Category Archives: Living together/cohabitation

Resources for parents

Posted on by
Reply

For those going through family breakdown there is a massive amount of information available on the internet. Sometimes the choice can be overwhelming. We’re often asked for recommendations of resources that can help families going through separation, divorce or civil partnership dissolution, so we wanted to bring to your attention The Parent Connection.

The Parent Connection is a website run by One Plus One, the UK’s leading relationship research organisation. It contains information to support people in making the transition from being partners to being co-parents. There is a focus on learning constructive communication skills and on planning for co-parenting in the long-term. These are elements that we as mediators work hard on with parents, to help them resolve the issues between them about the children.

There is plenty of information to help parents understand what their children might be thinking and feeling, and the site also looks at practical steps that parents can take to help children through the situation. The videos it includes are rather powerful, and might be particularly helpful for people who are struggling to assess how older children are reacting to new family circumstances or make sense of their own complicated feelings.

There is a forum available where people can get support from others with experience of their situations, and share stories. The site says that the forum is moderated by mediators who ensure that the tone of discussion remains constructive and positive. The site also provides a “listening room” instant-chat service which is open on Saturdays at 4pm and Mondays and Thursdays at 8pm. This provides access to someone with a counselling background, which can be useful as a first port of call for people who perhaps are not quite at the stage where they feel able to seek counselling but want to investigate more about it.

For those who are going through difficulties in their relationship but who have not made a decision to divorce, The Parent Connection has a helpful sister site, The Couple Connection. This site focuses on adult relationships: how to deal with change, commitment, disagreements or problems, and how to strengthen your connection to avoid problems in the future. It also carries information and insights on dealing with specific challenges to a relationship, for example if one partner has an affair, or if there are major recurring problems arising from housework or money. Again there are forums for discussion and a listening room, which is available every evening.

These resources are free and carry plenty of useful information and ideas, whatever the status of your relationship.  Why not take a look and see if they inspire you to do anything differently?

 

How long is your marriage?

Posted on by
Reply

As part of our occasional “divorce myths” series we thought we’d take a look at the effect that the length of time for which a couple has been married can affect how their financial matters are split on divorce.

When it comes to separating out peoples’ money and property after their relationship has broken down, a number of different things have to be taken into account: most important of these things is usually what each family member needs, and first consideration is always for the wellbeing of any children of the family. Other factors include what resources each person has available, including their ability to earn, and their ages, state of health, etc: you can see a full list and explanation on our ‘financial orders: principles’ factsheet here. The length of the marriage is set down in the law as a factor that the law considers important. The aim of the law is to make a fair division of whatever financial resources are available.

Lawyers look at two main sources of law to give you advice on what kind of division of money and property would be fair in your case. There is statute law, which is made by parliament (for divorcing couples, this is the Matrimonial Causes Act 1973), and case law, which is made by senior judges when they are interpreting parliament’s intention in making the law and applying this to the individual cases – people’s lives – that come before them. Case law shows consistently that the longer the marriage, the more chance there is that the economically weaker party will, where circumstances allow, be given a settlement that enables them to be financially secure for the rest of their lives. The division of assets in a long marriage is more likely to be equal, or close to it, whether or not the wealth has all come from one side.

So what makes a long marriage? Case law is not certain. 20 years ago a long marriage might have been considered to start at 20 years’ duration; now it may be a relationship as short as 10-15 years depending on circumstances. However, the most important thing to understand is that a “long marriage” can be just a couple of years, even down to a matter of months. This is because the courts consider pre-marital cohabitation, if it is “seamless” in its transition to marriage, to be sufficient evidence of the requisite commitment to be considered part of the marriage period. So in many circumstances and particularly for younger couples who are more likely to cohabit, the relevant question that your lawyer will wish to know the answer to is not “when did you get married?” but rather, “when did you move in together?”.

When civil partnerships were first introduced in law in 2004, there was much discussion about how the courts would treat civil partners’ financial division on dissolution. Inevitably, among the first couples to register civil partnerships were many couples to whom formalising a relationship in the eyes of the law had previously been impossible, but who had lived together for decades. Would the court amalgamate the periods of cohabitation and civil partnership to catapault them straight into “long marriage” territory? The answer we expected was “yes”, and it came definitively last week from the Court of Appeal when it considered the first financial appeal on a civil partnership dissolution in the case of Lawrence v Gallagher (see here for the judgment). There was no fuss about it, despite the fact that the couple involved had lived together for only a short time after their civil partnership was registered. Their many years of living together before registering their civil partnership meant that they were treated by the court just like any other couple who had been married for a long time.

