-up between yourselves or with the help of your partner’s solicitor.

The fact that you have each sought legal counsel before signing any document will demonstrate that you intend to be bound by the agreement.

Dissolving a Civil Partnership

In the same way that a marriage can only end in divorce, annulment or the death of one of either spouse, a civil partnership ends only on formal dissolution or annulment, or on the death of one of the partners.

Applying to the court for the partnership to be dissolved is very similar to making an application for divorce. You must have been in a civil partnership for more than one year and will need to provide evidence of one or more of following facts:

• Unreasonable behaviour, that is behaviour such that the applicant cannot reasonably be expected to live with their civil partner
• Separation for two years, where the other civil partner consents to a dissolution order being made
• Separation for five years, where the other civil partner does not consent to a dissolution order being made
• That the other civil partner has deserted the applicant for a period of two years prior to the application

If the court is satisfied on the evidence that the civil partnership has broken down irretrievably, a dissolution order can be granted.

If there are children of the family you will also need to provide a ‘statement of arrangements’ in which you tell the court what plans you have made for the children once the dissolution is final.

Adoption

emeryjohnson solicitors support families of all structures, shapes and sizes and recognises that any addition to your family should be a joyful occasion.

However, the ‘red tape’ around adoption can be daunting. So focused as always on the best interests of your child(ren), your emeryjohnson solicitor will work with you and all of the other agencies involved to make the process as painless as possible.

Childcare and Social Services

emeryjohnson understands the stresses and strains on modern family living and the effect these can have on children, their relationships with their immediate family and their interraction with the world around them.

If you or your children are experiencing difficulties and Social Services are involved, emeryjohnson should be your first call for advice and representation.

We understand the system and the law which underpins it and have vast experience of working with families who need assistance.

Your emeryjohnson solicitor will ensure that the best interests of your child(ren) are always at the forefront and provide reassurance that, like so many previous clients, your family can survive your immediate troubles.