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'It's been a hard day's night, and I've been working like a dog'
So you think you can represent yourself in court?
Nigel Wilson of Ware and Kay LLP in Wetherby discusses Trusts in light of the Charman case
Who's the Daddy?
Reports suggest that Angela Cannings and her husband are going to divorce. Blandy & Blandy Solicitors of Reading discuss child issues in divorce
Has Christmas turned your thoughts to cohabiting?
Endowment Policies
When is a divorce really final?
CSA gets tough on 62,000 parents who refuse to take responsibility for their children
Cohabiting couples
Marriages abroad must be legalised in the UK
How to be a stepchild
How to make the divorce process less painful
The experience of a Collaborator in Norwich
Destroying the myth of the common law marriage
Survey on the myth of the common law marriage
Civil partnerships
The Pre-Nuptial Agreement – 'For better, for worse'
Sex, drugs and rock'n'roll

'It's been a hard day's night, and I've been working like a dog'
So you think you can represent yourself in court?
Includes top 10 tips for litigants in person

Heather Mills has taken the brave decision to represent herself in the trial of her divorce claims against Paul McCartney. But are Heather Mills and others like her brave or merely foolish? Sir Paul is represented by one of the top family law QCs and the hearing is before a very experienced High Court Judge. Can Heather really compete?

More and more people are taking the decision to represent themselves in family proceedings (known as litigants in person). There might be many reasons for choosing to do so, but no doubt the most common reason is an inability or unwillingness to pay for legal representation, particularly at a time when few people qualify for legal aid. Some might believe that by representing themselves, they will be treated more leniently and achieve a more favourable outcome, or be able to make points which a lawyer has advised them are not relevant. Others might have sought legal advice initially, but found it unpalatable.

So what challenges might Heather Mills face in representing herself?

The first, and most obvious, is that her knowledge of the law – both the statute and the numerous relevant cases – will be significantly less than that of her opponent and the Judge hearing the matter. This may result in her failing to identify or sufficiently emphasise strengths in her case or to challenge points made on behalf of Sir Paul.

In addition, however used to public speaking, Heather’s advocacy skills cannot possibly match those of Sir Paul’s QC, acquired as a result of years of experience. This will impact in more than one way. A skilled legal representative will ask the right questions to ensure that all relevant evidence is before the Court. Without representation, the litigant in person’s evidence is not guided by questions, risking the possibility that some points are not made or alternatively, that so much irrelevant information is given that any good points are lost. Further, cross examination (questioning one’s opponent), which can be a very useful tool, is a specialist skill benefiting from experience and a lack of personal involvement.

Whilst it is possible to take someone known as a “MacKenzie Friend” into Court, this person can only have a limited role, providing guidance in relation to the law and giving prompts, but being unable to make statements or ask questions.

In reality, experience shows that cases where one party does not have legal representation, rarely settle prior to trial. There is far less incentive for the unrepresented party to settle as they do not have ongoing concerns about escalating legal fees. This does not mean they will be any happier with the final order made by the Judge. Historically, couples who are best able to move forward following divorce proceedings are those who have reached agreement rather than having a Judge impose a decision.

The lack of representation on one side can also have costs consequences for the represented party. It can result in more Court time being needed to hear the case, both to give the litigant in person more time and also because greater input is required from the Judge. Each day in Court increases the legal costs of the represented party. It often also means that the represented party’s legal team have to take on more of the burden of preparing the paperwork for the hearing. This imbalance can lead to the represented party feeling less inclined to offer to settle “at the door of the Court”, preferring to take their chances in front of a Judge in the knowledge they have secured skilled legal representatives to argue their case.

Heather has of course received legal advice from both a solicitor and a barrister in the past. She is not alone in deciding to seek legal advice early on in the proceedings, before deciding to represent herself at trial. In an ideal world, everyone should have the benefit of specialist legal advice and representation at Court. If this is not affordable, at the very least it makes sense to obtain advice whilst the case progresses, even if lawyers are not engaged for the final hearing. Unless either Heather Mills or Sir Paul appeal against the final decision from the Court, the general public will never discover the exact terms of their settlement as all family proceedings are conducted in private. However, it is worth remembering that decisions as to final settlement on divorce can have a long lasting impact and it is important to do everything possible to get the best possible deal.

TOP TEN TIPS FOR LITIGANTS IN PERSON

1. Make sure you know where to go. Allow plenty of time for the journey. Arrive early and be prepared to be at Court all day.

2. Don’t interrupt either the Judge or the other side when they are speaking. You will be given an opportunity to put your case and you should afford the same courtesy to others. Treat your opponent and the Judge with respect.

3. Find out who your Judge is and how to address him.

4. Dress smartly and if you are female, avoid revealing clothing!

5. Before you go into Court make sure your mobile phone is switched off.

6. If there are any documents you want to rely on make sure they are supplied to your opponent well before the hearing.

7. Make sure you take spare copies of any documents you have filed in support of your case. These are not always on the Court file.

8. Don’t be guided by what happened in your friend’s case, every case is different.

9. Prepare a brief note for the Judge which sets out your case.

10. Don’t run arguments that are doomed to fail. Even though you are a litigant in person you could still be ordered to pay your opponent’s costs if you conduct your case unreasonably. Beware!

Authors: Brenda Long and Sandra Marshall of Blandy and Blandy Solicitors of Reading, Berkshire
See Directory
Blandy and Blandy website

Nigel Wilson of Ware and Kay LLP in Wetherby discusses Trusts in light of the Charman case
Financial provision upon divorce is a developing area of law and it is fair to say that principles applying to ‘big money cases’ do not always have a wider application. However, the recent case of Charman v. Charman, in which the courts awarded an unprecedented* £48 million to the wife, has implications for both divorcing couples and those involved in wealth management (such as solicitors and financial services professionals).

The case caused a media sensation, not only because it is reportedly the largest settlement ever imposed by a court* but also because of the courts’ decision to take into account the £68 million put into an offshore discretionary trust by the husband.

Brief history/explanation of trusts

Trusts date back to the Crusades. Land owners going off to fight would transfer all their estates to a ‘trusted friend’ who would run things in their absence, with the understanding that, upon return, the land owner would once more take possession of his lands. Unfortunately, the ‘trusted friend’ did not always return the lands. The land owner’s only recourse was to go to the King. The King turned the matter over to his Chancellor who had the power to do what was ‘fair’ and thus was born the idea of equity. Over time it became known that the Chancellor’s Court [Chancery] would recognise the claim of the crusader and return his lands on request - the crusader was known as the ‘beneficiary’ and the ‘trusted friend’ was known as the ‘trustee’ of what came to be known as a ‘trust’.

Since then, many types of trust with differing purposes have evolved. For example, trusts are now routinely considered a wealth management tool. The trust on which the Charman case focused was a discretionary trust, such as are often set up for the purposes of asset protection. This type of trust ‘alienates’ the creator (in this case, Mr Charman) from the assets he places in the trust so as to protect these assets from creditors if that creator later becomes bankrupt. Although Mr Charman was one of the beneficiaries, he was not the only beneficiary, and therefore he did not ‘own’ the assets.

