Civil Partnerships for All!

Further to our blog in June this year, Theresa May has today announced that heterosexual couples in England and Wales will be able to choose to enter into a civil partnership rather than to enter into a marriage. This is previously a choice which was not available for heterosexual couples and means that a change in the law will now take place.

The government says that the change in this law will provide greater security for unmarried couples who wish to formalise their relationship but do not wish to be married. Unmarried couples do not have the same rights as married couples in relation to financial matters such as pensions and inheritance. However, the change in the law will mean that those in a civil partnership will be able to enjoy the same rights as married couples, without the restriction of marriage, whether they are same-sex or heterosexual.

This announcement has been eagerly anticipated following the ruling of the Supreme Court earlier this year in the case of Rebecca Steinfeld and Charles Keidan whereby the Court ruled that the Civil Partnership Act 2004 was incompatible with the European Convention on Human Rights as it did not provide equal rights for same-sex and heterosexual couples.

The Prime Minister has said the move would give all couples the same choices in life.

The Equalities Minister has said that the change in the law would need to be fully considered but that it will happen “as swiftly as possible”.

Keep an eye out on McCarthy Bennett Holland’s blogs for more updates as and when they happen!

Please do not hesitate to contact our family solicitors Gillian Lavelle or Kim Busby if you wish to discuss any of the above further. McCarthy Bennett Holland are able to offer a free 30 minute initial consultation and are more than happy to assist.

www.wigansolicitors.com Tel: 01942 206060 Address: 26 Bridgeman Terrace, Wigan WN1 1TD Twitter: @MBHSolicitors

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Should you re-register a child’s birth if you later marry?

The first thing you should consider is whether the father has parental responsibility.

What is Parental Responsibility?

Section 3 of the Children Act 1989 defines this as “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.”

What Does this Mean in Practical Terms?

This means that all persons with Parental Responsibility should have input in relation to important decisions in relation to the child. For example this will include:-

  1. Education;
  2. Choice of name or future change of name;
  3. Medical treatments;
  4. Religion;
  5. Holidays (particularly abroad)

However, having Parental Responsibility does not automatically entitle a parent to have contact with a child. The right to enjoy a relationship with their parent(s) lies with the child. However, the responsibility to make decisions and safeguard a child lies with the parent(s). Does a Father have Automatic Parental Responsibility?A mother will automatically have Parental Responsibility. However, this is not the case for fathers.

A father will have Parental Responsibility if:

  1. He is named on the birth certificate (post 1st December 2003);
  2. He is married to the mother at the time of the birth (this is not lost upon any subsequent divorce).

A natural father will also gain Parental Responsibility by virtue of marrying the mother (this does not apply to step-parents). However, it is little known to many parents that it is necessary to re-register the birth under the Legitimacy Act 1976 with the Registrar General. Section 9 states:-

  1.  It shall be the duty of the parents… to furnish to the Registrar General information with a view to obtaining the re-registration of the birth of that person within 3 months after the date of the marriage.
  2. The failure of the parents or either of them to furnish information as required by subjection (1) above in respect of any legitimated person shall not affect the legitimation of that person.
  3. Any parent who fails to give information as required by this section shall be liable on summary conviction to a fine not exceeding £2.T

his appears to be an issue in relation to matters of inheritance. Parents may be advised that if they do not re-register the birth after marriage, should they go on to have further children in their marriage, such children have more ‘rights’ when it comes to inheritance of the estate on death.

 

 

However, this does not appear to necessarily be the case. Point two above clearly states that the failure to re-register will not affect the legitimisation of that child.

If you die without leaving a Will, and your children were to inherit under the intestacy rules all children of the parent who has died intestate will be able to inherit equally from the estate under the Family Law Reform Act.

Therefore, it would appear that the only situation where the legitimacy of a child may affect their inheritance is if a parent were to specifically write in to his or her Will a clause which only allows legitimate children to inherit to avoid any “secret” children being able to inherit, or if only specific children were named, but even then a child may still be able to argue that they should be able to make a claim upon the estate. In any event, any child born prior to the marriage (illegitimate) would become legitimised by the marriage of their parents, whether or not they re-register.

