Are current divorce laws outdated for the modern woman?
published in Cutting Edge magazine
In 1973 when the Matrimonial Causes Act was passed I was 15, I wore platform shoes and listened to Pink Floyd and life was very different. Now, at the age of 51, very little to do with divorce law has changed. When I look at the Matrimonial Causes Act, which determines how assets are divided on divorce, I wonder whether the law is still appropriate for modern times?
The MCA directs the Court to take into account a number of factors when a couple is getting divorced – length of marriage, parties’ ages, income, earning capacity, needs, standard of living, physical or mental disability, contributions and conduct.
The Court has a wide discretion in determining what is a fair settlement – consequently black and white rules are hard to find and divorce settlements often hover around grey areas.
White v White (2000) – stipulated that there must be no discrimination between the money earner and the homemaker. The contribution to the marriage by both husband and wife is to be seen in equal terms. For today’s women who frequently work as hard as men, run the home and usually play the larger part in the care and upbringing of the children there is no place for the Court to recognise the multi-faceted roles women have and thereby their additional contributions.
MacFarlane (2006) – a solicitor had given up her successful career to raise a family. The Court decided that Mrs MacFarlane was entitled to look to her husband for a share in his future surplus income as she had damaged her career prospects whilst focusing attention on bringing up the family.
Miller (2006) – recognised there was an argument where property is acquired and retained separately during marriage that it should not necessarily be shared equally on divorce.
Whilst our mothers lived in an era where the majority of women were financially dependant on their husbands, now just under half the UK’s workforce is female and 70% of married women work.
Increasingly women earn more than their husbands bringing assets to a marriage to which their husbands have made little financial contribution. As the role-reversal develops over the next few decades, women may find their spouse trying to end a short marriage to lay claim to assets which they have played no part in acquiring.
Unlike many countries (Europe, South Africa) Pre-Nuptial Agreements are not automatically recognised in the UK. Whilst the recent case of Radmacher v Granatino this year upheld the Pre-Nup, at present, no couple entering into a Pre-Nup in the UK can be sure that if it were to be tested in Court that what they had agreed between themselves would necessarily be upheld.
Now that women are more independent and often more highly paid than their spouse, should there be an automatic assumption that either party can look to the other to continue to fund their lifestyle? Of course there are exceptions as there always will be – the wife advancing in years and unable to re-establish a career or where one party’s ill health prevents them from re-establishing an earning capacity, but otherwise given women’s changed position in society serious consideration needs to be given to reforming the law to automatically recognise agreements freely entered into save where there are dependant children or circumstances which would render the agreement to be wholly unfair to one or other party.
The Law Commission is currently examining the status of Pre-Nups with a view to publishing suggested reforms in 2012 so the legal landscape may very well change in time to catch up with where we are right now!
Grandparents should become more, not less, involved in children’s lives
“It is time to give Bubbe and Zeide their due” published in The Jewish Chronicle 23 Oct 09
In a recent case, the Courts decided that, notwithstanding a child having lived with his grandmother for more than two years, he should now live with his father, newly released from prison.
The decision raises important questions about the role of grandparents in the lives of children. With child neglect on the increase – whether because of poor parenting, family breakdown, recession and reduced family finances what place do grandparents have in today’s society?
Grandparents frequently play a significant role in caring for young children whilst parents are at work. Earlier this year there was debate about whether grandparents should be remunerated as foster parents.
Despite the charity Grandparents Plus claiming that four in five teenagers say grandparents are the most important people outside immediate family, the reality is that most children are too busy to have regular contact with their grandparents, particularly as they get older.
Statistics provided by the Department for Children, Schools and Families show an increase in the number of adopted children and those looked after by adults, other than their parents. It is estimated that there are over 200,000 grandparents in the UK who are caring for their grandchildren full-time.
Statistics are not available on the number of Jewish children who are adopted, both Norwood and the British Association for Adoption and Fostering believe the percentage to be low as there is sufficient support from other family members.
While the 1989 Children Act prioritises and reinforces the importance of kinship (family) placements, research has found that, in the majority of cases, kinship care is not given the priority it deserves. On divorce, children frequently become estranged from their grandparents. If grandparents apply to the Court for contact, they need the Court’s permission. Consequently they have no greater legal standing than a stranger.
Grandparents are the link with one’s own history and tradition. I have heard many Holocaust stories from my 88 year old Mother. However vital book-learning is, it is no substitute for personal experience.
Bubbe and Zeide also offer a sense of belonging and identity with one’s roots and can often act as impartial judges, bridging the gap between parents and their children. So how can we reverse the decline of grandparental influence? My teenage daughters cite instances of some grandparents communicating via Facebook or texting.
Family policy is to be a major political issue in the forthcoming general election and, unless grandparents gain the legal recognition they so frequently deserve, generations may lose out on one of life’s most valuable dimensions.
How to make marriage – and divorce – work
After a landmark legal ruling, pre-nuptial agreements may well mean what they say…
reprinted from ‘the Jewish Chronicle’, 10 July 2009
Last week Katrin Radmacher won a landmark Court of Appeal case to enforce a Pre-Nuptial Agreement to protect her wealth from claims by her former husband, Mr Granatino. In July last year, the High Court ordered Ms Radmacher to pay her husband a lump sum in excess of £5.5 million. The Court of Appeal’s decision meant that Mr Granatino’s award was reduced in the light of a Pre-Nuptial Agreement the parties had signed. This groundbreaking decision is yet a further step towards couples being able to regulate their own financial affairs.