The moral of the story is this: a short marriage/civil partnership is not a short marriage/civil partnership if you lived together before marriage/civil partnership for a long time; and living together before marriage/civil partnership can have legal consequences further down the line if you do decide to marry/register a civil partnership later.

 

Same-sex civil marriage consultation

Posted on by
Reply

Last week the government formally announced that it is considering reforming the law to enable same-sex couples to get married. It has opened a consultation seeking the views of the public about how to provide equal access to marriage: you can find it here , and it is open until 12 June 2012. It makes interesting reading, but in CFLP’s view it is as interesting for what it will not be considering, as it is for the proposed direction of change.

Currently the only option available to same-sex couples who wish to formalise their relationships in legal terms is to enter into a civil partnership. It’s pretty much the same as marriage in all but name, but the government now realises that name is important and says,

“We recognise that the personal commitment made by same-sex couples when they enter into a civil partnership is no different to the commitment made by opposite-sex couples when they enter into a marriage. We do not think that the ban on same-sex couples getting married should continue. Put simply, it’s not right that a couple who love each other and want to formalise a commitment to each other should be denied the right to marry.”

Hear, hear. The consultation will not, however, be making any recommendations on the availability of religious services for the marriage of same-sex couples, nor will it be considering whether opposite-sex couples should be able to enter into a civil partnership should they so prefer. Interestingly, having made its position clear, the government still goes on to ask questions on these matters – see below at numbers 5 and 8. (Presumably, these questions are there to enable people to have a rant rather than for any more constructive purpose?)

The government obviously understands that marriage as a concept is hugely important to society as a whole, but it is also a divisive issue. Some gay couples want to get married; some are not bothered, and some actively do not want to wear that label. Exactly the same goes for heterosexual couples, many of whom feel that marriage is inappropriate in some way for their situation, and would much prefer to have access to civil partnerships to better reflect who they are. Many couples, whatever their sexual orientation, have no wish legally to regulate their partnerships. The other difficult factor in the consultation is the religious aspect: discrimination by religious bodies about who they will marry will not only be tolerated but legally required as these organisations will not be able to conduct same-sex marriages even if they want to. They will, however, still be able to host civil partnership registrations (this has been the case since 5 December 2011).

We wonder if the government’s focus on marriage may be an attempt to distract from other areas of family law and policy that urgently need a 21st century facelift. Take, for example, the government’s failure to implement the recommendations of the Law Commission for legal consequences on the breakdown of cohabiting relationships. With marriage at a historically low ebb, how relevant is the proposed change in the law to those from Generation Y who tend to cohabit and have their children without the comparative security of a statutory framework for sorting things out if they go wrong, whatever gender partner they choose? The terminology of stable, loving, legally regulated partnerships should obviously be consistent across all sexual and gender orientation, but there is an argument that it isn’t the big issue in family policy. The lack of safeguards for cohabiting couples, for those who find themselves economically disadvantaged by the failure of a non-married or non-civilly partnered relationship, causes poverty and can harm children’s life chances. See here for more on the Resolution campaign for protection for unmarried couples – they suffer from family breakdown too, but you don’t see them in the official statistics so easily.

Also, there is the problem of how the law requires that you get a divorce, should your marriage break down. Archaically, it is still necessary to prove that one spouse has been at fault before it is possible to get a divorce without a 2-year hiatus, and this poisonous state of affairs has naturally been carried through to affect the dissolution of civil partnerships too. Again, the government does not feel able to tackle this issue, which we know well can do huge damage to couples who wish to separate their affairs with a minimum of animosity. Why is it necessary in this day and age to prove that one party has done wrong before the law will accept your contention that your marriage has irretrievably broken down? The political will, it seems, is pro-marriage for everyone, but certainly not currently pro-dignified divorce for anyone.

Then there are the government’s proposals to remove legal aid for almost all family proceedings which we’ve discussed before, see here, and plans to charge for using the child support agency to get child maintenance, to name but two more things we wish the government would do differently in the field of the law as it applies to families.

The government says there is a practical advantage in the proposals for a specific sector of the community: removing the bar on same-sex couples being married will enable for the first time, one partner to change their legal gender without having to formally end their marriage. Equally, couples who are currently in a civil partnership would be able to convert their partnership into a marriage, rather than formally dissolving their civil partnership. We applaud this, and the government’s general desire to enshrine equality regardless of sexual orientation. However, the other issues will not go away – or be obscured by the smokescreen of ‘marriage for everyone!’ – and we would like to see them back on the political agenda sooner rather than later.

The questions are below. Please do get involved: it’s possible that your views could still shape policy. Here’s that link to the consultation again. We’ve told you what we really think – what about you?

