Common Law Wife (OR Husband)

Apologies first: I have talked about heterosexual couples in this article. The same applies to same sex couples. I have also given an example of the male partner being the one who is the main breadwinner and the girlfriend being the stay at home mum. Clearly, that could be the other way round and of course, it could be a same sex partner that is the stay at home parent as their same sex partner goes out to work.

Disclaimer Second: I have tried to express an opinion about the fallacy of common law husband and wife. In doing so, I have touched upon a complex area of law known as Trusts. I have not gone into detail about Trusts and that means that some of the information contained in this article is not strictly accurate but one possible scenario that could arise. As per the main disclaimer at the end of this article, do not act on anything you see written in here but take independent legal advice from a qualified specialist family Solicitor. Not doing so, especially in this case of all cases, you do so at your own peril.

It never ceases to amaze me how often I hear people, old and young, rich and poor talk about their partner being their common law spouse. If anything, I seem to hear women refer to that concept more than men. I do not know why that it – but anecdotally, I would say that twice as often in my legal practice, I hear women say that they are the common law wife of a man that they have been cohabiting with for some time, rather than men referring to it. Why that is the case is not particularly relevant to this article but interesting nonetheless.

I recall a particular client who came to see me not a long time ago (and case law is littered with similar stories sadly) where a woman had been living with her partner for many a year and they had two teenage children together. She had changed her name by deed and as far as BOTH of them were concerned, they were common law husband and wife. Their families thought of them as a “married” couple as did their friends and all who knew them. They felt married.

Sadly, their relationship broke down and this is when the problems arose.

Let me state the obvious from the outset: to be married, two people, whether heterosexual or same sex, MUST go through a formal legal ceremony, ie a wedding, in a Register Office, a designated religious building (such as a Church) or more commonly nowadays, an approved other building, such as a country manor etc. Without that formal ceremony, the couple are not and never will be, married.

Many people do not worry about such “minor trivialities” – but as a Solicitor dealing with relationship breakdowns day in day out – that information is of crucial importance.

If I got a pound for each time I have had a client say that they are “married” only to find out that what they meant was that were common law husband and wife – I am sure I could retire.

The fact of the matter is that the concept of common law husband and wife has not existed in England and Wales since the 1700’s, 1763 from memory but don’t quote me on that. A few decades will not make the blindest bit of difference I bet. Let me say that again just in case you thought you misread what I just said – the concept of common law husband and wife has not existed in England and Wales since the 1700’s – yes, several hundred years ago. Quite why people still hold on to this dangerous myth of the common law spouse is beyond me.

I do not even know where this folklore starts – people just seem to know – like it is in the genes.

Back to the client that I mentioned earlier, they felt married, the believed they were married but they had not gone through a marriage ceremony. So now you and I know that in fact they were not married. You and I now know that they were not common law husband and wife as there is no such thing.

So what? Well, not untypically, the male partner (I will not call him a husband, so I will call him a boyfriend, just to drill the point home), he went to work so he was the breadwinner, so to speak. She stayed at home and looked after the kids.

He had the savings in his account – the account that he had before they met but they just kept using – because it did not seem to be a big deal. She had his passbook and even knew the online pin number and password and he did not. (Sounds like my domestic circumstances too).

Crucially, he had the home in his name as the mortgage was in his name, but they both considered it their home and the kids home.

I am now simplifying matters because there are circumstances where in such cases the female partner (I will not call her a wife, so I will call her girlfriend to remain consistent) does have an interest in property but it can be expensive to prove that the girlfriend does have rights and success can never be guaranteed.

In this case however, the client that I saw had no such rights and no way of proving that she out to have an interest in the property. Even though she had done everything to raise the kids, which in my mind and more importantly, in the courts, mind is the equivalent as going out and earning a wage and thus being a joint contributor to the outgoings on the property etc.

The net effect was that she was not his wife and thus not entitled to matrimonial relief

She was not his common law wife as there is no such thing in England and Wales

So she was just a “mere” girlfriend.

She was not entitled to any of the value of the home – not a dime.

In my mind and I am sure in most people’s mind, that was a very harsh outcome for the girlfriend, especially after a long relationship. But legally, it was the right outcome. That is what the law says and until the law changes that is how it will be. The law in these types of “common law” spouse cases are not concerned with fairness but concerned with legal (and equitable) rights. You are either entitled or you are not.

Let that be a salutary lesson, if you are the common law wife, you are no more than a mere girlfriend, and if you are the common law husband, they are no more than a mere boyfriend. The law will treat you as such. So, if you are in such a situation, fix it now – especially whilst your relationship is working – as both of you will want to be fair to each other.

