This week sees the second reading of a bill which, if passed, would enable opposite sex couples to enter a civil partnership.

Since 2004 only same-sex couples in the United Kingdom could be in a civil partnership which gives them the same rights, responsibilities and entitlements as married couples in key areas.

The milestone move to extend civil partnerships to heterosexual couples has been championed after the Supreme Court ruled that current laws are discriminatory to restrict civil partnerships to gay couples and incompatible with the European Convention on Human Rights.

The case centred on 37-year-old Rebecca Steinfeld and 41-year-old Charles Keidan who met in 2010, became engaged in 2013 and have two children. Saying the “legacy of marriage”, which they believed treated women as property for centuries, was not for them, the duo became embroiled in a long legal battle for a civil partnership which they felt would best suit their relationship and life circumstances.

Civil partnerships are widely believed to give unmarried couples and their children greater security. Couples in these partnerships and married couples have the same rights regarding their children and applying for child arrangement orders and relating to financial remedies which include maintenance and property rights.

The similarities extend to protection from domestic abuse, inheritance claims and the process which must be followed to dissolve the relationship – with a decree absolute required to terminate a marriage and what is called a final dissolution order or nullity order needed to terminate a civil partnership.

However, whereas in a marriage adultery is one of the five reasons for divorce, civil partnerships cannot be dissolved due to adultery. The second main difference between civil partnerships and marriages is that civil partners cannot regard, or allude to themselves as being ‘married’.

If it passes its second reading this week, the bill paving the way forward for heterosexual couples to enter into civil partnerships has to progress through more stages before receiving Royal Assent to becomes law.

With over 3.3 million cohabitating couples in Britain, many of whom have children, the outcome for those seeking an alternative way to cement their relationship and commitment will no doubt be eagerly awaited. However, no matter what drawbacks there may be, a civil partnership offers a good deal of security and is better than the “no man’s or no woman’s land of cohabitation when there may be no rights at all.

Contact us for an initial no cost meeting by calling our Leeds office on 0113 246 0055, our Harrogate office on 01423 276104, visit jm2023.jonesmyers.co.uk, email info@jonesmyers.co.uk or tweet us @helpwithdivorce

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By Liz Bell, solicitor

Following on from our earlier blog, which highlighted how a high percentage of cohabiting couples wrongly believe that they have legal protection when their relationship breaks down, we answer more of your most commonly asked questions.

My partner and I are splitting up and all our joint savings/investments are in their name. Can I access them?

No. Couples in England and Wales who live together, as opposed to marrying or being in a civil partnership, have no automatic access to, or control of, assets or property held in their other half’s name.

I’m unable to work. Can I secure maintenance if my relationship breaks down?

Not without a cohabitation agreement which includes provision for maintenance.

Is this all very unfair? 

Many people think so. While current legislation requires family courts to establish what is ‘fair’ for divorcing couples, when it comes to cohabitees, the courts must determine the couple’s shared intentions.

My partner has a large pension pot, but I don’t. What would happen if we split up before they retire?

An unmarried person cannot claim on their ex’s pension without written agreement.

What will happen regarding their pension if they die before me?

Most pension companies will not pay out to cohabiting partners upon death – particularly occupational schemes. However there are some limited circumstances where the pension arrangement, with the agreement of the partner, can make limited provision.

Furthermore, unlike married couples, cohabitees are not entitled to receive the state pension or bereavement allowance for dead partners. This makes it even more important to scrutinise carefully the terms of every private pension scheme partners contribute to – as well as agreeing the entitlement of each to a share of the other’s in writing.

What financial protection is there for our children?

This is one area where there is equal treatment under the law. The children of unmarried parents have the same rights to financial support as those of married ones. The Child Maintenance Service (CMS) is responsible for assessing and enforcing maintenance. However, where a parent’s income exceeds the CMS’s jurisdiction, the other can apply to the family court to increase payments.

Who gets to look after our children and decide their upbringing/education if we part?

Ideally, childcare can be agreed between former partners, but either party can apply to the family court to settle disputes. Decisions about where the children should reside and the contract rights of each parent are always based on the children’s best interests.

Alternatively, a couple can enter into non-confrontational collaborative law, mediation or arbitration. These are reduced conflict, cost-effective and less stressful routes to resolution that any responsible family lawyer should suggest.

Is statutory protection for cohabitees likely to be brought into line with married couples and common law partnerships?

There is increasing pressure on the government to improve rights for cohabiting couples and Jones Myers is very active in the campaign, however it is difficult to know if, and when, anything will change.

The shifting political landscape and uncertainty makes it particularly important to secure sound legal advice before, during and after the relationship

Our highly skilled family law specialists are adept at dealing with issues arising from cohabitation – whether advising you on your rights before you cohabit – or if your relationship has broken down.

