Category: Cohabitation

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Is your surname different from your children? Then you need to read this before you travel abroad…

It’s fast approaching peak holiday season for UK families as the schools get ready to close for the six-week break. Travelling with kids can be tricky at the best of times but for those parents who do not have the same surname, it is a lot more complicated.

Emma Newman, the Managing Partner at the Stowe Family Law office in Esher explains what a parent can do about it.

“I first wrote on this subject four years ago and since then have received an inordinate number of questions on this subject. More and more women seem to be affected by this issue as more of us have a different surname to our child. Some, like me, may be divorced from their child’s father and have remarried taking on a new name. Other women are married but have chosen not to take their husband’s surname whilst their children do and of course, there are more and more unmarried couples who have children.

Many of us are now looking forward to enjoying some time away in the sunshine as the summer holiday approaches but if you have a different surname to that of your child you need to take note and take action to avoid unnecessary stress.

The checks that are in place at ports, airports and international railway stations to prevent children from being kidnapped are all very understandable but they have caused a huge amount of stress, upset and even missed flights for many women and their children. This can easily be avoided by ensuring you carry the right documents.

So, what can you do to ensure your holiday goes smoothly? Much depends on your particular circumstances but the officials need to be satisfied with your relationship with your child so the documents you may need are:

Your child’s Birth Certificate – this document gives the name of your child, their date and place of birth and will match with the details on their passport. It will also give the full names of both parents at the time of their birth. So be careful; if your name has changed since your child was born you will need to take more documents with you.

Proof of your change of name – this could mean travelling with your Marriage Certificate or a Change of Name Deed. On my last trip abroad I also found carrying an expired passport in the name I held at the time of my child’s birth (and therefore as set out in his birth certificate) was very useful as not only did it show what my name was then but it also had a photograph of me and the Border Official was able to marry up the Birth Certificate, Marriage Certificate and the expired and current passports.

You might also want to warn your children that they may be asked questions directly by the immigration officials and they should not be worried and answer clearly and honestly. This is not the time for them to make jokes.  When I have been stopped at immigration my son was asked who I was, who my husband was, where he had been and how old he was.  It was made very clear that he needed to answer himself and I couldn’t answer for him.

If you are not travelling with your child’s father I would always ensure that you can prove you have the father’s consent to you taking the child abroad.

If there is a Child Arrangements Order in place which states that the child lives with you, technically you only need to obtain the other parent’s consent if you are going to be out of the UK for more than 28 days.

However, in every other case, you should have the permission of every other person with parental responsibility for the child. If you don’t have this consent or a Court order, you are committing child abduction.

I always recommend asking the other parent to sign a consent form before travel or to write a letter setting out their consent. The document should provide the full contact details of the other parent and specific details of the trip including the dates, destination and address. The other parent should sign the form. It is also a wise idea to attach a copy of the other parents’ passport to the consent form.

Travelling abroad with children can be stressful enough. However, you can minimise some of the costs by ensuring you have enough space in your luggage to pack these multitude of documents. Happy holidays!

The post Is your surname different from your children? Then you need to read this before you travel abroad… appeared first on Stowe Family Law.


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Author: Emma Newman

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A call for cohabitation reform

The problem with the current law on cohabitation is that there isn’t one. Despite popular belief, there is no such thing as a common law marriage (it has not existed since 1753) and separating couples have very minimal legal rights or protection.

This often leads to the more financially vulnerable party potentially facing hardship and difficulties. Coupled with the fact that cohabitation is the fastest growing family type in the UK, it is time this inequality is addressed.

So, we asked Sushma Kotecha, Managing Partner from our Nottingham office to join us on the blog to add her voice to the continuing calls for cohabitation reform.

“Almost half of us mistakenly believe that common law marriage exists. The findings from this year’s British Social Attitudes Survey carried out by The National Centre for Social Research revealed that 46% of people surveyed are under the false impression that cohabiting couples form a common law marriage. This figure remains largely unchanged over the last fourteen years (47% in 2005) despite a significant increase in the number of cohabiting couples.

Cohabitees cannot rely on UK family courts. As it currently stands, there is very little legal protection for cohabitees who separate and need to resolve disputes that may have arisen in respect of property, finances and/or children. The law in this area is very complex and can lead to unfair outcomes.

For this reason, more people are turning to Cohabitation/Living Together Agreements to record the financial arrangements that are to apply in respect of their cohabitation and what should happen if their relationship fails.

Cohabitation/Living Together Agreements are contracts that can include provisions dealing with income, property, children, wills and legacies and many other issues that may be relevant.