The court’s decision in Charman v. Charman can be seen as one which made those assets which were unavailable to creditors effectively available to the spouse on divorce, and this has made it the subject of much discussion..

To understand how this came about, we need to look briefly at the facts of the case itself: The parties were both aged 54, had been married nearly 28 years and had two children aged 24 and 20. At the time of the marriage, nether had any assets. The wife worked as a civil servant until late into her first pregnancy, and the husband began as a junior clerk at Lloyds, thereafter enjoying phenomenal success in the insurance industry.

The trust in question was called The Dragon Trust and was set up by the husband during the marriage. He was also the main beneficiary. The letter of wishes [the document which sets out what the creator wishes the trustees to consider when exercising their independent discretion] said that the husband wished to have the ‘fullest possible access to capital and income’. The Husband also retained the power to appoint or replace trustees. At the time of its creation some 50% of the family wealth was put into this trust.

The husband contended that the Dragon Trust was ‘dynastic’ [i.e. for the benefit of future generations], that it was not his nor under his control and thus should be excluded when calculating the totality of the parties’ assets prior to division of wealth.

The wife claimed that she knew nothing of the asserted ‘dynastic’ intent of the Dragon Trust and had thought it was for the benefit of the immediate family. As there was no written evidence of ‘dynastic’ intent, the courts, after hearing from them both, favored the wife. The husband had admitted that if the need had arisen, he might have called upon the funds in the trust, and that he had discussed collapsing the trust during the same year in which the he and his wife separated. His position as primary beneficiary coupled with his retaining power to appoint and replace trustees contributed to the family courts’ decision not to view this trust as ’dynastic’.

The court’s position was this: “it is in law a perfectly adequate foundation for the aggregation of trust assets with a party’s personal assets for the purposes of [finances on divorce] that they should be likely to be advanced to him or her in the event only of “need” “ . The court also observed that if it made a given order in favor of the wife, this created such a ‘need’ and thus the Dragon Trust money could be taken into account by the family court when looking at what award to make to the wife.

So, what lessons can be taken from this? If you hope for a trust and a creator’s intentions to survive the family courts, bear in mind the following guidelines:

1. If the intention is to establish a dynastic trust then make it so. Exclude the creator of the trust from the beneficiaries and make express provision for future generations

2. Ensure that the trust benefits a wider group, rather than just the creator and his/her spouse and it will help if actual distributions are made by the trust to the wider group.

3. Make the creator’s intentions clear at the time the trust is set up and ensure there is written documentation in place, taking special care with the wording of the ‘letter of wishes’.

4. If ‘alienation’ is the intent then do it properly and do not preserve for the creator the power to appoint or replace trustees

5. If creating a trust before marriage, avoid nuptial wording and avoid later additions of matrimonial property

6. Ensure that any spouse gets independent advice before looking to ‘alienate’ matrimonial property

It is important to be aware that following the guidelines above won’t guarantee survival in the family courts. The courts will continue to look at each case on its merits/individual facts. However, such a high profile case provides useful indication of possible future rulings.

In this particular case, Mr Charman failed to persuade the court to ignore the trust assets. This reflects the particular facts and evidence in this case. It does not mean that the family court will always look to take into account trust assets on divorce.

Aspects of this case served to highlight the importance of early authoritative advice in any divorce or separation situation, and to take care in relation to such things as the drafting of asset schedules, even preliminary ones.

The case deals with many other aspects of the currently developing law relating to finances on divorce but they are beyond the scope of the current article.

*in England and Wales

Nigel has specialized in family law for 12 years is a partner at Ware & Kay LLP and is Head of their Family Law Department based in Wetherby. See our Directory for details

Who's the Daddy?
Karen Chapman, Resolution Specialist accredited solicitor,
in the Vanderpump & Sykes Family department, offers
guidance on the sensitive subject of paternity disputes

Between 2004 and 2005 CSA statistics showed that 1 in 6 men
who had DNA paternity testing were not in fact the biological father.
If the media is to be believed between 10% and 30% of all children
are not related to the father who has been helping to raise them.
UK figures show that non-paternity was closer to 2%.

Establishing Paternity
Anyone with sufficient interest may apply to the court for a declaration of parentage. A declaration can also be made under the Child Support Act but this is only effective for determining liability to pay Child Support.

The introduction of DNA testing makes it possible to establish paternity with near certainty however the court is unable to compel an adult to provide a sample for analysis which means that paternity in some cases is still a matter of inference from evidence. There are certain presumptions, for example paternity is presumed if a father is named on the birth certificate but presumptions can be disproved.

DNA Tests
The court has power to direct the use of bodily tests to establish paternity and can order the taking of a sample from a child. Testing can be refused but if paternity is a real issue the court will rarely do so nowadays because of the child’s right to know the true facts about his paternity.

A Child’s Right to Know?
Cases of disputed paternity can often lead to disruption of settled family life, cause embarrassment and make life far more complicated, particularly in cases where children have been brought up believing another to be their biological father.

*The chance of 2 people sharing the same DNA is less than 1 in 1 billion however identical twins share the same DNA profile

Whilst there are competing rights of mother, and child not to have their settled life disturbed, in most instances the court is likely to take the view that the interests of the child are best served if the truth is known.

Some of the More High Profile Paternity Disputes:
*Tennis champ Boris Becker conceded he was the father of 10 month old baby girl after model Angela Ermakova launched a paternity dispute claiming the child was conceived in the broom cupboard of a London restaurant!

*In August 2007 Spice Girl Mel B established actor Eddie Murphy as the father of her daughter

*...and spare a thought for Mick Jagger, the ageing rock star has found himself involved in 2 court disputes, in 1970 his first daughter was born following an affair with Marsha Hunt who sued for child support and then followed Luciana Morad in 1999, the affair with the Brazilian supermodel ended his marriage and cost him a staggering £10,000 per month in child support!

See this firm in our Divorce Solicitors Directory
For further advice on this article please contact Karen Chapman at Vanderpump & Sykes on: 020 8367 3999. The full article is downloadable on www.vanderpumpandsykes.co.uk


Reports suggest that Angela Cannings and her husband are going to divorce. Blandy & Blandy Solicitors of Reading discuss child issues in divorce
As if their personal circumstances were not already sad enough, recent reports suggest that Angela Cannings and her husband are going to divorce and that there might be a dispute as to the future living arrangements for their 11 year old daughter.

Fortunately, many separating parents are able to agree the arrangements in respect of their children, either between themselves or with the help of mediators or solicitors. However, when they are unable to reach such an agreement, the Courts are asked to intervene.

There is an increasing media interest in such matters, particularly in respect of the children of celebrities or those in the public eye. The reporting is not always accurate, both in terms of the terminology and the factors which the Courts take into account.

