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LGFL was contacted by Radio 5 Live at 10am on Wednesday morning asking if Rita could be part of a live discussion on air - at 10.30am! Rita was busy packing her bags to return home after a short break, but literally dropped everything to be on air.

The result was a great discussion with presenter Qasa Alom and relationship expert Jo Hemmings on the legal rights of cohabitating couples.

You can listen now at the at the BBC website, or our YouTube channel.

BBC Sounds  (starts 1hr 44 mins in)

Our You Tube channel

 

Thanks to Qasa and his team for thinking of Rita, and feel free to call us again anytime!

 

No time to listen?

Here’s the transcript of the discussion between presenter Qasa Alom, relationship expert Jo Hemmings, LGFL Managing Director Rita Gupta and caller Alicia from Manchester.

Qasa Alom:

New data from the Office for National Statistics shows that in England and Wales last year for the first time, since records began, unmarried women gave birth to the majority of babies. So we're talking about how society's changed.

We've heard from an earlier caller about the pain of having her child forcibly removed because she was unmarried. Now two generations on, it's the norm for a mother to be unmarried, whether that's as a cohabiting relationship, or single mother.

Qasa Alom:

Let's speak to Rita Gupta now, who's a family lawyer, and also Jo Hemmings. who's a relationship expert as well.

Jo, we’re seeing the family, dynamic change. Just tell us what you've seen and how this is affecting people's relationships, and the way we interact with each other.

Jo Hemmings:

Yes it's interesting. It doesn't surprise me that the statistics would come out today saying that more children are born to unmarried mothers.

I've seen a lot of change in my relationship counselling.

• Firstly, weddings are massively expensive now.

• Secondly, they cause a lot of stress and a lot of anxiety.

I feel the joy of has gone out of getting married for a lot of people because of those two factors. So the statistics don't surprise me. But what I see more and more are people adapting to blended families.

As a psychologist and a relationship counsellor, I talk to a lot of couples who are now in situations where in the blended family, all the children have come together. How do they cope? I think we have to accept that we are moving on and it's a positive thing.

We're going in a very positive direction in terms of family dynamics and accepting and understanding and appreciating those changes. These have come quite swiftly, particularly listening to some of your earlier callers and the awful things that they went through so many years ago. I feel that we're losing the stigma fast and that's a really good thing.

Qasa Alom:

So positive changes losing that stigma, but from a legal point of view, Rita, is that the case?

Rita Gupta:

I totally agree with everything that Jo has said. Unfortunately, the law hasn't caught up with a changing society.

Having done this job for 20 plus years, I've noted more and more cohabiting couples. Even if parties have got married or gone on to get married, they've often cohabited often for quite a period of time before that.

Unfortunately the law doesn't give cohabiting couples the same level of protection that it does married couples. It's a policy decision almost. It's always been very difficult to uphold the sanctity of marriage, perhaps, and at the same time protect cohabiting couples.

I think the biggest message I'd give is there's no such thing as a common law spouse. There is this common misconception that “I’m somebody's common law wife” or “common law husband”. That concept doesn't exist in law.

Qasa Alom:

So what sort of protections are we talking about here?

Rita Gupta:

If you have children, you can apply for child maintenance. There's also provisions that you can apply for under the Children’s Act. But they are quite expensive, time-consuming litigation.

The reality is that when you go into a cohabiting relationship, nobody goes into any relationship expecting it to end. So it’s usually built on trust. You build a home together. But things like the ownership of property or assets in one person's name are not going to be up for division the way that they are if you were married.

So the big thing that I would say is that if, for example, you are moving in with somebody or buying a property, you do need to take some advice. I appreciate that's not very romantic and nobody really wants to go and do it, but I think you do need to take advice as to how property is owned.

Maybe looking at things like trust deeds or even cohabitation agreements. Set things out from the outset as to what the party's intentions are, and to give some protection in case the relationship isn't an enduring one.

Qasa Alom:

Is that one of the tensions, Jo, that can come into relationships, just figuring out the legal details and who would get what, in the case of a divorce or a break-up?

Jo Hemmings:

I think it's very difficult for couples who are moving in together with all the hope in the world and the joy, that they actually have to look at the legal side of it if it doesn't work out.

