Interest in Cohabitation?

Recently, a client of mine said that he “knew that after 6 months of living with his new partner, she would gain an interest in his property”.

I asked my client where he had heard this information and he told me that he had been speaking to a friend who had told him as much.

This is not the first time that I have had to put clients straight about their position on cohabitation and it is a mystery to me where these snippets of “advice” stem from but in short I informed my client that a cohabitee does not gain any automatic right or interest in property after a set period of time.

The key to a non-owning cohabitee seeking to claim any interest in a property lies in a 2 stage approach;

1)     The non-owning cohabitee proving a common intention of the parties to share the interest in the property

2)     Quantify their interest either by inference from their conduct or by imputing what the Court considers fair

This can be particularly complicated but the area of trusts is used to deal with hurdle 1 and in their boiled down states these are:

1.      Express Trusts – i.e. some evidence in writing of the parties’ intentions as regards interest in the property – quite unlikely in a situation where one party alone owns the property

2.      Constructive Trusts – i.e. where the non-owning cohabitee shows that there was a common intention that they have an interest in the property (either through their conduct or that there was some agreement between the parties) and that they had relied on that intention to their detriment

3.      Resulting Trusts – i.e. the non-owning cohabitee made some contribution to the purchase price of the property that they intended would gain them some interest in the property

Trust arguments are complicated and disputes between cohabitees can be costly. The best piece of advice to any client of mine with such issues would be to carefully consider with your new partner any financial contributions that they make towards the purchase or any property, mortgage payments or any outgoings/renovations/extensions on the property and make a clear record of what payments are for and whether it is intended at all that these payments will mean that the new partner has any interest in the property and, if so, how much.

Review any financial arrangements relatively frequently and certainly if they are to change at all to make sure that your agreement is up to date and good evidence.

Thinking about these issues at the outset makes it much easier to resolve matters if the relationship fails.

What’s in a name?

Yesterday saw a case reported from the Tennessee Courts which involved 2 parents who could not agree on their child’s surname and who, as a result, issued an application for the Court to determine the matter.  

http://www.independent.co.uk/news/world/americas/hes-not-the-messiah-hes-just-a-little-boy-tennessee-judge-changes-childs-name-from-messiah-to-martin-8757085.html

Unfortunately for the parents, in deciding the matter, the judge learnt of the child’s first name (on which the parents did agree, presumably) being Messiah. The Court has ordered that the child’s first name be changed to “Martin” and that both parents’ surnames be used as the child’s surname, leaving the child’s name now as Martin DeShawn McCullough.

Whether the mother’s appeal against the change of the child’s first name will be successful remains to be seen, the mother alleging that the judge took more account of her own religious beliefs than considering the child’s interests or the parents’ right to choose a name for their child.

But what this case does highlight is just one of the issues that might arise between parents of children who are separated and have different views.

In this country, if both parents have Parental Responsibility for their child (the mother gets that automatically on the child’s birth and the father may obtain it either by being married to the child’s mother, entering a Parental Responsibility Agreement or being named on the child’s birth certificate post December 2003) then there are certain things that cannot be done without both parties’ consent and several decisions in which both parents should be consulted/have a say.

The changing of a child’s name is one action that cannot be taken without the consent of all people with Parental Responsibility for that child and, if parents cannot agree, then an application to the Court for a “specific issue order” will be necessary.

The Court will have to have regard to the “Welfare Checklist” as with all applications concerning children and balance the following, taking into account that the child’s best interests are paramount in these kinds of applications:

a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);

(b) his physical, emotional and educational needs;

(c) the likely effect on him of any change in his circumstances;

(d) his age, sex, background and any characteristics of his which the court considers relevant;

(e) any harm which he has suffered or is at risk of suffering;

(f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;

(g) the range of powers available to the court under this Act in the proceedings in question.

I have made several such applications on behalf of clients over the years and whilst there are exceptions, notably where association with a particular name is likely to cause the child distress or harm or where change to incorporate a particular name is likely to be against the child’s best interests, the Court has favoured the incorporation of both parents’ surnames into the child’s name, sometimes hyphenated, sometimes not.