Since the Children Act of 1989, the words ‘custody’ and ‘access’ are no longer used. Instead, the terms are:

Residence: this describes with whom the child lives. This would usually be a parent, though not necessarily. Residence can be, and commonly is, shared between two parents.

Contact: this means the arrangements for seeing any person, again usually a parent, with whom the child does not live.

Parental Responsibility: this is the legal package of rights and responsibilities in respect of a child and therefore covers bringing the child up, caring for him and making decisions about him. Where parents are married, they will both automatically have Parental Responsibility for their child and it cannot be taken away following separation or divorce. If the parents are not married, the mother will have Parental Responsibility, but the father will only have it if he has acquired it by virtue of being named as the father on the child’s birth certificate (registrations after 1 December 2003) or by formal agreement with the mother or by court order. Although technically an unmarried father’s Parental Responsibility could be taken away by order of the Court, it is hard to envisage when the Courts would exercise this power. Accordingly, reports suggesting that Angela Cannings is going to attempt to gain full Parental Responsibility in respect of her daughter are incorrect, as both she and her husband will retain Parental Responsibility after any divorce.

The factors the Courts must take into account when considering arrangements for a child are set out in a checklist in the Children Act. The paramount consideration is the child’s welfare. In addition, the following matters, known as the Welfare Checklist, must be considered (the list is not intended to be exhaustive):

• The child’s ascertainable wishes and feelings – this very much depends on the age of the child and his or her level of understanding. The older a child, the more likely the Courts are to follow his or her wishes. So in the case of the Cannings, where the child is 11, her views will be very relevant, but, depending on her level of maturity, probably not determinative.
• The child’s physical, emotional and educational needs and how capable each parent is of meeting these needs. In many cases, both parents will be equally capable.
• The likely effect of any changes in the child’s circumstances. This is often referred to as the ‘status quo’ argument. The Courts are usually more reluctant to move a child from his or her settled home, particularly if this involves a change of school, geographical area and loss of friendship groups, etc. So the fact that Mrs Cannings was separated from her daughter for a few years prior to her release in 2003 is unlikely to be relevant, but if, as reports have suggested, the daughter has been living with her father since the parents separated last year, this is a factor which the Courts would take into account.
• The child’s age, sex, background and any other relevant characteristics.
• Any harm the child may have suffered or is at risk of suffering.

In order to ascertain the facts of the case, the Courts will usually ask for statements from the parents and sometimes from third parties. In addition, where residence arrangements are in dispute, the Courts will usually invite a CAFCASS (Children and Family Court Advisory and Support Service) officer to prepare a report. The CAFCASS officer (previously called a Court Welfare Officer) generally meets with both parents and the child(ren) along with any other relevant third parties and, following the Welfare Checklist, prepares a report giving his recommendation on the appropriate outcome.

The Judge will very rarely meet the child(ren) and the CAFCASS officer will probably only see them once or twice. It follows, therefore, that it is far better for the parents, who after all know the children better than anyone else, to try and reach their own agreement as to the best arrangements. This also has the benefit of ensuring that the children are not involved in a dispute and do not feel that they are being forced to choose between their parents.

Sandra Marshall and Brenda Long

The writers do not have all the relevant facts relating to the Cannings family and are not seeking to express a view as to the likely or appropriate outcome for this particular family.
Blandy & Blandy Solicitors in our Directory
Blandy & Blandy website

Has Christmas turned your thoughts to cohabiting?
Caroline Ford, the latest addition to the Family team at Vanderpump & Sykes, gives food for thought when considering cohabitation.

You may have heard recently that the Government wishes to reform the law regarding cohabitation. Quite right too. Existing legislation does not assist the many who believe in "common law marriage" and assume that they are protected. New legislation may well assist but it is still some way off. Until it is in place partners should protect themselves so that in the event of a breakdown of the relationship, they don't find themselves unexpectedly out of pocket or involved in an expensive dispute.

The essence of our advice is get organised, communicate with one another and put documents in place which will bind both of you if things go wrong. Of course, people don't like sitting down and having conversations with their partner about what happens if they split up. It's unromantic. Is he trying to tell her that he has no confidence in the relationship? Is she not committed after all and just wants to make herself a fast buck? Death is an equally unappetising prospect and, inside and outside of relationships, far too many people go to their grave without having made a Will, thereby leaving chaos and their nearest and dearest not benefiting as the deceased would have intended.

Talk to each other, even if it does feel awkward. Consider what would happen if one or other of you dies. It's not always easy but it could save a lot of hassle and a lot of money.

Here are things we would suggest :
1. When buying property together, enter into a Trust deed. This is a document which will state how you want to hold the property and sets out what happens if it is sold or the relationship breaks down.
2. Enter into a Cohabitation Agreement. this extends your agreement to as many areas of your finances as you wish. It helps focus your mind on issues you may not think about until it is too late (e.g. what happens on separation to the furniture, car, cat etc).
3. Not all unmarried fathers have parental responsibility (PR). If you do not have PR and have children together enter into a Parental Responsibility Agreement. This will give an unmarried father all those rights and duties that go with being a parent.
4. Make a Will. It doesn't cost a fortune. A Will makes your intentions clear as to how your assets are to be dealt with on death.

We can advise on and prepare any of these documents for you. Following the above is easy and can be construed as looking after your partners interests as well as your own. Does the idea seem so unromantic now?
See Vanderpump & Sykes' details Mark Heselton and his Family Team offer a fixed fee initial meeting which is great value.

Endowment Policies
In the unfortunate event of marital breakdown it is very often the case that upon sale of the former matrimonial home any endowment policies previously secured to the property are simply surrendered (i.e. cashed in). It is, however, in my opinion, incumbent on the solicitor advising in the divorce settlement to investigate all sensible options to properly represent the client's interests.

Before considering all alternatives, it is important to understand how an endowment policy works. It is a form of life insurance with payment of a fixed sum to an insured person on a specified date, or to his estate on his earlier death. To this sum reversionary or normally annual bonuses are added with final or terminal bonuses also being paid by most insurance companies.

The type of endowment usually associated with mortgages are a variation of the with profits endowment known as a "low cost endowment". It combines a normal with profits policy with a decreasing term assurance. The death benefit usually equals the outstanding balance of the mortgage loan but the "fixed sum" or sum assured is usually much lower than this sum in the early years of such policy.

Endowment policies have been an attractive way of securing low cost "interest - only" mortgages as they represent relative security to a Mortgagor and can achieve a comparatively high return to the investor. Endowment policies now feature regularly as part of a matrimonial estate.

There are administrative costs levied by a life company and these charges tend to be deducted in the early years of the policy. For that reason if an endowment policy is surrendered in it's early years it generally fails to attract its true market value. It may acquire a "surrender value" which is sometimes lower than the amount paid into such a policy.