It sort of feels like ‘pre-nup’ territory, you know, that kind of legalese that you don't want to anticipate your relationship will ever end. But (Rita’s) advice is absolutely right - just step away from the romantic side and just be pragmatic.

It's really important because the law has not caught up. You just need to bear in mind that it's lagged behind as it's so often does. In cultural, sociological changes, it just isn't there. So you've got to beat that system, and recognise what you have to do.

Rita Gupta:

An area that particularly needs to be looked at is, if you're a woman, and you've had a child within that enduring relationship. You've stepped back from your career. You are the more vulnerable party. If that relationship ends, there isn't the financial protection that there is if you were married. Also if you've had that career break, or you would only be able to work part-time, there's then the crushing costs of childcare.

So a lot needs to be thought about, which unfortunately most people don't address. Similarly, family money often comes into it. People got a deposit from an inheritance or their parents. Preserving that with a declaration of trust would maybe giving people a period of time on how they would divide things, or sell houses after or if the relationship broke down is all a very wise thing to do. But I appreciate it’s not the most romantic thing to do, and people find it an awkward conversation to raise.

Qasa Alom:

It's so funny that you talk about this Rita and I'll tell you why. Because that was kind of how I convinced my wife to marry me! She's very logical and just didn't see the point in it. I had to bring up all that, (and say) look at all the benefits we're going to get, and listed them. Then she (says), “I think you're right actually”. So it's more the practical side of things that convinced her in that sense.

I want to bring Alicia in Manchester in on this conversation because Alicia, you can't see the point of marriage, can you? Listening to Jo and Rita here, has it changed your mind at all?

Alicia:

No, it hasn’t. I’ve done a little bit of research on that. What is important for me is that if anything happens to either of us, everything my partner owns goes to my child. So I just feel like as long as my child is protected, then it's fine.

We discussed everything before we decided to have a child. We paid for the childcare 50/50. We both work full time. We just try to communicate because obviously there's a lot on with a baby and full-time work. We just make sure we talk about it and just try to balance it all out.

Qasa Alom:

It's a good plan. You've clearly had that communication and got everything down, which is important. Jo, is there anything that you would add to that?

Jo Hemmings:

I think that's sort of getting around the law, isn't it, to make sure that you have done something to protect yourself. And Alicia clearly has. I think the danger zone is where we've got an archaic law and people don't really care, they move in together.

I think it's a really good point (Rita made) about things like deposits. On properties when you break up and it's acrimonious, that's when it gets worse.

• If you have a very amicable breakup, you can sort it out between you.

• If it's not amicable and you have to go down the legal route, people are in real trouble.

So I would always say to couples, do that homework, make sure in some way, whether get married or not that you put something in place. To protect yourselves just in case you do break up. It's really important.

Rita Gupta:

Alicia is obviously somebody who has thought about things very carefully and they've had candid, open discussions together. But many couples don't do that. They skate around subjects or it's slightly awkward, so they don't want to discuss the fact that actually somebody put £20,000 or £50,000 more into a property.

So I think if you've got open, honest communication, then that's a positive thing. If you've done the research, then that's a very positive thing.

I would say the majority probably don't think about things as carefully. That's where problems do arise because, when these cohabiting relationships (end) and/or if there's a dispute about property, they are very messy disputes and very expensive to deal with.

Getting early advice, thinking about things, and having these communications is the right thing to do, but the law needs to catch up.

Our family law organisation, Resolution, has been campaigning for years to make sure that cohabiting couples get the protection that married couples do get. That has to obviously be after a period of it being an enduring relationship, not after you've moved in with someone for a month. There are some people who have been cohabiting much longer than married couples.

Qasa Alom:

Thank you to Rita Gupta, who's a family lawyer, saying that the law needs to catch up with the way modern families are set up these days.

 

Interested in the legal rights of cohabitating couples?

Check out our cohabitation pages and articles:

Or contact us to book a fixed free consultation to discuss your unique situation in complete confidence:

- Call us

- Email us

- Request a consultation

If you’re planning to buy a house with someone else, one of the crucial decisions you need to make is how you will own the property.

Director Anne Leiper explains the differences between being joint tenants and tenants in common, and why this is important for both married and cohabiting couples.

House-hunting as a couple is an exciting time, whether you are searching for that first home together, a bigger home for your family, or downsizing after the kids have flown the nest (finally!).