In my case above mentioned, the boyfriend could have approached this matter as a gentleman and said, well I thought she was entitled, so I will give her that fair share. He didn’t. What he said was, not unsurprisingly, was that he would pay out only what she was entitled to in law. Which he now knew was NIL. He made a windfall and caused her untold misery, distress and financial hardship. She was understandably devastated.

If you are in a relationship with another person and have not formally regulated your position, then for heaven’s sake go and see a Solicitor to ensure that you are both protected or there will be more than tears later.

 

The comments in this article are not intended to constitute legal advice. As ever, in all the articles written, it is imperative that you take independent legal advice before acting on any of the information contained herein.

 

Shak Inayat
Solicitor
0207 183 2898

Shak Inayat

Shak Inayat, Solicitor, is a Wealth Management expert specialising in:

1. Family Law 

  • Divorces/ Same sex dissolutions
  • Children disputes
  • Financial settlements following divorce/dissolution
  • Injunctions to protect property and assets
  • Injunctions to protect the person

(particularly high value divorces involving pension or significant family businesses)

2. Wills & Probate

  • Wills
  • Powers of attorney
  • Health directive (living wills)
  • Probate
  • Change of name

Contact me for more information and how I can assist you to maintain, retain and sustain your previously accumulated wealth on 0207 183 2898 or 075 3837 3838

Shak Inayat is a fully qualified Solicitor practising at Penn Chambers Solicitors of 13 Austin Friars London EC2N 2HE

Penn Chambers Solicitors are fully regulated by the Solicitors Regulation Authority. SRA Number 599165

All You Need To Know About Pre-Nuptial Agreements

Many people in the UK think that pre-nuptial agreements are for famous people and for the very rich, but they are being used more and more in the UK now.

The slightly odd thing about a pre-nuptial agreement, more commonly known as a pre-nup, is, that they are not currently legally binding in England and Wales and as a result, not exactly enforceable either.

So you may think that a pre-nup agreement is just a waste of time, but although not legally binding, they do hold some weight in court.

There are a number of different takes on a pre-nup, with post-nups and pre or post-civil partnership agreements. The only difference is whether the agreement refers to a marriage or a civil partnership and whether the agreement is put into place before or after the ceremony.

Either way, the effect is the same. What happens in the event of a divorce or dissolution of civil partnership is that the court will decide how they will split the couple’s assets. The court has a great deal of scope to make decisions based on a number of factors and if there is a pre-nup in place, this can be taken into account by the court during this process.

At the current time, following a decision in the Supreme Court in 2010 in the case of Radmacher v Granatino, any pre-nup that was entered into freely by both parties and with a full understanding of its implications, should be enforced by the court, as long as it was not unfair to do so.

Prior to the Radmacher v Granatino case, the UK court system said that a pre-nup was invalid because the person who obtained it knew that the marriage was going to break down and that was the sole reason for the pre-nup.

So the strange position in the UK is that whilst a pre-nup is not a legal document, it definitely does carry weight in court in the event of a marriage breakdown, as long as it has been prepared properly and that both parties are in agreement.

This may be set to change though, with the announcement by the Law Commission that pre-nups will be made legally enforceable by creating a new statute in the coming years. This can only help with the effectiveness of current pre-nups too.

Before you get married or enter into a civil partnership, it may be worth discussing the option of a pre-nup with your partner and if you both agree, speak to a solicitor to draw one up.

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

What Is A Living Will And How Do I Make One?

A living will was formally known as an ‘Advance Decision’. Putting in place a living will allows you to make decisions about the types of medical treatment you want to refuse if you are in a position where you cannot provide this information yourself.

If you have a life limiting disease you will be able to discuss your treatment with your doctor whilst you are still able to and to agree what treatment you want or don’t want. If however, you are in a car accident or have a stroke or some other sudden event; you may not be able to express your wishes.

An Advance Decision gives you the security you need to be sure that you will not receive certain types of treatment if something happens to you which renders you unable to make this decision yourself. The legal term for this is to ‘lack capacity’.

You also have the opportunity to make an Advance Statement which covers your wishes about how you want to be treated. This covers everything else except your decision to refuse treatments, which is covered in your Advance Decision. Although an Advance Statement is not legally binding, it will be taken into account. An Advance Decision is legally binding and cannot be ignored or discounted.

So what do you need to consider when making an Advance Decision?

The first steps would be to think about the types of treatments you don’t want to receive. These may be things like resuscitation or life support machinery. It is important to be clear about what treatment you don’t want and in which circumstances this situation may arise.