On divorce the Court takes into account a number of factors as laid down in section 25 of the Matrimonial Causes Act 1973, some of which are – age of the parties, length of marriage, needs, contributions and “all the circumstances of the case”. A Pre-Nuptial Agreement falls into the category “all the circumstances of the case”. The law is such that parties cannot oust the jurisdiction of the Court and therefore it will be in the Court’s discretion whether and to what extent a Pre-Nup will be taken into account.
Having practised family law for over 25 years and with the law rapidly changing in relation to the recognition of Pre-Nuptial Agreements, I thought it was time to look at the standing of the Jewish Pre-Nuptial Agreement – the Ketubah.
After 25 years as a lawyer, I at last have to consider the Ketubah’s legal status
The literal translation of Ketubah is “it is written”. The Ketubah is the Jewish marriage contract – a legal document originally formulated to protect the bride from financial hardship in the event of divorce or her husband’s death. The Ketubah differs from a Pre-Nup as it has a basic requirement for the husband to state that he commits to provide food, clothing and marital relations to his wife, and that he will pay a specified sum of money if he divorces her. A standard UK Pre-Nup usually seeks to limit the financial rights and obligations between the couple whereas the Ketubah imposes positive obligations.
For the past 17 years, the Office of the Chief Rabbi has offered a Pre-Nuptial Agreement to couples marrying under its auspices to address the issue of the husband and wife co-operating with regard to the giving and receiving of the Get (the Jewish divorce). In the case of N v N (1999) the Court refused an Order compelling the husband to specifically perform the Pre-Nuptial Agreement to give the wife a Get. Given the decision in Radmacher and the fact that the Law Commission is currently looking into the enforceability of Pre-Nups, it will be interesting to see how various provisions in a Pre-Nup, Jewish or otherwise may be upheld in the future.
Being somewhat of an old-fashioned romantic, I much prefer the concept of the Ketubah whereby the husband acknowledges his moral responsibility to his wife, although as far as the financial obligation is concerned this is, according to Jewish law a one off payment. Whilst Mrs Radmacher justified the reason for entering into the Pre-Nup by saying “The Agreement gave me reassurance that Nicholas was marrying me because he loved me….”, the cynic inside me questions why anyone would wish to enter into a Pre-Nup as a pre-condition of marriage. The lawyer however knows full well why this should be so.
Breaking up is hard to do
This article is reprinted from ‘Exclusively Surrey’ Magazine June 2007
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Danny Glasner assesses the legal issues to be addressed before buying a property
For many of us, purchasing a property is usually the single largest investment we make.It can be an exciting and stressful experience as we might wonder: “Is it the right property” and “Are we paying the right price?”
Other equally important issues are often given little attention, such as: Should it be purchased jointly? Should I purchase in my sole name? If so, what beneficial interest will my partner or future partner have in the property?
Whilst a property may legally be registered in the name of one or more people, it is often the case that the beneficial interest can belong to people whose names do not appear on the title deeds.
For example, when the right to buy council properties was all the rage, it was very common for the property to be purchased in the name of one person (usually a parent) with the purchase funds being paid or, the mortgage being taken out in the name of one or more of the children.
Trust Deeds were frequently drawn up on behalf of the parent and children to record who actually the beneficial owner of the property was.
Sometimes the Trust Deed would record that the property was held by the parent for the benefit of the children. Another common occurrence is where an adult child purchased a property for his or her accommodation while at university with the funds being provided by the parents.
A Trust Deed would then record the proportions in which the parent and/or the children owned the property. Aside from the issue of ownership, there are tax implications, in particular Capital Gains Tax.
It is our experience that when people are buying a property together they often ignore or wholly overlook what might happen if a dispute arises as to their respective interests and the size of those interests.
To a very significant extent such disputes can be avoided if, when purchasing the property, the parties define either in the purchasing document (the Transfer Deed) or in a Deed of Trust what their respective shares are to be.
When a relationship comes to an end the remedies available to resolve a dispute over ownership of the property depends on whether or not the parties married, registered a civil partnership or were simply cohabiting.
Marriage and Divorce
The law governing division of property following the breakdown of a marriage is to be found in section 25 of the Matrimonial Causes Act 1973.
Under this section the Court is given very wide powers, including the power to transfer a property from one party to another, irrespective of whose name the property is in.
When exercising its powers, the Court’s primary consideration will be given to any minor children of the family to ensure that their future housing needs together with their primary carer are met.
This may mean that one party may be awarded a substantially greater share than the other. That said the Court will strive to ensure that both parents are awarded sufficient funds to enable them to each meet their housing needs, if that is possible.
What Can Be Done?
Trust Deeds and Agreements will more readily suit cohabiting couples of the opposite sex and people who buy properties within family arrangements.
In the case of marriage, and now same sex relationships (civil partnership), there has been a huge increase in the idea of entering into a Pre-Nuptial Agreement.
Whilst it is still uncertain whether Pre-Nups are going to bind the Courts, increasingly judges have been prepared to give greater weight and recognition to such agreements.
Our view is that they will become increasingly more popular and the Courts will have to recognise that if men and women of full age, education and understanding, acting with competent legal advice, wish to enter into a Pre-Nuptial Agreement, the Court will be entitled to assume that they know and appreciate what they are doing and should be bound by their agreement.
The trend towards recognition of Pre-Nuptial Agreements has already begun. We sight two recently reported cases.
