Uncovering the Myths of Family Law – Why is it Important to Seek Legal Advice?

For many us of, when we are faced with an unknown situation and we are looking for a quick solution, our automatic reaction is to search online. However, with so much “fake news” out there, does our search engine provider always have the answer? Here, we look at the importance of obtaining initial legal advice to banish many misconceptions.

You may have seen the term ‘common law marriage’ used for those who have been in a cohabiting relationship for a long time but have never married. However, in England and Wales the law for cohabiting couples is very different to those who are married. Cohabiting couples do not have the same rights as married couples and their claims can be very limited. Most claims are dependent on whether property is held jointly and if held in one person’s name, financial contribution can be key to proving an interest. Obtaining legal advice is a must in this area of law!

Many newspapers and celebrity magazines will tell us of “quickie divorces”. There is also no such thing as a “quickie divorce” and the process is the same for everyone including the cost! We also see stories of couples divorcing based upon “irreconcilable differences”. Whilst this is true in some ways, most don’t realise you have to rely on 1 of 5 facts to prove irreconcilable differences! Also at this time, there is no provision for a ‘no fault divorce.’

You are likely to have many questions when it comes to dividing the finances when you are married “The house is in his sole name – do I have to leave?” “The mortgage is in joint names – do we both have to pay half?” I’ve paid for everything, my spouse never worked, am I entitled to receive more than them?” Generally, the answer to these questions is NO.  The law states that the starting point is 50:50 when dividing the finances & various factors are taken into consideration. We’ve also heard the phrase “we’ve only been married a short time, I should be able to keep everything I brought into the marriage!” but this is not necessarily the case. What may seem like a short marriage could in fact be a much longer ‘marriage’ than first thought once any period of cohabitation is added!

We have often heard the phrase “the Court will always favour the mother when it comes to where children live.” However, this is not the case & in most cases both parents have equal rights and responsibilities. The Court will consider what is in the best interests of the children and actively encourage the parents to work together to reach an agreement as to the arrangements.  

There is so much to consider when a relationship breaks down. Here at MBH Solicitors we offer a FREE 30 minute consultation to dispel those myths and provide advice and guidance during what can be one of the most difficult and stressful times of your life. Contact Gillian Lavelle or Megan Brookfield to arrange your free consultation today on 01942 206060 or e-mail us at mbh@wigansolicitors.com

Pets and Divorce – Who Should Keep the Family Pet?

More often than not, families have a furry friend which become a big part of their lives. But when relationships breakdown, it is not uncommon for arguments to arise as to who the pet shall live with.


How are pets viewed in the law?

In England and Wales, it is the law that pets are considered as “chattels”. A chattel is defined as an item of personal property or something which belongs to you, examples of which would be a chair or a washing machine.

There are a number of factors which would be taken into account when making a decision as to where the pet should live. Such factors include who purchased the pet, who the pet is registered to and who pays the pets insurance. Although it is not the law, the Court may be swayed as to what is in the pets best interests, should you make an application to Court. For example, should your spouse/ex-partner work 10 hours+ a day, whilst you work from home, the pet may be best placed to live with you.


What can I do if I have a pet dispute?

There are a number of things which you can do when you have a dispute over a pet, which are as follows:

  • Negotiate directly with the other person

This of course will be dependent on your relationship with your spouse/ex-partner, and whether the separation has been amicable. It is likely to be more difficult between parties when the pet is older and you have a significant bond with the animal.

  • Instruct a Solicitor

It may be more suitable to instruct a solicitor to draft written correspondence to your spouse/ex-partner, setting out why the pet would be best placed with you. This may be useful if the relationship between you and your spouse/ex-partner is less amicable. The letter should set out your position in detail, taking into account whether the pets chip is registered to you, whether you are the person who pays the vet bills and insurance etc. If you are not this person, your correspondence should rely upon what is in the best interests of the pet, i.e. you could raise the issue as to who has care of the children and whether it is in the pet’s best interests to remain with the children.

