March 2010 - bestsolicitorsllp.co.uk | bestsolicitorsllp.co.uk

Common Law Husband and Wife

With many couples choosing to live together instead of marrying, what legal rights does one have if the relationship breaks down? Is there such a thing as a common law marriage?

The law does not recognise a common law marriage. If you are an unmarried couple living together, you are under no obligation to maintain one another financially unlike the obligation between spouses. However, a good family law solicitor will use alternative legislation to secure a fair settlement of property and any finances required for the benefit of any children. Unfortunately, the legislation is complex and not particularly user friendly therefore legal advice from an experienced solicitor is always required.

Unmarried couples may have legal rights to the shared property dependent on the circumstances surrounding the purchase, finance and living arrangements. If there are children, the main carer may also raise a financial claim for the benefit of the child.

The lack of legal recognition for unmarried couples causes great deal financial hardship when they separate after a lengthy relationship. One may have been living in a house that was purchased for the couple but is registered in a Partner’s sole name. It may be that a career was given up to raise children. In these cases, the law of trusts can provide a remedy. A full explanation of the law of trusts is beyond the scope of this blog. However, it is always important for unmarried couples to seek legal advice before purchasing a property or moving in to a property and certainly on separation.

The law does provide for a claim to property where fair and equitable regardless of whose name the property is registered in. This is dependent on intentions at the time of purchase, conversations, acts done to ones detriment upon reliance of conversations, indirect or direct financial contributions amongst other things. It is not solely dependent on whose name the property is registered in or direct financial contributions. The law of trusts is complex therefore legal advice from an accredited specialist is recommended.

A good family law solicitor will have experience of asset division and related issues for unmarried couples. With this knowledge and experience, the solicitor may be able to negotiate a fair settlement without lengthy and costly court proceedings. In addition to a claim in respect of the property using the law of trusts, one may also use Children Act legislation to apply for financial provision for the benefit of the child. Quite often this includes maintenance and property transfer / purchase that will revert to the parent upon the child attaining majority.

Same sex couples have the option of registering their relationship for legal recognition. If their relationship breaks down the legislation under the Civil Partnerships Act gives them legal rights as the Matrimonial Causes Act does for married couples. If they do not register their relationship, they are in the same position as an unmarried heterosexual couple.

Best regards, Harjit Sarang

Unmarried couples

173

Surrogacy Laws

With the increasing need for assisted conception (fertility treatment), the fertility laws are fast developing. A fertility lawyer is often asked to advise on the legality of surrogacy. Parents have usually been through fertility treatment and have spent thousands on paying the best fertility clinics and agencies in the country. They then consider the option of surrogacy. The three most frequently asked questions are “What if the surrogate mother changes her mind?”, “Who are the legal parents?” and “What money should exchange hands?”

Surrogacy laws are beyond the scope of this blog. In summary, the surrogacy must not form part of a commercial agreement. There are reputable surrogacy agencies who assist couples in finding a surrogate and act on a not for profit basis. If you enter into a surrogacy agreement, the surrogate mother will always have the right to change her mind. In that respect, surrogacy agreements are unenforceable. If the surrogate does change her mind when the child is born, the couple may apply to the court for an order as to where the child should live. The Judgement will depend on what is in the best interests of the child.

The ‘legal’ mother is the surrogate because she gave birth to the child. The ‘legal’ father depends on how the child was conceived, whether the surrogate was married or in a Civil Partnership and if so, whether the husband/civil Partner consented. If neither of you are ‘legal’ parents you have no legal rights for the child and therefore are technically fostering which has its own rules and regulations.

Assuming that the child was not conceived by sexual intercourse, the ‘intended’ parents need to apply to the court for a Parental Order as soon as the child is born and in any event within 6 months of the birth. The Parental Order will give the parents full parental responsibility for that child and a new birth certificate may be issued. The surrogate mother and her husband/civil partner will need to freely consent to the Parental Order when the child is 6 weeks old.

When deciding whether to make a Parental Order, amongst other things, the court will consider the money paid to surrogate. The sum paid should be no more than ‘reasonable expenses’ surrounding the pregnancy and may include paying for private medical care. The court wants to be satisfied that the parents have not made a huge payment that may suggest a commercial agreement.

Other matters to consider when entering into a surrogacy arrangement include, making provision in a Will in the event of a death before the parental order has been made and securing necessary consents for a parental order. International surrogacy is subject to further rules and regulations including immigration.

The process of surrogacy can be straight forward and rewarding if all parties know what their legal rights are and follow an agreed path.

It is essential to get legal advice before entering into a surrogacy arrangement whether here or abroad.

Best regards

Harjit Sarang

Surrogacy

100

Asian divorce

Divorce and separation legal rights in England apply regardless of your ethnicity and regardless of where your marriage took place. If your marriage ceremony was conducted in India and is recognised as a legal ceremony in India then, it is legally recognised in this country. You are therefore entitled to the same legal rights as though your marriage took place in this country.

Further, your ethnicity does not impact upon how the laws of England apply to you. The Asian aspects of divorce to which I refer are issues surrounding culture and lifestyle that the court will take into consideration when making an award. These are issues that a solicitor will also take into consideration when acting for you in divorce or separation. Issues such as wedding expenses, dowry systems and extended family living arrangements.