Case One
Before the wedding, a husband’s assets were said to be worth about £25 million and his future wife’s worth was about £1 million. Prior to the marriage the wife became pregnant.
The wife’s father insisted that there should be a Pre-Nuptial Agreement and both the husband and the wife sought and obtained independent legal advice.
Unfortunately the marriage came to an end and when it reached Court, the Judges substantially upheld the terms of the Pre-Nuptial Agreement.
Case Two
In this case the Court was not prepared to uphold the Pre-Nuptial Agreement in its entirety, but did acknowledge that by virtue of its existence the wife should receive a more modest sum than might otherwise have been the case if no such agreement had been made.
Civil Partnerships
English law has come a long way since the days of Oscar Wilde. Homosexuality was outlawed in this country until 1967, but we now have the Civil Partnership Act 2004 which gives the same rights and remedies to single sex relationships (if they are registered) on the termination of such a relationship as married couples.
There is no reason in law to stop parties who enter into Civil Partnership Agreements along the same lines as Pre-Nuptial Agreements.
Cohabiting Couples
The only protection currently afforded to cohabiting couples is to be found in the Trusts of Land and Appointment of Trustees Act 1996 and in certain sections and schedules to the Children Act 1989.
It is no exaggeration to say that the law relating to pursuing a share in a property, which was at one time the home of one or both parties, is complicated, convoluted and uncertain.
A great deal of that uncertainty can be removed if, when first purchasing the property, the parties who intend to live in it obtain independent lagal advice about a Deed of Trust or Cohabitation Agreement to properly define their respective shares.
Our advice when purchasing a property jointly or when someone else will be living there with you, is to spend time considering how that property is to be beneficially owned and then record that in writing.
It will potentially save a great deal of stress and anxiety further down the line.
Pre-nup or not to pre-nup?
Danny Glasner assesses how the courts are slowly recognising financial agreements prior to marriage
This article is reprinted from ‘Exclusively Surrey’ Magazine 2008
Historically it has always been the court’s approach, and therefore the view of matrimonial lawyers, that pre-nuptial agreements have only limited application when deciding how to divide property following the breakdown of a marriage.
Accordingly, whenever a breakdown of a marriage involved a PNA, the court would carry out a full financial inquiry of both parties’ respective assets and come to a conclusion with limited regard (if any) to the provisions of the PNA.
One of the overriding reasons for the court’s attitude has been its unwillingness to have its jurisdiction constrained or ousted by any agreement that may have been made before marriage. There may also have been a moral aspect to this, with the court taking a dim view of both parties contemplating separation before even getting married.
More recently, certain basic guidelines were laid down as essential pre-conditions if a PNA was to have any chance of being given serious consideration, let alone enforced in the event of divorce. These pre-conditioned included:
1. That each spouse was separately represented and had the benefit of competent legal advice.
2. That there was full and frank disclosure of the parties’ respective financial assets. That the agreement was concluded at least 21 days before the date of the celebration of the marriage.
4. That there was no evidence of undue influence or coercion or any other form of emotional blackmail.
The court still retains an absolute and overriding discretion as to how it will deal with the assets of the husband and wife following the break-up of the marriage, but it has become increasingly apparent that they are now prepared to give greater consideration to a PNA.
Marriage and Divorce
A recent case involving a Mrs Susan Mary Crossley and her husband Mr Stuart James Crossley, which came before the Court of Appeal in December 2007, provides a new and refreshing insight into how PNA’s may be viewed in the future.
The wife was 50 years of age and her husband 62. Both had substantial independent fortunes, which was a significant factor. They were engaged for three months after meeting. The husband had been married before and had also been in a long-term relationship.
He had four children from his previous associations. She had been married three times before and had three children. They both signed a pre-nup.
The critical part of the PNA was the clause that effectively said both parties should walk away from the marriage with whatever they brought into it.
They separated after about 14 months. The wife petitioned for divorce and issued an application for financial relief. This triggered a date for the exchange of financial statements.
On advice, Stuart Crossley’s solicitors issued an application against the wife in which he sought an Order from the Court that the wife should show why her claim for financial relief should not be dealt with in strict accordance with the terms of the PNA. Remember, one of the pre-conditions to a PNA having any chance of succeeding is that there is a full and frank financial disclosure. In this particular case, the wife alleged that her husband had not made full disclosure of his fortune upon which the agreement had been negotiated.
The Judgement
The judge at the trial gave certain directions which effectively required the wife to show why the PNA was not a ‘knock out blow’ to her claim for more than it provided.
She appealed against the judge’s decision and the matter came before the Court of Appeal. It would appear from the judgement that pre-nuptial agreements are growing in importance and recognition.`
It is reasonably clear from this decision that while PNA’s will not automatically bind a court and that the overriding discretion of the judges is retained, it is becoming increasingly apparent that pre-nuptial agreements are now a significantly more important consideration than they were a few years ago.
Not settling for less
On 11 March 2009 the Court of Appeal’s decision in Myerson v Myerson sent out a clear message to those who have been considering making an application to Court or attempting to renegotiate any capital elements of their divorce settlement – “DON’T!”
Many clients whose financial circumstances have drastically changed were eagerly awaiting this decision.
reprinted from ‘Private Client Practitioner’ Magazine, June 2009
The background
On 28 February 2008 Mr and Mrs Myerson reached agreement whereby of the matrimonial assets then valued at £25.8 million Mrs Myerson would receive £11 million (43%) and Mr Myerson would retain £14.5 Million (57%).
