When is a marriage not a marriage?

4 children playingVery often you hear people say “well, they’ve been together for years and they have children so the partner must have acquired an interest in the property” or you hear the term “common law marriage” and the implication that this must mean something.  Well it doesn’t - there is no such thing as common law marriage.  You are either married or not married.  If you are not married then you do not acquire an interest in anything belonging to the other party, however long you may have lived together, unless you actually take the trouble to put the house and any other assets into joint names.  So, if a couple have lived together for years and have several children, but the house is in the sole name of the man, then the woman has absolutely no claim in relation to the house - even if she has paid the mortgage and/or brought up the children.  The only claim would be on behalf of those children under Schedule 2 of the Children Act.  This would be a claim made for support while the children remain dependent, generally up until the age of 18 or while they are in full-time secondary education.  Any capital or housing provision made for those children ends when they reach the age of 18 and the capital would go back to their father. So just a very small message, which I don’t seem to be able to repeat often enough – the mere fact of cohabitation does not convey any rights, however long you may have lived together and whether or not you have any children. This also means that unless you make a Will leaving your assets to the partner, then if you are not married your partner will not receive anything - if you die without a Will then your estate passes under the Rules of Intestacy to your nearest relative, not your partner unless you are married.  So being married makes a difference.  Take it seriously! For more information or to discuss further please contact Nicky Gough on 07711 527968 or email info@cotswoldmediation.com.
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Changing the rules in divorce

children walking through wheat fieldIn February this year the Government proposed changes to contact arrangements and this caught the headlines.  It is perhaps unfortunate that some of the other less provocative, but very sensible, proposals contained in the report were lost in the discussion about whether or not fathers would have more contact with their children. One proposal was that separating couples would automatically have an on-line information helpline to give them access to all sorts of information when they are separating, not just legal.  I generally suggest that parents take advantage of other non-legal assistance, such as guidance and support in helping their children deal with their separation, or help to deal with their own emotional issues.  It is important that all parties in a divorce can move on from what can be a very difficult emotional situation to a place where there is acceptance and, if necessary, forgiveness.  We all know of people who are trapped in the bitterness of an acrimonious relationship.  Even after many years they can still bemoan their former partner, which actually does more damage to themselves.  It is also of course vitally important that children are helped through what can be a difficult situation. The court encourages parents who are arguing about the children to seek alternative means of resolving these difficulties.  Anyone wishing to apply to the court is required to attend a meeting with a mediator and parents are then referred to a Separated Parents Information Programme (SPIP).  Many lawyers feel that it is unfortunate that the parents attend these separately, becauss although they are separating, they are actually going to remain co-parents of that child or children so need to work together to help the children deal with their separation and ensure that the family survives well post-separation There are various proposals envisaged to change the way parents take matters through the court.  One is to change the terms “contact” and “residence” order to something called a “child arrangement order”, which is said to “encompass all arrangements for children’s care in private law”.  What this will actually mean in practise is of course unknown, but most lawyers feel that it is a good idea to move away from the label of contact and residence which suggest that there is one parent who has care of the children, whereas the other “only” has contact.  Arrangements should be joint, even if in practise the children spend more time with one parent or the other. The overall message is of course that there has to be a better way for families to deal with the issues of separation, whether it be money or children, than arguing through the courts as they still have to exist together as a family, even when the parents are living separately.  In some way or another parents need to be encouraged to address the needs of their children at that time of separation more constructively than many do at the moment.  A court process which polarises parents to take particular positions and a process which can take many weeks to complete, just allows conflict to become further entrenched and any temporary arrangement for the care of the children to become the actual arrangement without any proper consideration of whether this is in fact in the best interests of all parties. The courts have as their overriding principle the welfare of the children, but it tends to get lost in the mire of legal argument and positioning from the parents.  What we need to do is stop that positioning from the outset and persuade parents to approach their separation collaboratively and to resolve their differences through mediation. For more information or to discuss further please contact Nicky Gough on 07711 527968 or email info@cotswoldmediation.com.
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What is a marriage?