Generally speaking if an endowment policy is less than 5 years old, surrendering the policy is usually the most sensible option, if the premiums cannot be maintained by either party.

However with an endowment policy that has been running for a period in excess of 5 years there is sometimes a more attractive option to consider, namely to sell or auction the policy. Having said this for a twenty five year policy most market traders will require the endowment to have been running for at least 10 years.

Over the last few years there has been a growing market in second hand endowment policies for private or institutional investors who are prepared to pay in excess of the surrender value. Such policy represents a safe investment because the value of the policy tends to improve significantly in its later years, and it is also secured on the life of the policy holder and as such there is always the possibility of an early return in the event of their prior to the conclusion of the term of the policy.

There are a growing number of highly regarded companies dealing with second hand endowment policies who are often able to secure over 25 per cent more than the surrender value of a policy by way of auction. There are of course fees to be paid but nevertheless the returns still remain the same.

A word of caution - it is not the place of the solicitor to advise whether or not it is in a particular client's interest to auction an endowment policy. It is for an independent advisor to assist in this respect. It is however the solicitor's role to fully explore all options to ensure the client is able to make an informed decision.

During times of marital upheaval there are many difficult decisions to make and in my experience clients tend to opt for the route of least resistance by simply allowing an endowment policy to lapse or surrendering a policy. Selling or auctioning an endowment policy is not a difficult or expensive process and therefore should be considered in appropriate circumstances.

Written by Kevin Harris-James. He is a Partner and Head of Private Clients in the Birmingham office of national law firm Irwin Mitchell. Kevin was recently chosen as Family Lawyer of the Year by the Birmingham Law Society, and is recognized nationally for his representation of a number of high profile professional footballers and media celebrities in their private legal affairs. Divorce Aid also benefits from his advice and we thank him for his valued input. For details see Irwin Mitchell
Editor's note
Please see our information about Endowment Selling

When is a divorce really final?
It is a common misconception that a divorce means the end of any financial claims, it does not. Some people have found themselves facing claims by an ex-spouse years after the divorce was made final, perhaps even after they have remarried.

This is particularly damaging if they have in the meantime done well in life, inherited property, built up a business or even won the lottery. An ex wife or husband can make a claim against income and capital, even if it has been acquired after the divorce, unless there is an appropriate order made within the divorce proceedings.

It is relatively simple to get divorced nowadays, a basic package is even available on the internet. It is however vital to ensure that you not only obtain the final divorce order, known as Decree Absolute, but also a final order dealing with financial issues.

The initial divorce petition must contain the appropriate financial claim, and this must be followed up by a separate financial order at a later stage in the divorce. It is in both parties interests to try to agree as much as possible about the division of finances, this can be done by direct discussions, at mediation or by negotiations with the assistance of solicitors. If agreement is not possible, the court can make the decision.

A properly worded order can ensure that what each of you agree should happen, does actually happen, and no more. Each party can then face the future secure that anything they build up after that order is no longer vulnerable to claims from their ex husband or wife.

By Dawn Coller, Partner at MCP Solicitors, Thetford
See MCP Directory details for Thetford office

CSA gets tough on 62,000 parents who refuse to take responsibility for their children
Think carefully if you intend to stop paying your child's maintenance as the Child Suppor Agency still has teeth. There have been 13,000 non-payers across Great Britain during 2007 who have had their cases passed on to bailiffs and/or been presented with a summons and taken to court. Surprisingly, 400 have received immediate or suspended prison sentences.

It has launched a campaign targeting 62,000 parents who collectively owe their children almost £200 million. The campaign has rolled out in Birmingham, Manchester, and Nottingham. Liverpool, Glasgow and Cardiff will follow next month.

Across these six cities, 62,000 parents owe just under £200 million in child maintenance - money that their children deserve and have a right to. In many cases, this money would make a real difference to their child's quality of life.

Lord McKenzie said:

'Our enforcement team is more determined than ever to track down these parents and force them to support their children. Parents are given every opportunity to pay, but for those that refuse the CSA has a range of enforcement measures it can use, including deducting money straight from pay packets and taking non-payers to court. In extreme cases they could end up losing property or possessions.

This campaign sends a strong and simple message to those who refuse to pay child maintenance throughout Great Britain: Your time is running out. Act now or we will.'

The campaign will raise awareness of the Agency's powers via advertising on radio, billboards, and in local newspapers, as well as posters in washrooms, pubs and gyms. The ad creative focuses on the CSA's enforcement powers and highlights the frequency which with the Agency uses these powers. For example, every day 37 non-paying parents have their cases passed onto bailiffs. Each advert carries the warning,
"Your time is running out. Act now or we will".

Editor's note: See our article on Children and the CSA

Cohabiting couples
On 31st July, the Law Commission published a report into the financial consequences of relationship breakdowns between cohabiting couples.
Many couples still wrongly assume that, in the event of a breakdown in their relationship, they will have some protection as a “common law spouse” and will be treated by the law as if they were married, at least if they have been living together for some time.

There is no such thing as a “common law spouse” and, at present, cohabiting couples have no extra claims to deal with the financial consequences of their relationship ending, even if they have children together. This area of law is currently governed by property, trusts and contract law. This is complicated and can be expensive to rely on. It was not designed for these circumstances and can often give rise to outcomes that are unjust. Many believe the current position is unfair and that more protection should be afforded to those who do not marry.
Following a process of consultation, the Law Commission’s report for cohabiting couples has now been published. The recommendations for obtaining financial relief are restricted to the ending of a cohabiting couples’ relationship through separation or death and does not extend to other relationships between those sharing a home such as relatives, carers and dependants or commercial relationships.

The proposed legislation would only apply to cohabitants who have had a child together or who have lived together for a specified number of years (somewhere between 2 and 5 years has been suggested). It would not follow that an applicant has a presumed entitlement to a share in any property as is the case for divorcing couples. To obtain a remedy via the court an applicant would have to prove that a “qualifying contribution” had been made to the parties’ relationship.

Couples would be able to disapply the law by entering into an “opt-out” agreement leaving them free to make their own financial arrangements. In these circumstances, and in situations where the individuals sharing the house do not fall within the definition of “cohabitants”, the existing law would still apply.
It should be emphasised that this report only makes recommendations. It remains to be seen whether this will be adopted by the Government and made into law.

In the meantime all co-habiting couples should ensure they have taken legal advice and drawn up a proper Deed of Trust or Cohabitation Agreement, as well as ensuring that all the conveyancing documents accurately reflect their intentions in relation to the ownership of their property.

Blandy & Blandy offers a specialist service dealing with multiple ownership of property including cohabitation. For more information contact Sandra Marshall at Sandra_Marshall@blandy.co.uk or telephone 0118 951 6800.
For other areas, please refer to our Family Law Directory

Marriages abroad must be legalised in the UK
The growing trend for summer weddings in faraway romantic settings has led a solicitor to warn that not all foreign marriages are automatically recognized as legal in the UK. With hundreds of couples choosing to marry abroad each year, Kevin Harris-James, of national law firm Irwin Mitchell, says that if a couple wish to live in the UK as a married couple they have to ensure their wedding vows will be recognized by the law of England and Wales once they are back home.