The husband was and is a Fund Manager operating through a Company quoted on the Aim Exchange, Principle Capital Holdings Limited (PCH). Mrs Myerson was to receive £9.5 million in cash and the balance by transfer of a holiday home in South Africa valued at approximately £1.5 million.
Mr Myerson’s assets consisted of a very substantial shareholding in PCH and various properties. At the date of the agreement, shares in PCH stood at £2.99, valuing the husband’s holding in the Company at just over £15 million. At the time of the financial Consent Order to give effect to the agreement the shares were quoted at £2.75 (19 March 2008).
The value of the shares started to tumble in 2008. By 23 December 2008 the shares were valued at £0.725p. By the date of the Hearing on 11 March 2009 they had sunk to £0.275p per share.
The Consent Order of 19 March required payment of a lump sum of £9.5 million by a first instalment of £7 million due on 3 April 2008 and by four further equal instalments of £625,000 due on 3 April of the four succeeding years. The first instalment was funded by the sale of one of Mr Myerson’s properties.
On 23 December 2008 Mr Myerson sought to appeal the 19 March Order on the basis that forces within the global economy and the collapse in the Company’s share price had rendered the Order unfair and unworkable.
Barder v Caluori
The case of Barder v Caluori [1988] AC 20 decided that a decrease in the value of assets will only be acknowledged where that decrease makes the Order wholly unworkable. Such an event is known as “a Barder event” however, the change in circumstances must be extreme. The question which is facing many divorce lawyers and their clients is the extent to which the current global economic crisis is “an extreme case”.
Mr Myerson’s Counsel submitted that the drop in share prices and house values was sufficient to satisfy a Barder event – when before has the government had to buy out British clearing banks?
Mr Myerson’s Counsel submitted that these considerations destroyed “the basis or fundamental assumption upon which the original Order had been made”, that the overall division of assets was no longer fair and that compliance with the terms of the Order was no longer practicable.
The devastating reduction of the value of the husband’s shareholding meant the husband’s current net position was at minus £539,000 compared with the wife’s at plus nearly £11 million.
Varying an order
On what basis does a party have the ability to apply to Court to vary an Order? Section 31(1) of the Matrimonial Causes Act 1973 (MCA) empowers the Court not only to re-timetable and/or adjust the amounts of individual instalments, but also to vary, suspend or discharge the principal lump sum itself.
Section 31(2)(d) MCA gives the Court power to vary a lump sum payable by instalments. The Court has both the jurisdiction and the discretion to relieve hardship having regard to all the circumstances. However, in Westbury v Sampson [2002 1 FLR 166] Mr Justice Bodey said:-
“The re-opening under section 31 of . . . lump sum Orders by instalments . . . should only be countenanced when the anticipated circumstances have changed very significantly, and/or for cogent reasons rendering it quite unjust or impracticable to hold the payer to the overall quantum of the Order originally made”.
The principles governing an application to set aside a Financial Order on the grounds of a dramatic subsequent event have been established and applied over the last 20 years. The basis for such an application is:-
- New events have occurred since the making of the Order which invalidate the basis, or fundamental assumption, upon which the Order is made so that if leave to appeal out of time were to be given, the appeal would be certain or very likely to succeed.
- New events have occurred within a relatively short period of time since the Order was made.
- Application for leave to appeal out of time should be made reasonably promptly.
Simply a change in the parties’ circumstances which has taken place since the Order will not normally give rise to any case for re-opening matters. Capital settlements are by their very nature intended to be final.
In Myerson, the Order had been one which had been reached by agreement. Mr Myerson must have known the risks or potential risks which he was likely to face – he had taken a speculative course in reaching agreement – the Court therefore questioned why it should subsequently relieve him of the consequences. The Court also took the view that although the market might take a pessimistic view as to Mr Myerson’s prospects, he may not share the market place view and “unusual opportunities are created for the most astute in a bear market”.
Failure to vary
Mr Myerson failed to satisfy the condition that the appeal would be certain or very likely to succeed.
It is well known that the Court will do its utmost to uphold parties to the terms of an Order, particularly when it is (as most Orders are) by consent. In reviewing applications to vary the payment of a lump sum by instalments against the background of changed and difficult circumstances on the part of the payer, the Court will look at all possible means to pay the balance outstanding even if it means postponing payment. To warrant the Court exercising its discretion, the nature of any change in financial circumstances has to be extreme. The Court will expect the payer to find whatever legitimate means may exist to fulfil payment – for example to borrow or sell up. If a paying party runs into difficulties in fulfilling payment of a lump sum by instalments the better approach may be to negotiate for additional time.
Notwithstanding the very low prospects of a lump sum Order by instalments being varied by the Court, I always advise clients to discharge their obligations at the earliest opportunity as where an Order remains to be implemented the other party’s claims for financial relief are usually not dismissed until full payment has been made – in other words, a wife’s outstanding claims for maintenance – if agreed to be dismissed upon payment of the last lump sum instalment will not be dismissed until that payment has been made.
Mr Myerson was disappointed that the Court failed to recognise that the economic downturn had made his divorce settlement unfair. It is understood that Mr Myerson will now take his appeal to the House of Lords. This underlines the tension between the need for finality as regards capital provision and the need for review in exceptional cases where justice demands this.
