Separation: How the house is divided
A recent decision by the Supreme Court could have wide ranging implications for unmarried couples who separate and have a property between them. Previously, the law was quite straightforward in that if the property was held in their joint names and it was expressed as joint tenants, then any division of property would be equal. However, following the decision in Jones –v- Kernott that original expression of equal division can change over time. The court is able to consider the parties’ actions following separation or during their relationship to decide whether their intentions regarding the ownership of the property changed, and if so when it changed and what it changed to. What does this mean to couples considering separating now? If a property is held in joint names and there is no intention to sell the property immediately, either because it is needed to house children or the market conditions are not right, both parties must make their intentions clear in writing as to how they believe the ownership of the property should be held. For example, if one party cannot afford to continue to contribute to the payment of a mortgage, if they do not express their position in writing, over a period of time, a court could infer that that person has relinquished part of their share of the property. By the time the property is sold, that persons’ share could be reduced from 50% to 20%. Each matter will depend on the circumstances, however, it is important to get legal advice on these matters otherwise your share of a property could diminish without you realising.
MK -v- CK [2011]EWCA Civ 793 Following the decision of the Court of Appeal in the above case, it may be more difficult to take children to live abroad on a permanent basis where the parents are separated. The Court held that the welfare of the children is paramount and the affect on their relationship with the parent left behind is significant. As a result, in cases where children see both parents more or less equally, this could prevent the court making an order allowing a parent to relocate the children abroad.
Pre-Nuptial Agreements - are worth the paper they are written on
In a recent Supreme Court case the issue of Pre-Nuptial Agreements was considered. In the circumstances of that case the court upheld the Pre-Nuptial Agreement finding that it was fair and reasonable in the circumstances. This means that although Pre-Nuptial Agreements are not binding per se in English Law, they are certainly taken into account and providing they meet certain criteria they will be upheld by the courts. For more information contact us 01245 349 696
The new Family Proceedings Rules, governing how the courts deal with family matters came into force on the 6th April 2011. One of the significant changes is the requirement of all persons wishing to make an application to the court for an order in respect of children or finances following divorce should attend a Mediation Information Assessment Meeting. The meeting will assess whether their case could be resolved at mediation rather than through the courts. If a person does not attend a Mediation Information Assessment Meeting the court can dismiss their application, postpone the case until both parties have tried mediation or there could be cost consequences. If you would like more information regarding mediation and how this might affect your case please contact us 01245 349 696