stephaniedew, Author at Stephanie Dew Law

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Can I have a no-fault divorce?

Yes – Divorce law in England and Wales was radically transformed in April 2022 bringing in a new system where no blame is assigned to either party, hence the name “no-fault divorce”.

You can get divorced in England and Wales if all of the following are true:

You’ve been married or in a civil partnership for more than one year
Your relationship has permanently broken down
Your marriage or civil partnership is recognised legally in the UK (including same-sex marriage)
England or Wales is the permanent home for at least one of you.

What grounds are needed for a no-fault divorce?

The new no-fault divorce removes the need to provide evidence of conduct or separation, this is replaced with a simple requirement to give a statement of irretrievable breakdown of the marriage or civil partnership.

My ex-partner cheated on me can I divorce them for their adultery?

No, the no-fault divorce system no longer allows adultery to be used as the reason for the divorce. Similarly you can no longer use your ex-partner’s bad behaviour as the reason for the divorce. Extreme behaviour may however be relevant if there are separate court proceedings in relation to children or finances.

How long will a joint application for divorce take?

A joint application will take a minimum of 7 months. This includes a compulsory 20 week “reflection period” between the start of the proceedings and when you can apply for the conditional order. There is another 6 week waiting period between the conditional order and when you can apply for the final order.

I have set out the detailed proceed for applying for a divorce in a separate blog.

Choosing the right solicitor for your matter is crucial and we therefore offer a free initial consultation so that you can find out more about our services and decide whether we are the right fit for you.

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Understanding the Divorce Process – The 3 elements to a divorce

There are three elements to the divorce process:

1. Dissolution of the marriage

This is the legal process to formally end the marriage. It includes filing a divorce application, obtaining a Conditional Order and then a Final Order. (Formerly known as Decree Nisi and Decree Absolute).

2. Childcare arrangements

If you have children then you will need to make arrangements on how you will co-parent them. Ideally you will make these arrangements informally between yourselves without the involvement of solicitors. If you are finding it difficult to discuss the arrangements with your ex-partner the use of a professional mediator may assist you in moving things forward. If an agreement can be reached should record this in a parenting plan so it is clear what has been agreed. This should reduce the scope for disagreements later. If arrangements for your children cannot be agreed you should seek legal advice about applying to the court for a child arrangement order.

3. Financial arrangements

This tends to be the most difficult part of the divorce process and will require some input from a legal professional. If possible, you and your partner should try and reach an agreement as to how you will divide your assets, debts and pensions and where you will both live. If you can’t reach an agreement yourselves you should instruct an independent mediator to help you reach an agreement. In order to be legally binding this agreement needs to be formally recorded in a court order called a “Consent Order”, you will need a solicitor to prepare this document and you should both have independent legal advice about the order.

Who can register a baby’s birth?

Following the birth of a baby, there is a lot of admin involved!

Whilst your main focus is caring for this new little person, you are legally required to register your baby’s birth within 42 days of the birth at the local registry office. The requirements for registering a birth and how the parents acquire parental responsibility differs depending on the status of their relationship and their sex, so I have gone into this in some detail below.

Parental responsibility is really important. Whilst the birth mother automatically has parental responsibility from the birth, it is the second parent who must ensure that they are properly registered.If you want to be recognised as your child’s parent it is crucial you ensure that you acquire parental responsibility and if you have any doubts get legal advice so that this is done properly.

Same-sex female couples

Female couples can include both their names on a child’s birth certificate when registering the birth and can therefore both have parental responsibility.

Same-sex females who are married or in a civil partnership

Either parent can register the birth on their own if both of the following are true:

the mother has a child by donor insemination or fertility treatment; and
she was married or in a civil partnership at the time of the treatment.

They will both have parental responsibility in this scenario.

