Family Law Myths – Cohabitation, Parental Responsibility and Pre-nups

If you missed our previous articles on the myths surrounding the process of getting a divorce and financial asset division during divorce proceedings, you can check them out here and here.

Things can be complicated when it comes to parental responsibility after divorce and division of assets when cohabiting couples choose to go their separate ways.

But what about pre-nups?

Here are more questions that could do with some clearing up:

Cohabitation

Q. If you have co-habited with a partner for more than two years you are classed as a common law wife/husband and are then entitled to half of their assets

FALSE – The term “common law wife/husband” is a complete myth and does not exist in law. The general rule is that on the breakdown of the relationship, co-habitants are entitled to keep the assets which are in their own name.

If you are not married, you do not have automatic financial rights. Any rights are limited to the laws of property and trusts.

There is some protection for those with children and the courts can make orders to preserve the home in some cases until the children have finished full time education.

So the best way to protect your interests is to have joint ownership and/or a cohabitation agreement.

Q. I own a house with my ex-partner which we bought as joint tenants. I am therefore entitled to half of the equity in the house even though she paid the deposit and the mortgage

TRUE – Where co-habitants own a house as joint tenants, the presumption is that they own the property in equal shares even if one party has contributed a lot more. It is rare for the courts to go against this.

Children

Q. Unmarried fathers now automatically have parental responsibility for their children if they are named on the birth certificate and present when the birth of the child is registered

TRUE – For children born after 01 December 2003. Prior to this, unmarried fathers did not automatically have parental responsibility and could only acquire it through either a parental responsibility agreement with the mother or through a court order.

Parental responsibility allows the father to have a say in important issues in the child’s life, for example, whether they should have medical treatment, what religion they should be brought up in and how they should be educated etc. The mother will always have parental responsibility.

Q. The fact that my ex-partner doesn’t pay me maintenance for the children is a good reason for me to stop him/her seeing them

FALSE – When the court decides whether to allow an absent parent to have contact with children, the main consideration is the welfare of the child. The presumption is that it is in the child’s best interests to have contact with the absent parent unless there is a good reason not to. The failure to pay maintenance is not considered a good reason.

Pre-Nups

Q. Prenuptial agreements are not recognised in England and Wales

Although a prenuptial is still not automatically binding in England and Wales, the presence of a pre-nup can still be of value. Even if not strictly enforced, it is likely to be of relevance as one of the overall circumstances of the case.

They are becoming increasingly recognised by the Court particularly when they are properly drafted with both parties having had full legal advice.

The cases where a pre-nup is of most relevance is in a second marriage. One party has wealth that they are bringing to the marriage or that might be in a family trust. They also may want to protect an anticipated inheritance during the marriage.

If you have more questions that haven’t been answered in this series, please get in touch!