Recent research by the charity Barnardo’s found that 58% of the British people they surveyed did not have a will. That figure was even higher, 74%, amongst people who co-habited. Making a will is especially important for co-habiters as their live-in partner may not be automatically entitled to inherit anything as a spouse would be in the absence of a will.

The survey found that those people who had children were more likely to make a will, with the desire to provide for their children’s future prompting them to do so.

Dying without leaving a will can cause many problems for the family members left behind and making a will is the best way to protect them.

Raleys Solicitors are happy to help with planning for the future, including in making your will.

Rebecca Baker, head of the Raleys Solicitors family law department, is backing the plea by Resolution, the family lawyers association, for the government to change the law regarding unmarried couples living together.
At present, couples who aren’t married have very little legal protection to ensure that they get an equal share of any assets, including the home, should their relationship end. Rebecca said the issue must be addressed as the number of unmarried cohabiting couples continues to increase. And, she said, there is a risk that one partner may find themselves slipping into poverty following the breakdown of a relationship.
“Many people do not realise that the legal safeguards of marriage do not apply to couples who live together outside wedlock- and that is the case whether children are involved or not,” said Rebecca. “When a marriage breaks down there is a legal process you can go through to ensure assets are divided fairly and to ensure that the future financial needs of children are met. Yet if a relationship ends and the couple were cohabiting, regardless of the length of time they were together, in the vast majority of cases there is either nothing, or very little, one can do to safeguard their financial well-being.”

Rebecca said that women and the children are at particular risk of falling into poverty following a relationship breakdown between unmarried couples. “In the vast majority of relationships, even today, men can often be the main earner. When a relationship out of marriage ends, it is often he woman who faces giving up rights to savings in their ex-partner’s sole name and losing her home because she cannot afford to keep it on herself. Children often remain in the full-time care of their mother, leading to more financial pressures. A relationship breakdown could mean a woman having to make the difficult decision between giving up her job to care for her children or pay for extra childcare to ensure she can stay in work.”

“The law in this area has been overtaken by the changes in our society. There is a fear that introducing new laws to protect unmarried couples financially in the event of relationship breakdown will undermine marriage. Surely the most important issue here, particularly when children are involved, is to ensure both parties can leave a relationship in a financially stable position.”

Chairman of Resolution, David Allison said: “Family break ups are a sad fact of life and the shape of the family has changed. Yet family law reform has been neglected. If the government is serious about building Britain’s future it must change the law.”

Rebecca Baker of Raleys solicitors was recently asked: “If I had married my ex-partner, would I have been better off?” In this particular situation, the individual had given her partner money towards the mortgage but was never named on the house deeds. She firmly believed that she would be entitled to half of the house because she had lived with him for 10 years. Unfortunately, she was to be disappointed. The reality was that without proof of the payments made she had no right whatsoever to claim against the property. The court would not compensate her for her contribution.

The current cohabitation laws are complicated and the courts struggle to apply family principles as if a couple were married. If a cohabiting couple do separate then there are certain limited applications that can be made. These include:

1. An application under Married Women’s Property Act 1882

This sort of application is possible if a couple were engaged and the engagement was terminated within the last 3 years. The application enables a party to make a claim in relation to a jointly owned home and other property including the household contents and the engagement ring. However, these days such an application is unusual.

1. An application under the Trust of Land and Appointment of Trustees Act 1996

This application is open to a couple whether or not they were ever engaged. An application can be made to establish an individual’s interest in the property or to order that the property is sold, if it cannot be agreed who is to remain in the property and buy out the other party’s share. It would be appropriate to make this application if the property is held in one party’s sole name and the other party has contributed to the acquisition of the property, either by paying or contributing towards the initial deposit when the property was purchased or by making direct contributions to the mortgage. Alternatively, it could also be a useful application if one party has carried out significant improvements to a property which increases its value.

The position of a cohabiting couple can be contrasted with that of a married couple in a number of ways. In particular, all the married couple’s assets will be taken into account as part of the matrimonial pot. In contrast, if a couple merely live together, the only assets that will be divided are joint assets. Assets in one party’s sole name will often be untouchable unless the other party can establish that they have made a significant contribution to that asset. This requires proof which is often too difficult to obtain particularly as couples in the first flush of romance rarely decide to record their financial intentions. Consequently, there is often no sufficient proof available.