Perhaps not so commonplace now but certainly traditionally, the wife’s family would pay a lump sum for a dowry before the wedding and then fund the wedding expenses. There is no legal right to the return of a dowry should the marriage break down, no rights to force the payments of an unpaid dowry and no right to a ‘refund’ of the wedding expenses. However, a good divorce solicitor may be able to negotiate an out of court settlement taking these factors into consideration. A good family law solicitor may also find a way in which to incorporate the dowry and wedding expenses into the equation when the court decides how the pot is to be divided. For example, the dowry given to the husband will form part of the matrimonial pot to be divided.

Extended family living is very common in the Asian community. The matrimonial home may be a family home for the married couple in addition to siblings and parents. What rights does the leaving spouse have to this home? If the spouse has contributed financially towards this matrimonial home, they may have a financial interest in it. The solicitor may try to negotiate the value of that interest. There is often land and property abroad that has been or will soon be inherited, this is all part of the equation and should form part of the negotiations. Often parents will provide a home as a gift but the registered owners remain the parents. Providing this is the main home of the husband and wife, it is a relevant asset that one may have a claim to. Does the main provider routinely hand over wages to an older member of the family, this is relevant in terms of spousal / child maintenance.

There are many things that you may feel are irrelevant. My advice to clients is to disclose everything and let me be the judge as to whether relevant or not!

Divorce

Relocation after divorce……..so you can’t see the children

When couples separate, they need to agree on arrangements for the children. Who will provide their main home and how much contact will the ‘absent’ parent have. A good family law solicitor will encourage parents to reach a decision amicably regarding children following divorce/separation. The parents need to learn to work together to agree on all issues that arise throughout the child’s life.

Parents will normally share parental responsibility. This does not change when they separate. They need to agree the important things such as schooling, medical treatment, names changes and holidays. I always advise that unmarried fathers check whether they have parental responsibility. Most family solicitors can answer this question on the telephone. If the father does not have parental responsibility, there are simple ways in which he can get it. If a court application is needed, it is likely to succeed unless he is an absent or abusive father.

Normally parents have decided who the child should live. The outstanding issue is how much contact the other parent has. When asked “How much contact can he/she have?” I reply by advising that it really depends on what the child needs. What most don’t know is that contact is the right of the child. The amount of, and the frequency of contact depends on what the child needs to maintain a relationship with that parent. Other issues do come into the equation for example, money, distance, effect on main carer etc.. The first consideration is always what the child needs.

If the break up is acrimonious a parent may consider relocating elsewhere in the country or abroad. Firstly, unless a parent has a Residence Order, he/she cannot take the child out of the jurisdiction without the prior consent of the other parent with parental responsibility. To do so would be child abduction. If the parent has a Residence order, he/she can remove the child for up to a month without consent. However, we always advise that the other parent be told out of courtesy and also in the event of an emergency.

Some parents want to move as far away from the other parent as possible. This may be a genuine move to start a new life and get away from horrid memories and to join family and friends for support. If it was an abusive relationship, relocation may be the best thing. However, the move may be for the opposite reason. It may be to punish the other parent by not allowing frequent and quality contact.

Relocation to exclude the other parent is not putting the child’s interests first. In these circumstances, the courts are shifting towards making the moving parent take some responsibility for creating the distance. I am seeing more and more parents with care/residence being ordered to fund travel costs or even share the journey to and from contact.

Relocating following a break up should be considered very carefully. If the child needs to maintain a relationship with both parents, every effort should be made to facilitate frequent contact making the effect of the separation less stressful for the child.

Best regards, Harjit Sarang

Contact

137

Divorce, Dissolution and Adultery

As a family law solicitor, I am often asked to draft a divorce petition based the spouse committing adultery. Adultery is one of the five reasons for a divorce. The other four reasons being ‘Unreasonable behaviour’, two years separation with consent, five years separation and desertion. Whichever is pleaded must be the reason for the marriage irretrievably breaking down. If a client can prove the adultery or if the spouse is prepared to admit the adultery, I will advise that a petition be filed.

Difficulty will arise when a client insists on an adultery petition being filed without sufficient evidence and further, insists on naming the person with whom the spouse has committed adultery with. Firstly, if you cannot prove the adultery, the spouse is likely to deny the allegation. Secondly, naming the co respondent means that the co respondent must co operate in the proceedings. That person may still be in a marriage or may have other reasons for not wanting to co operate . The end result is a hostile situation with increased legal costs in chasing responses. A client is then forced to withdraw the adultery petition and start again pleading another reason. That would be ‘unreasonable behaviour’ if the client wasn’t willing to wait 2 or 5 years.

An unreasonable behaviour petition may include many allegations including the spouse having ‘relations’ with anon. I understand that where adultery is the real and only reason for the marriage breakdown, a client would want to plead it regardless and take the chance of the spouse denying the allegation. This is perfectly understandable. Often, it is a desire for the purposes of closure rather than revenge. It is the client’s choice on how he/she is better able to move on from the breakdown of the marriage.

When the Civil Partnerships Act was first introduced, I noticed that adultery was not available as a fact for a same sex party to plead within civil dissolution proceedings (gay and lesbian equivalent of divorce). I raised this as an issue and was told that my thinking was regressive and that if asked, most gay and lesbian people would not want adultery as an option. Is that the case? The Civil Partnerships Act is legislation long overdue but wasn’t the purpose of the legislation to create equality between same sex couples and hetro sexual couples? If adultery is regressive for same sex couples, surely it is regressive for heterosexual couples and therefore, shouldn’t the Matrimonial Causes Act be amended accordingly? Not being able to perfect a definition of adultery is no excuse. Is this discrimination through the back door?

Best regards

Harjit Sarang

Divorce