Vanessa Fox - Advice ON your legal problems
Living together, a home for the children and the legislation that's often left out
TODAY the facts and figures related to the popularity of marriage don't make happy reading for the traditionalists – or indeed wedding planners – out there. The figures are a little eyebrow raising.
According to the Office of National Statistics, in 2007 the lowest marriage rates were recorded since they were first calculated in 1862, year of the publication of Les Miserables and the first year of the American Civil War.
In 2007 the marriage rate for men was 21.6 per 1,000 unmarried aged 16 and over (23.0 in 2006) and the marriage rate for women per 1,000 was 19.7 (20.7 in 2006).
With marriage rates so low, an increasing number of couples need to consider the legal implications of cohabitation, particularly with regard to their rights - or more importantly, lack of them.
Cohabitation as opposed to marriage is clearly on the increase. There are over four million couples cohabiting in England and Wales. Although cohabitees have legal protection in some areas, they and their families have far fewer rights than their married counterparts, or those who have entered into civil partnerships.
Many assume that they have the same rights as married couples but this is not the case and most people are unaware of what cohabitation means, or rather, does not mean legally, particularly if there are children.
Many cohabitees believe the law has recently changed in their favour.
This has been suggested many times but so far there has been no legislation. The recent suggested legislation was unpopular with MPs.
For most people however there is a remedy to avoid the legal pitfalls of cohabitation; the currently not hugely popular answer of getting married or entering a civil partnership!
Mothers in unmarried families are frequently horrified to find out their lack of rights when they split up with the fathers. Often it is assumed that they have rights as 'common law spouses' but this status is an urban myth, a title that has no substance in law.
One issue that does come up regularly is the problem of securing the family home for any children of the relationship, and their main carer when a breakdown occurs.
It is possible to make an application to retain a home for children if one party to a relationship wants to leave or to sell the house, under schedule 1 of the Children Act 1989.
This piece of legislation has rarely been used in the last 20 years in comparison to other family legislation, but it is a port in a storm for some mothers or indeed fathers, who are left to bring up children without the means to purchase another home.
A court can order that a home be retained for a child until he or she is 18, and can further rule that the carer of that child should be permitted to live there, free from interference from the other parent.
However, these orders end on the youngest child reaching 18, the house will then be sold or the other party will be permitted to return to it and the absent parent will then be paid his or her entitlement. There is no ability by the court to adjust property rights in this situation as it can on divorce.
In practice I find solicitors generally under use schedule 1 or may not even be aware of its effectiveness, but there is good evidence in the cases that have been decided that if there is a need, and limited funds, a house will be retained for a child to live in until he/she reaches 18, and that if the absent parent can afford to, support will be ordered for that child and his or her carer for the same period under the Act.
Cohabitees with children should also be aware that if you do not have a Will and are unmarried but living with your partner, you may be putting your loved ones at risk. For example, a person who dies without making a valid Will is known as dying 'intestate'. In these cases, the assets belonging to such a person are distributed according to a strict set of default rules, where instead of going to the deceased's chosen beneficiaries, they are left to relatives in a particular order.
If someone dies without close relatives, it may even mean the estate passing to The Crown, even if the deceased would have preferred friends or charities to benefit. When you are cohabiting there is no entitlement in the event of intestacy therefore it is essential that you make appropriate provision for each other by making Wills.
We often don't check out our rights or raise legal or financial issues with our partners, because it can seem unromantic or be perceived to show a lack of trust. But there are ways to minimise the legal and financial problems that may arise. If marriage or a civil partnership is not on the agenda a cohabitation agreement and/or deed of trust when you start to live together, or when you decide to have children, will help to put your mind at rest.
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Wednesday 08 February 2012
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