Kit O’Brien, a specialist family solicitor at our Taunton office, highlights some key situations where legal advice should be taken at an early stage in order to avoid expensive problems arising in the future
Most family lawyers recognise that we’re the people no-one really wants to see. However, we work very hard to ensure that when clients do need us they get the best possible service. We take time to understand their needs and concerns and make sure that we’re seeing the whole picture, not just providing legal advice.
Nevertheless, we often see people who could have avoided the need for our services if they’d taken simple steps to protect their position at an earlier stage. We understand that people don’t want to spend money on legal fees, but paying for specialist legal advice at the right time can cost you a great deal less in the long term by avoiding expensive mistakes.
Buying a house
So, you’re buying your first house together. A very exciting time for anyone and for most people the priority is thinking about how they’re going to decorate and furnish their first home rather than how they’re going to own it. For many couples however the amount of money they are putting into buying the home may not be equal. One of them may have savings or have owned a property before. Or one set of parents may be helping out with the deposit. Whilst no-one wants to talk about what would happen if you went your separate ways, it’s very important to do so. Would you be happy to divide the proceeds equally? Is the money from your parents a gift or a loan? It may seem cold hearted, but you need to ensure that everyone is clear on where they stand and that the legal ownership of the house reflects that position.
There are two ways of owning a house jointly. If you own the house as “Joint Tenants” there is a presumption that you own it equally. So if you separate and sell up, the starting point is that the proceeds will be divided equally. If you are happy with that, all well and good. If you’re not however, you need to ensure that the legal position reflects your actual position. If your parents have put money into the house, will they be happy to see half of it go to your (by then) ex partner? In most cases the answer will be “no”. All too frequently however people assume that it will be easy to sort out if the time ever comes. And it isn’t. If you own a property as joint tenants but want to argue that the division shouldn’t be equal then the onus on you is to explain why it shouldn’t; and it’s an uphill struggle.
If you want to ensure that you get back, so far as possible, what you put in you should own the property as “tenants in common”. That enables you to own it in unequal shares and your solicitor can draft a Declaration of Trust setting out how those shares work. If your parents are investing money make sure that you have a clear agreement about what will happen on a sale. All too frequently nothing is said and then when a relationship breaks down parents seek to recover the monies they invested, but unless there’s a clear paper trail showing that the money wasn’t a gift (and ideally a charge registered against the property to protect their interests) it’s highly unlikely that they will recover the money. It’s very common for money that was assumed to be a gift to become the subject of dispute when couples separate and a court will require a great deal of convincing to accept that the money was a loan, unless there’s clear evidence dating from the time when the money was paid.
At Slee Blackwell we can draft a declaration of trust setting out how you own the property and advise you on any loan agreement prepared by your parents.
That’s the house bought! Now you’re living together. You may have children. You think there’s no need for you to get married or enter a civil partnership because you are common law spouses. If anything happens in your relationship and you’re financially disadvantaged you’ll be able to claim maintenance. Wrong. The myth of the common law spouse is one of the most enduring and potentially one of the most dangerous. The status of ‘common law spouse’ doesn’t exist. There is no duty of mutual support between cohabitees. If you don’t own your home jointly, whether your share in it is equal or not, it’s highly likely that you will be unable to claim any interest in the property regardless of how long you have lived together. If you have children you can seek support for them if you’re their primary carer, but there’s no protection for you.
We recommend that everyone thinking about living together should consider a cohabitation agreement which sets out exactly where you stand and gives you peace of mind. If there’s a particular reason why your home is not jointly owned, but it has always been accepted that you have an interest in it, a cohabitation agreement is likely to be the answer. Although it will involve you incurring legal fees it may save you the thousands of pounds in the long run if your relationship breaks down.
We all hope that a marriage will last and we won’t end up as another divorce statistic. But the stats don’t lie. Relationship breakdown is an unfortunate fact of life and if it happens to you it’s important to deal with things properly and not try to cut corners in the hope of saving a few bob. A worrying number of people are tempted to buy a divorce kit from a newsagent or dissolve their marriage via the internet. They assume that once the Decree Absolute goes through their financial claims against each other are concluded. That’s not the case and anyone getting divorced, even if they don’t have assets at the time of the divorce, should ensure that they obtain what is called a Clean Break Order from the court, dismissing any financial claims they may have against each other as a result of their marriage. Otherwise, if their circumstances improve significantly, they could find themselves incurring substantial legal costs at a later date trying to defend a claim against their assets.
Again we can help. We offer a range of fixed fee packages dealing with both the divorce and the preparation of a Clean Break Order, ensuring that you have peace of mind going forwards.
Whether you’re married, in a civil partnership, or cohabiting, everyone at Slee Blackwell hopes you’ll live happily ever after. Just in case things don’t work out however we can ensure that resolving the issues which arise when a relationship breaks down are kept as simple as possible by helping you make sure your position is secure – right from the start.
For a FREE assessment of your position and details of the fixed fee options we offer, call Kit O’Brien on 01823 354545 or email her at kit.o’[email protected]