In this episode we’re joined by solicitors in the family team, Mark Heptinstall, Head of Family, and Partners Patricia Robinson and Phillip Rhodes.
In this podcast we’ll be discussing child arrangements, uncovering what the rights are for parents who are separated in seeing their children.
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New figures from the Office for National Statistics (ONS) reveal that since 2015, the number of same-sex couples living together has grown by 50%, with the number of married same-sex couples quadrupling.
Sophie Sanders (of the ONS) has commented:
“Trends for opposite-sex and same-sex couple families are going in opposite directions… The share of opposite-sex married couple families is decreasing, while opposite-sex cohabiting couple families are increasing, although at a much slower rate of change than for same-sex couple families.”
Although the government is aiming to make marriage more accessible with more relaxed rules regarding wedding formalities, the findings from the ONS also show that cohabiting couples and those living on their own are the fastest growing family types in the UK.
Married couples remain the most common family type, but in the past 10 years the number of cohabiting couples in the UK has grown by a very significant 25.8%. As more couples opt for long-term cohabitation over marriage, there is a growing call for cohabitation law reform from some quarters.
At present, unlike the wide powers that the Family Court has on the breakdown of a marriage, the financial claims available at the end of a cohabiting relationship are much more limited. The myth of ‘common law’ marriages also persists, and the false impression this creates has real potential to cause significant financial hardship to the financially weaker person in a cohabiting relationship.
As we enter a more modern world, we are seeing many more outdated legislations being completely disregarded. One area which is subject to current focus by the government is the change to marriage requirements.
UK Prime Minister Theresa May and Lord Chancellor David Gauke have worked hard as part of a two year effort to urge the Law Commission to review the laws governing where and how weddings take place with a view to creating more freedom.
The initiative that was announced on Saturday 29th June could potentially mean that civil ceremonies can take place at sea, in private homes or even at military bases for those who are on duty and are unable to get married elsewhere.
When asked about the government’s motivations behind the potential change, David Gauke stated; “people from all walks of life should be able to express their vows in a way that is meaningful to them.”
Although there is now a big push towards more marriages in the UK, sadly there is also a longer than ever waiting list for those who are getting divorced. In this respect, the proposed bill aimed at reforming divorce law in England and Wales by allowing couples to part without finding fault, recently received its second reading in parliament.
What is the issue?
If you take your child (under 16) out of the country without the permission of the other parent, then you are at risk of committing an offence under the Child Abduction Act 1984. This includes taking your child on a holiday abroad. Where your child is going on a school trip abroad then it is also necessary that you and your child’s other parent both provide your consent.
If you are named as the parent that your child lives with in a child arrangements order made by the Family Court, then you are allowed to take your child out of the country for a period of less than one month. However, in any other circumstances, it is vital to obtain the written consent of the other parent.
What if the other parent won’t consent?
The other parent should not unreasonably refuse consent, however in the event that the other parent won’t consent to you taking your child on a holiday abroad, the most appropriate course of action will almost always be an application to the Family Court. This is because of the seriousness in law of taking children out of the country without the appropriate consent.
Applications to the Family Court in these situations should be made for a specific issue order, and the key factor will be what is in your child’s best interests.
If you are considering gifting or loaning money to your married son or daughter on an informal basis, then you should be aware of the real risk that their spouse or civil partner may receive all (or a substantial amount) of that money in the event of a breakdown in the relationship.
This is because in financial proceedings following divorce, the Family Court will generally view such monies as forming part of the assets that can be distributed, and informal loans will likely be dismissed as being ‘soft loans’ and not repayable. In order to minimise the risk of these situations arising, it is vital that:
- Where you are gifting the money, that the gift is suitably ring-fenced within the terms of a pre-nuptial or post-nuptial agreement
- Where the money is a loan, that this is documented in a formal loan agreement and ideally a legal charge (mortgage) for security on any property owned.
Following substantial changes to this area of family law in the past decade, pre-nuptial and post-nuptial agreements (provided they are properly drafted and freely entered into, with full financial disclosure) will, generally speaking, be given effect by the Family Court as part of the discretionary exercise it undertakes, provided there are no circumstances which would mean that it would not be fair to hold the parties to the agreement. For the avoidance of doubt, such agreements cannot exclude the Family Court’s jurisdiction.
Please note that there may be tax implications in relation to any gift or loan. If you are considering making a gift or loan to your son or daughter, you should always seek specialist legal and tax advice in respect of your options.