  • Attend Mediation

Should solicitor’s correspondence fail, the next option would be to attend Mediation. There are a number of Mediators who will specialise with pets during separation, and research should be done to consider the most appropriate Mediator, prior to attending such appointment. Mediation allows parties to sit down with one another, and discuss matters with the assistance of a Mediator, who is an impartial person. The Mediator can provide you with details of the law, however they cannot advise either party. The Mediator must remain fair and neutral.

  • Attend Court

Finally, you have the option to issue Court Proceedings, although this is rare and is questionable as to whether it is appropriate, taking into account the costs of making such application and the age of the pet.

What steps can you take to avoid such disputes?

Pet-nups, similar to pre-nuptial agreements, can be drafted at any point during the parties’ relationships, and can stipulate the following:

  • Where the pet lives
  • Who pays for the insurance
  • Who pays the vet bills
  • Who pays for the upkeep
  • Who makes decisions in relation to medical treatment
  • What happens should the relationship/marriage breakdown

Further information could also be drafted into the document, i.e. whether the other party can continue to take the pet out, or spend time with the pet, upon your separation.

It may be advisable for such document to be drafted as this avoids added animosity between you and your spouse/ex-partner upon separation. Of course, the older the pet, the more likely that discussions over the pet will become confrontational.

However, similar to pre-nups, pet-nups are not legally binding and the law does not recognise such agreements presently, although should the terms of such pet-nups be sensible, and within the best interests of the pet, certain factors may be upheld by the Court.

Should you be interested in drafting a pet-nup, or would like to obtain any further advice in relation to this topic, please contact the office on 01942 206060 or our Trainee Solicitor, Megan Brookfield at MeganBrookfield@wigansolicitors.com

Explaining Occupation Orders

Protecting your family in times of difficulty

Under the Family Law Act 1996, the Court can make an Order to state who has the right to occupy the family home or, if necessary, who is to be excluded from it. Occupation Orders are often used in urgent situations such as where children are at risk of having nowhere to live or where one partner is abusive towards the other.

What does an Occupation Order contain and how does it work?

The Order will be sought by one party who wishes or needs to occupy the former family home, often with the children. It can only be made in respect of a property which is, or was, the family home. The Order will not alter the structure of the legal ownership of the home, but will merely set out who is able to live in it. Where you are joint owners of the property, legally you are both entitled to enjoy occupation of it so a Court Order is required if one party seeks to exclude the other.

They are intended as a short-term measure and many last between 6 and 12 months; however, it is possible to extend an Order if necessary.

Common terms that an Occupation Order may contain include (but are not limited to):

  • an enforced, Court-Ordered right to remain in the family home;
  • a right to return to the property if one party has been locked out unfairly;
  • an order to exclude one party, regardless of their legal rights;
  • orders as to who is to assume responsibility for rents or mortgage payments and general maintenance of the property.

Because of the power to exclude one party from entering or living in the home, Occupation Orders are often used as a tool in domestic abuse cases. They can help to bring a level of stability to a situation, particularly where children also need to be protected and cared for.

Applications for Occupation Orders are made by way of a Court Claim Form. Applicants will need to compile a witness statement setting out their circumstances and arguments for occupation.

The Court’s decision

When deciding whether or not to grant an Occupation Order, the Court will look at both parties’ financial situations as well as the potential outcomes of either party losing their occupational rights and how this may affect the parties’ physical or mental health. They will always assess the needs of children, ensuring that they have somewhere safe and secure to live. There are also additional factors considered by the Court which are dependent on whether you were married to the other party, cohabitating or in a civil partnership. In addition, the Court must look at the behaviour of each party and it may make a judgment based on a ‘balance of harm’ test:

“what is the likelihood of significant harm being caused to either partner and your children if an Occupation Order is granted, balanced against the likelihood of significant harm being caused if an Occupation Order is not made”

If an Occupation Order is granted, you are able to change the locks on the property

Who can apply?

You don’t need to own a property to gain an Occupation Order; the Court can grant an Order over a rented property or over another property in which the applicant, their spouse, partner or civil partner has a financial interest.