“If a couple gets married, say, on the beach in Antigua the marriage must be in accordance with the law and custom of Antigua,” says Kevin Harris-James. “But the couple must then ensure they have official proof of this “legal” marriage for it to be properly recognised back in England and Wales.

“This means coming back with a valid certificate confirming the marriage, which must then be registered at the General Register Office in Southport (or Edinburgh or Belfast as appropriate to Scottish and Northern Irish couples).”

“This may seem obvious, but couples will need to provide a copy of the entry into the local marriages register certified by the appropriate authority in the foreign jurisdiction, together with an English translation. The Consul will also need to be satisfied that the certificate or extract is authentic and the translation is accurate.

“Armed with these official document, the newly weds can settle down to happy and legal, wedded bliss in the UK!” says Kevin Harris-James.

Kevin is a Partner and Head of Private Clients in the Birmingham office of national law firm Irwin Mitchell. He is recognized nationally for his representation of a number of high profile professional footballers and media celebrities in their private legal affairs. Divorce Aid also benefits from his advice and we thank him for his valued input. For details see Irwin Mitchell in our Directory or the Irwin Mitchell website

How to be a stepchild
New relationships bring new joy but also new problems
Here we hear from Jill Curtis, a psychoanalytic psychotherapist working in private practice in London. She is a frequent broadcaster on family matters and has written several books. Jill even has time to contribute to this site as well as running her own family site.

How to be a stepchild
Today I received an e-mail from a girl, I will call her 'Alison', who told me she was twelve years old and wanted to ask me a question. She went on to say: 'Daddy is going to marry someone else and he is taking me to meet her on Saturday. Please tell me what to do?'

A simple, direct question, but one which set me thinking. It made me wonder how many children there are who are thrust into the complicated arena of stepparents without any idea how to go about it. Or, indeed, what is expected of them.

Has this happened to you?
Look in any magazine, and on the internet, and you will find plenty of advice for parents and stepmothers and stepfathers. There are many organizations, forums for discussion, and conferences planned around the idea of step parenting. There are plenty of dos and dont's on offer for parents about how to 'deal' with stepchildren. And yet, you (if you are a child) may find you have been faced - sometimes without warning - with a parent's new boy or girl friend. They may even have been introduced, perhaps with a laugh, as "Your new 'mum' or 'dad'". Believe me; this happens more often than you might think.

Perhaps the grown-ups should put themselves in your shoes for a moment.
What do we all do when we don't know what is expected of us? What we do, especially when we are uncertain, is to look at the floor, fiddle with our hair, or answer in a monosyllabic way. All ways guaranteed to bring down the wrath of the adults. Perhaps you recognize this?

The difficulty for any child of divorce (and by 'child' I do mean 'adult' children too) is feeling torn between the two people they love most. If on one hand you see mum or dad radiantly happy with a new partner, and on the other a depressed distraught parent, then it is hardly surprising that you view the outsider as the cause of all the family problems. That may not, in fact, be so. But what are you to do? By pleasing one parent, you are likely to feel you are twisting the knife in the other.

A real crisis can occur when there is to be a wedding, just as in the e-mail I received: it had become crunch time for 'Alison'. How can it be that a twelve-year-old is so desperate to 'do the right thing' and that I am the only person she can ask? From speaking with many parents over the years, I would guess that 'Dad' is too busy setting up the meeting with his new partner to think just what it means for his daughter. And 'Mum' is the last person to give advice on step parenting 'etiquette', so 'Alison' is left wondering just what to do, and say, on Saturday.

Introducing a new partner?
If you are a parent reading this article, and planning to introduce your children, try to remember that you have had time to know and to grow to love your new partner. Your child will have a very different perspective, and will need time to form a view of his or her own. So, too, will your new partner, who may be scared to death about meeting your child. If you are planning a wedding be extra sensitive to your children's feelings, even in the midst of planning a celebration. They may not feel like celebrating.

So are their any guidelines on 'How to be a stepchild'?
If you are old enough to be reading this article you should be aware that you mustn't be rushed into a step-relationship. This may, or may not, happen. Try to get to know your mum or dad's new friend as you would any new person in your life. Then you can decide whether you like them as a person, or not. Accept that by recognizing this new 'someone', you are not necessarily giving the union your blessing. It may be a bitter pill to swallow, but one reason for apprehension and antagonism is often because hopes that your parents will get together again, will be finally dashed. Whether you can allow your parents new partners to become loving members of your family - well, only time will tell.

So, to all the 'Alisons', remember nothing you can do can repair the fact that your parents have divorced. If one of them is to re-marry wait and make up your own mind in your own time. So, you don't have to 'do' anything on Saturday. Just be yourself, no more, no less. No one can ask more of you.

And, here is the good news, there is a space for you on this site, so don't feel alone. There is always someone there to listen and to help you over the difficulties of 'being a stepchild.' © Jill Curtis

We highly recommend Jill's latest book, 'How to Get Married...Again' which discusses the above subject as well as planning for the future and remarriage. Please check out our Books section for details.

How to make the divorce process less painful
We hear from Kim Beatson, Head of Family Law Team at Anthony Gold

I went to a wedding recently where the bride’s parents (each with their new partners) sat on opposite sides of the aisle. The wedding reception was a tense affair. Both the bride’s father and stepfather made speeches but the animosity between them was evident – all very sad as the bride’s parents had divorced some ten years earlier.

Each year around 275,000 couples marry and around 168,000 couples divorce. The divorce rate has stabilised over the last few years but the popularity of marriage as an institution is in gradual decline.

There is increasing public awareness of the huge pain that divorce can inflict on families both in emotional and financial terms. Divorce lawyers often take the blame for this but what are the alternatives to the conventional legal process?

Many couples are choosing the mediation option as a civilised means of resolving disputes that arise when a relationship ends, such as whether to divorce or separate and what arrangements should be made for the children, finance and accommodation. This has nothing to do with reconciliation. Instead, couples meet with a trained mediator who will help them to identify the areas of disagreement and to explore the areas for settlement. The mediator does not give the parties legal advice and, therefore, both parties are encouraged to take independent legal advice before any agreement is finalised. The parties’ solicitors can then draw up a binding agreement if a settlement is reached. The process is confidential.

Susannah and Alan came to see me in mediation earlier this year. Both agreed that the marriage was over but were still living together. Both were anxious to see as much of the children as possible. Alan had formed a new relationship and Susannah was upset about this and mindful of the effect this could have on the children. Both had strong views about whether the matrimonial home should be sold. In mediation it was possible to agree a pattern of contact so that Alan was spending frequent time with the children. Alan was able to agree that the children should not be brought into contact with his girlfriend until the separation took place. It was agreed that the house should be sold but Susannah received a greater proportion of the proceeds to reflect the fact that Alan had greater pension provision. Both took their agreement to their own lawyers after mediation, an agreed settlement was reached and the legal costs were reduced considerably.