When you are making this important decision about your future treatment, it is vitally important that you speak to your loved ones and family too so that they understand the decisions you are making and that they support you in these decisions.

You will need to speak with your GP about your Advance Decision. This is because you have to have someone sign to say that you have the mental capacity to make an Advance Decision. Your GP will also be able to answer any questions you may have about certain types of treatments.

Finally, although you can make an Advance Decision without a solicitor, it may not be legally binding, so it is really important to seek independent legal advice to ensure that if the worst happens, your medical wishes will be carried out.

For more information about this article or any aspect of our Wills, Probate & Trusts services (including Care home fees recovery and powers of attorney), please call us on 0333 34 44 54 8 and we will be delighted to help you (there is no charge for initial telephone discussions).

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

How Can Mediation Help Me With My Divorce?

Going through a divorce is extremely upsetting for everyone involved and finding a way to get through it with as little emotional fall out as possible has to be a good way forward. If you do decide that you want to make the process as non-adversarial as possible, then mediation may be the right choice for you and your ex-partner.

Going to court to decide on contact arrangements for the children and the splitting of assets will prove to be an expensive and time consuming process. Mediation has been designed so that you both have a chance to avoid that whole situation and to just sit down in a room and decide for yourselves with the help of a mediator.

Since April 2011, every couple who is getting divorced has to consider mediation, apart from cases of domestic violence or cases with child protection issues and the benefits are clear. In mediated divorce cases, the divorce was settled within half the time of divorce cases which had to go to court.

So what is mediation and how can it help you?

Mediation is where you and your ex-partner will meet alongside a third party, your mediator, who will listen to both sides and then help you to reach an agreement on all of the important decisions you need to make about your divorce. These may include access arrangements if you have children, maintenance payments, your property and all of your assets too.

You don’t need to worry about what will happen if you cannot reach an agreement during mediation either, because mediation is not the end of the road. If you cannot reach agreement at mediation you simply go to court to get a judge to decide for you instead.

You will not lose out by using mediation, but you may be able to get through your divorce more quickly and with less confrontation, so it could be worth trying first. Mediation will not work for everyone, but if you think it may work for you, you should contact a specialist family law solicitor who will be able to help you with this.

For more information about this article or any aspect of our family law services, please call us on 0333 34 44 54 8 and we will be delighted to help you (there is no charge for initial telephone discussions).

 

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

Closing the Door on the Past

Closing the Door on the Past

Vince v Wyatt [2013] EWCA Civ 495

My vindication to all my former “doubting Thomas” clients

 

This article is part of a trilogy of articles – you may wish to read this in conjunction with “Dismissing Financial Claims to Finality” and “Vince and Wyatt – Electric Shock for the Unwary”

At the time of writing this article (August 2013) I will have been qualified for nigh on 18 years. So for almost 20 years I have been advising clients, rich and poor, old and young, to do what I refer to as “closing the doors”.

I have explained time and time again that a divorce ONLY ends your emotional and physical relationship; it does not end their financial relationship. I have vehemently expressed a strong view that in order to do the latter, they need to (wherever possible) close what I have referred to as “closing the lifetime door” and “closing the death door”.

Let me explain: when parties divorce and resolve their finances whether by agreement or by litigating; the distribution of the assets, even if evidenced in writing, signed by both parties does not prevent the other former spouse from coming back in later years to make a (further) financial claim (under the Matrimonial Causes Act 1973)>

To make matters worse, even after a former spouse passes away, the surviving ex-spouse can make a claim against the deceased spouse’s estate if reasonable financial provision has not been made for them. Can you imagine how that may feel; that at the time of dealing with the loss of a loved one (the deceased spouse) the executors, usually perhaps the grown up children, now have to deal with a financial claim too (under the Inheritance [Provision for Family and Dependants] Act 1975).

Let me give you an example; let us say poor Jack and Jill decide to divorce. They proceed to decree absolute, all fine and dandy so far. They decide that they do not need a Solicitor and so amicably share the assets in whatever proportions they see fit. Both are happy, but both are smart (or so they think) and they write it all down and sign the document in the usual “in full and final settlement” terms or similar words to make it cast iron.

The problem is that it is not cast iron. That negotiated settlement is not much use frankly in protecting either of them in the future.

As I mentioned, the Matrimonial Causes Act 1973 allows a spouse or FORMER spouse to make a financial remedy claim and the courts function cannot be usurped by an agreement reached between the parties (in simple terms).