There are no known cases to us here at McCarthy Bennett Holland where a parent has incurred the £2 fine set out above.

It should be noted that there are other ways that a father may gain Parental Responsibility’ which are:-

  1. Having his name registered on the birth certificate if his name is not already registered or re-registered for example if the child was born pre – 1st December 2003;
  2. Entering into a Parental Responsibility Agreement with the mother;
  3. Making an application to the Family Court for and obtaining:-
    • A Parental Responsibility Order;
    • A Residence Order;
    • A Child Arrangements Order and being named as the resident parent.

If you require any further information or assistance, please do not hesitate to contact our family solicitors Gillian Lavelle or Kim Busby. McCarthy Bennett Holland are able to offer a free 30 minute initial consultation and are more than happy to assist.

Stuck In An Unhappy Marriage – Literally

It has been in the headlines recently regarding a couple who wished to Divorce but did not pass the test of unreasonable behaviour and as such the Courts refused to grant them a Decree of Divorce.

The Law

Under the current law in England and Wales, to obtain a Divorce you must prove your marriage has irretrievably broken down based upon one of five facts; adultery, unreasonable behaviour, desertion, two years’ separation with consent of your spouse or, lastly, the only other way to obtain a divorce without your spouse’s consent is to live apart for a period of five years.

Owens v Owens

In this case, Tini Owens, 68, has been denied a divorce from her husband, Hugh Owens. The Supreme Court ruled that a joyless marriage is not a sufficient reason without the consent of both parties.

It is not unusual to hear of couples separating because they’ve fallen out of love or simply don’t see eye to eye anymore. However, the law currently states that these reasons would not be sufficient grounds for a divorce. Mrs Owens petitioned the Court for a divorce in May 2015 based upon unreasonable behaviour claiming that her husband prioritised work over family life, no longer treated her with affection, and was often moody and argumentative. She was denied her divorce as it was said that she hadn’t provided evidence that her marriage had, in the legal sense, irretrievably broken down.

Mr Owens, 80, defended the divorce denying the unreasonable behaviour cited in the petition, and stating that if the marriage had in fact broken down, it was the fault of Mrs Owens, not him.

As Mr Owens would not provide his consent to petition based on 2 years’ separation and after exhausting all of her possible appeal routes, Mrs Owens now has no option but to remain in the marriage until at least the year 2020 when the couple will have been separated for 5 years and the consent of Mr Owens is no longer required for her to divorce him.

The Future

Family Lawyers in England and Wales have been eagerly awaiting the outcome of this case as they have campaigned for a change to the law to introduce a ‘no fault’ divorce so couples who have simply fallen out of love can proceed to issue divorce proceedings. It is hoped that this case will highlight how important a change in the law could be for couples going through divorce so that they can both move on with as little distress as possible.

Keep an eye on Resolutions website and Twitter feed for further updates regarding their campaign for no fault divorce.

Please do not hesitate to contact our family solicitors Gillian Lavelle or Kim Busby if you wish to discuss any of the above further. McCarthy Bennett Holland are able to offer a free 30 minute initial consultation and are more than happy to assist.

www.wigansolicitors.com Tel: 01942 206060 Address: 26 Bridgeman Terrace, Wigan WN1 1TD Twitter: @MBHSolicitors

Cheryl & Liam – Kids, Houses & Separation

No doubt everyone is aware of the separation of Cheryl and Liam. But what happens next?  Well the law is the same for everyone regardless of whether you are famous or not.

So how do contact & residence arrangements work (or living with and spending time with orders as they are now called)? The best way is to try and reach an agreement between yourselves about where the child should live and how much time they should spend with the other parent.  In most cases, the Court prefers a ‘home base’ and then on average 2-3 nights per week with the other parent.  Of course, this doesn’t suit every child and contact can be increased or reduced where necessary and shared care arrangements can also be appropriate for some families.