Given the current economic climate assets have declined in value. As a result of the credit crunch it is important to bear in mind the risk of assets decreasing further in value. When negotiating settlements provision can be made to cover this eventuality – be wary about agreeing a fixed lump sum to re-house when it could be some long while before the property is sold and the anticipated sale price may not be achieved leaving the other spouse short of capital. Percentages are a safer bet in this economic climate as both parties will be sharing the loss (and any gain equally). Bear in mind the nature of assets so that again one party is not left with all the risk laden assets and the other the ‘safer’ options unless he/she is fully aware of the risks.
SIX THINGS YOU WANT WHEN YOU SEE A SOLICITOR ABOUT A FAMILY MATTER
(How to Best Instruct Your Solicitor)
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Take with you a short summary of what you believe your income and assets to be, including if possible in relation to your spouse/partner.
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Give some background to the breakup of the relationship. Whilst this may not be strictly necessary in the legal sense, it helps your solicitor to get a flavour of other possible issues and how your former spouse/partner is likely to respond. Forewarned is forearmed!
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Recognise that it is a very big step which you are taking, often seeing a solicitor for the first time about this issue will be the first time you will be looking to formally end the relationship. You may be emotional but don’t be embarrassed, your solicitor will be sympathetic and will have dealt with a number of cases similar to yours.
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Be clear about what you would like to achieve, not only in terms of outcome but also at the end of your meeting.
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Take a checklist of questions with you.
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Check out whether you feel comfortable with the solicitor who you propose to instruct. It is a very personal relationship and you will need to work together.
A Synopsis of The Civil Partnership Act 2004 – A Marriage in All But Name
As from 5 December this year, the Civil Partnership Act 2004 (“the Act”) will permit two people of the same sex to register as Civil Partners.
Whilst the change in the law relates to family matters, it is also a civil rights or equality measure.
Prior to the passing of the Act, there were a number of injustices which were rectified (where possible) by Case Law.
For example in the case of Fitzpatrick v Stirling Housing Association Limited the Court decided that there was no distinction between a homosexual and heterosexual couple and that the statutory tenancy should pass to the survivor on death.
The Act creates Civil Partnerships for same sex couples. It does not permit marriage between people of the same sex which is permitted in Holland, Spain and Belgium.
The British Government was not ready to put at risk the institution of marriage. It has therefore permitted same sex couples to register their relationship if they choose to. An extension of the provisions under the Civil Partnership Act to non gay relationships is expected in the future.
There are however very few differences between the consequences of Civil Partnership and Marriage.
A Civil Partnership is formed when two people have signed the Civil Partnership document in the presence of each other. The place at which the two people register the document must not be religious premises.
A “Civil Partnership” is defined as a relationship between two people of the same sex, having been formed by registration in England and Wales or, a relationship which has been formed overseas but is afforded recognition in England and Wales because of the Act.A Civil Partnership can be ended only by death, dissolution or annulment and provisions for termination are included in the Act.
Certain rights and responsibilities flow from forming a Civil Partnership.
In order to be eligible to register a Civil Partnership, the parties must not be:-
1. of the opposite sex;
2. already a Civil Partner or already married;
3. under 16; or
4. within prohibited degrees of relationship.
People within prohibited degrees of relationship are not permitted to register as Civil Partners. This reflects the doctrine of consanguinity in marriage. Two people are in prohibited degrees of relationship if one falls in the list below in relation to the other:-
1. Adoptive child;
2. adoptive parent;
3. child;
4. former adoptive child;
5. former adoptive parent;
6. grandparent;
7. grandchild;
8. parent;
9. parent’s sibling;
10. sibling; or
11. sibling’s child.
“Sibling” means brother or sister or half brother or sister.
Procedure
In order to register a Civil Partnership, there are 4 distinct procedures one of which must be followed:-
1. Standard procedure.
2. Procedure for housebound persons.
3. Procedure for detained persons.
4. Special procedure (where one person is terminally ill).
Registration must take place in England and Wales. The place used must be open to anyone wishing to attend the registration and must be agreed by the registration authority.
The Standard Procedure
Each of the would be Civil Partners must give notice of the proposed partnership to a registration authority. The partners can choose in which registration authority they wish to register their partnership.
The registration authority may require a proposed civil partner to provide evidence of name, surname, age, any former civil partnerships or marriage and proof of their termination, nationality and residence in England and Wales for the 7 days preceding the giving of the notice of the proposed Civil Partnership.
As soon as the prescribed waiting period is over (the waiting period being the period of 15 days beginning with the day the notice was recorded), the Registrar is under a duty, at the request of one or both of the proposed civil partners, to issue a Civil Partnership Schedule, provided there has been no objection recorded and no lawful impediment to the formation of the Civil Partnership.
Termination of a Civil Partnership
A Civil Partnership may be terminated on the grounds of nullity, or terminated by either party bringing an action for dissolution or legal separation or apply for a presumption of death order.
Dissolution
As with divorce, no Application may be made for a Dissolution Order before a year has elapsed from the date of the formation of a civil partnership.
An Application for a Dissolution Order may be made to Court by either party to a Civil Partnership, on the ground that the Partnership has irretrievably broken down.
This ground may be proved only by the existence of one of four facts, and the Court may make enquiries into any fact alleged by the Applicant and the Respondent.
The four facts are:-
1. Behaviour such that the Applicant cannot reasonably be expected to live with the Respondent.
2. The parties have lived apart for a period of 2 years and the Respondent consents to the dissolution.
3. The parties have lived apart for 5 years; or
4. Desertion.
Nullity
A Civil Partnership will be void if the parties to the Civil Partnership were not eligible to register as Civil Partners, or if there was a procedural irregularity of which both parties were aware at the time of registration.