IMG_9769webI am writing this following the recent debate about same-sex marriage – should it be allowed, should it go ahead, what do religious institutions feel about it. But what does the Law say about it? This encouraged me to look at the whole issue of void and voidable marriages. A marriage is void if it is made, for instance, with prohibited degrees of relationship (for example fathers and daughters, brothers and sisters e.t.c. or if either party is under 16).  There are also voidable marriages.  A void marriage is void from the beginning and so is treated by both parties as never having taken place, therefore you do not need a Decree of Nullity.  A voidable marriage is valid unless and until a Decree of Nullity has been granted, so this has to be applied for and the voidableness proven.  A marriage is voidable if it has not been consummated or if either party did not validly consent (for instance with a forcibly arranged marriage) and also, interestingly, if at the time of the marriage, the Respondent was pregnant by someone other than the Petitioner.  I do not very often come across void or voidable marriages. But if you have a same-sex marriage I wonder how they get round some of these issues.  What does consummated mean for instance?  The Law can be so pedantic at times that it is going to have to sort out some of these issues for same-sex marriages to become lawful, never mind the issue of whether they are culturally acceptable. From a legal point again, there is not a lot of difference between a marriage and civil partnership so legally we have already accepted the concept of same-sex marriages.  Maybe, for once, the Law is ahead of society? For more information or to discuss further please contact Nicky Gough on 07711 527968 or email info@cotswoldmediation.com.
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What is Mediation?

mediationThis might be a strange question as everyone assumes they know what mediation is.   But when you also have collaboration, arbitration and compromise, what exactly is mediation and how does it differ from the other approaches to problem-solving? With mediation there is generally one mediator with two people who have, for whatever reason, not been able to resolve the difficulties between them.  There may be some conflict; if there is a relationship breakdown there is generally a degree of hurt, anger, sadness and other emotions, all of which can make it difficult to resolve issues.  But the point is to deal with differences, not in a destructive adversarial way, but with a more rational, positive approach to problem-solving.  You are not going to eliminate conflict but rather transform it and separate those involved and their emotions from the particular problems. The issues or problems can be:  how are the couple going to separate, where are they going to live, how are they going to manage the children?  There will need to be some degree of co-parenting but how will this work out in practise?  A rational approach does not mean leaving aside personal feelings but to try and concentrate on what the problems are, not the emotional aspects of the relationship. If you are separating it must be better to work towards your own solutions rather than having a decision dictated by someone else.  So often you hear talk about “going to Court” as if it is some sort of panacea that will automatically solve all the problems.  It might produce a decision but whether it is the right decision is a moot point.  It is not the decision the parties may have chosen for themselves and it is sometimes not one that may have thoroughly considered the practicalities of its implementation.  The best solution for a couple going through a divorce or separation is one they have created rather than the one that is imposed. It may be difficult not to take up positions and feel that any sort of compromise is giving in.  But the more people position themselves, the more committed they become to that position, defending it against attack and so becoming concerned about saving face rather than reaching an agreement.  The more attention that is paid to positions, the less attention is devoted to meeting the underlying concerns of both parties.  A mediator can help move from positions to focusing on what the parties really want, looking at interests rather than positions. Mediation is not a question of one party imposing their view, as any settlement achieved by hard bargaining may resort in short-term gain but often the result is damaging to the relationship.  The whole point of working through issues either through mediation or the collaborative process is to preserve some sort of relationship between the parties.  Although parents might be separating, it remains essential for their children that they maintain the ability to communicate. People often come to mediation realising that the stakes are high and feeling threatened, fearful or anxious.  Emotions in one party will generate emotions in the other – fear and anger may take over.  It is important to recognise, understand and acknowledge emotions, many of which are driven by concerns.  Attending to those concerns can possibly deal with the emotions and so create a more positive climate for problem-solving.  Emotions are legitimate but they should not necessarily take over and determine outcomes. With the lack of legal aid now available to fund most Family Court actions and with the cost of arguing through Lawyers and the Courts rising, it makes sense to look for alternative ways to problem-solve.  Mediation and the collaborative approach in divorce not only are a means of problem-solving, without the bitterness that can ensue with Court battles, but also far more cost effective. For more information or to discuss further please contact Nicky Gough on 07711 527968 or email info@cotswoldmediation.com.
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