Cohabitees And Divorce – Some Differences

Cohabitees and Divorce – some differences

There is limited financial protection for cohabitees unlike married couples who are given different and greater protection upon the breakdown of their relationship. The “common law husband/wife” concept has not existed in England since 1753 unbeknown to most people.

Below is a very brief summary of the position as it affects couples who are not married to each other whether it is a heterosexual or same sex relationship.

Children

With respect to the children of the relationship, financial assistance can be sought through the Child Support Agency (as most people refer to it still). If this is the case, then you can simply apply to the CSA for maintenance for your children as you would if you were a married couple/same sex partnership.

With respect to residence (custody) and contact (access), generally the position is that the mother of the children will always have parental responsibility for the child/ren. The father (or same sex partner) of the children can acquire parental responsibility either by:-

a)      Agreement. That is by signing a parental responsibility agreement form.

b)      Order of the Court.

c)      Subsequently marrying the mother (or same sex partner) of the child.

Until both parties have parental responsibility the father (or same sex partner) is not treated as an equal in the upbringing of the child/ren and in that situation it is always best to seek legal advice.

Once parental responsibility has been obtained however, the Courts will be primarily concerned as to what is in the child/ren’s best interest; the Court will not necessarily be concerned whether or not the parties are married and not  favour one parent, for example the mother, over the other.

 

 

Owned Property

If the deeds of a property are in the name of one person then that person is known as the legal owner of that property, and therefore, has the power to deal with that property as he or she pleases.

However, if one party does not have a legal interest in that property then he or she can claim interest in the property known as a “beneficial interest”. That person may claim a beneficial interest if they have contributed somehow towards the acquisition of that asset, for example, by doing substantial re-decoration or improvements to a property, or paying towards the initial deposit of the purchase of the property etc.

It may also be the case that a party can claim a beneficial interest if, at the time of the purchase, there was an agreement or understanding that both parties would have a share in it even though one person’s name alone is on the deeds.

The person whose name is not on the deeds would have to, in some way, probably show that they relied on the understanding to their detriment e.g by giving up a job or another tenancy agreement. This area is very complicated and very difficult to explain in any greater detail in this article, so you should take fuller legal advice on this point if you think it applies to you.

If the property is in joint names then both parties are the legal owners of that property and then both have the joint right to deal with that property as they so see fit.

Either party may ask the Court for an Order that the property is sold. The Court will look at a number of factors including:-

a)      The intention of the parties when they purchased the property.

b)      The purpose for which the property is used.

The Court will, therefore, look to see why the property was bought; the normal purpose is to provide a home. Where the relationship has broken down, the purpose of the home no longer continues, and therefore, the Court may order the sale of the property.

This is a complicated area of law, so you should take fuller legal advice on this point if you think it applies to you.

Compare this with a divorcing couple who will be subject to entirely different rules (known as the section 25 factors) and note that a Trial Judge could award the property to say the wife, even though it may be in the sole name of the husband or vice versa.

 

Rented Property

If the property is rented, then the right to occupy that property depends on whose name is on the tenancy agreement. If the tenancy agreement is in one person’s name then that person has the sole right to occupy. In certain cases an application can be made under the Family Law Act 1996 for the tenancy agreement to be transferred into the other party’s name, for example, where there has been violence, threats of violence, or it would be better under all the circumstances that that should be the case.

If the tenancy agreement is in joint names, then the right to occupy that property is given to both parties. If one person vacates the property, then both parties will be liable for the rent (including the person who is not in occupation) until the tenancy agreement comes to an end.

 

Again, a divorcing couple (heterosexual or same sex) would be subject to entirely different rules (known as the section 25 factors) and the Trial Judge could award transfer the tenancy of the property to say the wife, even though the tenancy may have been in the sole name of the husband for a number of years or vice versa.

 

Assets (possessions)

With respect to assets e.g television, furniture etc, the general rule is whoever purchased the items, owns it. If the items were a gift from one party to the other then the item is owned by recipient (i.e the person for whom the gift was intended).