 

Joint Ownership of Your Family Home

When you buy a property with someone else, you need to choose between two forms of joint ownership. These are Joint Tenants and Tenants in Common. They apply regardless of whether you are married, in a civil partnership, or unmarried. Both these two types of ownership give the owners rights of occupation in the property, whether you are married or unmarried. They also apply whether you buy the property outright or take out a mortgage.

 

The differences between Joint Tenants (JT) and Tenants in Common (TIC)

There are important differences between the two types of joint ownership.

 

As a Joint Tenant (JT), you:

      • automatically own the property outright if the other owner dies
      • cannot pass on your part of the joint ownership to anyone in your will

 

As Tenants in Common (TIC), you:

      • can each own different proportions of the property
      • do not automatically get the property if the other owner/s die
      • can leave your share of the property in your will

 

Differences for married or cohabiting couples

For many couples, this issue of Joint Tenants or Tenants in Common doesn’t really raise its head until the relationship breaks down and they decide to split up. When separating, most couples do not want to give their property to the other half. They also don’t want the property to be passed on to any future partner and their family, excluding children from the first marriage.

      • For married couples, getting a divorce gives you rights over how matrimonial property and financial assets are divided between you.
      • For those in a civil partnership, the dissolution of your civil partnership also provides rights over how your property and financial assets are divided between you.
      • For unmarried couples who are cohabiting, it’s a different position. How assets are divided will primarily be dictated by how you own the property, either as:
        • Joint Tenants, or
        • Tenants In Common with a Deed of Trust

This can also be supported by a cohabitation agreement to direct the division of assets at the time of separation.

What is a Deed of Trust?

A deed of trust is a legal document that lays out what proportion of the property each one owns. You can opt in a deed of trust for 50% as Tenants In Common, or a different percentage split to reflect your individual contributions. You can’t use a deed of trust if you are Joint Tenants.

 

What is a Cohabitation Agreement?

A cohabitation agreement lays out:

  • What you each brought to the relationship in terms of financial assets
  • What you may have contributed since you started living together

Should you split up, these details can be taken into account in any separation financial agreement, safeguarding your assets for both you and your children. This should also be reflected in any deed of trust in respect of the property ownership.

 

What happens when we split up?

If your marriage, civil partnership or relationship breaks down, you need to consider changing your ownership status if you hold the property as Joint Tenants. This applies whether you intend to sell the property or not.

This means a change from Joint Tenants to Tenants In Common. To make the change from being Joint Tenants to Tenants In Common, you need a “notice of severance”. When you sever the Joint Tenancy, you and your wife/husband/partner would then hold the property as Tenants In Common.

At LGFL, we generally advise divorcing couples to sever a joint tenancy but this is very much dependent on your particular circumstances, and you need to take legal advice.

 

Who pays the mortgage?

Bear in mind that when you co-own your home and take out a joint mortgage, you are both responsible for paying that mortgage, even if one of you moves out. This applies whatever your status - married, civil partner, or unmarried.

 

Sole Ownership of Family Home

Not every couple co-own their home. The property can be held in one partner or spouse’s name, so they are the sole owner. This will mean that only one name appears on the title deeds of the property.

 

Sole ownership and married couples

If you are married or in a civil partnership and you split up, the non-owner of the family home needs to register their spousal rights of occupation, aka home occupation rights. This is to prevent a sale of the property whilst matters are being resolved.

Home occupation rights allow you to stay in your own home after you separate, even if you do not own the property. You can claim these right within your divorce / dissolution proceedings, and how the property is dealt with be resolved in your financial settlement.

 

Sole ownership and unmarried / cohabiting partners

If as a non-married / cohabiting couple you split up, and you don’t own the family home, as a cohabitee you have no rights of occupation. That’s why having a cohabitation agreement in place is such an advantage, as this can lay out what happens in the event of a separation.

If there is no cohabitation agreement in place, as the non-owner you would need to establish what is known as a “beneficial interest” to establish any interest in the property. A beneficial interest usually means you’ve put money into the purchase and/or contributed to the mortgage of your shared home. You should keep proof of this in a safe place so you can show a court or your family lawyer to prove your contributions.

