Over the last say three decades it has become much more common for couples to live together without getting married – or just waiting a much longer time to do so. There are many reasons for this, one is financial – weddings can be expensive. Also, many couples want to experience living together before taking the plunge. Another reason is the changing views of society – couples living together is far more acceptable than it used to be. That being the case as family lawyers we are often asked what the legal position is for a couple where they weren’t married but are separating. If you find yourself in that position, this blog is for you.

The starting point is that there is no such thing as “common law marriage” – nor is there anything such as “common law man and wife.” These are all unhelpful and essentially meaningless phrases that have no legal standing in England and Wales.

When a couple divorces, the financial claims that arise after the marriage breaks down arise from a piece of legislation called the Matrimonial Causes Act 1973. The law that applies to a couple who have lived together rather than married is not as simple, and instead we potentially have to look at numerous pieces of legislation and case law for guidance on what the legal position might be. There are campaigns to try to change and simplify this, not least given the harsh impact the law can have on children, but any change is likely to be some way off, and certainly for the time being the law in this area can be tricky to navigate.

Most people are concerned in the first instance what will happen to their home, and property claims are where we usually start. It is helpful to start by trying to establish who has legal ownership of the home, which if you are uncertain, means a search at the Land Registry. If you are concerned the legal ownership does not accurately reflect what you and your partner agreed, consideration should be given to what the beneficial interests in the property are. In those circumstances it can be helpful to consider who contributed financially to what, whether that be in terms of the mortgage, an extension, or otherwise. The legislation we would need to take into consideration in those circumstances would be the Trusts of Land and Appointment of Trustees Act 1996. If court proceedings are brought under this legislation, they are often referred to by lawyers as “TOLATA” claims.

If you and your partner had children together, it is worth consulting the Child Maintenance website to check what if any child maintenance shall arise once you are living separately from your partner. Further, if your partner owns property, whether that be the former family home or otherwise, it is also worth considering whether any claim can be brought under Schedule 1 of the Children Act 1989, which can be a route to claim financial provision for children where a couple were not married. A “Schedule 1” claim often goes hand in hand with a “TOLATA” claim.

For the individual who has stayed home to look after the children and not worked, the advice that there is no legal claim that can be made following cohabitation for either maintenance to meet income needs, or in respect of pensions, can be devastating news.

As stated above, there are campaigns for change in the law to see those who live together and have children to be afforded greater legal protection, but for now the law can be messy, unclear, and some say unfair. Here at Franklins we can however advise in clear and practical terms about what your legal position is following separation from your partner. Equally we can also help you and your partner put together a legally binding agreement which will provide a clear framework as to what should happen if you separate, so that you can avoid an expensive legal battle should the worst happen.

We offer an initial fixed fee appointment for a cost of £195 at which we can advise on your particular circumstances, and help you understand your legal position, whether that be at the start or the end of your relationship.

If you feel Franklins might be the right firm to advise you on your legal position, and you would like to enquire about when an initial appointment could be scheduled, contact our Family Law team on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk 

Let’s face it, it’s really tricky to know where to start with this. In the wake of the breakdown of a marriage you will almost certainly be given that standard advice – go to see a solicitor. Most people don’t really have cause to instruct solicitors other than when buying or selling houses, or drawing up their will, so this can feel like a daunting prospect. In this blog we explain where to start.

It is always worth asking around for recommendations. Without one though, most people will start with Google, typing in the question at the start of this blog. Have a look at the firms that come up, consider their websites, and try to get a feel for the firms you find and whether you like the look of them. Ideally, you should look for a firm of solicitors with a “Family Team” – a team that specialises in only family work. You may find firms who specialise in only family work. Be aware though, that means if you want to update your Will or sell your property, which you may well do in the context of divorce, you will need to go to a different firm for that.

Once you have found a firm or firms you like the look of, you need to get in touch with them. This can be by phone, or sometimes via a website chat facility which allows you to message instantly with your details and start the ball rolling, like Franklins does. Quite soon after your initial enquiry though you should be speaking with a real person. Most firms offer an initial meeting, with no obligation to instruct after that. Here at Franklins we offer an initial fixed fee appointment for £195.

Before you speak with anyone though, give some serious thought to the kind of solicitor and firm that you want to work with. You should be trying to get a feel for:

• Attitude – from the moment you start speaking with people at the firm, whether that be the receptionist, the senior partner or the solicitor who would be taking on your matter, try to get a feel for their attitude and whether you feel they represent the right “fit” for you and your family;
• Approach – legal knowledge should be a given – you need to try to get a feel for how your matter will be handled. Most people want to keep things amicable and an aggressive approach is one that can cause problems many years after the legalities have been dealt with. Ask the solicitor why they practice family law and what motivates them and why you should instruct them instead of someone else;
• Affordability – you will want to understand the basis for charges both for the initial meeting and onwards – and overall what the costs are expected to be for what you need the firm to do for you; and
• Aim – a good family solicitor should be able to advise in your first meeting what you should be aiming for, and how you might get there. In time, you will need to go into more detail but if you provide a summary of your financial circumstances there is no reason why an experienced family solicitor should be reluctant to advise in your initial meeting on what are, and are not, going to be important factors when looking at your family finances and how they can be divided.

At the beginning it can all feel rather overwhelming. Remember though that this will be all in a day’s work for the solicitor you instruct and that first contact and first meeting is not going to be nearly as awful as you think if you instruct the right firm and right solicitor.

If you feel Franklins might be the right firm to help you with your divorce, please contact our Family Law team on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk

Many separating couples may have come across the term “Consent Order” at some point and may wonder what that means.  The term “Consent Order” refers to any type of Court Order agreed between parties.  More often than not it relates to setting out an agreed financial settlement following divorce.  What many do not realise is that just because you have divorced your spouse does not prevent your former spouse from making a financial claim against you.  The only way to prevent that from occurring is to have a Financial Order closing the door on your former spouse’s claims for financial relief.  This is even if the divorce took place several years earlier.

A Consent Order is legally binding and it sets out the financial arrangements you and your partner agree on.  It can set out how you may wish to split assets, pensions, income and debts on divorce.  It can also be enforced by either party later on if one of the parties reneges on the agreement.  A Consent Order will usually include a clean break clause which protects any money or assets that you may earn or receive in the future from being claimed from your ex-spouse.

A Consent Order is usually prepared by a Solicitor as it is a legal document.  Once the Order has been drafted and the parties have signed up to it, it is sent to the Court for approval.  The Court will want to ensure that each party has had the opportunity to obtain independent legal advice or at least aware of their right to do so.  One should note that the Court will not simply rubber stamp an Order.  The Court will want to ensure that the terms of the Order are reasonable and fair to the parties in the circumstances.  In order to determine this, the Court require a completed Statement of Information for a Consent Order.  This provides the Court with a snapshot of the parties’ means and circumstances. 

If a Judge has further questions about the agreement reached, the Judge may require the parties to attend Court to explain why they have reached the agreement that they have or provide further information by correspondence.  If the Court approves the Order it is sealed and each party receives a copy for future reference. 

It is important to note that a Consent Order cannot be approved by the Court until the parties have reached what is called the Decree Nisi in the divorce.  It becomes enforceable once Decree Absolute has been granted.

At Franklins, our experienced solicitors will be able to provide you with expert advice and assistance. Contact Kelly and our Family Team on 01604 828282 / 01908 660966 or email Family@franklins-sols.co.uk.