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Marriage vs Cohabitation Understanding your legal rights

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by Deborah Bailey
Gowen & Stevens Solicitors

Marriage, or indeed a civil partnership, which is treated the same as marriage upon breakdown, is not for everyone. Even though there have been changes in the law allowing same sex partners to marry, a growing number of couples still regard it as old-fashioned and believe they have no requirement for ‘a piece of paper’ to confirm commitment to each other. Living together or ‘cohabiting’ remains the fastest growing family arrangement.

Often, it is only when facing the breakdown of a relationship that unmarried couples realise how that seemingly irrelevant piece of paper could have altered their situation. Furthermore, even if you remain blissfully together, there are still potential pitfalls for cohabiting families as time passes. Read on to find out how you can protect yourself and your children.

Even if you have lived together for a long time or have children together, the law will not protect you if you break up. Despite the media’s love of the term common-law wife, or indeed husband, this is not a recognised term in law. The fact that your relationship even existed, when it comes to the law, may be irrelevant. Often, the only issue to resolve in a breakdown of a cohabiting relationship will be what happens to the home. The fact that there may be children to re-home may not be a consideration and you could end up in a desperate situation.

Conversely, when looking at how to distribute a family’s assets on divorce, a spouse can call upon the matrimonial law to look at all the relevant circumstances of the relationship, often before but certainly during and after the marriage. The goal in these circumstances is to seek a result that is fair to both spouses with the welfare of the children being treated as a primary consideration. The future living arrangements of all involved will be a concern as will the financial position of each spouse following the divorce.

Whilst campaigners are lobbying for a change in the law to protect unmarried families, until this happens, people need to be aware and take steps wherever possible to protect themselves and their children. So what can you do?

Property
If you own property together and both names are on the property register, then you probably had a discussion with your conveyancing solicitor about how you would own the property so there is a chance that your ownership will already be clearly defined.

Matters become more complicated if the property is owned by only one of you. However, the non legal owner may still have an interest in the property dependant upon how finances were arranged during the relationship and what agreements you had. Seeking legal advice in this scenario is essential and can help determine your interest and how you can realise this.

If you are buying a property in which you intend to live together, speak to your solicitor about the ways in which you can own the property and how you can protect yourself.

Maintenance
If you are looking after the children, you can claim maintenance following a break-up from your former partner for your children. If this cannot be agreed, apply to the Child Maintenance Service.

Unlike divorce, unmarried former partners cannot claim maintenance for themselves from the other partner, even if they are the stay-at-home parent looking after the children.

Inheritance
As cohabiting partners, unlike married couples, there is no automatic right of inheritance if your partner dies without making a will. Whilst you and your children could make an application against your partner’s estate if they were maintaining you prior to their death, this could be a stressful experience at an already difficult time. Making a Will could avoid a lot of anxiety and uncertainty for your loved ones.

Partners should also think about taking out life assurance.

Consider also making Lasting Powers of Attorney. If you become ill and incapable of managing your own affairs a cohabiting partner has no legal right to make decisions on your behalf. This could cause difficulties with the wider family who may or may not know your wishes. Appointing your partner as your Attorney could avoid such difficulties.

Cohabitation Agreements
It’s not very romantic but thinking about your arrangements before you buy a property or move in together can save a lot of heartache if things go wrong. A cohabitation agreement is strongly recommended and a solicitor can help you consider all the issues that could arise and, provided it is properly drafted, could protect against costly court proceedings.

Ultimately, every situation is different but being aware that living together is very different from being married means that you can take steps to avoid problems later if things go wrong. Always seek advice from an experienced solicitor who specialises in this complex area of family law.

An established practice for over 120 years with offices in Cheam, Banstead and Sutton. Offering a highly personal service tailored to all aspects of your family and business life.
www.gowenandstevens.com

What you need to know before considering mediation

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by Sarah Brookes
Brookes Family Mediation

The mediator will not tell you what to do or make any decisions for you
The mediator’s role is to support you both towards reaching joint decisions, on the issues that you each identify as needing resolution. Whilst the mediator will help you to reality test any proposed agreements; to ensure that they will work as intended, in meeting and protecting each of your needs; they will not seek to influence the final decisions that you make. You will be supported to jointly take responsibility for the shape of your future. This approach reduces conflict and minimises the need to compete; unfortunately, the exact opposite is true of court proceedings. It is for this reason that mediated arrangements have proved less likely to break down than court ordered arrangements.

