The Great Common Law Marriage Myth

That well known phrase, “living over the brush”, is often used to describe an unmarried couple who live together. It originates from the tunnel building days of the 19th Century, when, if a boy and a girl took a liking to each other but could not afford a church wedding, they could earn the respect and recognition of others by holding hands and jumping over a brush or broom handle held by two older people. They were then “married” in the eyes of their peers.

Cohabitation today

In the UK today, statistics show that more and more people are choosing to live together before, or as a direct alternative to, getting married or entering into a civil partnership. In 1996 there were less than 3 million people cohabiting in the UK. By 2012 that figure had almost doubled to 5.9 million. What’s more, an increasing number of cohabiting couples, roughly 38% of them, are having children.

Sadly, there remains widespread confusion about their position in law. According to a 2006 British Social Attitudes survey by the Centre for Comparative European Survey Data (CCESD), “no less than 58% of respondents thought that cohabiting couples who split up were probably or definitely in the same position as married couples”.

The myth of the common law marriage is widespread. But it is just that, a myth, without any basis in law.

Unmarried couples and the law

At present, unless they have entered into cohabitation agreements, the legal protection for unmarried couples who part is extremely limited. If the property the couple live in is in the sole name of one partner and that partner should die without leaving a Will, the other will not necessarily inherit anything, not even the home they lived in together. The surviving co-habitee may only secure an interest if he or she can bring a case based on the law of trusts.

There is also a limited right for cohabitants to secure some provision for their financial support from their partners’ estates on death. Whilst it may be that their minor children are entitled to support, this ends when the children are older. The parent who brought them up may then be left completely adrift, with no further legal redress.

The solution?

Until such time as proper legislative change takes place within England and Wales (Scotland  already has laws governing cohabitation in place since 2006), the best an unmarried couple wishing to live together can do is to plan ahead. Have a solicitor draw up a cohabitation agreement, incorporate a Declaration of Trust and settle a mutual Will to give peace of mind!

Let’s leave the broom jumping safely where it belongs, in the past!

2 Sue Rowlatt FMC Portfolio 2013 (10 of 13)

Sue is a member of the Family team at FM&C Solicitors and may be contacted on +44 (0)1440 761 200 or +44 (0)7462 314 872.


Children and family disputes without Legal Aid

We are all too aware that the Government, in its efforts to improve the state of the Country’s economy, has implemented a wide range of cuts on public spending.  One of the targets of the cuts has been the legal aid budget, and decimation is not too strong a word for the cuts in legal aid in family law cases.

A myth has circulated that lawyers have become “fat-cats” on the proceeds of legal aid.  Nothing could be further from the truth, at least in family law cases where solicitors have for many years seen their rates of pay for legal aid work reduced to the point where they have been conducting cases  for a third or even a quarter of their normal rates of pay.

The disappearance of legal aid

Since 1st April 2013, much of that has changed because the availability of legal aid in family law cases has disappeared almost entirely. No longer is publicly funded legal advice available to enable parties of meagre means to obtain a divorce. Parties to divorce proceedings, however poor, will need to find the resources to pay for their divorce or “do it themselves” without a lawyer.

Furthermore, disputes between parents regarding their children will no longer be litigated under legal aid unless there have been recent incidents of domestic abuse. Disputes concerning children can become very complicated and in some cases expert reports from psychiatrists, psychologists and substance abuse laboratories are needed to assist the court. Such cases  can be very expensive to resolve and yet public funding will often not be available to meet the cost.

Disputes between divorcing parties concerning their property and finances may not be litigated with legal aid unless there have been incidents of domestic abuse and the victim’s case satisfies the strict criteria for eligibility.

So when is legal aid still available for family disputes?

Importantly, legal aid remains to enable the victims of domestic abuse to seek the protection of the courts and in appropriate cases family lawyers can arrange for applications to be made to the court on an emergency basis, sometimes within a matter of a few hours. However, even here there are limitations to the availability of legal aid and the victim will be expected to have first reported the incident  to the Police.

Legal aid remains available as of right for parents where their children are the subject of care proceedings. In those cases the parents can obtain legal representation regardless of their means or ability to pay in order to oppose the removal of their children.

What are the consequences?

Many people of limited means will no longer have access to publicly funded legal advice. They may not be able to afford to pay even a modest fee for legal representation. They may have to make their own application to the court to seek a legal remedy, prepare their case and  appear in court in person without a lawyer. Their opponent may be in a similar situation. Judges will have to deal with more cases which are presented not by trained lawyers but by parties acting in person, unfamiliar with court procedures and terminology and who are handicapped in presenting their own case. Cases may have to be decided without the Court having the appropriate expert evidence and without being addressed on relevant legal issues thereby leading in some cases to “rough justice”.

Solicitors are developing strategies to assist people in those situations including reduced fees and fixed fees as well as services where they help with some parts of the case while the client handles more routine aspects himself.

Alternatives to the Court

The Courts and the Justice Department are keen to encourage parties to settle their disputes out of court by making use of mediation services. Trained mediators are available in most areas and will try to assist parties who often cannot communicate well with each other, to find their own solution to their dispute.  Although mediation is not always free, it will  be a less expensive process than the parties fighting their case in Court.

Mediation however, is not always the answer. There are cases which are not suitable for mediation for a variety of reasons, e.g. long distance between the parties, a history of abusive behaviour where the parties cannot be expected to sit down together or simply where the parties do not approach the mediation process with a constructive attitude. Often the parties then need the assistance of solicitors to help resolve their dispute and as a last resort, by applying to the Court.

Parties to family disputes, whether it be relationship breakdown, divorce, children or financial disputes should first see whether they can resolve the problems by talking to each other.  At an early stage they should seek initial advice from a solicitor who can, in appropriate cases,  refer them to mediation.   They should return to the solicitor for advice at any stage. Only as a last resort,  when all else fails, should they take the matter to Court.

Simon McK - adjusted (640x427)

Simon McKay heads the Family team at FM&C Solicitors and may be contacted on +44 (0)1799 526 849 or +44 (0)7456 630 400.