A Civil Partnership will be voidable as opposed to void if:-
1. Either of the parties did not validly consent to its formation (e.g. as a result of duress, unsoundness of mind or some other reason).
2. At the time of formation of the Civil Partnership either party was suffering from a mental disorder of such a kind or to such an extent to be unfit for Civil Partnership.
3. At the time of the formation, one of the parties was pregnant by another person other than the other party to the partnership.
4. After the time of formation, an interim gender recognition certificate has been issued under the Gender Recognition Act 2004.
5. If one of the parties is a person whose gender at the time of the formation of the Civil Partnership had become the acquired gender under the Gender Recognition Act 2004.
The Courts of England and Wales will have jurisdiction to hear proceedings for dissolution, nullity or a Separation Order.
If in any proceedings for a dissolution, nullity or Separation Order it appears to the Court that there are children of the family in respect of which the Court has been or is likely to be asked to exercise any of its powers under the Children Act 1989, the Court must take into account the circumstances of the case and consider, whether it is in a position to exercise its power without giving further consideration to the case and if there are any exceptional circumstances which make it desirable in the interest of the child that the Court should give a direction. It may be that the Order is not to be made final or, in the case of the Separation Order is not to be made until the Court orders otherwise.
What are the Financial Consequences of Dissolution, Nullity or Separation?
Section 72 of the Act makes provision for financial relief for Civil Partners.
These provisions correspond to those made for financial relief in connection with divorce pursuant to the Matrimonial Causes Act 1973. The purpose of the Civil Partnership regime is to extend all the rights and responsibilities applicable to a married couple in relation to finances to same sex couples who choose to register a civil partnership.
Those forms of relief are:-
1. Periodical payments to a civil partner or person for the benefit of a child
of the family or to a child of the family.
2. The payment of a lump sum or sums to a civil partner or to any person
for the benefit of a child of the family or to a child of the family.
3. Property adjustment.
4. Variation of settlement.
5. Sale of property and;
6. Pension sharing.
When exercising its powers in relation to Financial Orders made on the termination of a Civil Partnership, the Court must consider a number of factors and these factors are practically identical to those factors which are taken into account under the Matrimonial Causes Act.
It is very likely that Case Law followed in matrimonial matters will also be followed in the dissolution of a Civil Partnership.
What are the Financial Consequences of Termination?
Property and Financial Arrangements
Outside any proceedings for termination of the Civil Partnership, the Court may make an Order in relation to property where a civil partner has contributed to the improvement of real or personal property and where either or both of the Civil Partners has an interest in the property or proceeds of sale.
The contribution has to have been of a substantial nature and the contributing partner will be treated as having acquired by virtue of the contribution of a share (or a larger share as the case may be) in the property in such shares as may seem, in all the circumstances, just. This may however be overridden by any agreement, either express or implied to the Civil Partners to the contrary.
Where there is a dispute between Civil Partners about the title or possession of property, either party may apply to Court for determination of their application and the Court may make such Order as it deems fit for the property. This could include an Order for sale.
The Court will be able to make an Order even where the Applicant does not have a property in his or her possession or under his or her control or where the Applicant does not know where the property is. This will be particularly useful for example where the Respondent’s Civil Partner has sold a property but the Applicant does not know the whereabouts of the sale proceeds. Provided the Civil Partner has a beneficial interest in the sale proceeds, or a share of them, it does not matter how that beneficial interest was acquired.
Where the Respondent has disposed of property and has money or other property in which the Applicant has a beneficial interest and has not made an appropriate payment or disposition to the Applicant, the Court may make an Order to redress the balance.
Children and Miscellaneous Areas
The Act makes provision for the acquisition of Parental Responsibility for the children of civil partners akin to the mechanism used for the acquisition of Parental Responsibility by step-parents after marriage.
The civil partner will be able to acquire Parental Responsibility either by agreement if he or she is the sole person having Parental Responsibility of the child or with the agreement of both parents. In the absence of agreement, the stepparent could acquire Parental Responsibility by Order of the Court.
The Act also provides that a Civil Partner is entitled to apply for a Residence or Contact Order in relation to the Civil Partnership to whom the child is a child of the family, without having to seek the Court’s permission.
Conclusion
The state of marriage affects almost every aspect of life and of law. Any difference between marriage and Civil Partnership will have to be justified objectively. The whole purpose of the Act is to ensure equality between married heterosexual couples and partners who have registered their partnership under the Act.
The Act covers other areas such as occupation of the family home, injunctions, adoption, child abduction, death in service benefits, a survivor’s pension and the revocation of Wills.
The policy of the Act is that Civil Partnership is treated equally to the rights spouses enjoy wherever possible.
In “The Times” of Monday 27 June 2005 the headlines read:-
“Couples who live together to get more legal rights”. Given the sweeping changes which the Civil Partnership Act is about to bring about, it will not be too long before some, if not all of these provisions will affect heterosexual couples. A draft bill is likely to be in existence by the Summer of 2007.
Cohabitation and the law: an overview
There is no uniform system regulating the legal consequences following the breakdown of a relationship between unmarried parties, be they heterosexual or gay relationships. The present state of the law is unsatisfactory and in urgent need of codified reform.