If the items were purchased jointly then the item belongs to both parties (usually 50% each) unless one person can show that they paid more towards it. If one person can establish that they paid more towards it then they will own a greater percentage of that asset.

However, in regards to a married heterosexual or same sex couple, the assets, at least initially, would be treated as acquired by both parties and as joint matrimonial assets.

 

The law in relation to cohabitees is very complicated. Please contact us for further advice before embarking on any particular course of action.

 

This information provided in this article is not intended to constitute legal advice and each relationship breakdown requires careful consideration in our view by a fully qualified Solicitor before decisions are made and before you embark on a certain course of action.

Shak Inayat

Solicitor

0207 183 2898

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Divorce Made Simple 10 – Apply For Decree Absolute As Respondent

Divorce made simple 10 – Applying for decree absolute as respondent and other issues

This article will assist you to apply for decree absolute in cases where you are the respondent. If you are the petitioner (i.e. the person applying for the divorce), then my other article, Divorce Made Simple 9 should help.

Once your spouse has applied for decree nisi as shown in the earlier articles, in due course, usually a few weeks, you (and your spouse) should receive your decree nisi. In simple terms, the easiest way to remember what decree nisi means is to assume that nisi means “nearly”.

So it follows that the petitioner will need to make the decree nisi, which means you are nearly divorced, into decree absolute, meaning you are completely and finally divorced.

First consideration

The first thing you need to be aware of whether or not you should apply for decree absolute at the earliest available opportunity or not. This is a technical question that you should consult a Solicitor about.

The advantage of applying for decree absolute straight away is that the matter is done and dusted. However, there are numerous disadvantages in applying for decree absolute straight away, which include helping you to possibly save on capital gains tax in certain circumstances if the finances still need to be resolved.

It is for this reason that the petitioner may not have applied for decree absolute yet and you should check with your spouse, if you can, for their reasons for not applying.

 

Timing

Check the date when decree nisi was pronounced. The petitioner can apply six weeks and one day after that day for decree absolute. Three months after the first day that the petitioner can apply for decree absolute is the first day that you can apply for decree absolute.

Be sure to calculate the dates accurately.

 

Application

The application form slightly more complicated than it is for the petitioner.

You will need to make an application on notice – this means that you prepare the following documents:

a)      an application form and

b)     a draft order of the outcome you seek to achieve (ie the divroce)

You can download a copy of the application form from the Justice website here. The form is a D11 Application Notice and is self-explanatory to complete so I will not go into greater detail about that here.

Once you have completed the form and the draft order above mentioned, you will need to submit it with the correct fee (£90.00 as at the date of this article, and if you send a cheque it should be made payable to “HMCTS”).

As always, keep a copy of the cheque if you are paying by cheque, and keep a copy of the application itself. The courts do lose a lot of paperwork and you may need to trace back to when you sent the application and check if the cheque was cashed.

The courts have been known to say they did not receive the paperwork and yet managed to cash the cheque!

As long as no more than 12 months have elapsed since decree nisi when you make your application for decree absolute, the court will list your case for a short hearing initially, probably 30 minutes or less, and return all the paperwork to you duly sealed with the date of the court hearing. If more than 12 months have elapsed, then please see Divorce Made Simple 9 for the procedure that must also be followed.

You will need to turn up to court on that day, as will your spouse.

You should promptly arrange to serve the papers you have received by post, but if you think your spouse will be difficult – you could serve by personal service of documents (which I refer to in greater detail in Divorce Made Simple 4 and Divorce Made Simple 5).

At this point it would be useful to instruct a Solicitor who can commence negotiations on your behalf to try to compromise the matter and see if a court hearing can be avoided at all.

Costs are never guaranteed, but in this sort of application, unless the petitioner had very good reasons, the court is likely to exercise its discretion in your favour and award you the costs you have incurred by instructing a Solicitor anyway.