Parents always seem to overlook the important dates. You should consider what should happen in school holidays or contact to allow one parent to take the child on holiday.  Again, agreement should be reached but the non-resident parent should be provided with additional time with the child during the year.

Other important dates to consider are Mother’s Day / Father’s Day, the child’s birthday, parent birthdays, Christmas Eve, Christmas Day and New Year. Reaching agreement as to what should happen saves conflict at a time when you should be enjoying and celebrating the special day.

If agreement cannot be reached between yourselves, then a service called mediation is available. The mediation process allows parents to discuss the child and the arrangements with someone who is independent and who is aware of the law.  This helps communication between the parents which can lead to an agreement being reached.

Alternatively, solicitors can be instructed to assist in cases where communication has broken down. Here at MBH Solicitors, we have 2 Resolution accredited solicitors who follow a code of conduct to ensure that hostility is reduced and to support you in putting the best interests of the child first.

Unfortunately, mediation and solicitor agreements are not legally binding and if you later renege on the agreement, Court proceedings would have to be issued. Proceedings are also issued where mediation and solicitor agreement cannot be reached.

The Court’s paramount decision is what is in the best interests of the child and it doesn’t favour the mother or the father. It seems that both Cheryl and Liam are considering this with their joint statement, “Bear is our world and we ask that you respect his privacy as we navigate our way through this together.”

There will also be the issue of child maintenance. It is hoped that an agreement can be reached between parties in line with the agreed contact arrangements. However, if this is not the case, then the Child Maintenance Service (previously known as the CSA) will be able to assist.

The arrangements for Bear is not the only issue that the couple will have due to their separation. What is the position with any property they have acquired jointly or separately?

The law is complex when you are not married and despite many myths, common law couples do not exist.

If property is in joint names then couples are mostly protected (but not in all cases). Advice should still be obtained if you are unsure how you hold the property, just because it is in joint names does not necessarily mean you are entitled to 50%!  There are different ways you can hold property even jointly such as joint tenants, tenants in common in equal shares and tenants in common in unequal shares.  This should be investigated prior to agreeing any financial division of assets.

If property is held in one person’s sole name, claims can still be brought against the property. However, this is dependent on what you have paid towards the property and discussions you have had as to whether you believed you had an interest in the property. This is a complex area of law and advice should be sought to determine whether you have an interest.  A restriction should also be entered with the Land Registry to stop your ex-partner from selling it whilst you are taking legal advice.

Again, mediation and solicitor correspondence can assist in reaching agreement. Court proceedings are there for where agreement cannot be reached, but should always be considered as the last resort.

Please do not hesitate to contact our family solicitors Gillian Lavelle or Kim Busby if you wish to discuss any of the above further. McCarthy Bennett Holland are able to offer a free 30 minute initial consultation and are more than happy to assist.

www.wigansolicitors.com Tel: 01942 206060 Address: 26 Bridgeman Terrace, Wigan WN1 1TD Twitter: @MBHSolicitors

Civil Partnerships For All

A heterosexual couple have won their application for the right to enter into a civil partnership rather than a marriage. This has overruled a previous judgement made by the Court of Appeal.

Background

The couple have been in a long-term relationship and have two children. They decided that they did not want to get married and instead wanted to enter into a civil partnership which reflected their values and beliefs.  Unfortunately, civil partnerships do not apply to heterosexual couples.

What is a Civil Partnership?

A couple who enter into a civil partnership would be entitled to the same legal rights in relation to financial matters, for example in terms of inheritance and pensions and also upon dissolution of the partnership, as a couple would be who chosen to enter into a marriage. A civil partnership would also be free from any of the religious implications which are often associated with marriage. The law currently provides that a civil partnership is only an option available to same-sex couples.