Mediation is more likely to be successful if you keep an open mind
Whilst it is helpful to give some thought to what you would like to achieve through mediation; you will also need to be able to consider ideas and proposals put forward by the other person. This approach enables all options to be explored, in order to find the best solutions for you both. Agreement is usually reached quickest when both people feel that they have been fully and equally involved and listened to within the process.

A mediator does not make moral judgements
Mediation is not about raking over the past to decide who was right and who was wrong. It is about dealing with the here and now, and the practical arrangements and decisions that need to be made, to enable you both to move forward in the best way possible. The mediator will remain impartial and committed to helping you both equally, throughout the process. Emotional outbursts are fairly common within mediation, and will not affect the mediator’s ability to remain entirely impartial.

A mediator is not a passive observer
The mediator will take an active part in your discussions, and whilst they will not give advice, they will often make suggestions, flag up points that have not been considered, and give relevant information. Where necessary, the mediator will also refocus the conversations, to ensure that they are constructive and moving forward towards solutions and agreements.

Where there has been domestic abuse, mediation may still be
the best option
It is the mediator’s duty to provide a safe environment where you are able to freely express your views, without fear of harm. If you do have concerns relating to your safety, the mediator will be able to asses and advise as to whether or not mediation is appropriate in your circumstances. If you don’t feel able to sit in the same room as your former partner, mediation can take place on a ‘shuttle’ basis, which is where you will sit in separate rooms, with the mediator moving between you. The mediator will usually also arrange staggered arrival and departure times. There is even the possibility of mediation taking place through Skype, so that you do not have to be in the same building.

Sarah Brookes spent 16 years working as a family lawyer in Eastbourne, before setting up Brookes Family Mediation. Sarah is passionate about the benefits of mediation. If you are uncertain about whether mediation is right for you, or if you have any questions, give Sarah a call on: 01323 411629 or email her: sarah@brookesfamilymediation.co.uk
Or for more information go to: www.brookesfamilymediation.co.uk

What is a celebrant and what do they do?

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by Alexandra Harrison
Celebrant

You might ask, “A what-a-brant?” A celebrant is someone who writes and leads personalised ceremonies. An example is a naming ceremony, which is a special way to celebrate the birth of a baby or officially welcome your child/children into your family. It is a secular (non-religious) event, and an opportunity to gather friends and family for a beautiful and memorable gathering.

A celebrant can lead a ceremony anywhere, any time. It does not have to be at a licenced venue (but it can be!)

In the 21st century, many people are moving away from traditional christenings or baptisms and are choosing a naming or welcoming ceremony instead – sometimes known as a civil ceremony. These are led by an independent celebrant.

When your child is born you may have already chosen their name, but for some parents it may take a while. The name you choose may have personal meaning but whatever the reason it is one of the first gifts you will give your child – after life itself!

What makes up a ceremony?
Well, it is really up to you and what you want. During a naming ceremony, there is no set script or structure. You can include many different elements or options to make it personal to you and your family. With a celebrant, the ceremony is designed around what is important to your family – and what you want to say to your baby/child/children. You may have different beliefs or faiths and wish to incorporate something from both. A celebrant will guide you through all the different options.

Can I have my own vows or promises?
Yes, of course. A celebrant can help you write these.

Can I include other people in the ceremony?
Definitely. It is a lovely idea to include other people. These could be grandparents, aunts, uncles or other guiding adults (known as guardians or supporting adults). Or it could be brothers and sisters who want to welcome their new sibling. In fact, involving them can play a really important part in giving them their own sense of importance and responsibility for their new sibling. Giving other children a role in the ceremony can even help with jealousy issues.

Can I have symbolic elements or rituals?
Yes definitely! For instance, a ‘sand ceremony’ is a powerful way to represent the joining of
a family, where different coloured grains of sand are poured into a single vase representing the blending of a family never to be separated. The ideas are endless.

Your celebrant will guide you through and help create both an order of service and the ceremony itself, linking together all the different elements you have chosen. A service will normally contain (but not necessarily in this order):
• Introduction and welcome
• Information about the child
• Readings, music, poems
• Words about the importance of parenting
• Parental vows/promises (a celebrant can help with these)
• Words around the importance of wider friends and family
• Appointment of Guide Parents
• Reason for the name(s) and the naming itself
• Concluding words.