When the court hearing date arrives, ensure that you are there in good time, and when called to appear before the Judge, explain what application you and making and why.

Realistically, if your case gets this far, I would suspect it would be far better to instruct a Solicitor to attend court on your behalf to ensure that your position is fully protected. You may be entitled to claim the costs of instructing the Solicitor from your spouse anyway.

 

This information provided in this article is not intended to constitute legal advice and each relationship breakdown requires careful consideration in our view by a fully qualified Solicitor before decisions are made and before you embark on a certain course of action.

Shak Inayat

Solicitor

0207 183 2898

Divorce Made Simple 9 – Applying For Decree Absolute

Divorce made simple 9 – Applying for decree absolute

This article will assist you to apply for decree absolute in cases where there are no complications and you are the petitioner. If you are the respondent or problems have arisen, then my other article, Divorce Made Simple 10 should help.

Once you have applied for decree nisi, as shown in the earlier articles, in due course, usually a few weeks, you should receive your decree nisi. In simple terms, the easiest way to remember what decree nisi means is to assume that nisi means “nearly”.

So it follows that you will need to make the decree nisi, which means you are nearly divorced into decree absolute, meaning you are completely and finally divorced.

 

First consideration

The first thing you need to be aware of whether or not you should apply for decree absolute at the earliest available opportunity or not. This is a technical question that you should consult a Solicitor about.

The advantage of applying for decree absolute straight away is that the matter is done and dusted. However, there are numerous disadvantages in applying for decree absolute straight away, which include helping you to possibly save on capital gains tax in certain circumstances, if the finances still need to be resolved.

 

Timing

Check the date when decree nisi was pronounced. You can apply six weeks and one day after that day for decree absolute if you are the person divorcing your spouse (i.e. you are the petitioner). Be sure to calculate the date accurately.

 

Application

The application form is a simple one. You can download a copy from the Justice website here. The form is a D36 Notice of Application for Decree Nisi to be Made Absolute and is self-explanatory to complete, so I will not go into greater detail about that here.

Once you have completed the form mentioned above, you will need to submit it with the correct fee (£45.00 as at the date of this article, and if you send a cheque it should be made payable to “HMCTS”).

As always, keep a copy of the cheque if you are paying by cheque, and keep a copy of the application itself. The courts do lose a lot of paperwork and you may need to trace back to when you sent the application and check if the cheque was cashed.

The courts have been known to say they did not receive the paperwork and yet managed to cash the cheque!

As long as no more than 12 months have elapsed since decree nisi when you make your application for decree absolute, the process is a formality and you should receive, fingers crossed, your decree absolute in a matter of days.

If you have not received it in say 2 weeks, you should chase the court as something will have probably gone wrong.

 

More Than 12 Months Elapsed Since Decree Nisi

If more than 12 months have elapsed since pronouncement of decree nisi before you wish to apply for decree absolute, you will need to send a detailed covering letter to the court to explain the following:

a)      The reason for the delay in applying for decree absolute

b)     Whether you have at any time resumed cohabiting with your spouse (even if for a short period)

c)      Whether a child has been born to either party since filing the petition, and if so, is it a child of the family (this is a legal definition so you should make sure you give full facts to the court in any event and that will help the court to decide if you cannot decide if the child so born is a child of the family or not).

You should submit this detailed letter with your application and the above mentioned fee, and in due course, subject to the courts not having any significant concerns, decree absolute will be granted.

If the court is unsure, or has concerns they may ask you to file a statement known as an affidavit, to explain yourself in greater detail and may list your case for a directions appointment (mini hearing) to clarify certain aspects of your letter, which led to the concern in the first place.

If the court does raise these issues, it would be wise to instruct a Solicitor to draft the reply for you or represent you for the remainder of the divorce.

 

This information provided in this article is not intended to constitute legal advice and each relationship breakdown requires careful consideration in our view by a fully qualified Solicitor before decisions are made and before you embark on a certain course of action.

Shak Inayat

Solicitor

0207 183 2898