 Lyn Ayrton, Head of Family Law Team at Watson Burton LLP
Living together Although the concept of the common law marriage was abolished in this country over 250 years ago, the terminology has remained with us. Couples and the media alike continue to adopt the expression for ease of convenience. The use of such terminology might be harmless in itself, but what is less healthy is the assumption many cohabitees make that they somehow have the same legal rights as their married counterparts. In practice there are few occasions when that proves to be the case. Essentially, there is no equivalent in this country to palimony: neither partner has a right to be maintained by the other, not even for a short time to allow one partner to adjust to a change of circumstances. Entitlement to a share of the family home not held in joint names will often depend upon being able to establish the parties’ original intentions or a financial contribution, neither of which will always prove to be possible. It is crucial for cohabitees to make Wills in order to ensure that the surviving partner is sufficiently protected on the death of the other. Whilst there has been an increasing trend in society over several decades for couples to live together, this has not been matched by developments in the law. As a consequence there remains a constant cry for reform from all corners of the legal arena. Civil Partnership It might be thought interesting then that the Government has granted legal rights to those same sex couples who choose to enter a civil partnership whilst seemingly ignoring the right of couples of the opposite sex who live together. The reasoning comes down to choice - couples of the opposite sex can acquire the same rights as their married counterparts: all they have to do is marry! Until 5 December 2005 same sex couples had no such choice, hence the reform which has taken place. Now same sex couples have the same choice. They too however need to appreciate that civil partnership is not just some social acceptance of their relationship. Registration of the partnership affords almost identical rights and obligations as conventional marriage. Just as with marriage there are tax consequences which need to be properly considered. Pre nuptial agreements But what about those couples who want to marry or register, but at the same time want to protect some or all of their assets from being attacked in the event that the relationship does not work out. Think of pre nuptial agreements or pre partnership agreements and most people will think of America where virtually any from of agreement can be entered. But such agreements are not just for the Michael Douglas’s and the Elton John’s of this world. Although a family court will always have the ultimate decision so far as financial arrangemts on the breakdown of a relationship are concerned, there has been an ever increasing acceptance in recent years by the family law courts to take the existence of a pre nuptial agreement into account when reaching its decision. There is no reason to believe that the same influence will not be afforded to pre partnership agreements. In reality such an agreement will carry little weight unless entered with both parties fully knowing the state of the other’s finances and with both of them having taken independent legal advice. Pre nuptial or partnership agreements are hardly romantic; opponents of them would argue that to be asked to enter one should be taken as a sign of his or her partner’s lack of commitment to the relationship but when it comes to protection, does the purchase of travel insurance necessarily mean that the plane will crash? Lyn Ayrton
Watson Burton LLP
Lyn is a highly experienced family law specialist with over 15 years of experience in dealing with complex and high value financial settlements arising from divorce and separation. She has a national reputation which has won her valued clients UK-wide and she has successfully completed numerous multi-million pound settlement cases. |
