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.