Same-sex females who are unmarried or non-civil partner parents

When a mother is not married or in a civil partnership, her partner can be seen as the child’s second parent if both women:

are treated together in the UK by a licensed clinic; and
have made a “parenthood agreement”

However, for both parents’ details to be recorded on the birth certificate they must do one of the following:

register the birth jointly; or
complete a “statutory declaration of acknowledgement of parentage form” and one parent takes the signed form when she registers the birth; or
get a court order giving the second female parent parental responsibility and one parent shows that order when she registers the birth.

There is a link to the “statutory declaration of acknowledgement of parentage form” below.

Same-sex male couples

Male couples must get a parental order from the court before they can be registered as parents.

There is a link to a “parental order” form below.

Opposite-sex couples

Opposite-sex parents who are married or in a civil partnership

Either parent can register the birth if they were married to each other in a civil partnership together at the time of the birth. Opposite-sex couples and those who are married or in a civil partnership automatically have parental responsibility when the child is born, they don’t need to be on the birth certificate to obtain this.

Opposite-sex parents who are not married or in a civil partnership

The details of both parents can be included on the birth certificate if:

they sign the birth register together (they will both need to be present); or
one parent completes a statutory declaration of parentage form and the other takes the signed form to register the birth; or
one parent goes to register the birth with a court order giving the father parental responsibility.

It is important that both parents attend the registration, if the mother attends alone the father’s details cannot be registered. It may however be possible to add them on later by registering the birth.

Helpful links:

Statutory declaration of acknowledgement of parentage form:

https://www.gov.uk/government/publications/statutory-declaration-of-acknowledgement-of-parentage-form

Application to re-register a birth and add the father’s details:

https://www.gov.uk/government/publications/application-to-re-register-a-childs-birth-and-add-the-natural-fathers-details

Details on how to get a parental order:

https://www.gov.uk/legal-rights-when-using-surrogates-and-donors/become-the-childs-legal-parent

Follow me for more family law advice and DM me if there are any particular topics you would like me to cover and I will do my best to cover them.

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Can I change my child’s surname without telling my ex-partner?

Maybe.

The key question here is whether your ex-partner has parental responsibility or not. If they do then you MUST get their consent for any name change. Even if they don’t have parental responsibility it is usually a good idea to keep the other parent in the loop to avoid them causing difficulties later. A parent without parental responsibility but who has frequent contact with the child may be able to challenge or reverse the name change.

Name changes are one of the key decisions for children that require all of those with parental responsibility to consent. This still applies if the other parent isn’t involved in your child’s day to day life and hasn’t seen them for a long time.

Change by agreement

If everyone with parental responsibility agrees to the name change you have 2 options:

1) Make an unenrolled deed poll using a specialist deed poll agency or solicitor; or

2) Apply for an enrolled deed poll from the Royal Courts of Justice.

If you chose an unenrolled deed poll, this means that your child’s new name will usually appear on public record in The Gazette. Some organisations will only accept an enrolled deed poll as a proof of name change.

You can find more information and court forms here:

https://www.gov.uk/change-name-deed-poll/change-a-childs-name

Change without agreement

If the name change is not agreed you will need to make an application to the court for an order. You will need to apply for a “specific issue order” on Form C100.

Details on how to apply for an order can be found here:

https://www.gov.uk/government/publications/form-c100-application-under-the-children-act-1989-for-a-child-arrangements-prohibited-steps-specific-issue-section-8-order-or-to-vary-or-discharge

For your application to succeed you will need to demonstrate that, in accordance with the welfare checklist, it would be in the child’s best interests for the order to be made. The court will consider issues such as: when and the circumstances of the name change being raised and. why you want to change the name.

The child’s age will be taken into consideration by the court. For a very young child a judge is less likely to allow a name change, especially if it is to change the surname of their other parent. For an older child, 11 or over, a judge will take into account their views and at 14 the child’s view will be given a lot of weight. When the child turns 16 they are able to make an application to change their name via the deed poll process themselves.