In mediation a negotiated settlement can be achieved in a matter of weeks, saving thousands of pounds on each side. However, the mediator still requires full details of the parties’ financial circumstances.

Mediation is equally suitable for cohabiting couples or same sex couples. It is particularly helpful where couples disagree about the future welfare of their children.

Mediation has been around for years, but there is a new way of resolving family law matters that is known as collaborative practice. This involves the couple working with specially trained collaborative lawyers (one each). They each receive legal advice and guidance and, together with the lawyers, discuss and resolve issues through face-to-face meetings. The threat of Court action and horrendous legal costs are avoided because everyone signs an agreement that disqualifies the lawyers from representing the couple if the collaborative process breaks down.

The advantages of negotiating outside the Court process are that the couple set the agenda according to what matters most to them and their family. Working outside the Court process allows the couple to work at their own pace and to resolve matters as quickly as they wish. Once again, full and frank disclosure of financial circumstances is central to the process. Collaborative practice is an excellent option for people who want to avoid the uncertainties of the Court based system. It allows clients to benefit from legal advice without risking the threat of Court action during the negotiations. Both partners and their lawyers work together to find the best solutions.

If you are keen to achieve an amicable end to your marriage or relationship, then I urge you to consider mediation or collaborative practice. It is impossible to truly walk away from a relationship where children are involved. School meetings, graduations and weddings mean that couples may continue to meet as parents. Mediation and collaborative practice assist in creating an environment whereby it is possible to continue those activities with a spirit of respect and courtesy that can often be lost as a result of a legal battle.

Kim Beatson
Anthony Gold
See their details at Anthony Gold Divorce Aid Directory
Their website is Anthony Gold Website

The Pre-Nuptial Agreement – “For better, for worse”
Britain has one of the highest divorce rates in Europe, with almost 40% of marriages collapsing. Divorce can have a devastating impact upon marital wealth and so a Pre-Nuptial Agreement at the outset of a relationship is an essential form of asset protection.

PNA’s are commonplace amongst the rich and famous, and increasingly popular with wealthier members of the business sector. I have prepared many over the years for a number of well-known professional footballers and local media celebrities, but of late I have noticed an increased demand from the business / professional community.

It is of course the celebrity marriages that make the headlines, but that does not detract from the increasing demand for Pre-Nuptial Agreements from the wealthier members of society.

Elizabeth Taylor had the foresight to ensure she entered a PNA with her latest husband Larry Fortensky in order to protect her substantial wealth upon separation only allowing her husband a $1 million settlement – obviously learning from the experience of the several failed marriages.

Another well publicized PNA was that entered into by Sharon Stone and her partner whereby if they separated within the first two years her partner will only receive $300,000.00 of her $60 million estimated fortune.

Rod Stewart and his now estranged wife Rachel Hunter entered a PNA at the beginning of their relationship. It is anticipated that the rock superstar will have protected the majority of his £65 million estimated wealth.

It is believed that Mick Jagger and Jerry Hall entered a PNA, although later a question was raised concerning the validity of the marriage. The couple’s recent separation is well documented and it is understood that the PNA only allowed Jerry Hall $10 million of her famous husband’s $250 million estate.

The current position in English law is that the PNA is at best a statement of intent between the parties. They are of evidential value. This is however a long way from legal acceptance of the PNA. In this respect English law is out of synch with other legal jurisdictions who have long supported the PNA.

The Labour Government grasped the nettle when first elected when the Government set up the Family Policy Group chaired by Jack Straw which subsequently recommended the PNA as a way of avoiding protracted and expensive legal battles. These recommendations took the form of a consultation paper entitled Supporting Families which invited comment from the legal profession and associated groups. There was a general consensus of support to make PNA’s legally binding, but the initiative seems to have gone quiet of late at political level.

However, the Family Court has continued to show its support for the PNA in a number of high profile cases bringing pressure to bear for a long overdue change in the law if anything to bring us in line with the rest of Europe where the PNA receives legal recognition and consequence.

In a series of cases in recent years the existence of a PNA has been given increasing weight and in one celebrated short-marriage case the Court was persuaded to adopt without alteration a PNA and in doing so awarded the Wife just £120,000 notwithstanding that the Husband was worth about £50 million.

There can be no doubt that PNA’s are an increasingly attractive proposition for wealthy clients contemplating marriage, typically where that wealth is largely one-sided. Moreover where that wealth is likely to be increased sharply in the first few years following marriage they hold an added lustre. It is thus easy to see why some of my professional football clients would find the PNA attractive in protecting wealth over the span of a playing career.

However it is important to note that the Courts do not simply accept all PNA’s. Instead they adopt a staged approach. Firstly they ask whether the PNA was fairly negotiated? If it was then the Court will go on to consider the extent to which it is still fair to hold a party to the PNA.

Thus advising clients in respect of PNA’s has now become exceptionally complex, and therefore legal advice from a specialist family lawyer with particular experience in drafting such agreements is essential. There are no longer any hard and fast rules. For example, it was often said that PNA’s signed on the eve of marriage would be disregarded by a Court because of unfair pressure on the signing party and often this is true. However the Court of Appeal has recently been prepared to uphold just such an agreement notwithstanding the timing.

This is an area of law that looks to be in transition. Government intervention is inevitable to bring about statutory recognition of the PNA. Thus there is a real chance that the law in several years time (if not sooner) will favour PNA’s even more strongly, adding to the incentive to make one today.

For the time being however the significance of the PNA will turn on a number of complex assessments of factors including (but not limited to) the following:

• The extent and accuracy of disclosure of means from both parties prior to the signing of the PNA.
• Whether both partiers had independent legal advice and time enough to consider it.
• Whether either party was placed under undue pressure to sign.
• The length of the marriage to be governed – the longer the marriage the less weight the PNA will carry.
• Whether there have been children in the marriage and the extent to which this constitutes an unexpected change of circumstances.

Critics suggest that PNA’s are an affront to the sanctity of marriage and undermine the moral fabric of a relationship…”for better for worse.” Talk of PNA’s is seen as defeatist – an admission that a marriage is doomed to failure before it has even started.

Marriage is thus seen as a binding contract between the parties with no exclusion clauses whatever the circumstances. A commendable ideal.

However, it is a harsh reality in modern life that relationships break down, whatever moral code you subscribe to. PNA’s pre-empt such an unfortunate outcome to a relationship and can make the separation easier to bear for all concerned.

Divorce can be a costly and traumatic process leaving only victims in its wake. The advancement of the PNA is just one further step to trying to diffuse some of the animosity and recrimination so often associated with divorce.

It is said that it is too easy to get divorced. Critics loath the concept of the “quickie” divorce. However, is this not a case of putting the cart before the horse? The real criticism should be levelled at the fact that it is too easy to get married – a decision very often made from the heart rather than the head.