Anne Barlow, Professor of Family Law and Policy at the University of Exeter said:

“Our data clearly shows that almost half of us falsely believe that common law marriage exists in England and Wales when, in reality, cohabitation grants no general legal status to a couple. Cohabiting couples now account for the fastest growing type of household and the number of opposite sex cohabiting couple families with dependent children has more than doubled in the last decade. Yet whilst people’s attitudes towards marriage and cohabitation have shifted, the policy has failed to keep up with the times.

The result is often severe financial hardship for the more vulnerable party in the event of separation, such as women who have interrupted their career to raise children. Therefore, it’s crucial that we raise awareness of the difference between cohabitation, civil partnership and marriage and any differences in rights that come with each.”

Notwithstanding a call for reform from lead bodies and Judges, the government has resisted implementing proposed changes that would make the system fairer for separating cohabitees.

Lord Marks’ Cohabitation Rights Bill has had its second reading and Resolution (a body of specialist family lawyers and other professionals) will be liaising with Lord Marks about laying the bill again in the next parliamentary session.

When this was debated in Parliament in 2014, the number of people cohabiting in the UK had risen from less than 3 million in 1996 to 5.9 million. The figure is now 6.6 million, and this rate of increase is not abating.

The Office for National Statistics’ 2018 figures shows that cohabiting families are the fastest growing family form and a quarter of all children are growing up in cohabiting families. About 40% of cohabiting couples have children together while cohabiting. The Bill is aimed not just at those couples but at their children, who stand to suffer from their parents break up.

If you intend to cohabit or are currently cohabiting and wish to regulate your rights in the event of a relationship break up to avoid the pitfalls and injustice of the existing laws, please contact our Client Care Team here to arrange an initial no-obligation options call with one of our lawyers.

The post A call for cohabitation reform appeared first on Stowe Family Law.


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Author: Sushma Kotecha

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Not married and maintenance: what are you entitled to?

We have published a number of articles previously on the blog about the myths of cohabitation and the lack of legal rights for unmarried couples. (You can have a read here.)

One fact that is correct though is that there is some opportunity for financial provision for any children of the separating parents (although it does come with strict criteria).

To help explain, we invited James Scarborough from our St Alban’s office to join us on the blog to look at what financial provision, if any, is available for unmarried separating parents.

“I often find, when advising clients who are parents but not married, that they are unaware there is scope for receiving or paying maintenance for the children.

This is a complicated area of family law, but it is often to my client’s surprise when I explain there is legislation (Section 15 and schedule 1 of the Children Act 1989 if you need the details) that provides for the parent with day to day care of the child the potential to apply for:

Maintenance

Lump sum

Transfer or settlement of property

I have encountered confusion from my clients in relation to the first point on this list, as they rightly explain they thought that payments for the benefit of children are regulated by the Child Maintenance Service (CMS).

However, the court does have the power to consider a claim for maintenance in the following very specific circumstances:

The non-resident parent’s income is higher than the limit where the CMS deals with maintenance (currently £156k pa gross);

or

in respect of educational expenses;

or

for expenses connected with a child’s disability;

It is worth me reiterating that there is no automatic entitlement to additional maintenance through the courts, simply by meeting the above criteria. For example, if one parent earns £157k pa, it does not automatically mean that the other party should expect the court to award additional maintenance to that they would have to pay under the CMS.

In considering any claims for maintenance (if the above criteria are met), lump sums or transfer/settlement of property, the court will consider:

The income, earning capacity, property and other financial resources which each person has or is likely to have in the foreseeable future.

The financial needs, obligations and responsibilities which each person has or is likely to have in the foreseeable future;

The financial needs of the child;

The income, earning capacity (if any), property and other financial resources of the child;

Any physical or mental disability of the child;

The way the child was being, or was expected to be, educated.

It is important to remember that the sole intention of this legislation is to provide for any children. As a result, except in special circumstances, any order is only likely to provide until the youngest child is 18 or finishes secondary education.

Married or divorced parents can also make these applications although they are more likely to rely upon separate legislation. Therefore, I find that it is cohabiting / unmarried parents who benefit most from this advice.

Get in touch,

Our specialist family lawyers frequently advise unmarried couples who are separating to understand their rights. If you would like to speak to a member of client care team you can make an online enquiry here or call the number below.

You can contact James Scarborough here.

The post Not married and maintenance: what are you entitled to? appeared first on Stowe Family Law.


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Author: James Scarborough

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Tales and myths of a common law marriage

Nearly half of people in England and Wales believe that unmarried couples living together have the same rights and obligations as couples who are legally married or who have entered into a civil partnership.