As a result of these issues, the law is currently undergoing reform. In July 2007 the Law Commission produced a report dealing with the financial consequences where a couple are cohabiting and highlighting these potential problems. Unfortunately, it will be some time before any improvements are made law.

In the meantime, practitioners can only provide individuals with basic advice to bear in mind prior to entering into a relationship. If you are going to contribute to any property in monetary value, obtain the advice of a solicitor first. They will talk to you about your options which can include owning a joint property in unequal shares and entering into a trust deed to record this fact. If you wish to preserve any contributions made, the best thing to do is enter into a cohabitation agreement recording your intentions. If you spend any money improving your partner’s property then keep all receipts and, ideally, obtain a valuation before and after any work is carried out.

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. Raleys Solicitors cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.

The changes to the law which were welcomed by gay rights groups have allowed Natalie Woods who gave birth to a daughter last month to jointly sign the register with her lesbian partner Elizabeth Knowles. Ms Knowles is now named on the birth certificate as a second parent in the place of a father.

Previously, same sex couples wishing to appear jointly on a birth certificate had to apply to the courts and Ms Woods said the new simplified process was a great improvement.

Now, when a woman in a civil partnership has a baby using donor sperm, her lesbian civil partner will be automatically included on the birth certificate, unless objecting in writing. Also, women who give birth using IVF but aren’t in a civil partnership will be able to name another woman as a second parent, providing the other woman gives written consent.

Raleys Solicitors’ Reply:  It is understandable that when contemplating a separation there are fears and concerns about what the process will involve, not to mention the emotional strain and upheaval that a person can face.   However, the actual divorce itself is usually straightforward and can often depend on the solicitor who is acting.  When seeking legal advice the best option is to chose a solicitor who is a member of Resolution.  This will ensure that they will be committed to dealing with the case in a constructive and non-confrontational way.  This ethos is adopted to ensure that an individual’s dignity is preserved and to encourage agreement.   In most cases, this will help to ensure the process proceeds as quickly and smoothly as possible.

Raleys Solicitors’ Guide to Divorce Proceedings

The starting point is to realise there is only one ground for a divorce which is the irretrievable breakdown of marriage.  This ground has to be supported by one of five facts which are adultery, unreasonable behaviour, desertion after 2 years, 2 years separation with consent and 5 years separation.  It follows that if an individual needs a divorce straightaway they will have to rely on adultery or unreasonable behaviour.  Therefore, your solicitor will need your original marriage certificate and details of the circumstances surrounding the breakdown of your marriage so that they can prepare your petition based upon the chosen fact.

There is an extra form to complete if the couple have children.  The law requires that divorcing couples try to agree the arrangements for their children before starting the divorce.  Therefore, the individual proceeding with a divorce will submit a Statement of Arrangements for Children form setting out their proposals.  This will be sent to the other party who will be invited to confirm their agreement with the proposals by signing and returning the form within 2 weeks.  It is important to remember that this document is not a contract but simply a reflection of the arrangements for the children at that point in time. Furthermore, this document does not necessarily have to be agreed and the divorce can proceed even in the absence of an agreement.

When the Statement of Arrangements form has been returned, or after the 2 week period has run out, the divorce petition and supporting documents are sent to the Court.  They will then send a copy to the other party together with a form known as the Acknowledgment of Service.  The other party then has 2 weeks in which to complete and return this form saying how they intend to respond to the petition. Once your solicitor has received the Acknowledgment of Service from the Court, it is then possible to apply for a date for the divorce.  This is known as the decree nisi.  The decree nisi is the Court’s way of saying that the person issuing the proceedings is entitled to a divorce in principle but they then have to wait 6 weeks before they can apply for the decree absolute making the divorce final and binding.  Provided the other party does not contest the divorce it will then take approximately 4 to 6 months to obtain the decree absolute.  Provided both parties agree about everything including the costs there will be no need for anyone to attend Court.

Financial Issues

The best way of sorting out the financial aspect of the divorce is for both parties to provide full details of their financial circumstances, supported by documentary evidence, and to come to an agreement concerning financial matters.  This agreement can then be confirmed by a Court Order known as a Consent Order making it final and binding.  The procedure for obtaining such an order is very simple.  It is simply a matter of sending some agreed paperwork to the Court which then makes the order without anyone having to attend.