THE CURRENT remedies following the breakdown of a relationship fall into the following categories:
Contract
On 17 April 1999 The Times reported a case brought by a surveyor who presented a bill to his former partner following the termination of their three-year relationship. The claimant had kept a record of each and every item of expenditure which he had laid out during the relationship. Mr Parker’s claim extended to £18,000, stating the monies advanced were a loan. The court ordered that Miss Holdsworth repay the sum of £10,000 to Mr Parker. At the end of the case, Miss Holdsworth said ‘my enduring concerns will be for other single mothers and….relationships founded upon mutual trust’.
With more and more people deciding to cohabit as opposed to formalising their relationship by marriage, cohabitation agreements are becoming more common. There is, however, no statute confirming that co-habitation contracts are enforceable. However, provided they are made at arms length, by parties of equal bargaining power with full knowledge of all the relevant facts and having taken independent legal advice, they are likely to be upheld. There must be consideration for the agreement which is satisfied if the agreement is in the form of a deed.
Trust Law
Many so-called common law spouses (usually the wife) live with their partner for many years believing that if the relationship breaks down they will be entitled to something. Where there is no agreement or evidence of common intention of joint ownership, either by agreement or by virtue of financial contributions to the purchase price of the property or the mortgage, the court will be unable to construe a trust.
To summarise, there needs to be either:
(a) A constructive trust – direct evidence of an agreement/arrangement/understanding that the beneficial interest in the property was to be shared and the claimant has relied on that to his/her detriment;
(b) A resulting trust – evidence of common intention is inferred from conduct of the parties and the conduct must amount to the claimant making direct financial contributions to the purchase price;
(c) Proprietary estoppel – the claimant shows that he/she has incurred expenditure or otherwise prejudiced him/herself believing that he/she had an interest in the property or would acquire one and that belief was encouraged by the owner of the land or someone acting on the owners behalf.
Statute law
Sections 14 and 15 of the Trusts of Land and Appointment of Trustees Act 1996. (TLATA).
Prior to the passing of TLATA, I acted for a lady who cohabited with the father of her three children for 15 years and assumed his name. When the relationship broke down and her former partner asked her to leave the home which was registered in his sole name, Mrs A made an application pursuant to s30 of the Law of Property Act 1925.
The judge in the High Court referred to the comments by Waite J, as he then was, in the case Hammond v Mitchell 1991. At p 11 29D WaiteJ said:
‘Had they been married, the issue of ownership would scarcely have been relevant, because the law … when dealing with the financial consequences of divorce adopts a forward-looking perspective in which questions of ownership yield to the higher demands of relating the means of both to the needs of each the first consideration given to the welfare of children.
Since this couple did not marry none of that flexibility is available to them, except a limited power to direct capital provision for their children.’
The judge also referred to the House of Lords case of Lloyds Bank Plc v Rosset 1991 1AC 107. The court has to ask itself whether there have at any time prior to the acquisition of the disputed property, or exceptionally at some later date, been discussions between the parties leading to any agreement, arrangement or understanding reached between them that the property is to be shared beneficially … If there have been discussions of that kind and the answer is ‘yes’, the court proceeds to examine the subsequent course of dealing between the parties for evidence of conduct detrimental to the party without legal title. In the case I dealt with, Mrs A did a considerable amount of work to the property undertaking improvements and paying towards an extension to the property and notwithstanding the property being in Mr A’s sole name, the Court of Appeal awarded Mrs A one half of the equity.
In Grant v Edwards. a decision of the Court of Appeal 1986 1 Ch 6.38 Mustill LJ. as he then was, said at p 651:
1. The law does not recognise a concept of family property, whereby people who live together in a settled relationship share the rights of ownership in the assets acquired and used for the purposes of their life together.’
2. The question whether one party to the relationship acquires rights to property the legal title to which is vested in the other party must be answered in terms of the existing laws of trust.
3. . . . The enquiry must proceed in two stages. First, by considering whether something happened between the parties in the nature of bargain, promise or tacit common intention, at the time of acquisition. Second, if the answer is ‘yes’, by asking whether the claimant subsequently conducted herself in a manner which was (a) detrimental to herself and (b) referable to whatever happened on acquisition.
4. . . . The event, happening or acquisition may take one of the following shapes:(a) An express bargain whereby the proprietor promises the claimant an interest in the property, in return for an explicit undertaking by the claimant to act in a certain way. (b) An express but incomplete bargain whereby the proprietor promises the claimant an interest in the property on the basis that the claimant will do something in return.’
TLATA simplified the law so that where the legal and beneficial title is held in joint names and the co-owners cannot agree on a sale, then either party can apply under s 14 of TLATA for an order that the property be sold and the sale proceeds divided in accordance with the respective beneficial interests. If the beneficial interests are not stated in the title documents, the court can be asked to determine the respective shares. Under s 15 of TLATA the court must have regard to:
1. The intention of the person(s) (if any) who created the trust;
2. The purposes for which the property subject to the trust is held;
3. The welfare of any minor who occupies or might reasonably be expected to occupy any land subject to the trust as his home; and
4. The interests of any secured creditor of any beneficiary.
The court has discretion to order a sale and will still have to consider whether the underlying purpose for which the property was bought eg cohabitation, has come to an end. The court has wider scope under s 15 than it did under s 30 of the Law of Property Act.
Where the title documents do not show one party to have an interest, then the applicant will have to prove that an interest was acquired from a resulting trust, a constructive trust or by proprietary estoppel. The court does not have a discretion as it does under s 25 of the Matrimonial Causes Act 1973. The question is whether the parties intended to share the beneficial interest.