When an application to the court is necessary to change a child’s name, bear in mind it is more likely to be successful if you don’t try to remove a surname. It is more likely to be approved if you double-barrel a surname to add in a new name that try to remove the other parents surname.

A child’s name is considered an integral part of their identity and therefore this type of application is not taken lightly by the court. You should consider obtaining specialist legal advice before making an application so that you can ensure you put together the best application you can.

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Does it matter if a father is named on a child’s birth certificate?

YES!

I’m often asked if it really matters if a child’s father or other parent is named on their birth certificate. In the chaos of bringing home and caring for a new baby, a trip to the registry office can fall down the list of priorities, but it is important to make sure the birth certificate is fully completed properly.

Being named on a birth certificate or not can have a big impact on a parents “parental responsibility” which I have discussed in a previous post. In brief, parental responsibility is really important, it is the legal rights and responsibilities of a parent.

You need to register your baby’s birth within 42 days of the birth at the local registry office. Most hospitals are pretty good at giving you instructions for your local process at discharge, if in doubt check your Local Authority’s website.

I am going to be addressing the position for opposite-sex couples in this blog. It is slightly different for same-sex couples, which is dealt with in the “Who can register a baby’s birth?” blog.

If the mother and father are married or in a civil partnership at the time of the child’s birth the father automatically acquires parental responsibility when the child is born.

Difficulties arise when the parents are not married nor in a civil partnership. In that scenario, the father does not automatically acquire parental responsibility, if he is not named on the birth certificate he isn’t legally recognised as the father. This has the potential do cause real difficulties for him if he wants to play a role in his child’s life.

Can the father be added to the birth certificate later?

Yes.

How this is done will depend on whether the mother agrees to his name being added and the birth re-registered. This is only relevant for unmarried, non-civil partners.

If the mother is in agreement, the birth certificate can be re-registered with the General Register Office (GRO). The mother and father will need to provide a statutory declaration to the GRO from the mother confirming that the father is the child’s father.

You can get the statutory declaration form here:

https://www.gov.uk/government/publications/statutory-declaration-of-acknowledgement-of-parentage-form

If the mother is not in agreement to the father being added, the father will need to make an application to the court seeking a declaration of parentage. This may involve a DNA test being undertaken to establish paternity if this is not accepted. Once established, the court will notify the GRO and the birth certificate will be re-registered including the father’s details. Father will not acquire parental responsibility in this case but will need to take a further step.

Parental responsibility agreement

A parental responsibility agreement (PRA) is made between the child’s father and mother and will provide the father with parental responsibility when the parents are unmarried or not in a civil partnership. A PRA is only needed where the father isn’t named on the birth certificate or his name was added via re-registration following a declaration of parentage from the court. A PRA can only be made if both parents consent to it. Once made it should be submitted to the court and then sent to the GRO.

You can get the parental responsibility agreement form here:

https://www.gov.uk/government/publications/form-cpra1-parental-responsibility-agreement

Parental responsibility order

A parental responsibility order is made by the court and will provide the father with parental responsibility. It is only necessary where the father is not named on the birth certificate and the mother is unwilling to either re-register the birth certificate with the GRO or lodge a parental responsibility agreement with the court. If a declaration of parentage has been made by a court then a parental responsibility order will also be required to give the father parental responsibility.

Details on how to apply for a parental responsibility order can be found here:

https://www.gov.uk/parental-rights-responsibilities/apply-for-parental-responsibility

Follow me for more family law advice and DM me if there are any particular topics you would like me to address and I will do my best to cover them.

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When should I speak to a solicitor about my divorce.

Many people put off speaking to a solicitor because they are worried about the potential cost. Conversely, by speaking to a solicitor at the outset you are more likely to save costs in the long run as well as a lot of stress. The earlier you obtain legal advice about your separation the better. Practical advice about the divorce process and the likely outcomes for you will help you navigate the process with clarity and understanding. In my experience, couples who have both received early legal advice are more likely to reach a settlement and avoid the delay and costs excessive litigation can bring.