The contents of this article are intended for general information purposes only and shall not be deemed to be or constitute legal advice. Raleys Solicitors cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.

If you have a question on family law, email us on family@raleys.co.uk.

The team of Rebecca Baker, Abbie Churchill, Jenni Bates and Tasmin White had been training together for the event, which was a first for them all. The ladies said it was daunting at first, especially when they found themselves starting at the very back! But they soon got into their rhythm and had a great time.

The Special Care Baby Unit cares for babies who have been born prematurely, who are very small or have life-threatening conditions, those born to diabetic mothers, babies who have had a difficult delivery or those with jaundice and babies awaiting or recovering from complex surgery.

Raleys Solicitors’ Reply: Worries about remaining in a long held family home are often at the forefront of peoples minds in your position. Unfortunately, without knowing more about your particular financial circumstances it is difficult to give reassurance as to whether you could stay in the property in the long term. However, in the short term, just because your name does not appear on the Deeds does not mean that your husband has the right to force you to leave. The law recognises that situations such as yours often arise and that protection should be afforded to the spouse not named on the Deeds. As a result, the law protects you by recognising your ‘matrimonial home rights’. These rights mean that, by virtue of your marriage to your husband, you have gained a right to occupy the property. They also mean that you have a right not to be evicted or excluded from the house, or any part of it, by your husband without him first seeking the permission of the Court. These rights only cease on either your husband’s death or the end of your marriage, although the Court does have the power to extent your rights even beyond these two events.

As you have taken the decision to separate, I would recommend that you seek the advice of a specialist Family Solicitor as they will advise you about registering your matrimonial home rights. This is important as, at the moment, your husband could decide to sell or re-mortgage your home without your knowledge and consent. A good Family Lawyer will seek to prevent this from happening by taking steps to register your rights at the Land Registry straight away.

In addition to your right to occupy the property, it is also highly likely that you will have gained what is known as a beneficial interest in it. This means that although your name is not on the legal title, you will have a financial interest in the property. As stated above it is difficult, without having details of all the assets of your marriage, to reassure you that you would be able to remain in the property after the divorce. However, if this is your wish then your Solicitor should give proper consideration to whether it is feasible in all the circumstances. An important part of advising you in relation to the divorce will be the advice you receive on how to separate from your husband financially. Your Solicitor will need to review all the assets and liabilities of the marriage before giving you detailed advice particular to your circumstances. However, generally speaking, the starting point for the division of all the assets of the marriage would be 50/50. If it was possible for the family home to be transferred to you, and your husband compensated by receiving another property or savings etc, then there should be no reason for you to have to move.

Hopefully the above advice will have provided you with some reassurance as to your right to remain in your home at least in the short term. It is now important that you seek the advice of a specialist Family Solicitor on your long term position and we wish you all the best with this.

If you have a family law question ask Raleys Solicitors by e-mailing family@raleys.co.uk.

The contents of this article are intended for general information purposes only and shall not be deemed to be or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.

Raleys Solicitors say: It must have been a great relief when you finally gained the courage you needed. I can understand your concern for the future but please be assured that there are ways to protect yourself, and your son.

If your husband is violent again your first port of call should always be the Police. They are specifically trained to handle situations of domestic violence and can caution or arrest the perpetrator. They could also use a Restraining Order to prevent your husband coming within a certain distance of you.

In addition to the Police, it would be wise to seek the advice of a specialist Family solicitor. A solicitor has several remedies to call upon in a situation such as yours. If your husband leaves your home but continues to harass you, an application can be made to the Court for a Non-molestation Order. Such an order can prohibit the violent person from ‘molesting’ the person applying for the order. ‘Molestation’ would include harassment and pestering but must be sufficient to warrant the intervention of the Court. From the information you give, your legal advisor should have no difficulty in securing such an order.

A Non-molestation order can also have a power of arrest attached to it. In this case, if your husband breached the terms of the order, a Police Officer would have automatic power to arrest him without a warrant. This can often prove to be an effective deterrent in itself but if your husband were to breach the order the Police would act and he would be arrested.