For more information about any aspect of cohabitation or family law, call Jones Myers at our Leeds office on 0113 246 0055, our Harrogate office on 01423 276104, visit jm2023.jonesmyers.co.uk, email info@jonesmyers.co.uk or tweet us @helpwithdivorce

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By Peter Jones, founder

A senior judge’s call for parents with valuable homes to be forced to pay more child support highlights a loophole in the system which is criticised as being unfair and does not put children’s interests first.

Since 2012, child maintenance payments have been based on income only, with assets not included in calculations by the Child Maintenance Service (CMS), which decides the rate. This means that people can live off their capital, declare a low income and pay minimal child support.

While Mr Justice Mostyn has said that the law is unjust and should be changed, in my opinion a more comprehensive solution would be to return child maintenance in matrimonial and non- matrimonial cases to the jurisdiction of the family court. The courts should be accessed through one uniform procedure, regardless of the parent’s matrimonial status.

Here judges have a wide discretion and would ensure that the family assets are shared to achieve fairness – with the first consideration being the welfare of any children.

This would also free up the CMS to concentrate on its other vital responsibilities such as pursuing parents who do not pay and enforcing child upkeep.

In addition, the Matrimonial Causes Act should be re-examined with a view to making it fit for purpose for today’s modern and evolving world.

Drafted forty years ago, it has been criticised for provoking conflict and confrontation. In 2013, retiring High Court judge Paul Coleridge aptly said: “The days of the gladiatorial wars of the titans are over. The dinosaurs have had their day.”

As members of Resolution, all Jones Myers family lawyers are prominent supporters of alternative dispute resolution – striving to resolve family disputes constructively, to try to avoid costly, public and stressful litigation.

Our approach encourages clients to co-operate and reach agreement wherever possible about dividing their assets and securing the future of their children, whose interests should be at heart of everything.

For more information about children’s issues or any aspect of family law, call Jones Myers at our Leeds office on 0113 246 0055, our Harrogate office on 01423 276104, visit jm2023.jonesmyers.co.uk, email info@jonesmyers.co.uk or tweet us @helpwithdivorce

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By Peter Jones, founder of Jones Myers

The fact that the UK has a backlog of almost £3 billion in uncollected child maintenance payments has been compounded by the news that only a fraction of these arrears will reach those who most need them.

Around 1.2 billion people are said to be owed money – many having waited years without seeing a penny.

The National Audit Office reports that the Department for Work and Pensions has declared 75% of the money owed by parents as “uncollectable”. Only £366m of the remaining arrears are considered “likely to be collected”, with £527m deemed “potentially collectable”.

The vast majority of unpaid maintenance money – in many cases dating back more than 20 years – was accumulated under the Child Support Agency (CSA), which was set up in 1993 but replaced in 2012 after mistakes were made with assessments and absent parents were not tracked down.

Unfortunately its successor, the new Child Maintenance Service (CMS), doesn’t appear to have had much more success, with £93m of unpaid child support payments already building up under its watch.

In my opinion, this is a situation that is unfair on all concerned and should not be allowed to continue.

I remember pointing out six years ago that the Government should stop tinkering with the child support system and take a far more radical approach. Leaving decisions about who should pay what in the hands of bodies like the CSA and the CMS is a fast track to failure, as the last 20 years has proved.

I believe that it is in the interests of both children and their parents for the courts to rule on maintenance payments as part of the separation agreement. This then needs to be supported by an enforcement system that is economical to run and accessible financially for a parent to be able to access.

Instead, we have ended up with a system that claims to encourage parents to come to their own family-based arrangement but is in fact unsympathetic and formulaic in its assessments and ineffective in its enforcement.

That simply can’t be the right approach when the wellbeing of vulnerable children is at stake.

Child maintenance is currently payable for children who are under the age of 16, under 20 and in full-time education at A-level stage or below, or if they are under 20 and living with a parent registered for child benefit.

If we are to ensure that children receive this much needed benefit, a radical overhaul of the system – which will ensure fast and effective enforcement – is urgently needed.

For more information about any aspect of family law call the team at Jones Myers on 0113 246 0055 or tweet us on @helpwithdivorce

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However, is it really ‘green for go’ for pre-nups?

I fear that some media commentators have rather jumped the gun as, in my opinion, pre-marital arrangements are a long way from becoming legally binding.

The legal journey for pre-nups and other suggested reforms begins on February 27 when The Law Commission is expected to make recommendations to bring about significant changes to the financial aspects of divorce. These will include the issue of whether pre-nups should be, or can be, legally enforceable.

I applaud the commission’s drive to introduce reforms that may help reduce confrontational and damaging court battles between couples when their marriage breaks down.  However, there it is a very long and winding route between making the transition from report to statute.

The Government may ignore the commission’s recommendations – as they did with proposed reforms to the cohabitation laws.  As readers of our blog will know, we are passionate in our belief that co-habiting partners should have the same inheritance and financial redress rights as married couples.  Yet, the Law Commission’s imminently sensible 2007 proposal was rejected by the Ministry of Justice four years later – and co-habiting couples are still left vulnerable.