It is never too early to speak to a solicitor if you think your relationship is coming to an end. Burying your head in the sand will achieve nothing, facing up to the situation from an informed position will empower you to move forward and make the overall process less stressful. I often speak to people before they have made a definite decision about their relationship, but who want to explore their options and what their reality may look like of they proceed with a divorce.

Your partner or ex-partner need not know you have obtained legal advice if you decide not to proceed with the situation. The interactions you have with a lawyer will be confidential and your lawyer will be used to dealing with clients very discretely.

Just because you speak to a solicitor does not mean your case will end up in court. A good solicitor will seek to achieve the best outcome for you without litigation if possible. They will be able to support you through the mediation process and work with you to achieve an agreed outcome with your ex-partner.

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What are my common law marriage rights?

None!

This is one of the biggest family law myths in England and Wales, common law marriage does not exist in this jurisdiction.

Unless you are married or in a civil partnership, legally, with a certificate to prove it, you will not benefit from the statutory protection divorce law offers divorcing couples.

Cohabiting couple families are the fastest growing family type in the UK, however as a family lawyer, I have real concerns about the lack of statutory protection available for these families when relationships end. Divorce law gives the family court the power to redistribute assets in accordance with fairness and each party’s financial need, however, cohabitant’s have none of this protection.

Legal Remedies for Cohabiting Couples

The law for unmarried couples is messy. There are some remedies available, however, they were not drafted with families in mind and are far from ideal.

Family Home

If you are purchasing a property with your partner you should do so following advice from a solicitor which reflects each of your legal interest in the property. Cohabitation agreements and declarations of trust in relation to properties and assets are something you should consider.

If you do not however own the family home jointly with your partner, it instead being legally owned by your partner, you may be able to to make an application under the Trusts of Land and Appointment of Trustees Act 1996, the burden will be on your to establish that there was a “common intention” that you should have a “beneficial interest” in the property and that you relied upon that common intention to your prejudice. This area of law is complex and it can be expensive to pursue a claim.

Child Maintenance

For couples with children the person caring for the children can make an application to the Child Maintenance Service for child maintenance. This maintenance is however only for the children, most people are surprised at the low level of maintenance required and it is not intended to provide for the carer. It is possible in some cases to seek further financial support for children under Schedule 1 of the Children Act 1989 depending on the wealth of your partner and if you think this may apply to your matter you should seek legal advice as you may be entitled to remain in the family home and receive periodical payments including a carer’s allowance.

Further disputes about money and assets are most likely to be considered a contractual dispute and would be dealt with under civil rather than matrimonial law.

What Should Cohabiting Couples Do?

Talk about your finances and what you will do if your relationship ends. If you do not intend to get married or enter into a civil partnership consider entering into a cohabitation agreement. I know it is not romantic, however many of the day to day practicalities of living with someone aren’t and your relationship may benefit from some advance planning on how you intend to handle the day to day responsibilities of living together. You can set out your intentions, who will pay for what, who will buy what and what the plan is if you were to have a baby. You can also set out a plan to set out how you would divide up your finances should your relationship end. A little legal advice and planning at an early stage could save a lot of stress, anxiety, time and legal costs if your relationship ends.

Pensions are also a crucial consideration. Unlike married couples who usually automatically benefit under their spouses bill, partners will need to be nominated in order to be eligible for any death in service benefits.

Lastly, it is really important that you have an up to date will. If you aren’t married and your partner doesn’t have a will you have no rights to their estate. There may be some protection offered under the Inheritance Act (Provision for Family and Dependents) Act 1975, but that will be dependent on your circumstances and will require an application to the court. It will be much more straightforward if there is a valid will in place making appropriate provision.

What is a prenuptial agreement?

A prenuptial agreement or “prenup” as they are often known is a legal document drawn up by a couple before their marriage. A pre-registration agreement can be similarly prepared for those entering into a civil partnership. These agreements will set out how the couples intend their assets to be divided between them in the event of a divorce.

