Insight
Publish date
22 December 2016
Family law: your questions answered
Q: Our daughter is getting married later this year and we have already gifted her a property and intend to transfer more properties to her. We love our son in law, but we’ve worked hard to build up our assets and want to be certain that if anything happens that she would retain those properties and they would stay as family assets. What could be done to protect the property already in her name and the future gifts?
A: Once your daughter is married, assets are considered to be joint, regardless of where they originated. Arguments can be made that they aren’t joint, that some are non-matrimonial but whether a court will consider them to be that, in the event of a divorce, depends on the circumstances of the case. To give your daughter the best protection she could enter into a pre-nuptial agreement. A pre-nuptial agreement can be drawn up ahead of the marriage, and sets out the following:
- What assets both parties are bringing to the marriage
- What they intend to be their respective separate property
- What, if anything, will be joint
Providing the agreement is entered into at least 21 days before the wedding, both parties have had sight of financial disclosure from the other, both have had independent legal advice and there was no duress, then the agreement is likely to be considered by a court in the future, if it has to be considered.
Q: My daughter would be interested in considering a pre-nuptial agreement but she is concerned about her and her fiancé having separate solicitors. She feels that it would be awkward to have letters or emails going between solicitors. Could you act for them both?
A: Both your daughter and her fiancé would need separate legal advice, but they could instruct collaboratively trained solicitors to assist. The discussions about the pre-nuptial agreement would take place together, face to face, without the need for formal correspondence. It can be a much more reassuring way to discuss something that can feel awkward and uncomfortable when the rest of the focus is on planning for the wedding day.
Q: We’ve left it too late to proceed with a pre-nuptial agreement. Is there anything else we could do?
A: You could enter into a post-nuptial agreement, providing you both agree that that should happen. It contains the same information as a pre-nuptial agreement and it can be entered into after the marriage. Again it is not automatically binding but it is the best protection when the wedding has already happened, providing the same conditions are met, independent legal advice, full disclosure and no duress to enter into it. Again, both parties can instruct a collaborative solicitor to deal with matters so that the discussions can take place face to face without formal correspondence and the awkwardness that could cause.
Q: As a separated parent, what do I need to bear in mind when arranging childcare for my children during the summer holidays?
A: For any separated parents, the keyword to keep in mind is communication. If you can communicate with each other you will avoid problems later down the line, making life easier for yourselves and most importantly, for your children. Talk to your ex-partner in good time before the end of the school term to explain what your plans for childcare are over the summer holidays.
This will give you time to discuss any concerns that they may have about the arrangements and for you to consider any requests to change the arrangements. You do not need your ex-partner’s permission to put your children into holiday clubs or nursery, but if they have parental responsibility for the children, it is good practice to keep them informed. You may also like to offer them first refusal on looking after the children during the holidays, before you pay for professional childcare.
Q: Can I expect my ex-partner to take time off to look after the children during the summer holidays?
A: If your ex-partner does not want to spend additional time with the children during the summer holidays, you cannot force them. Talk to your ex-partner well in advance of the summer holidays to ask whether they can cover any of the childcare. If you feel strongly that you would like your ex-partner to spend more time with the children during the summer holidays, you can suggest that you both attend mediation to discuss the arrangements with an independent mediator.
However, if your ex does not agree, you cannot force them. If your ex-partner has offered to look after the children during the summer holidays, it is always a good idea to have ‘back up’ arrangements in place if possible. If your ex-partner tells you at the last minute that they can no longer have the children, you cannot make them.
Q: Do I need my ex-partner’s permission to take our children on holiday?
A: If your ex-partner has parental responsibility for the children (and there is no court order in place – see below) you must obtain their permission to take the children out of England and Wales for any period of time. Some airlines require a letter of consent from the absent parent if one parent is travelling abroad with the children. If however you have an order from the Court confirming that the children live with you, you can take the children out of the country for up to four weeks without needing the other parent’s permission. If your ex-partner does not consent to you taking the children out of the country, you can make an application to the Court for permission. It is important to ask your ex-partner for their consent as early as possible, so that you have enough time to make an application to the Court for permission if this is necessary.
Q: My spouse has committed adultery; we have been married for 25 years and have two children. We want to try and make the marriage work but I also want to know that I have some security financially if the reconciliation doesn’t work. What can I do?
