In this article, she answers some of the common family law questions she is most frequently asked by her clients.
We’ve been living together for two years so we are common law husband and wife
There is no legal status for what is often referred to as “common law marriage” in English law. If you are cohabiting with your partner without undergoing a marriage or civil partnership, then you have no special legal status as a couple in the event of your separation or death.
The law relating to property is particularly confusing and can lead to a partner who does not own the property they live in having no claim against it at all despite living together many years.
This applies no matter how long you have been together or whether you have had children together, so you should speak to a solicitor to ensure that you have taken other steps to confirm your legal status and seek practical advice on how you can protect yourself and your family.
This may include:
- making it clear what your rights are to live in a shared property if you separate
- what right you have to a share of the value of the property
- sorting out arrangements for any children of your relationship
To get a divorce we just have to show that there are irreconcilable differences
Despite popular belief, stating irreconcilable differences is not a legally accepted basis for the ending of a marriage. The only ground for divorce permitted in English law is the irretrievable breakdown of a marriage which is proved by establishing one of five facts: unreasonable behaviour, adultery, or one of three facts based on the time that the couple have been separated (mutual agreement to divorce after living apart for two years, divorce after five years living apart, or desertion).
The government is currently considering reforms to the divorce law in England and Wales to allow no-fault divorces as soon as parliamentary time allows. However we are stuck with the old system for the foreseeable future.
When the divorce is over, that stops either of us making any more financial claims
A ‘Decree Absolute’ formalises the end of a marriage but it does not end any financial relationships. There is no time limit in respect of making a financial claim against an ex-spouse, even once the divorce has been finalised. Even a remarriage only limits potential financial claims by the partner who has remarried but does not affect the other spouse’s rights, so what should you do?
To ensure all ties are severed with your ex-spouse and prevent future financial remedy claims, you should also obtain a ‘clean break’ order in addition to the decree absolute to formalise your arrangements regarding any property and family finances.
When we split up, I’m entitled to joint custody, 50% of the time with my child(ren)
When a married couple splits up, both of you have parental responsibility. However, if you and your ex-spouse cannot agree on where your child(ren) will live after you separate, then the court will be asked to decide for you.
Before agreeing a Child Arrangement Order, they will take into account the child’s welfare when deciding arrangements for the child(ren) but a 50/50 split is not the court’s starting point and each case is decided on its own facts, depending on what is in the best interests of the child.
My husband has to put a roof over the children’s heads so he can’t force the sale of our house until they’re 18
On divorce, it is often necessary to make already limited finances stretch even further to meet the needs of both parties. The children’s needs come first. The court tries to divide the assets of the marriage, including the family home, as fairly as possible between the spouses, this often means that one spouse receives a larger share of the assets so that they can afford to rehouse themselves and the children. The outcome is that sometimes, but by no means always, the sale of the family home is put off for several years until the children grow up or at least until the spouse living in the family home can move on without causing too much hardship. Expert advice really is invaluable here because each case is different.
The answers to these frequently asked questions are deliberately general as everyone’s personal circumstances will differ. Anyone thinking of separating from their spouse should seek legal advice.
Tallents Solicitors offer a free family law clinic at their Southwell office every Tuesday evening from 5pm (no appointment required), or a fixed-fee family law meeting at their Newark office (01636 671881) for those requiring written legal advice.