The aim of the prenuptial agreement or pre-registration agreement is to provide clarity for couples in the event that their relationship breaks down. Rather than leave the redistribution of assets to the discretion of the courts, a prenuptial agreement offers certainty as to how family finances can be resolved in the event of a divorce.

Is a prenuptial agreement legally binding?

Whilst prenuptial agreements are not necessarily legally binding in the UK, they are becoming more and more accepted by courts as proof of a couple’s intentions should they divorce in the future. In February 2014, the Law Commission published its report “Matrimonial Property, Needs and Agreements” which recommends that for prenuptial agreements to be enforceable, certain requirements be met. These are in summary:

The agreement must be contractually valid ( and able to withstand challenge on the basis of undue influence or misrepresentation, for example). This means that it must be entered into freely and willingly by both parties. No pressure should be put on a party to enter into the agreement.
The agreement must be made by deed and contain a statement signed by both parties that they understand it is enforceable and will partially remove the court’s discretion to make financial orders.
The agreement must not have been made within 28 days immediately before the marriage or civil partnership.
Both parties must have received, at the time of making the agreement, disclosure of material information about the other party’s financial situation. If it later materialises that full disclosure was not provided it is likely the agreement will not be upheld.
Both parties must have received legal advice at the time that the agreement was formed.
The terms of the agreement must not prejudice the reasonable requirements of children.

What would a prenuptial agreement include?

Every couple’s prenuptial agreement will be prepared based on their individual circumstances.

The agreement should contain an inventory of each of your assets, how you wish for them to be dealt with during your marriage and how they will be split should your relationship break down. If there are any assets you would prefer not to be divided or split between you and your partner if you were to divorce, then these should be included in your pre-nuptial agreement.

Protecting one party’s inherited money, assets or savings;
Protecting children’s inheritance or specific assets;
How joint assets should be split;
How a business should be dealt with;
How debt will be shared;
How pensions should be dealt with;
How stocks and shared will be split;
Whether any spousal/child maintenance should be paid and how much.

What can’t be included in a prenuptial agreement?

It is important to ensure your prenuptial agreement is properly drafted so that it is enforceable. Whilst a wide range of assets can be included, there are strict rules about what can and can’t be included. Issues which are excluded are:

Child support;
Child arrangements including visiting arrangements and decisions about religious upbringing and schooling;
Illegal or unfair matters;

Do I need a prenuptial agreement?

If you have significant more wealth than your future spouse, or are likely to acquire assets in the future you should give consideration to a prenuptial agreement. Prenuptial agreements protect your personal wealth in the event of a divorce and are particularly important for those with a large inheritance, landowners, business owners, couples marrying later in life or entering a second marriage.

Can you change your prenuptial agreement after your marriage?

A prenuptial agreement cannot be modified after its been executed, however during the marriage you may want to prepare a postnuptial agreement. A postnuptial agreement can take into account any change in circumstances that cause you to seek to vary the terms in the original agreement. This document would replace the original prenuptial agreement.

I am already married, is it too late for a prenuptial agreement?

Following your marriage you can enter into a postnuptial agreement. This should be prepared in the same way as a prenuptial agreement in accordance with the Law Commission recommendations (set out above) if you want it to be upheld by a court in the event of your divorce.

When will the court refuse to enforce a prenuptial agreement?

The key question the court will consider when deciding whether to enforce the prenuptial agreement is whether it is fair to both parties. They will consider the points set out in the recommendations made by the Law Commission including whether there was full financial disclosure when the agreement was entered into and that you both obtained independent legal advice.

The Supreme Court set out the following three factors which increase the likelihood of a prenuptial agreement being upheld in court proceedings:

It must be freely entered into;
Both parties should understand the implications;
It should not be unfair and hold parties to their agreement in the circumstances prevailing.

How do I make a prenuptial agreement?