We live in a rational thinking society and plan for the future. We plan for ill health (BUPA membership, critical illness cover), loss of employment (income protection cover, education), retirement (pensions, annuities), death (life cover, wills) – all examples of preparing for the worst. Therefore why the stigma surrounding the PNA which is another way of planning for the future? Parties entering a marital contract should consider their respective positions, clarifying explanations and sorting out problems before they occur. In other words laying the foundation for a relationship and planning for the future in positive and negative terms – making a rational decision.

PNA’s should be thus seen in a positive light, encouraging beneficial and mutual understanding between the parties to contribute to the longevity of a relationship. It should be seen as a preventative measure to avoid future heartache and distress, enabling the parties to decide matters for themselves rather than resorting to litigation which may involve the court imposing a solution which may be contrary to both party’s wishes.

For those with substantial assets, particularly overseas, the PNA is an essential form of wealth protection. For intended couples to talk of PNA’s may be seen as unromantic. However, it can be seen as a solid basis upon which to build a long and lasting relationship.

Written by Kevin Harris-James. He is a Partner and Head of Private Clients in the Birmingham office of national law firm Irwin Mitchell. Kevin was recently chosen as Family Lawyer of the Year by the Birmingham Law Society, and is recognized nationally for his representation of a number of high profile professional footballers and media celebrities in their private legal affairs. Divorce Aid also benefits from his advice and we thank him for his valued input. For details see Irwin Mitchell

Destroying the myth of common law marriageIn England and Wales, over 4 million people cohabit – between 1996 and 2004 there was an increase of over 50%. Two in three women believe they have the right to financial support from a partner if they have lived together for more than 5 years, and 61% believe that couples who have lived together have the same legal rights as married couples. This is a myth. Contrary to popular belief, and regardless of the length of the cohabitation, there is currently no such thing in England and Wales.

If the relationship breaks down (statistics show that less than 4% of cohabitants last for ten years or more), then the courts will have little or no regard for the relationship regardless of how long you may have lived together.

Andrew Leakey, partner at North West law firm Stephensons, says: “Whereas married couples are afforded a great deal of protection from the courts, unmarried couples are treated as friends who happen to have lived together. This means that you do not need a divorce or family lawyer who practices under the Family Proceedings rules. Any action is brought to the courts under the Civil Procedure rules, and you will need a civil lawyer to deal with the dispute.

“When a married couple splits up, the divorce can take into consideration all aspects of the marital relationship. An unmarried couple are treated entirely differently. The courts will not grant to an unmarried couple provision for such things as maintenance. Any dispute as to who owns certain items such as furniture and cars will normally be resolved by reference to who paid for them only.

“The main asset of a couple will usually be a property or properties. Whether it is in joint or sole names, you are likely to need some advice as to what you are entitled to.

“If the property is in joint names, then the transfer document signed when the property was purchased will need to be considered by a specialist. In certain circumstances, the courts will grant a non-owner a share in a property, for example if there has been an agreement to share the property or where the non-owner has contributed significantly to the property.

“If you are not named on the deeds to the property, you have no automatic right to stay in the property. To obtain a share is a long and complex procedure often requiring the courts to determine the shares. When deciding the shares, the court can award a share of the equity (which is the value of the property less any secured loans such as a mortgage). The equity will be taken at the time the dispute is dealt with, and not the time the relationship breaks down.

“It is vital to obtain legal advice as soon as possible as house prices can change significantly over a relatively small period of time. This means that your ex-partner could leave you in a property for a substantial length of time and then seek a share of the increased equity. You could pay the mortgage for 10 years only to find that your ex-partner then wants their half share.”
This article was written by Stephensons Solicitors LLP. 'Stephensons is a UK top 100 Law Firm, one of the largest fastest growing and most successful solicitors in the North West .'
(Legal 500). Offices in Manchester, Wigan, Bolton (free initial interview), Leigh and St Helens.

Contact details:
Email: cth@stephensons.co.uk
Website: www.stephensons.co.uk
Contact: Ceri Thomas
Telephone: 01942 774436
Fax: 01942 774536

The myth of the common law marriage: 77% of people surveyed mistakenly believe they are entitled to their live-in partner's assets.

• 50% of people think that they have automatic entitlement to a share of each other's assets after two years
• 14% of people surveyed think that they would be entitled to a share of each other's assets after three years
• 13% of people surveyed think that they would be entitled to a share of their live-in partner's assets after five years
• Only 23% of people surveyed knew that they had no automatic entitlement to their partner's assets

More and more couples are choosing to not get married because of convenience, the expense or simply because the traditional pressures from society and the church are in decline. However, even though so many single people are living together, very few are aware of their legal rights, or rather lack of them, when it comes to property, maintenance, children, or tax, according to a survey by Blandy & Blandy, one of the leading law firms in the Thames Valley.

The myth of the 'common law spouse' is still going strong with the majority of co-habitees surveyed, mistakenly believing themselves to be a part of a 'common-law marriage', yet such a thing does not exist in modern law. The reality is that unmarried couples enjoy and/or acquire no special rights in relation to each other. Accordingly, when their relationship ends, whether through separation or death, they are treated as if they are two unrelated individuals no matter how long they have lived together.

The truth is that it is usually very difficult and expensive for co-habitees to make a successful claim on the property that they share with their partner, unless their name is on the title deeds. Moreover, co-habitees are liable to pay more inheritance tax and have no automatic claim on their partner's pension and no right to housing succession.

The Blandy survey revealed that 77 per cent of people surveyed thought that they had automatic rights to their unmarried partner's assets if they lived with them for 2-5 years or more. Both sexes were equally ignorant of the law with 71% of women surveyed and 85% of men thinking that they had 'common law rights', with the large majority thinking 2 years was the trigger point.

The 20-29 year olds seemed to have the most awareness with 39% knowing the law, however 80% of 30-39 year olds and a massive 89% of 40-49 year olds we unaware of the true legal implications.

Andrew Don, Partner at Blandy & Blandy commented on the findings: " Time and again, when advising a separating co-habitee on his/her financial claims, it is apparent that had they obtained proper legal advice at the outset of the arrangement, they could have saved themselves a lot of anguish and legal expense, and probably ensured a fairer outcome."

That being the case, until the law catches up with modern living trends, it's down to the co-habitees to arrange their own legal documents, drawn up a by a solicitor, to ensure that their wishes are carried out and assets shared fairly. For example, in the case of home ownership there are various options;

For couples who wish to buy a property together they can become either joint tenants or tenants in common. As joint tenants there is a presumption that each party has a 50% interest in the property. Upon the death of one partner their share of the property will pass automatically to the other. When partners own a property as tenants in common they can leave it to other people under their Will.