Where a property is rented, the Court will grant ‘home rights’ to a spouse or civil partner where that person is not listed as a tenant on the tenancy agreement. Home rights include the right to remain in the property and to pay the rent on it. However, ‘home rights’ are not available where the parties were only cohabitating.

 

Other related Orders

Occupation Orders are often used in conjunction with other proceedings. For example, if a divorce is ongoing, once the Decree Absolute has been granted, an Eviction Order can be served if an Occupation Order is not already in existence to permanently remove the non-residing partner from the property if they refuse to vacate voluntarily. Non-Molestation Orders (otherwise known as injunctions) can also be issued alongside Occupation Orders where one party has been suffering abuse at the hands of their partner, spouse or civil partner.

Our family and matrimonial specialist Gillian Lavelle is pleased to offer a free initial 30-minute appointment for all new cases.

To arrange your meeting, call 01942 206060 today.

 

About MBH

McCarthy Bennett Holland, established in Wigan since 1971, offers a personal service across a wide range of legal practice areas, including residential and commercial property, family and matrimonial, wills and probate, employment, personal injury and company commercial.

Contact Gillian Lavelle, solicitor at MBH Solicitors, to discuss your family & matrimonial requirements in confidence at:

www.wigansolicitors.com
Tel: 01942 206060
Address: 26 Bridgeman Terrace, Wigan WN1 1TD
Twitter: @MBHSolicitors
Find Gillian on Facebook: “McCarthy Bennett Holland – family solicitor”

Making sense of Separation Agreements

Q: My wife and I have recently separated. How can I make sure that I still see the children and that we each have access to money to enable us to find new homes?

On separation, it is certainly sensible to document formally any arrangements made between yourself and your wife; not only will it avoid disagreement down the line about access to children and so on, but the terms you agree can later form the basis of divorce proceedings.

Separation Agreements

Separation Agreements may be entered into by both married and unmarried couples who have chosen to stop living together. Setting out these issues, and any other terms you wish, in writing allows both parties to move on with the reassurance that important matters have been negotiated and settled, and a document signed to record the details.

Your solicitor may advise you to enter into a Separation Agreement. Both you and your wife should take independent legal advice before signing up to this and you must both fully disclose to the other all relevant financial and other information. You may wish to discuss and agree terms such as:

  • Who the children are to live with;
  • When and how the other party will see the children;
  • What is to happen to the family home;
  • How you will separate joint assets such as your bank accounts;
  • Who is to assume responsibility for any mortgage on the family home and whether any contributions are to be made by the other party;
  • How other joint assets are to be shared.

Is the Separation Agreement legally binding?

Whilst the Agreement is not legally binding, insofar as it has not been issued by a Court under a Court Order, the Courts do consider seriously the terms of any Separation Agreement when making decisions in any future disputes between the parties and as part of divorce proceedings.

Separation Agreements are particularly beneficial in dealing with a couple’s financial matters early on in their separation. Many divorces are protracted as a result of disagreement when trying to reach financial settlement but if these issues are already agreed the divorce can be finalised much more quickly and painlessly.

Do we need to take part in mediation?

Whilst there is no legal requirement for you to partake in mediation prior to entering into a Separation Agreement (unlike financial proceedings, where a mediation session is mandatory), the terms of the Separation Agreement will need to be discussed and agreed between you and your wife. You may choose to do this directly between yourselves, through negotiation between solicitors or by way of mediation.

Negotiation between solicitors will likely prove more costly and time-consuming than an effective and professionally-led mediation session; if you are struggling to reach agreement on any matters yourselves, you may find it helpful to arrange a meeting and talk it through. A family mediator is completely impartial and their role is purely to allow you to resolve your differences satisfactorily to both of your wishes.

Our new family and matrimonial specialist Gillian is pleased to offer a free initial 30-minute appointment for all new cases.

Paul Aynsley is a qualified family mediator and member of the Family Mediators Association. Initial mediation meetings are offered at a cost of £50 + VAT at McCarthy Bennett Holland.

To arrange your meeting with Gillian or Paul, call 01942 206060 today.