In order for your agreement to have the best opportunity of being upheld by a court, you must:

Have the agreement prepared by a qualified family lawyer;
Both parties must obtain independent legal advice;
Both parties must fully understand the agreement and agree to it willingly;
Both parties must disclose all assets and property fully.

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Cohabitation agreements

What is a cohabitation agreement?

Couples who live together, or are planning on living together can enter into a cohabitation agreement to set out their intentions in relation to their finances. A cohabitation agreement can set out who owns existing assets, including property and what your intentions are in relation to your day to day finances such as who should pay for what. It should also deal with how you would like any assets to be shared in the event that your relationship comes to an end.

Cohabitation agreements are important as couples who aren’t married do not have legal rights like those couples who are married or in a civil partnership. There is very little legal protection for unmarried couples who separate (disputes are usually dealt with under civil rather than family law) which can leave those couples who have lived together or shared joint assets in a very difficult and uncertain situation when they separate.

Why do I need a cohabitation agreement?

Many people misunderstand the legal position when they are in a lengthy cohabiting relationship and believe that their relationship is recognised by law and that they have somehow creates a “common law marriage”.

This is entirely false, the only couples protected under divorce law are those who are legally married or in a civil partnership.

Many others are getting on with life without giving too much thought to the legal status of their relationship. However, unfortunately when unmarried couples separate, the consequences can be financially devastating and cause significant difficulties for them going forward.

A cohabitation agreement offers security to both individuals in the relationship as to what will happen in the event of your separation. During the process of preparing a cohabitation agreement you will set out clearly your financial commitments to each other and avoid any misunderstandings with regards to own owns assets including any properties. The purpose is to avoid difficulties and disagreements in the event your relationship comes to an end.

What are the benefits of having a cohabitation agreement?

A cohabitation agreement will be extremely valuable in the event that your relationship does later break down. A little foresight and planning during the early stages of your relationship can offer certainty and peace of mind as well as other advantages:

Entering into a cohabitation agreement gives you the opportunity to review your finances and how the day to day household budgets etc will operate. It enables you to plan “how” you will live together so you are both clear who is responsible for what. This sets you off in your living arrangements from an informed and planned position so you both are clear who should be contributing to what.
A cohabitation agreement enables you to protect yourself from the financial repercussions in the event that your relationship ends. It can offer financial security in relation to how property and assets should be retained or shared in the event that you later separate.
A properly drafted and executed cohabitation agreement reduces the possibility of disputes at the end of a relationship. Disputes in relation to the ownership of a property following a period of cohabitation are extremely complex and expensive. A clear agreement reduces the change of litigation.

My partner pays for most things, do I need a cohabitation agreement?

A cohabitation agreement makes it clear who owns what and your intentions in the event you separate. It can offer protection to an economically weaker partner. For example if you are a parent who has stopped working in order to care for the children but the family home is in your partner’s name, your contributions in looking after the home and caring for the children can be recognised in the agreement and make provision for you in the event your relationship breaks down. In the event that you did not have a cohabitation agreement, it is likely you would be left with no legal share of the property of financial support from your partner.

I contribute much more than my partner, do I need a cohabitation agreement?

Yes, it is important you consider the arrangements in order to protect your wealth and assets in the event your relationship breaks sown. A formal agreement can make it clear which pre-owned assets are to remain yours and which are to be shared with your partner. If the property you live in is in your sole name, it is important that you ensure your legal interest is properly recorded and secured to avoid any contributions made by your partner unintentionally being considered as giving them a legal interest in the property.

The purpose of the cohabitation agreement is to provide you both with security and certainty in order to avoid disputes if your relationship comes to an end.

Is a cohabitation agreement legally binding?

A properly drafted and executed cohabitation agreement is a legal document which can be enforced by a court. It is really important that you both take separate independent legal advice on the agreement and that you are both open and honest about your finances if you want it to be upheld.