 

Alternative property registrations

Sometimes, you may need to get legal advice on alternative registrations against the property title. This is to protect your claim in respect of the shared home whilst your separation proceedings are happening. Alternative registrations can be complex, so always get legal advice from your family lawyer such as LGFL.

 

Inheritance For Children

Many parents want their children to inherit a share of the family home, but don’t realise that their choice of joint ownership way back when they bought the property will affect who can inherit part or all of it!

Being a Joint Tenant basically means that you BOTH own the whole house. It’s not a 50/50 share as such. So, when you die, the surviving co-owner will automatically own the whole of the property, under the “right of survivorship”. You cannot leave a share of the house to anyone, including children from a previous relationship.

As Tenants In Common, however, your deed of trust lays out exactly what share of the property you own. Tenants In Common can leave that share to anyone in their will when they die, including your children from a previous marriage or relationship.

 

Still Confused? Contact LGFL

Call us to discuss your ownership status issues either as new buyers or a separating couple - we’re here to help. Our reduced fee one-hour consultation gives you plenty of time to discuss what’s required, from pre-nups and cohabitation agreements to separation proceedings and notices of severance.

- Call us

- Email us

- Request your appointment online

April divorce news round up

If you missed what we’ve been sharing last month, here’s a round up of our blogs and some of the news posts on our Facebook and Twitter pages.

From our blog:

No fault divorce at last, as new changes to changes to divorce law are announced

50s woman pointing at self. blame game

 

Changes have finally been announced to the divorce laws. “Now is the right time to end this unnecessary blame game for good” says the Justice Secretary.

 

Capital Gains Tax: why timing matters when you divorce and new changes need to be considered

House with TAX in words

 

In an in-depth interview, Janette Whiteway, Personal Tax Manager and Associate at Langdowns DFK talked to LGFL’s Rita Gupta about why timing is crucial in CGT planning.

 

 

 

Cohabitation: trouble in waiting?

Unicorn

 

Cohabiting with your partner? Discover why a Cohabitation Agreement is a very good idea even if you have absolutely no intention of splitting up! ⁣

 

From our social media:

Record low as 25pc of marriages are religious ceremonies, as weddings become 'more social, less sacred'

Interesting figures - society is definitely changing.

 

Be honest, be kind: five lessons from an amicable divorce

Consciously uncoupling is possible: choose your battles, build a support network and learn to play the long game.

 

Lady Hale: at least half of UK judiciary should be female

Bring on the girls says Lady Hale.

 

Estonia to build ‘robot judge’ to clear case backlog

Perhaps not what you really want to find in court.

Ministry of Justice (MoJ) officials in Estonia are hoping the country's top data expert, Ott Velsberg, can help design a robot judge to help clear the high volume of small claims disputes currently clogging up its courts.

 

Mandatory 'divorce course' for parents splitting up in Denmark

Experts say the course is a good first step, but they would like to see divorcing parents offered even more counselling.

 

Psychological domestic abuse becomes crime in Scotland under ‘groundbreaking’ new law

Coercive control becomes a crime in Scotland too.

English judge says man having sex with wife is 'fundamental human right'

This might lead to many interesting discussions.

 

Third of Britons admit to snooping on partner’s devices – survey

Would you snoop?

 

Queen’s Bench Division to be led by woman for first time

Chalk another up for the girls! Things are improving.

 

Average divorce now takes longer than a year for first time as MoJ reforms blamed for delays

Potentially waiting up to 56 weeks. Surely the MoJ will get things moving better shortly.

 

Feminist group wins campaign to change how media reports domestic abuse

In a bid to combat irresponsible reporting the guidelines, set out by feminist organisation, Level Up, instruct journalists how to report on domestic abuse in the safest and most sensitive way possible. They were written by a coalition of academics, survivors' families and representatives from domestic violence charities.

 

Bungling court staff insisted judge do jury duty in his own case

OMG! Triumph of bureaucracy over good sense.

 

Papua New Guinea has better court tech than us, says Lord Chief Justice

The UK is lagging behind Papua New Guinea when it comes to court technology, the Lord Chief Justice has suggested.

 

Parental Alienation: Courts ensure children won’t be caught in the middle

Robust judicial control and case management are key to ensuring that the relevant issues are explored and that the reality of the position for each child is understood.