That appears to be because this allows the child’s link with their biological parents to be kept intact – which in terms of a child understanding its paternity and history can be very important, perhaps even more so if a child is having limited or no contact with one parent.

It appears that the Court in Tennessee has come to the same conclusion in this recently reported case.

Summer – Will it become too heated?

Finally, some sunshine and high temperatures after the distinctly too cool Spring and soon enough schools will break up, children will be off for the summer….

The pressure that many can feel to have the “perfect Summer”, to spend time with family, arrange and host BBQs and other events and ensure that the children have plenty of days out and fun activities can lead to tremendous stress and fractured relationships.

It has long been acknowledged that there is a noticeable link between holiday periods and the number of enquiries that Solicitors receive about Divorce following those and whilst many consider that a bad joke I can assure you that for the clients that I see it is anything but.

Now I am not suggesting that one less than perfect Summer leads to Divorce, families and relationships are far more complex than that, but it can be a significant stressor on a relationship that perhaps is already in difficulty or on couples who are not seeing eye to eye.

There are some things that you can consider to make the whole period less stressful. Try the following:

1.      Plan in advance and acknowledge what you can and can’t do – limit the number of BBQs or events you are going to host over the holidays and “book” them in early, speak with other parents at School or with family members about their plans early so you don’t feel pressured to accept any last minute invites.

2.      Make a note of local activities for children or for you and your partner that will keep you all interested. If you have different interests, acknowledge those and plan activities accordingly.

3.      Arrange for the children to spend time at their friends’ homes – I’m sure their parents will gratefully accept if the reverse is also offered and it will allow you some time alone or together as a couple to discuss any issues without the children around.

4.      Pencil in some relaxation or free time so that you can do as you please – talk to your partner, accept that last minute invite if you want to, spend time as a family at home.

5.      If you are really struggling to speak with your partner without arguing then don’t. Take time to walk away and compose yourself and raise any issues when you are both calmer and away from any family members or children.

6.      Perspective – it’s Summer, yes we don’t have great weather all the time and you want to make the most of it but the memories that I have of Summer, both in my childhood and adulthood, are not of what the weather was doing or even what I was doing but who I was with and the atmosphere that there was – make that your focus.

Costs and control in Divorce

So February is nearly upon us, scary - one month down!

I have struggled this month with diet, exercise and all the new year resolution type things that I was to do but all of that pales into insignificance when I meet new clients struggling with all of that, normal life, children and the prospect of a separation.

Many have been happy that finally they have felt able to do something about the feelings that they have harboured for a long time but even when people have plucked up that courage and taken that step they find themselves trying to deal with a process that is alien to them and the costs that come with it.

I have read in several places over the last month or so that Divorce costs £10,000+ (I have seen that as a statement in itself with no qualification about the level of assets or complexity of the case).

Now whilst I accept that there are some cases that are complex or very contested and which attract alot of legal costs, there are many more that are relatively straightforward and that should not attract anywhere near that amount. It worries me to think that there are people who will shy away from getting the legal advice they need to make an informed decision because of scaremongering about costs.

There is a cost, of course, to obtaining specialist legal advice on Divorce - much as there is a cost to having your car fixed or taking financial advice - but there is also a value to that advice - be it in peace of mind, protection of assets or security for the future.

People going through the process of separation or divorce want control, they want fairness and they want to feel that they are not lost and that they have direction - that is fine but often the sticking point is cost.

In late 2012 I entered a Mediation Partnership with Mediation Worcestershire, along with a few other Solicitors in the area. The concept is that people who attend Mediation to resolve their differences but who naturally require legal advice at some point in that process, will be able to turn to members of the Partnership for that advice at a fixed cost.

The aim is to make sure that couples who are separating have the benefit of control through the Mediation process with access to the specialist legal advice that they need at a cost that is clear.

I am imensely pleased that as a profession as a whole we are trying to ensure that access to legal advice remains open and never will this be more important than post April 2013, when the availability of legal aid for family law cases will be abolished, save for those cases involving Domestic Violence or Care issues.

I know that there is a cost to bear for legal advice but I hope that as this year progresses people do not leave themselves counting the cost of not having had it!