But it is important to remember that a naming ceremony is not just for babies. It can happen at any age. It could also be a wonderful way to welcome a child that you are adopting – creating a special bond as you acknowledge and welcome them into your family.

Some celebrants can even help with organising the whole event from finding your ideal location, creating the invitations to organising the catering. This really helps, taking the stress
and strain away – especially when you will have your hands full already!

And did you know a celebrant is not just for naming ceremonies? A qualified celebrant can write a completely tailored wedding or commitment ceremony, renewal of vows or celebration of life ceremony. And, like a naming ceremony, these can be held anywhere – they do not have to be at a licenced venue.

Alexandra Harrison is a qualified independent celebrant.
Contact Alex for a friendly informal chat about your ceremony on 07983 415 784 or visit her website
for more information www.alexandra-harrison.com

Alexandra also runs a baby naming facebook page see www.facebook.com/BabyNamingWithAlexandra/

A guide to international child relocation

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If following a relationship breakdown you are thinking about relocating abroad with your children, you will need to be aware of the relevant legal rules. You will need specialist advice from a solicitor to help the relocation to take place smoothly. In the excitement of a move abroad, taking legal advice may not be the first thing that comes to mind. However, making sure the legal boxes have been ticked will mean that there are fewer complications following the move, leaving you and your family to enjoy your new home.

When do situations of child relocation arise?
The desire to relocate with children often occurs in international families where one parent is from another country and wishes to return to their home country following a relationship breakdown. This commonly happens when that parent wants to be closer to their family or maybe they have a new job offer abroad. Sometimes the parent has a new partner who lives aboard or they together decide for lifestyle or other reasons that a relocation is the best thing for their new family.

Can I just leave with my children if I want to relocate abroad?
Relocation to outside of England and Wales requires permission of the other parent and anyone else that has parental responsibility (as indeed does a holiday unless there is a relevant Court Order already). Parental responsibility gives a person rights and responsibilities for the children which includes the right to decide whether a relocation takes place. A mother will automatically have parental responsibility. A father will also have it if he meets certain criteria. Sometimes, others may have parental responsibility too, such as grandparents. Your solicitor will check all this for you.

How do I seek permission to relocate with my children?
You can seek permission directly or with the assistance of a solicitor. Seeking specialist legal advice at the earliest possible stage is sensible as your solicitor will provide you with lots of useful advice about how best to increase your chances of gaining permission. At the beginning, you may not want the other parent to know that you have a solicitor. Therefore your solicitor will guide you on how best to ask for permission yourself. It is always a good idea to get the permission in writing and your solicitor will advise you about this.

Relocating with children without the necessary permission is child abduction and this is why it is really important that you have specialist legal advice early.

What do I do if the other parent refuses their permission to the relocation?
Unless some exceptions apply, you would need to attempt mediation with the other parent. Mediation is an alternative way of resolving a dispute without going to Court. An impartial and professionally qualified mediator will assist you to reach a mutually acceptable settlement after exploring the issues around the relocation. Your solicitor can recommend an appropriate mediator and you can continue to consult with your solicitor in between mediation sessions. If mediation is successful and you reach an agreement with the other parent then it will be possible to make that agreement legally binding so that once you have relocated, you cannot be accused of child abduction. If mediation is not successful, your solicitor will advise you about making a Court application for the Court’s permission for the relocation.

Is my Court application to relocate with my children likely to succeed?
The success of your application will depend on very thorough planning. You will need to show the Court that the relocation is in your children’s best interests. Most parents will only be considering relocating if they truly believe it is best for their children. One of the things your solicitor will do to show this to the Court is to prepare extremely detailed written evidence setting out why your relocation is important to your family, how it is in your children’s best interests and how it can work taking into account the practical factors such as the children’s development, schooling, housing needs and contact with the other parent. This is a very involved part of the legal process and you will need to work closely with your solicitor on this.

What happens when I have successfully relocated with my children?
You may have some things to tie up either just before you relocate or shortly after, depending on what the relocation Order specifies. This might be registering the English Order in the country to which you relocate, this can be helpful for both parents. Your solicitor will help you and put you in touch with a lawyer in the other country if needed.

Permission to relocate will give you peace of mind that you have legally done what is needed and so your move cannot be undone.

Mandeep Gill is a specialist Family Law solicitor at Venters Solicitors in Reigate. Mandeep’s particular expertise is in international children cases.
She can be contacted on 01737 229610 or via email,  mandeep.gill@venters co.uk or visit www.venters co.uk