I note that you are also concerned to know your rights should your husband refuse to leave at the last moment. If this happens your legal advisor would have the option of applying for an Occupation Order. Such an order would require your husband to leave your home and, in some circumstances, stay away from the area where your home is situated. In accordance with legislation, the Court must make an Occupation Order if it appears that the person applying for it, or any relevant child, is likely to suffer significant harm as a result of the violent partner’s conduct. In these circumstances, the Court must be satisfied that the harm to the person applying for the order would be greater, or at least equal, to that suffered by the person who will be ordered to leave the home if the Order were made. Again, from the information you give it seems that you would have a compelling case for achieving such an Order. Both Occupation and Non-molestation Orders can be applied for on an ex parte basis, which basically means without notice. This means that your legal advisor could apply to the Court without having to give notice to your husband.

Finally, I am sure that you will be concerned about whether your husband will want to have contact with your son when he finally leaves the home. The Courts take the issue of domestic violence extremely seriously, especially where children are involved. You do not say whether your husband has ever been violent with your son but I note that he has witnessed the violence towards you. If you are concerned for your son’s safety then your only option may be to deny contact. In these circumstances, your husband could make an application to the Court to have the contact reinstated. You would then have the opportunity to tell the Court about the violence towards you and explain the concerns you have for your son. The Court would have to take various steps to thoroughly investigate your allegations and concerns before deciding how, and indeed whether, contact should take place.

If you have a family law question, e-mail Raleys Solicitors: family@raleys.co.uk.

The contents of this article are intended for general information purposes only and shall not be deemed to be or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.

Foreign pre-nuptial agreements are often overruled in English courts because of the emphasis they place on independent legal advice. Before either party signs a pre-nuptial agreement, English courts would expect both partners to have had their own independent legal advice, whereas in many other countries this is not necessarily the case. Furthermore, English courts tend to view marriage as an institution and will consider fairness and the needs of either spouse as a priority. Hence many rich husbands find themselves paying a good deal to support an ex-wife, particularly if she has care of the children. English courts are also inclined to view homemaking activities as having boosted a man’s earning power and rule that the ex-wife is entitled to a lifelong share in his earnings. For these reasons any pre-nuptial agreement that totally disregards these factors is likely to carry little or no weight in England.

One case, currently passing through the Supreme Court looks set to be a landmark ruling in terms of foreign pre-nuptial agreements and their importance and weight in divorces in England. Divorce lawyers are watching with interest to see the outcome of a case involving a wealthy German heiress whose pre-nuptial agreement with her French former husband stated that in the event of divorce he would be entitled to nothing from her. When they divorced in England in 2007 an English court disregarded the pre-nuptial agreement and awarded him almost £6m. However, the heiress went on to appeal, citing the agreement and had his payment reduced to £1m. Now the settlement is once again being challenged by the former husband, who argues he didn’t receive the proper legal advice and wasn’t aware of exactly how rich she was before signing.

There is little doubt that pre-nuptial agreements are going to take on more importance in the coming years, but the doubt remains over how much importance they should receive. Factors such as legal advice and financial disclosure are considered vital by the English courts in order to make sure an agreement will stand up in court, but there will still be the potential for agreements considered unfair to be disregarded.

At present, UK law forbids religious venues from holding civil partnerships. Still, some liberal denominations of Christianity and Judaism have been happy to bless gay unions once the civil partnership has taken place elsewhere.

The lifting of the ban, which must still be approved by the House of Commons, has been declared a victory for equal rights by Gay rights activists but has caused controversy amongst religious figures who fear they may find themselves fighting legal battles not to hold same sex unions in their buildings.

However, Lord Ali underlined that the changes in the law will give religious venues the option of holding civil partnerships but will not oblige them to do so. As he pointed out, “there are many gay and lesbian couples who want to share their civil partnership with congregation they worship with and there are a number of religious organisations which want them to do just that.”

The vote has been welcomed as a major victory by some religious groups who have no theological problems with the idea of gay marriage such as the Religious Society of Friends, Liberal Judaism and the General Assembly of Unitarian and Free Christian Churches, who have already said that they wish to hold legally recognised same sex partnerships.

No changes to the law will happen immediately because the amendment must yet be approved by the House of Commons.