Argument

Due to this, the couple issued a Court application to state that, when the law changed and allowed same-sex couples to marry in 2013, same-sex couples were given the choice as to whether they wanted a civil partnership or a marriage. This same choice was not granted to heterosexual couples as the Civil Partnership Act only applies to same-sex couples. They argued that this breached their human rights.

What Next?

The Court have now ruled that the Civil Partnership Act is incompatible with the European Convention on Human Rights due to the inequality for heterosexual couples who have only had the option of marriage. This is welcome news to many who say that there can be no justification for the difference in treatment between same-sex and heterosexual couples and the law should be brought in line to reflect the changes made providing for same-sex couples to marry.

Unfortunately, the Judgment does not mean that the government now has to change the law. However, it is likely that the government will act upon this historic decision made by the Court, and a change to the Civil Partnership Act will therefore be eagerly anticipated.

Keep an eye out on McCarthy Bennett Holland’s blogs for more updates as and when they happen!

Please do not hesitate to contact our family solicitors Gillian Lavelle or Kim Busby if you wish to discuss any of the above further. McCarthy Bennett Holland are able to offer a free 30 minute initial consultation and are more than happy to assist.

www.wigansolicitors.com Tel: 01942 206060 Address: 26 Bridgeman Terrace, Wigan WN1 1TD Twitter: @MBHSolicitors

Fresh Legs & New Blood for McCarthy Bennett Holland

Mark Boon having been a partner in MBH Solicitors for 34 years has decided to retire as a Partner with effect from the 30th April 2018.  Mark will however remain as a Consultant to the firm continuing to serve his established clients, many of whom have become friends over the years.  Mark will also continue to provide professional consultancy services to the practice as and when required.

Paul Aynsley will replace Mark as Managing Partner in the practice and Caroline Rooks will join the practice in addition as joint Managing Partner.

MBH are also pleased to announce that Gillian Lavelle has now returned from maternity leave and has been named its newest Partner, effective from 1st May 2018. The promotion strengthens one of the firm’s core practice areas: Family Law and adds further depth to the firm. Gillian has been with the firm since 2015 and already has a wealth of experience in her respective area of expertise.

Gillian initially trained and qualified as a Legal Executive whilst working for a top 500 firm before continuing with her education and dual qualifying as a solicitor. She has worked in the field of Family Law since 2010 in the Wigan & Manchester area. She has experience in Family Law including divorce, financial, children and cohabitation disputes. Gillian is highly respected by clients and fellow professionals alike.

“We welcome Gillian to the Partner team, and fully expect that she will continue to use the experience, skill and work ethic she has demonstrated since joining our firm to achieve the best results for our clients. She is dedicated to the future of the firm and is well-deserving of this promotion” says Paul Aynsley, Managing Partner.

We are also pleased to announce that Kim Busby has qualified as a solicitor as of 1st February 2018.  She is now dual qualified as a Fellow of the Chartered Institute of Legal Executives and as a Solicitor.

“We would like to congratulate Kim on her dedication and professionalism”, says Caroline Rooks. “Our clients will continue to benefit from her expertise and further training.  We are delighted that Kim has qualified as a Solicitor and her dual qualification will strengthen the family team”

About MBH Solicitors

MBH Solicitors has been in business since 1971 and has a widespread and diverse client base. The firm is forward thinking and offers electronic or traditional ways of conducting your case.  A modern approach is taken to ensure that you are provided with an efficient service.

MBH offer the following services:

  • Commercial Advice & Litigation
  • Commercial Property
  • Company Share Sale & Acquisition
  • Landlord & Tenant
  • Commercial Leases
  • Business Acquisition & Sale
  • Shareholder Agreements
  • Wills & Probate (Estate Management)
  • General Litigation & Dispute Resolution
  • Personal Injury & Clinical Negligence
  • Residential Conveyancing
  • Family, Children & Divorce Law
  • Employment Law

MBH’s prices are competitive and fixed fees can be offered where appropriate.

Contact MBH Solicitors on 01942 206060 or by e-mail to mbh@wigansolicitors.com

For further information please visit our website www.wigansolicitors.com