So off they trot, happy that they have saved probably a couple of thousand pounds in not using a Solicitor. Bargain.

Jill then (using an actual case I had to deal with as an example) comes into my office very distressed with a pile of court papers just after her mother sadly passed away eight years after her divorce (which I did not do). The court papers were from her very naughty ex-husband who decided that they needed to resolve financial issues to finality and his Solicitor expressed the (right) view that this had not been achieved by their agreement, even though it was stated as being in full and final settlement.

At the time of her divorce, both were unemployed and “penniless”. Her legal advisor at the time felt that there was no need to “close the doors” dismissing financial claims against each other and so no financial consent order was prepared or sealed by the court.

Now poor Jill had bettered herself, got a good job and good prospects and indeed inherited a substantial sum of money from her late mothers’ estate. She was far from penniless now.

Had she prepared that financial consent order and “closed the doors” she would not have been in this predicament.

Going back to the title of this article, I talk about vindication. I have always advised my clients, to dismiss all claims each has against the other, whether they are wealthy or not, because their circumstances could change, hopefully for the better.

Often clients have looked at me with suspicion, even derision on rare occasions, that I suggest such a thing because it is a mechanism for me to extract more money from them. They fail to appreciate that the reason for the legal advice is to protect them. The vast majority have accepted my reasoning and honesty, the odd client has not much, to their detriment.

In the recent case of Vince v Wyatt ([2013] EWCA Civ 495 for all you boffins out there) the Court heard that Dale Vince and Kathleen Wyatt married in December1981. At the time both were receiving state benefits. They had a child in May 1983 and separated in February 1984.

In October 1992 Mr Vince and Ms Wyatt were divorced. At the time of the divorce neither party had any assets and both were receiving state benefits. Ms Wyatt had a relationship with another man with whom she had children. Mr Vince married his current wife in 2006 with whom he has a son.

It is unclear whether any financial orders were made at the time of the divorce in 1992. Given the time which has elapsed all the court papers apart from the divorce decree itself have been destroyed. The files of the solicitors involved at the time had also been destroyed long ago.

In 1996 Mr Vince founded Ecotricity, the world’s first green energy company which has since grown into a very successful business estimated by The Sunday Times Rich List to be worth £90m.

When the matter went to court, the Family Division of the High Court declined to strike out Ms Wyatt’s claim as an abuse of process and ordered that Mr Vince furnish Ms Wyatt with a fighting fund to bring the claim against him.

Yes, you read it right first time: Mr Vince had to pay Ms Wyatt money to fight her case against him. Ouch.

(Fortunately – depending how you look at it), in a unanimous decision, on appeal, the Court of Appeal upheld Mr Vince’s appeal against a judgment given in the lower court.

The Court of Appeal ordered that Ms Wyatt’s claim for a housing fund and capitalized lifetime maintenance should be struck out because at the time when Ms Wyatt should have brought her claim neither party had any money and both were in relationships with new partners. Mr Vince’s present wealth was generated years after the parties divorced as a result of the success of the Ecotricity business.

The outcome was a just and fair outcome. It was a good job Mr Vince had the money and the sense to appeal. Many others may not have. Phew.

The moral of the story to all those doubting Thomas’ who thought I was seeking to line my purse with their hard earned money. You believe me now don’t you?

To those who did not believe, it is well, erm hard cheese.

Ignore your Solicitor at your peril.

 

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

 

Vince v Wyatt

Vince and Wyatt – Electric Shock for the Unwary

Vince v Wyatt [2013] EWCA Civ 495

 

This article is part of a trilogy of articles – you may wish to read this in conjunction with “Dismissing Financial Claims to Finality” and “Closing the Door on the Past”

In the recent case of Vince v Wyatt ([2013] EWCA Civ 495 for all you boffins out there) the Court heard that Dale Vince and Kathleen Wyatt married in December1981. At the time both were receiving state benefits. They had a child in May 1983 and separated in February 1984.

In October 1992 Mr Vince and Ms Wyatt were divorced. At the time of the divorce neither party had any assets and both were receiving state benefits. Ms Wyatt in due course had a relationship with another man with whom she had children. Mr Vince also at some point thereafter married his current wife in 2006 with whom he has a son.

It is unclear whether any financial orders were made at the time of the divorce in 1992. Given the time which had elapsed, all the court papers apart from the divorce decree itself have been destroyed. The files of the solicitors involved at the time had also been destroyed as they are only usually kept for six years.

So they divorced in 1992. In 1996 Mr Vince founded Ecotricity, the world’s first green energy company which has since grown into a very successful business estimated by The Sunday Times Rich List to be worth £90m now.