About MBH

McCarthy Bennett Holland, established in Wigan since 1971, offers a personal service across a wide range of legal practice areas, including residential and commercial property, family and matrimonial, wills and probate, employment, personal injury and company commercial.

Contact Gillian Lavelle, solicitor at MBH Solicitors, to discuss your family & matrimonial requirements in confidence at:

www.wigansolicitors.com
Tel: 01942 206060
Address: 26 Bridgeman Terrace, Wigan WN1 1TD
Twitter: @MBHSolicitors
Find Gillian on Facebook: “McCarthy Bennett Holland – family solicitor”

Q: I am not married to my partner; do I have ‘common law’ rights?

Unfortunately, there is no such thing as ‘common law’ wives and husbands; unmarried couples, whether heterosexual or same-sex, cannot establish legal rights regardless of whether they are together for a long time or if they have children. Because this area of family law can be misunderstood, many people only find out that they have no rights once their relationship has broken down.

Married couples, or those in a civil partnership, enjoy far greater rights and legal status than those couples who purely live together (known as ‘cohabiting’ couples). If a cohabiting couple goes to Court after their separation, the Court will not consider how long they were together or whether either party believed they had any rights; a Court will simply look at each partner’s financial contribution and how property and assets are legally owned.

Rights to property

Where property and assets are jointly owned and legally registered as such, it is much simpler to show that you should be entitled to something on the breakdown of your relationship. However, where, for example, the former family home is registered in one person’s sole name, the law is complex and certain requirements must be met before you can claim that you are entitled to an interest in it. In most cases, financial contribution by the non-owner partner to the property must be shown. This may be by payment of the deposit for the property, mortgage and home improvements.

Cohabitation Agreements

Cohabitation Agreements can be drafted when a couple moves in together. This will ensure that property is protected against financial claims on separation and can also regulate what is to happen to:

  • property;
  • assets (such as joint bank accounts or investments);
  • cars; and
  • contact with children.

Cohabitation Agreements can be prepared quickly and will help to avoid lengthy and expensive Court disputes following separation. It is important to remember to put in place any legal documentation necessary regarding the transfer of ownership of property as well as the Cohabitation Agreement itself.

If you live with your partner but do not wish for them to acquire an interest in your home, this should be made clear from the start of your cohabitation. Financial contributions from your partner towards the property should not be accepted nor should they be responsible for payment of the mortgage, utility bills or home improvements. Cohabitation Agreements can give you secure knowledge that in the event of a breakdown of your relationship claims cannot be brought regardless of whether or not you accepted a financial contribution from your partner.

Is a Cohabitation Agreement legally binding?

An Agreement will be a contract between you and your partner and, to be legally binding, it must state within the document that it is to have legal force. It must be properly signed and executed by you both and must not be unfair to either party. A Cohabitation Agreement will never override any other legal rights enjoyed by the parties, particularly those relating to children.

When a couple is entering into a Cohabitation Agreement, for it to be effective each party must obtain their own independent legal advice and each must disclose fully any relevant information to the other, such as financial details and disclosure of all assets owned.

When separating, make sure you check your position in respect of your home and assets, whether jointly or solely owned by you or your ex-partner. You may be able to bring a claim which will help you to move on.

Gillian Lavelle is a specialist in dealing with cohabitation cases, having practised both in civil litigation and family departments during her time in the legal profession.

Our new family and matrimonial specialist Gillian is pleased to offer a free initial 30-minute appointment for all new cases. To arrange your meeting, call 01942 206060 today.

About MBH

McCarthy Bennett Holland, established in Wigan since 1971, offers a personal service across a wide range of legal practice areas, including residential and commercial property, family and matrimonial, wills and probate, employment, personal injury and company commercial.

Contact Gillian Lavelle, solicitor at MBH Solicitors, to discuss your family & matrimonial requirements in confidence at:

www.wigansolicitors.com
Tel: 01942 206060
Address: 26 Bridgeman Terrace, Wigan WN1 1TD
Twitter: @MBHSolicitors
Find Gillian on Facebook: “McCarthy Bennett Holland – family solicitor”