In either case, in the event of a dispute, either party can ask the Court to find that they have unequal interests in the property. However this can be difficult to prove and so such disputes can be avoided by having a Deed of Trust drawn up specifying exactly how the property is held and the interest that each party has in it.

Another option, which is particularly pertinent for those co-habiting couples with children, is a Co-habitation Agreement. A Co-habitation Agreement can deal with maintenance, the division of assets on separation, and whether each partner has the option to buy out the other.

Blandy & Blandy, based in Reading, is one of the oldest law firms in the country with a strong presence throughout London, the South, South East and South West of England. The firm specialises in both commercial and private client work, offering a full range of legal services. Its reputation has been built up over 300 years of delivering the highest quality service and the finest commercial and private client legal expertise.

For more information, contact Melissa Baxter at Blandy & Blandy
Tel: 0118 951 6931 Fax: 0118 951 6901 or e-mail: Melissa_Baxter@blandy.co.uk
See our Spotlight on family law firms article.

Editors' note:
Government proposals set out possible changes to unmarried couples' rights on property. See the Daily Telegraph article for more information.

The Civil Partnership Act - What does it all mean?

What is a civil partnership?
The Civil Partnership Act gives lesbian and gay couples the option of making a formal legal commitment to each other through a statutory civil registration procedure. Until this act came into force same-sex couples had no way of gaining legal recognition of their relationship. Any same-sex couple can register a partnership after 5th December 2005, providing they have given notice of their intention to register and waited the mandatory fifteen days following that notice. The legislation does not apply to heterosexual couples.

What is the position in relation to 'pre nups'?
For public policy reasons, pre nuptial agreements, sometimes known as pre marital contracts, are not absolutely binding on divorce (although there has been a move in recent case law to giving them more weight). However, the legislation which has introduced civil partnerships into English law has been very careful not to equate civil partnerships with marriages - for instance, there will be no exchange of vows as part of a civil partnership registration. It may therefore be that 'pre registration agreements' will be enforceable. Such an agreement may therefore be a sensible precautionary step for couples intending to register as civil partners.

What happens if a civil partnership breaks down?
There is a procedure which is similar to divorce. An application can be made for dissolution of a civil partnership one year after the partnership has been entered into. There is one ground for such a dissolution, which is that the partnership has irretrievably broken down. There are four facts that can be used to prove this irretrievable breakdown: unreasonable behaviour, desertion, separation for two years (provided that both parties consent) and separation for five years. These are the same facts that can be relied upon by divorcing heterosexual couples although, interestingly, the fact of adultery cannot be relied upon for the dissolution of a civil partnership, unlike upon divorce.

How will the interests of children of civil partnerships be catered for?
Any decisions taken by the Court in relation to a child are made on the basis of what is in the child's best interests. This will continue to be the case whether the child happens to be living with a couple in civil partnership or in any other family arrangement. With the consent of those who already have parental responsibility, or permission of the Court, a civil partner may acquire parental responsibility for a child of their partner, therefore being able to take key decisions in that child's life and being automatically able to make applications for contact and/or residence should the partnership break down.

How is property divided following the dissolution of a civil partnership?
The provision for financial relief relating to civil partnerships corresponds with the provision for financial relief following divorce. It is therefore likely that much of the legal authority that has developed in case law, governing the division of property and the provision of spousal maintenance on divorce, will also apply to civil partnerships. Certainly civil partners will have the obligation to support a child of the family, as married couples do, and such maintenance payments could be quantified and enforced by the Child Support Agency if voluntary payment were not forthcoming.

Will it affect people's wills?
From a Wills perspective, civil partnerships purport to put registered same-sex couples on an equal footing with married couples. However, same-sex couples who choose not to go through the registration process will still be left in the same difficult position as heterosexual couples who choose not to marry.

Whilst it has always been possible to provide for same sex partners in Wills, the laws of Intestacy (i.e. what happens to your estate if you die without having made a Will) have never provided for non-married couples. However, once a civil partnership is registered, the parties will be entitled to a portion of their partner's estate, if they die intestate. This goes some way to protect the partners of those who have simply not got around to making a Will, but note that the Intestacy Rules may not provide for the whole estate to pass to their partner. It is equally possible that some people may have deliberately made no Will, thinking that their money will go to their family, whereas this will no longer be the case.

There will also be changes to the laws relating to existing Wills. For example, registering a civil partnership will have the same effect on a Will as marriage - it will automatically revoke it. Therefore same-sex couples need to make a new Will after the registration, or alternatively, it may be possible to make a Will 'in contemplation of' the registration, which should protect the validity of the Will.

If a registered civil partner has cut their partner out of their Will, the aggrieved partner will have the same status as a spouse, to make a claim against the Estate for 'reasonable provision' to be afforded to them. Civil partners will no longer have to establish a financial dependency, as they did before.

What about Inheritance Tax?
Civil Partners will now be able to leave their entire Estate to each other, free of Inheritance Tax. This will give the survivor a level of security not previously afforded and will also enable civil partners to implement common tax planning schemes in their Wills. This involves making use of their two Nil Rate Bands, ensuring that the maximum inheritance can be passed on to their families.

Civil partners will also be treated as married couples are, for Capital Gains Tax purposes. Therefore, registered civil partners will be able to transfer assets between themselves at no gain or loss. This will enable them to equalise gains and losses they have each made, for tax-planning purposes, and should be considered before entering into a civil partnership.

What if someone has already entered into a civil partnership abroad?
There will be many cross-jurisdictional problems for civil partners, as the Civil Partnership Act recognises formal partnerships entered into abroad. Therefore, civil partners who have registered their partnership in another country should seek legal advice as to the effects of recognition under the UK regime, to ensure that their Estate and tax planning measures still work as they intended.

Does this mean the law considers civil partners as 'next of kin'?
Not always. Unfortunately, the Act does nothing to strengthen the position of civil partners when faced with decisions about medical treatment. Usually, hospitals will take instructions from 'next of kin' and as this is not a status in law, the partner will still be at the mercy of the hospital staff. If problems were anticipated with family members, then it is still advisable to make a Living Will, setting out instructions as to your treatment and directing whom should be consulted in an emergency.

Will this affect registered couples at work?
The Civil Partnership Act amends the Sex Discrimination Act 1975 by protecting those who have entered into a civil partnership as well as married persons. If an employer discriminates against an employee who is in a civil partnership the employer may face a potential claim for sex discrimination. If a claim of direct or indirect sex discrimination is upheld against an employer the usual remedies for sex discrimination will apply. One of the potential remedies is compensation and in sex discrimination cases there is no statutory limit on the amount that can be awarded.

The Act together with the Employment Equality Regulations provide for pension provisions to be made for civil partners or their dependants. From the date the regulations come into force it will be unlawful for trustees of private pension schemes to provide members with civil partners with lesser benefits than members who are married.

As in other areas of family law, you should seek your own independent advice from a family law solicitor and if you are in the Reading area, please make contact with Blandy and Blandy Solicitors. You will be in safe hands.
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