This could not be further from the truth. In fact, common law marriage is a complete myth.

Research just undertaken by the University of Exeter and the National Centre for Social Research, shows that 46% of those asked, believe that unmarried couples living together (cohabiting couples) were part of a common law marriage and, as a result, had equal protection to married couples in the event of their relationship breaking down.

Cohabitation does not provide any legal status to a couple living together.

At the same time, cohabiting couples now account for the fastest growing household in England and Wales.  The number of opposite sex cohabiting couple families with dependent children has almost doubled in the last decade and nearly 50% of children are born to parents who are not married.

The difference between cohabiting couples and couples who are married or in a civil partnership could not be more significant.

In the event of a couple living together but not married or in a civil partnership, separating, the result is often, according to the University of Exeter, severe financial hardship for the more vulnerable financially weaker party.

For example, there is no right to claim maintenance, there is no ability to share pensions and there is no ability to share property unless that property is jointly owned.

The University of Exeter concludes by saying “it is absolutely critical that we raise awareness of the difference between cohabitation, civil partnership and marriage and any differences and rights that come with each.”

This is not a new issue.

Previous governments have been advised by the Law Commission, an independent body which advises governments on the need for law reform, that they needed to act.  The Law Commission even drafted a Bill to go before parliament.  Some limited protection was put in place in Scotland but not in England and Wales.

The need for reform and change could not be more urgent.

In the meantime, we can offer some practical advice.

If you are thinking of living with someone and not getting married, or if you already are living with someone, consider entering into a “living together agreement” and also consider whether any documents should be drawn up in relation to any property which you may own, for example setting out your rights in relation to that property, when it could be sold and what happens on sale.

If, on the other hand, you are thinking of separating from your partner, or already have, don’t give up.  If you have children, there are certainly ways of obtaining financial support for them, including the provision of a home, and it may be that even if the property is in the name of your partner, you may still have certain rights in relation to it.

At Stowe we have a number of solicitors, including myself, who specialise in cohabitation, please do contact us at the details below.

The post Tales and myths of a common law marriage appeared first on Stowe Family Law.


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Author: Graham Coy

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A word of caution for cohabitees without a will

Non-married couples get a raw deal under English law when their relationship ends, regardless of how long they lived together.

As a family lawyer specialising in cases involving claims against estates under the Inheritance Act, I am regularly consulted by clients whose partners have recently died and who feel that they have not received a fair share of their loved one’s estate if anything at all.

Sometimes this is because the partner did not leave them anything but often it is that the deceased did not prepare a will. Without one, intestacy rules apply meaning that an unmarried partner is not entitled to receive anything. The estate instead passes to the deceased’s children or other relatives.

Unfortunately, some people still believe that they are common law spouses because they have lived together for a long period of time.  But the concept of a common law spouse does not exist in English law, except in some very unusual circumstances.

The bottom line is that if you are not married, you have less legal protection if your relationship ends through the death of one partner.

However, a recent High Court case has thrown the spotlight on claims brought by cohabitees against a late partner’s estate.

In Thompson v Raggott, the High Court ruled in favour of Joan Thompson’s claim for reasonable financial provision out of the estate of her late partner, Wynford Hodge.

Mr Hodge, worth £1.5 million, left nothing for Mrs Thompson or her four children. He felt that three of her children had taken advantage of him during his lifetime and instead left the estate to his friends – who were also tenants at one of his properties.

Mrs Thompson claimed she had been financially dependent on her late partner and had lived with him for approximately 42 years.

Following evidence from her GP, Mrs Thompson made it clear that she was in fact well enough to live at home alone, with an appropriate care package. Her claim was also supported by the fact that one of Mr Hodge’s properties had been purchased for the couple to move into after retirement.

The court decided to provide an outright transfer of the property to Mrs Thompson, rather than holding it on trust with a lifetime interest.

It is worth bearing in mind that most of the estate passed to Mr Hodge’s friends as per his will.  However, it is highly likely that Mrs Thompson would have received significantly more financial provision if she had been Mr Hodge’s widow rather than his surviving cohabitee as the law states that a widow or widower should receive a higher level of financial provision from an estate than a surviving cohabitee.

Cohabitees claims under Inheritance (Provision for Family and Dependants) Act 1975 are a complex area of family law and it is important you seek specialist advice if you think you have a claim over a former partner’s estate.

You can get in touch with me below or email theo.hoppen@stowefamilylaw.co.uk

The post A word of caution for cohabitees without a will appeared first on Stowe Family Law.


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Author: Theo Hoppen