Paragraph 1 of Schedule 1 to the Children Act enables the court to make a maintenance order, an order for transfer of property from one parent to another for the benefit of a child ‘of the relationship’ and/or settlement of property for the benefit of such a child. Paragraph 2 enables the court to make a periodical payments order and lump sum order in favour of a child who has reached 18 if that child is or will be receiving instruction at an educational establishment or undergoing training for a trade, profession or vacation.
Children
As is well-known by practitioners but less well known by the lay person, unmarried fathers do not have the same rights in relation to the children. The Lord Chancellor’s Department has issued a consultation paper ‘Procedures for the Determination of Paternity and on the Law of Parental Responsibility for Unmarried Fathers’. The Government proposes that unmarried fathers whose names appear on the birth certificate would automatically have parental responsibility.
On death
Under the Inheritance (Provision for Family and Dependants) Act 1975 (as amended by the Law Reform (Succession) Act 1995) a cohabitant may apply for provision from a deceased’s estate provided that, during the whole of the period of two years immediately before the death of the deceased, the person was living in the same household as the husband or wife of the deceased. A surviving same sex cohabitant will not qualify. A surviving cohabitant, if he or she was, immediately before the death of the deceased, wholly or partly maintained by the deceased may also apply.
In cohabitation, the parties may provide exactly the same personal or financial commitment and support as if they were married but there is not the automatic transmission of all or part of an estate to the surviving spouse where the parties are not married.
In the recent case of Re the Estate of John Watson (dec’d) (1998) The Times, 31 December the court considered whether a person was living as the wife of the deceased for the purposes of the inheritance (Provision for Family & Dependants) Act 1975 by asking whether, in the opinion of a reasonable person, it could be said that the two people were living together as husband and wife. The court said ‘… it should not ignore the multifarious nature of marital relations’.
The facts were:
Eileen Griffiths made a claim against the estate of John Watson which was opposed by the Crown to whom the whole estate would otherwise have passed as bona vacantia.
Miss Griffiths had formed an attachment with Mr Watson in 1964 and moved into his house in 1985 where they both lived until he died. Mr Watson continued working and Miss Griffiths was responsible for the housekeeping, washing, shopping, cooking etc. It was also agreed she would contribute half towards the costs for the outgoings such as gas, electricity and telephone.
In the early years of the relationship, the parties had a sexual relationship. However, during the period they lived together they
Neuberger J said that s 1(1A)(b) of the Act gave no express guidance as to whether the court should be concerned with the external appearance of the relationship or its internal nature. These aspects were relevant but the internal nature was more important.
His Lordship said he had reached the conclusion that Miss Griffiths did live ‘as the wife’ of Mr Watson. They had lived alone together for the last 10 years of’ their relationship. It was true that during that period they did not share a bedroom or enjoy sexual relations. However, it could not be doubted that it was unusual for a happily married man and wife in their mid fifties not merely to have separate bedrooms, but to abstain from sexual relations. The Treasury Solicitor suggested that the financial arrangement between Mr Watson and Miss Griffiths was such that it was really an arms-length house sharing arrangement rather than one between the spouses. His Lordship did not agree.
Recent developments
The recent case of Fitzpatrick v Sterling Housing Association Ltd (House of Lords), sex partner of a tenant was capable (for the purposes of para 3(1) of Schedule i to the Rent Act 1977) of being a member of the tenant’s family so as to succeed to the tenancy on his death proves a trend in the direction of recognising the legal status of non-married partners whether or not heterosexual.
Mr Fitzpatrick had lived since 1976 at 75a Ravenscourt Road, Hammersmith, London in a homosexual relationship with John Thompson, the protected tenant. On Thompson’s death in 1994, Mr Fitzpatrick applied to take over the tenancy but the Landlord, Sterling Housing Association Ltd, although willing to provide smaller accommodation, refused.
Lord Slynn said ‘spouse’ was not to be interpreted in the present climate as including two persons of the same sex intimately linked in a relationship which was not merely transient and which had all the indicia of a marriage save that the parties could not have children. He went on to say‘The 1988 amendment had extended the meaning to include a person living with the original tenant ‘as his or her wife or husband’. That was obviously intended to include persons not legally husband and wife who lived as such without being married. His Lordship did not think that Parliament, as recently as 1988, intended those words to be read as‘my same sex partner .. ‘
The plaintiff had said that the intimacy of the relationship of two persons living together as he and the deceased was such that they should be regarded as constituting a family. The word ‘family‘ … ‘was to be applied flexibly and did not cover only legally binding relationships’.
His Lordship held that as a matter of law, a same sex partner of a deceased tenant could establish the necessary familial link, It was then a question of fact as to whether he or she did establish the necessary link. It was plain on the findings of the judge that in the present case, in the view of the law which His Lordship had accepted, the plaintiff succeeded as a member of the tenant’s family living with him at his death.
What of the future?
The Government intends to boost the legal status of all unmarried couples, whether gay or heterosexual
Under the proposals, unmarried couples would acquire the right to apply for maintenance and capital, pension sharing, inheritance and life insurance. It would also mean that cohabitation contracts, would automatically become legally enforceable. The Government recognises that cohabitation and marriage are different, but it also acknowledges the fact the law is unfair and flawed The Government also recognises that reforms, should apply equally to homosexuals.
Conclusion
Some people do not cohabit because they do not want the legal rights and obligations to be forced on them. Others cohabit without realising the implications. Obviously, the Government does not wish to undermine marriage, but by the same token those who are vulnerable should not be left unprotected.
Terms of business