Sunday, 13 November 2011

Cohabitation and the effect of Kernott and Jones

The case of Kernott and Jones has been in the media and followed by all those that practice in family law. Talvinder, the Director at Leeds Family Law says "this case highlights the need for the development and reform of Cohabitation laws which are governed by parts of the law that relate to property, trusts and children. Whilst these laws serve a purpose they do not effectively deal with the family dynamics of the modern family. Many chose to cohabit and have children without realising that they have insufficient laws to protect them if the relationship breaks down.'

It is most important that if you decide not to enter into a marriage with your partner, that steps are taken to protect your interests. For example, in one of my earlier articles (Titled This is my home - isn't it?) I touched upon the issue of Cohabitation Agreements or Living Together Agreements as they are commonly known. It is important that the parties to a relationship consider their dynamics and provide for what will happen in the event that they separate. This is not the most romantic idea. Consider the situation if you moved into a home that your partner owned and then separated. Legally the person who is the registered owner of the property retains all the interest. The most dire situation would be the death of the person who owns this property and the remaining partner finding that they have to leave their home. If there is no Will the property will pass under the rules of Intestacy to the deceased partners family members. The bereaved partner would lose their home.

The case of Kernott and Jones awarded a 10% share of the property held in joint names to one of the cohabitants and 90% to the current occupant partner. The facts of the case are that Kernott and Jones lived together in a property for eight years. Then Kernott (male) moved out leaving Jones (female) in the home with 2 children. Jones continued to make the mortgage payments and maintained the home for 13 years. The property remained registered in their joint names for the duration of this separation. Kernott waited until the children were grown up before he issued a financial claim to realise his interest in the family home. Kernott and Jones were not married. A local County Court Judge ruled that Kernott should recieve 10%. Kernott appealed this decision seeking a larger share. The High Court upheld the County Court ruling on appeal. Kernott appealed again to the Court of Appeal. The Court of Appeal overturned the County Court and High Court decision and ruled that each should receive 50%. Jones appealed and the case was considered by the Supreme Court. The Supreme Court upheld the original decision and awarded 10% to Kernott and 90% to Jones. This was a hugely anticipated decision and welcomed by family lawyers who have long campaigned for recognition of the unmarried family and supported the need for reform and development of this area of law. There is recognition that the court will depart from the presumption that the property should be divided equally between the two joint owners if either have failed to take steps to address this position at the time that they separate. So essentially, the decision shows that the Court will depart from this view and consider the individual contributions made by each party. This is an important step for Cohabitation laws and the need for the reform of the laws relating to Cohabitation has never been highlighted more than in this case.

Our previous Government, and this Government, shy away from the area of cohabitation because it is very complex and there is the view that it would undermine the principle of the marriage if cohabitants were given similar rights. However, the fact remains that until such time this area of law is reformed all those that chose to Cohabit remain vulnerable and have a sense of uncertainty surrounding their financial security should they separate.

Scotland have welcomed and introduced laws in relation to Cohabitation but our Government seems reluctant to do so despite support from many members of the public and in particular, recognition from Solicitors and Barristers alike that cohabitants needs more legal rights to protect them.

So what steps can you take to protect yourself?  The first most important issue is that you obtain advice from Solicitors so that you can regulate how you will deal with the financial matters in the event that you separate. You will also need to consider provisions in your Will to ensure that your intentions on your death are stipulated should you wish to pass the property to your partner.

It is also important to ensure that provisions on how financial contributions will be made towards the property and how the home will be maintained and in what shares if there is not going to be an equal division upon separation. This is where Cohabitation Agreements may assist and it is important that these are considered early on. Any relationship will have complications when it breaks down and the agreement cannot help the emotional fall out that will occur. However, the agreement can serve to deal with the practicalities which can assist is resolving the issues surrounding finances.

Saturday, 12 November 2011

Is Collaborative Law for me?

This new process and the words Collaborative Law are creating a buzz with many family lawyers and it is important to explain exactly what this process entails and whether is it suitable for you. Talvinder, the Director at Leeds Family Law, qualified as a Resolution Accredited Collaborative Lawyer on the 11th November 2011. Talvinder has been a solicitor in the practice of family law for nearly a decade and brings this new service to her firm. The collaborative process offers clients a solution to resolving their family disputes without the use of the adversarial system and moves away from the traditional solicitors practice.

So what is Collaborative Law? This is a process through which the husband, wife and their respective Solicitors meet in a four way meeting to discuss the issues that are concerning to both of them. In the traditional approach, both solicitors would work independently to each other and it is not common that all parties would meet to discuss the issues as openly as they would at a four way meeting with all the parties. In the Collaborative process both parties and Solicitors sign an agreement in which they pledge not to take this matter to Court and commit to trying to reach a conclusion by working together. The Solicitors ensure that the parties interested are protected and the pace at which progress is made is dictated by the parties. This process offers the advantage of reaching a solution that works for the whole family and solicitors do not become positional as they would in the traditional adversarial process of going to Court.

However, for the solution to benefit all concerned both parties must be willing to engage fully in the meetings and work towards a solution. Within this meeting there is still the financial disclosure of all assets and liabilities that both parties must provide and those that believe that they can enter this process and walk rough shod over the other party are seriously mistaken. The Collaborative process would demand just as rigorous an approach from the Solicitors in obtaining financial disclosure without which a fair financial settlement could not be reached.

The issues relating to Contact and Residence are resolved in much the same way with both parties being able to recognise the impact that Separation and Divorce have on the children. Both parties would discuss issues of concern and in order to resolve such issues must recognise the importance of the relationship of the non resident parent with the children. An ability for mutual respect as parents is essential for this process to be successful.

The Collaborative process engages the parties and their solicitors in a way where they work as a team to reach the most beneficial outcome for the whole family. The disadvantage is that if the process breaks down the Solicitors engaged in the Collaborative process cannot represent you in Court and you must instruct solicitors that have not engaged in this Collaborative process. This ensures that the solicitors do not have a vested interest in breaking down the communications within the Collaborative process so that they can add to your legal costs by taking the same case to Court. The other disadvantage is that if the process breaks down then you have to start the process of negotiations again and adopt the traditional, adversarial Court approach.

It is pleasing to report however, that those who engage in the Collaborative process openly and with honesty are extremely likely to resolve their case within this process. Statistics show that 97% of cases that are undertaken within the Collaborative process will settle this way. This percentage is higher than those cases that are referred to Mediation services.

There are Solicitors that offer a similar service and conduct round table meetings but the process is not Collaborative and the Solicitors may not be Accredited Resolution Collaborative Lawyers. It is important that if you want to engage in this process you instruct an Accredited Specialist who is trained and able to conduct matters in the correct way. You can find details of Collaborative Lawyers on the Resolution Website at http://www.resolution.org.uk/.

If you want to know more about this process then contact Talvinder Penaser who is an Accredited Collaborative Lawyer on 0113 3944145.