Cohabitation agreements are governed by ordinary rules of contract law and can therefore only be challenged on any of the ordinary contractual principles such as fraud, duress, undue influence, misrepresentation or mistake.

In order for a cohabitation agreement to be valid the following must apply:

You should both enter into the agreement freely and voluntarily;
The agreement should be set out in the form of a deed;
Each of you must sign the document;
You must update the agreement with any major life changes.

How do I make a cohabitation agreement?

Both you and your partner should seek advice from separate solicitors in order to prepare a cohabitation agreement. Whilst you can and should of course agree the position between yourselves, in order that the agreement is prepared and properly executed so that it is legally binding it is important it is prepared by a solicitor with experience in this area.

Whilst you may been able to find templates online it is much better to have bespoke agreement professionally prepared for your situation. In addition, for the agreement to be upheld in court, it is important that you have both sought independent legal advice on the contents of the document to ensure you both understand it and there are no errors in the contents.

I understand that the cost of preparing a cohabitation agreement can be off putting, however the cost of dealing with a dispute at the end of your relationship will be much higher and could result in lengthy and expensive legal proceedings.

What should I include in a cohabitation agreement?

Each cohabitation agreement will be unique and prepared to meet your individual circumstances however there are some key issues which you will likely want to cover:

Property

If either party owns a property before you move in together or you intend to purchase a property together it is really important to seek legal advice about how property should be owned.

You may want to make it clear that a property owned by one person prior to the relationship is to be kept separate to prevent a claim later being made over it. This is particularly important where you intend to cohabit in a property owned by just one of you.

If you buy a property during your relationship and it is owned by just one of you, again you will need legal advice as to how to structure this to avoid a later claim.

A jointly owned property will also require some consideration, how will payments for mortgage, maintenance and improvements be made and how will the property be dealt with if you separate.

It is important that you consider where you will both live in the event of your relationship ending. If you jointly own a property then you will be both entitled to stay there at the end of your relationship, what exactly happens to the property will need to be decided by you so you should put in place a plan as to how you would deal with that tricky situation.

Day to day living expenses

You need to consider how you will each contribute to the mortgage, running of your home and the household bills. If you do not jointly own your home legal advice will be required to clarify what the contributions of the non-owner will entitle them to in order to avoid inadvertently changing their legal relationship to the property.

You should also consider how bills and accounts set up in your joint names will be dealt with if your relationship ends.

Wills and inheritance

It is really important for unmarried couples to ensure that they have up to date wills. Whilst there is legislation in place to protect married couples in the event of the other’s death there is nothing similar in place for cohabitants and this can have devastating consequences.

You will not automatically inherit each other’s estates in the event of one of you dying, it is therefore crucial if you want to leave anything to your partner that you have an up to date will.

Whilst the cohabitation agreement can reflect your intentions it does not replace a will and you should therefore take the opportunity to have an up to date will prepared at the same time as the cohabitation agreement.

Can I prepare my own cohabitation agreement?

Whilst you can find templates online they are unlikely to be as comprehensive as obtaining your own bespoke document. In order for the agreement to be legally binding you must both obtain independent legal advice on the agreement. It makes sense if you are instructing a solicitor anyway to have them involved in the drafting process to ensure that the agreement is comprehensive and legally binding.

Can I change the cohabitation agreement after it has been prepared?

Yes and you should review it regularly. It is important that you update the agreement if anything significant happens during the course of your relationship. This includes things like:

Having children;
Ill health;
Changes in either of your financial situations;
Receipt of a large inheritance;
Purchase of a property;
You plan on getting married or entering into a civil partnership.

When should I make a cohabitation agreement?

A cohabitation agreement can be prepared at any time during your relationship. This may be before you begin living together or after many years of cohabiting.

It is important that the document is regularly updated following any major life events such as, having children, ill health, a change in either of your financial situations, receipt of a large inheritance, if you purchase a property or if you plan on getting married or entering into a civil partnership.

Does a cohabitation agreement have to be signed?