Question 1: Do you agree or disagree with enabling all couples, regardless of their gender to have a civil marriage ceremony?

Question 2: Please explain the reasons for your answer. Please respond within 1,225 characters (approx. 200 words).

Question 3: If you identify as being lesbian, gay, bisexual or transsexual would you wish to have a civil marriage ceremony?

Question 4: If you represent a group of individuals who identify as being lesbian, gay, bisexual or transsexual would those you represent wish to have a civil marriage ceremony?

Question 5: The Government does not propose to open up religious marriage to same-sex couples. Do you agree or disagree with this proposal?

Question 6: Do you agree or disagree with keeping the option of civil partnerships once civil marriage is available to same-sex couples?

Question 7: If you identify as being lesbian, gay or bisexual and were considering making a legal commitment to your partner would you prefer to have a civil partnership or a civil marriage?

Question 8: The Government is not considering opening up civil partnerships to opposite-sex couples. Do you agree or disagree with this proposal?

Question 9: If you are in a civil partnership would you wish to take advantage of this policy and convert your civil partnership into a marriage?

Question 10: Do you agree or disagree that there should be a time limit on the ability to convert a civil partnership into a marriage?

Question 11: Do you agree or disagree that there should be the choice to have a civil ceremony on conversion of a civil partnership into a marriage?

Question 12: If you are a married transsexual person would you want to take advantage of this policy and remain in your marriage while obtaining a full Gender Recognition Certificate?

Question 13: If you are the spouse of a transsexual person, would you want to take advantage of this policy and remain in your marriage whilst your spouse obtained a full Gender Recognition Certificate?

Question 14. Do you have any comments on the assumptions or issues outlined in this chapter on consequential impacts? Please respond within 1,225 characters (approx 200 words).

Question 15: Are you aware of any costs or benefits that exist to either the public or private sector, or individuals that we have not accounted for in the impact assessment? Please respond within 1,225 characters (approx 200 words).

Question 16: Do you have any other comments on the proposals within this consultation? Please respond within 1,225 characters (approx 200 words).

 

Whose fairness is best?

Posted on by
Reply

We’ve been thinking about how the recent Supreme Court decision in Kernott v Jones on the law that applies to people living together might affect the way we might work in practice as family lawyers (for more details on that decision see our previous post). The key concept of the decision in this case was that where the unmarried/not civilly partnered cohabiting couple whose relationship has broken down, have agreed that their interests in a property should change because of things that happen either at the time of purchase or afterwards, but don’t work out the shares to which they are entitled after the change, the court can step in and consider all of the circumstances to decide what shares are fair.

We’re all quite used to the concept of fairness in family law because we’ve known for a few years that a division of matrimonial/civil partnership assets on divorce/dissolution must be fair. However, this is the first time that the concept of fairness has been allowed to play a full part in the resolution of disputes between cohabitants, where there is no specific, tailored framework of law regulating how differences are settled. Even after this judgment it is still necessary to use strict property law concepts for cohabitation disputes, but we can celebrate the fact that the court has recognised that the particular characteristics of an intimate personal relationship mean that there is a greater role for it to play in assessing what should be the end result, as distinct from its role in determining the outcome of a disputed commercial property transaction, for example.

On the other hand, it’s important also to recognise that the court’s concept of fairness doesn’t always chime with the ordinary man or woman on the street. This doesn’t necessarily mean it’s wrong, of course, but such a subjective concept is always going to invite debate.

So we wonder if now there will be more interest in using mediation for disagreements between former cohabitants. Previously, people involved in these disputes may have been reluctant to try to mediate a settlement between them because they might have known that the court had very little discretion in its judgment: the outcome would simply be a question of what the evidence pointed to, rather than a subjective evaluation of the surrounding circumstances. Now we have an element of fairness to work with, we hope that it will encourage people to work towards their own concept of fairness, where appropriate, rather than letting the courts impose one. Mediation can help by providing a neutral arena with an expert, impartial third party who can assist with discussions and facilitate the people involved finding a solution that works for them. So it can be your fair solution, and not the court’s. Fairness, as always, is in the eye of the beholder.

We do of course accept that the circumstances in which the court can justify imposing the “fair” solution the Supreme Court discussed are limited for cohabiting couples, and that the decision could do nothing to affect the wider matters of cohabitation policy that the government has recently said it will not have time to look at in this parliament. Still, the Supreme Court has provided a chink of light, and it’s one we should focus on. We do believe that the concept of fairness may well improve outcomes for those economically disadvantaged when a cohabiting relationship ends; greater prominence for mediation as a process for resolving these disputes could enhance those outcomes, at a lower financial and emotional cost than the court process. Whose concept of fairness would you want to apply to you?