A: You could enter into a post-nuptial agreement. This agreement can be entered into anytime after you are married. It is advisable that it sets out the assets you both have together and separately so that there has been full disclosure before it is entered into. It is also advisable that you both take independent legal advice before you sign it and that you are both fully aware as to the consequences of the agreement in the event the marriage was to come to an end. As with pre-nuptial agreements, such agreements are not automatically binding but they are likely to be upheld if there has been disclosure, independent advice and the agreement is not unfair. It means that both you and your spouse would know where you stand financially if the marriage did come to an end. One of you could instruct a lawyer to draw up the agreement, which is then taken by the other to a lawyer to consider. Alternatively, you could instruct collaborative lawyers to act for you and then all discussions regarding the agreement and the drafting of the agreement could take place face to face, sitting round a table, rather than through correspondence.
Q: My husband and I want to lend our son some money to buy a property with his partner. How can we protect our money if the relationship was to end?
A: There are different ways to record the fact that the money is not a gift and that you intend it to be repaid.
Firstly, you could enter into a declaration of trust with your son and his partner. This document would record the amount of money that was being lent and when it would be repaid and whether there would be interest payable. Your son and his partner would be the owners of the property but a restriction would be registered on the title to the property, notifying anyone looking at the legal title that there was something else to consider. The declaration of trust would be signed by you all and would be clear as to your intentions.
Another way to protect your money would be to register a charge against the property. It would usually come second in priority after any mortgage charge and set out when the monies were to be repaid, whether interest was to be paid etc. Anyone checking the title to the property would immediately be aware that you had a charge against the property.
You could also enter into a loan agreement with your son and his partner, setting out the terms of the loan and when repayments should be made. It would still be advisable in those circumstances to have a restriction registered on the title to the property.
Q: I have recently separated from my long term partner, we were not married. Am I able to make a financial claim against them?
A: While many people refer to this type of relationship as a “common law marriage”, it carries no specific legal status and there is no such thing as a common law spouse. As a non-married person, you have no guaranteed rights to make a claim on your former partner’s property after separation, or even if your partner were to die. This is still the case if you have lived together for many years and even if you had children together.
It is possible that you may have some rights as a result of cohabiting with your partner, but this is only something that can be determined after all the facts of your particular case have been considered by a lawyer.
Because the number of cohabiting couple families has increased significantly in recent years, many couples now choose to enter into cohabitation agreements to reflect their wishes and what should happen if their relationship ends. Couples are encouraged to enter into cohabitation agreements.
Q: What if my spouse wants to take the children to live in another part of the country or even abroad?
A: Even though you both have parental responsibility for your children as married parents, your spouse would be entitled to take the children to live in another part of the country without first asking the court to give its consent to them doing so. However, they should inform you in advance of their intention to re-locate. If your spouse makes their intention known to you, you can apply to the court for a specific issue order to prevent the move. Also, even if your spouse were to move to another part of the country, you could apply to the court for an order that they enrol the children again for example, at their previous school or, that they live with you until a judge determines if they may move to another part of the country with the other parent.
However, they would need the permission of the court to take the children out of the country permanently. Indeed, if they removed the children to another country it would be a criminal offence if they did not have your or the court’s consent to do so.
When deciding whether or not to allow a spouse to relocate to another part of the country or abroad with a child, the judge’s decision will be based on the ’welfare of the child’. Therefore, although consideration will also be given to the wishes, interests and feelings of the parents, and the likely impact of the court’s decision on each of them, such wishes, interests and feelings are only considered in the context of determining the welfare of the child.
Q: My spouse wants to stop paying me spousal maintenance because I have a new partner. Are they entitled to do this?
A: Spousal maintenance payments come to an end automatically if the spouse remarries. There is no need for the payer to apply to the court to bring spousal maintenance payments to an end.
However, spousal maintenance payments do not come to an end automatically if you merely live together (cohabit), although your spouse would be entitled to make an application to the court for a decrease in the spousal maintenance payments they make to you. This is because after living together, your financial needs are likely to have changed i.e. you are most likely to have an arrangement whereby you share the cost of all household bills with your new partner. A judge will consider each case on its own individual merits and it is possible, depending on the circumstances of your case, that spousal maintenance payments could be reduced substantially and perhaps even to a nominal amount.
If you have formed a new relationship but you are not living with your new partner, then spousal maintenance payments must continue to be paid by your former spouse. Cohabitation is a question of fact and simply allowing your current partner to stay overnight with you on a couple of occasions each week, does not constitute cohabitation.