Yes. In order to be binding the document must be prepared as a deed and therefore be signed. In addition, both parties should receive independent legal advice and the document must be kept up to date.

What is the difference between a cohabitation agreement and a declaration of trust?

A declaration of trust relates to a specific property. It is a formal document which records how the proportions of a property are held and how any proceeds of sale would be divided if the property is sold in the future. It should be prepared by a solicitor and it will take into account your initial contributions when purchasing the property, who will pay the mortgage, how any increase in value will be attributed after making any home improvements such as an extension.

A cohabitation agreement is much broader. You may have a declaration of trust prepared in addition to the cohabitation agreement. A cohabitation agreement rather than just reflecting the legal ownership of the property will set out your intentions in the event of your separation (where each of you should live, if the property should be sold and if so how), it will also deal with day to day expenses such as the household running costs, repair and maintenance.

What is the legal position if my partner owns the property that we both live in?

If only one of you owns the property you both live in, a cohabitation agreement will set out your intentions and respective rights to the property which will make understanding what you are each entitled to in the event of your break up more straightforward. You may also want to consider a declaration of trust to reflect the legal position of the ownership of the property.

Without a declaration of trust and cohabitation agreement having been prepared, there is a possibility that the non-owning spouse could claim a “beneficial interest” in the property. This means that a court could find in the event of your separation that the non-owning spouse is entitled to a share of any proceeds from the sale of the property, a share of any rental income or are entitled to continue living there.

If I have a cohabitation agreement do I need a will?

Yes. Whilst you can outline your wishes in the event of your death within a cohabitation agreement you should also ensure that these are reflected in an up to date will.

It is absolutely crucial that unmarried couples have up to date wills if you want your partner to inherit your estate if you die.

How much does a cohabitation agreement cost?

The cost of a cohabitation agreement will vary depending on the complexity of the affairs of the couple involved.

You will each require your own independent solicitor in the matter and typically one solicitor will take the lead with the work. Both of you will meet with your solicitor separately to discuss the case, they will advise you on your position and the contents of the agreement. The lead solicitor would take responsibility for preparing the agreement with the second solicitor reviewing it to make sure it is fair to their client.

The fees will vary between £600 and £3000 (plus VAT) depending on the complexity of the agreement to be prepared. The fees for the second solicitor should be less for the separate advice that they provide.

Whilst the cost may seem expensive. it should be considered an investment to protect your financial position in the event of your separation. Disputes following a period of cohabitation which are pursued through the courts are complex and expensive.

Children and separated parents, family law, parenting, family court, contact order, child arrangement order, residence order

What is Parental Responsiblity?

Parental responsibility is really important. It is the legal rights and responsibilities a parent has for a child and what gives legal recognition to you being a parent.

If you have parental responsibility you will be responsible for:

Providing a home for your child;
Protecting and maintaining your child (although parents without parental responsiblity also have a duty to financially support thier child)
Choosing and providing for your child’s education;
Making decision in relation to your child’s medical treatment;
Naming and agreeing to any change of name;
Looking after your child’s property.

Exercising parental responsibility, that is making decisions about your child should be done in agreement with all others with parental responsibility. This is usually straightforward if you are in a relationship with the other parent, however for separated parents it can be challenging.

Parental responsibility and separated parents

Having parental responsibility for a child you do not live with, does not automatically mean you have a right to spend time with them. However, the parent with who the child lives must consult others with parental responsibility when making major decisions about your child.

You do not need to be consulted about each day to day decision, however when it comes to important matters such as schooling or moving abroad, both parents should reach an agreement. It is sensible to record this in writing.

If an agreement can’t be reached you can apply to the court for a specific issue order or a prohibited steps order.

You can find out more about this and get the relevant court forms here:

https://www.gov.uk/government/publications/form-c100-application-under-the-children-act-1989-for-a-child-arrangements-prohibited-steps-specific-issue-section-8-order-or-to-vary-or-discharge