 

And Finally

Unicorn

For many couples, cohabitation is their living arrangement of choice, free from the associated conventions and definitions of marriage. However, the law is still heavily weighted in favour of married couples or civil partners in terms of legal rights if the couple split up, including major rights such as inheritance and assets such as property. LGFL Director Anne Leiper explores the implications for couples who choose to live together. 

 

Cohabiting families in the UK

Cohabitation has grown in popularity from just over 1.5million in 1996 to 3.3million families in 2017. This may be due in part to the enduring myth of the  “common law spouse”, with people believing that rights accumulate by living as a couple and having children together. 

 

No such thing as a common law spouse

Sadly, there is no such status as a “common law spouse”. You are either married / in a civil partnership, or you’re not. In law, cohabitation is a lifestyle, not a status. When a married couple divorce, or a civil partnership is dissolved, there are legal rights in place to determine the division of financial assets, property, settlements, and pension rights. This does not apply to cohabiting couples.

Cohabitation splits - what you are entitled to

When a cohabiting couple split, there is no automatic entitlement to anything, such as assets, a share of the house, or even a reasonable financial settlement. Unless there is a clear paper trail of who owns what, (and crucially who contributed what and when during the relationship), any settlement will ultimately rest on the decision of a judge. Even then, a court cannot order a lump sum to be paid, or property ownership to be split. This leaves stay at home parents who have may not have contributed as much financially  particularly vulnerable.

 

Safeguarding your assets

At LGFL, we are all too aware of the difficulties cohabiting parents face when they split. That’s why we encourage cohabitees who might want to split to come and consult with us first, especially if you own property and other assets together, and have children to look after at home. We can talk through your particular situation, and advise you of the options available. This might include issuing civil proceedings to determine your potential rights or obligations to provide a home for a minor child under the Children Act. 

Orders under the Children Act

Schedule 1 of the Children Act enables an unmarried parent to apply for a court order to receive payments towards the care of the children, and to remain in the family home. However, courts are usually very careful to ensure any financial payments are for the children, with sometimes precious little left for the parent themselves.

 

What happens if your partner dies

Matters are equally as difficult if one cohabiting partner dies. Unless there is specific provision in their will for you as the surviving partner, you are not automatically entitled to inherit. Indeed, if your partner did not make a will and has children, they will inherit rather than you. You would have to make a claim against your cohabitee’s estate under the Inheritance (Provision for Family and Dependants) Act 1975, and you must have lived together for at least two years.

 

Reform is on the way

The good news is that there is a strong appetite for reform, but the bad news is that progress is painfully slow. Despite several bills being presented in parliament, the latest one, The Cohabitation Rights Bill, is still waiting for a second reading in the House of Lords. This puts England and Wales way behind Scotland and other countries, who already have cohabitation schemes in place. These allow courts to make orders for payments, transfer of property and the sharing of pensions (another thorny issue for any unmarried partner).

 

A solution for now: cohabitation agreements

At LGFL, we’ve drawn up dozens of detailed Cohabitation Agreements for couples who haven’t the slightest intention of splitting up, but want the reassurance of an agreement in writing if by any chance they do split. 

Cohabitation agreements are specifically designed to protect your assets if you decide to move in together. A cohabitation agreement lays down how your property and other assets would be dealt with on relationship breakdown, and to make provision for any minor children you may have together. This formal agreement can help avoid costly and acrimonious litigation further down the line. 

It’s also important to keep any cohabitation agreement up to date as your circumstances change, so that it accurately reflects your current financial status rather than when you first moved in together.

If you would like to set up a Cohabitation Agreement, or wish to update an existing one, contact us for an appointment. We can meet at our discreet countryside main office in Swallowfield near Reading, or in our new exclusive-use office at Spaces in Reading city centre. 

 

And finally…

The recent changes to extend civil partnerships to heterosexual couples may be a way forward for cohabiting couples who would like a formal arrangement but just don’t want to be “married”. However, it doesn’t address the issue that many cohabiting couples don’t want any form of official arrangement, and hence will still be left in a vulnerable position. At LGFL, we firmly believe that until major reform to the law is made, a Cohabitation Agreement is the best way to protect you, your assets and your family should that unexpected split actually happen. 

 

LGFL

Listening with empathy