As we highlighted in our recent blog, a well-crafted pre-marital arrangement, where both partners have undertaken professional, impartial legal advice, is likely to be given weight by a divorce court.

If the Government does legislate to enforce pre-nups I have no doubt that there will be ‘back door’ clause so that a party who is (allegedly) prejudiced can escape.

Ultimately the Ministry of Justice may decide that it is too complex to make pre-nups legally binding. For example, what happens if a couple’s financial circumstances have changed significantly since the agreement was drawn up, or one of them is due to inherit property or substantial assets?

So, a green light for pre-nups?  My take is that an amber light is more realistic – coupled with a danger of the process being further stalled in the long legislative journey ahead.

Do you think pre-nups should become law?  Please leave your comment below or on Twitter @helpwithdivorce

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Fiona, who was asked to comment by The Times on the surge in same sex “divorces” as couples feel the seven year itch, says: “The rate of dissolution of civil partnership is considerably lower than the 42% of marriages which end in divorce – suggesting that same sex couples are much better at ‘hanging on’ in their relationships.

“However, the statistics still highlight that the reality of separation is as significant for same sex couples as it for heterosexual partners.  Pre-cips can be invaluable when one or both parties wish to protect assets or property they have acquired prior to their civil partnership.  These latest figures may prompt those thinking about embarking on civil partnerships to consider pre-cips to ensure they can sort out their finances should they separate.”

In a pre-cip – similar to a pre-nuptial agreement for marriage – couples agree in advance what should happen to their finances if the relationship breaks down. Each party must take separate legal advice before entering into such an agreement.  Although not legally binding under English law, courts are increasingly taking pre-cips into account when a civil partnership is dissolved.

There were 794 civil partnership dissolutions in 2012 – seven years after the law changed to allow same sex couples to formalise their relationships. More women than men wanted to end their civil partnerships – a similar pattern to marriage – with 6.1% of females compared with 3.2% of males dissolving civil partnerships in 2012.

Fiona adds: “It’s not uncommon for heterosexual couples to experience a seven year itch and break up. These figures show that same sex couples face the same issues and challenges.  When the Bill was passed to enable civil partnerships there was a surge in couples wanting to formalise their relationships – the rise in dissolutions seven years later is perhaps not surprising.”

There were 7,037 new civil partnerships in 2012 – a 3.6 % rise on the previous year – far exceeding Government predictions at the time the Bill was passed.

“The new figures show that the average age for men entering civil partnerships was 40, while it was 37 for women.  So couples may well have considerable assets or children from previous relationships or marriage.  A pre-cip is a pragmatic way of resolving financial and issues around children before they arise.  Couples whose civil partnerships don’t work out will find that a pre-cip can help them to avoid potential conflict and to dissolve their partnership in a relatively painless manner through a collaborative process.”

If you have any questions  about civil partnerships or pre-cips then please then do email us or give us a call on 0113 246 0055. You can follow us on Twitter @helpwithdivorce

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Here at Jones Myers we have long campaigned for legislation that supports unmarried couples – whatever their gender – and their children, in the same way as their legally wedded counterparts, should the relationship break down.

With the Joint Committee’s scrutiny of the forthcoming Marriage (Same Sex) Bill the time is right to address the potential for gender discrimination in all cohabitating relationships. Enabling opposite sex couples to enter civil partnerships will go a long way towards creating the security and protection for vulnerable families that has been long overdue.

However, the law moves slowly and it could be many months or even years before heterosexual couples have the legal rights offered by civil partnerships. Therefore, we recommend partners who live together draw up a cohabitation agreement to avoid one party being left destitute should the relationship flounder. In cases where one or both parties have been previously divorced, the needs of the ‘first family’ children will be a key consideration when couples opt to live together rather than marry a second or third time around.

The questions we encourage partners to consider are rooted in the ‘what if’’ scenario. Hard as it may be to contemplate the emotional and financial impact of one party leaving, dying or inheriting wealth, planning for these situations can be a helpful safeguard against later trauma.

Couples with children from a previous marriage should consider these questions in particular:

• How will you ensure that your children, including those from a previous relationship are protected financially and emotionally in the event of your death?
• Should a property be in joint names and if so what shares will the ownership be?
• What happens to that property if one of you dies and can the survivor stay in that property forever or at all? What about financial support for the survivor?
• When do your children receive your part of the property as their inheritance?

Our legal and financial experts help each party to look at these issues in ‘round table’ meetings, leading up to, and beyond, signing a cohabitation agreement as regular reviews will take account of any changes in personal circumstances.

At the present time such cohabitation agreements are enforceable with the courts supporting the rights of cohabitees in financial and capital claims.

Let us hope that before too long, the legislative process on these matters catches up with society’s needs and the reality of millions of people’s lives.

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