Ms Wyatt made a financial claim to settle financial matters once and for all in 2012/2013 because of the (lack of) (proof of) failure to dismiss financial claims at the time.

The VERY common error most people make (and it seems, some Solicitors too) is that the divorce will end a financial relationship. It does not. That needs to be “divorced” separately.

The law relating to this point is covered in the article “Dismissing Financial Claims to Finality” so I will not repeat it here. But in summary, only a court order, done by consent (so neither party needs to turn up to court) or a court order ordered by the Judge after litigation, can dismiss claims between two (former) spouses. Any other agreement between the two (former) spouses, even if signed, witnessed and concluded by the words “in full and final settlement” or words to that effect, in reality do not do that. So, either party can come back years later as this case demonstrates.

So Ms Wyatt did just that, she made a financial claim years later.

When the matter went to court, the Family Division of the High Court declined to strike out Ms Wyatt’s claim as an abuse of process and ordered that Mr Vince furnish Ms Wyatt with a fighting fund to bring the claim against him.

Yes, you read it right first time: Mr Vince had to pay Ms Wyatt money to fight her case against him. Ouch.

(Fortunately – depending how you look at it), in a unanimous decision, on appeal, the Court of Appeal upheld Mr Vince’s appeal against a judgment given in the lower court.)

The Court of Appeal ordered that Ms Wyatt’s claim for a housing fund and capitalised lifetime maintenance should be struck out because at the time when Ms Wyatt should have brought her claim, neither party had any money and both were in relationships with new partners. Mr Vince’s present wealth was generated years after the parties divorced as a result of the success of the Ecotricity business.

In my humble view, the outcome was a just and fair outcome. It was a good job Mr Vince had the money and the sense to appeal. Many others may not have been so lucky. Phew.

Mr Vince understandably (but incorrectly) expected that having separated from his ex-wife in 1984 when he was a penniless 22 year old, he should not be required to pay her a vast sum of money simply because years after she divorced him in 1992, he had built a successful business. Fortunately, the Court of Appeal agreed with him unanimously.

Giving the lead judgment for the Court of Appeal, Lord Justice Thorpe said:

“The facts of this case are extreme. Impecuniosity has been the experience of all of the wife’s adult life. Both the men with whom she has entered into family life were seemingly equally impecunious.

Her husband was the most improbable candidate for affluence. The wife no doubt can appeal to his sense of charity but in my judgment he is not to be compelled to boost the wife’s income by the exercise of the jurisdiction under the Matrimonial Clauses Act 1973. He is not her insurer against life’s eventualities.”

In a concurring judgment, Lord Justice Jackson said:

“In my view the court should not allow either party to a former marriage to be harassed by claims for financial relief which

(a) are issued many years after the divorce and

(b) have no real prospect of success.

It must be an abuse of the court’s process to bring such proceedings…The present case is a classic example of such abuse.”

The Court also held unanimously that Mr Vince should not have been ordered to fund his ex-wife’s legal costs of bringing the claim against him. Lord Justice Thorpe said that he would have allowed Mr Vince’s appeal against that aspect of the order even if he had not allowed his appeal against the entire claim being allowed to continue.

Agreeing that Mr Vince should not in any event have been ordered to pay Ms Wyatt’s costs, Lord Justice Jackson said:

“If the deputy judge’s order stands, the ultimate result will be that

(a) the wife recovers nothing,

(b) the husband pays all the costs of both sides and

(c) the husband has not an outcome which the court can contemplate with equanimity, however wealthy the husband may be.”

Whichever way we wish to dissect and interpret the language and implications of this ruling, the simple fact of the matter is that to fail to dismiss all claims, whether rich or poor, old or young, is a folly.

You may have divorced many years ago and be in a similar situation, in that you are in a new relationship or marriage. You may not have dismissed all financial claims as Mr Vince ought to have. You may therefore be potentially exposed to a claim by your ex-spouse.

How you manage that is likely to require the expert guidance of a qualified, specialist Family Solicitor.

Ignore this case at your peril or you may be in for a nasty shock.

 

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

Business Banking – Interest Rate Swaps

This was inevitable

I have been suggesting along with many others that these business banking swaps were likely to be a massive thorn in the side of the banks.

That in due course the claims that would/will be made against the banks for mis-selling these swaps will make the PPI Claims look like peanuts.

See this interesting article

http://www.lawgazette.co.uk/people/roundtable-financial-mis-selling/71677.article

(full rights acknowledged)

Shak