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The legal differences between co-habiting and married couples

Recently, the Law Society’s Solicitor Chat on Twitter was focusing on common law marriage and the difference between the rights of cohabiting couples and married couples. We have summarised the important points below.

What is Common Law marriage?

Is common law marriage a myth? Sadly, yes. People sometimes assume that as they have lived together as man and wife in a long-term relationship that they have legal rights like married couples. However, they may find that, on separation, one partner can be significantly disadvantaged. Although some common law principles will apply to cohabiting couples, they certainty do not enjoy the same rights and protection that are given to married couples. So, there is no common law relationship or common law marital status, a better term would be ‘cohabiting relationship’. Legally, the term ‘spouse’ only applies to people who are married so you cannot be a common law spouse.

What rights do unmarried couples have and how do they differ from married couples?

Unmarried couples do not currently have the same rights as married couples. They are not automatically entitled to any property owned by their partner, nor would they be entitled, for example, to spousal maintenance in the event of a relationship breakdown. You are not automatically entitled to a share of your partner’s property. There is no legal obligation for cohabiting couples to support each other financially, whereas married partners do have a legal duty to support each other.

However, child maintenance is still available as it is intended for the benefit of the child or children of the couple.  However long you have lived with your partner does not guarantee you a share of your former partner’s property or family home but even if you are not the legal owner, you may be able to convince a court to give you a share if you can prove that you contributed financially towards the family home and agreed that you should have a financial interest in it and relied upon that to your detriment.

Can I be responsible for my partner’s debts?

No, you can only be responsible for your debts if you have signed a contract. If you did not sign, then you are not liable.

Can you claim pension benefits as a cohabiting partner?

You may be eligible for dependent’s or survivor’s benefits of your partner’s pension.

What should unmarried parents be aware of?

Although unmarried mothers automatically acquire parental responsibility for a child, unmarried fathers do not acquire parental responsibility for a child unless that father is named as the child’s father on the child’s birth certificate, by virtue of a court order or by virtue of an official agreement between the parties. Couples should be aware that a father who is not named on a child’s birth certificate will not have parental responsibility for the child. It is important that unmarried fathers consider seeking parental responsibility.

What is a co-habitation agreement and how can it help unmarried couples?

A cohabitation agreement is a written document, drawn up between a couple who have agreed to live together. It can set out what they have agreed regarding one another’s rights and responsibilities in relation to the property where they live or intend to live together. It can also detail the financial arrangements between them during the time they live together and what the financial arrangements will be if they were to separate.

A cohabitation agreement can make all the difference should an unmarried couple separate as it would set out who owns what and in what proportion (and how it would be divided in the event of a separation).

Are there any other measures cohabiting couples can put in place to protect themselves if they split up or one of them dies?

It is always important to have a Will and a Power of Attorney in place in relation to both financial affairs. These should be reviewed regularly and particularly considering any changes in relationship status or personal circumstances. Independent financial advice is also recommended when looking at life insurance and critical illness.

For property, a declaration of trust is recommended to set out the ownership both legally and beneficially. Cohabiting couples also have no automatic right of inheritance should their partner die, so a will is very important to have in place.

If you would like to find out more or need help with a relationship breakdown, please contact our family lawyers on Llandudno 874774 or Conwy 596596

What to do when someone dies

The death of a loved one is is something we may all have to face at some time but, often, we do not know much about what to do as far as the legal process is concerned. So, we have put together a short guide to help you with the process.

What is Probate?

Probate is the legal process for dealing with the estate of someone who has died. If the deceased person left a will, they may have specified an executor or executors. These are expected to “execute” the will. An executor has the responsibility to carry out the person’s wishes, as written down in their will. In many cases the family and/or friends of the person will be the executor/s of the will. However, people may also appoint professional executors, such as a solicitor or will writer. If there is no executor named in the will, or if there is no will, someone must become the administrator of the estate.

What to do if there is no Will

Research has shown that nearly half of Britons over 55 do not have a will, so it is quite possible that the deceased died without one, leaving them intestate. The intestacy rules are the principles laid down by law which stipulate how the estate is to be administered if there is no will. First, an application must be made to the Probate Registry for a Grant of Letters of Administration. This document gives the person named the authority to administer the deceased person’s estate. This person is known as an administrator.

The rules of intestacy follow a hierarchy of who should benefit from the estate. This order is spouse or civil partner, children/grandchildren, parents, brothers and sisters, grandparents, uncles and aunts. All this may not be what the deceased person wished, which is why we would highly advise you to make a will (contact our offices to do so).

How do you start the process of Probate?

You will need to obtain a Grant of Representation. This is a document obtained from the court to prove the legal authority of the person entrusted to deal with a deceased person's estate. The kind of grant that you need to obtain will also depend on your circumstances, as mentioned above. If you are a named executor in the Will you will require a Grant of Probate, if you are the administrator with no Will  you will require Letters of Administration and if  you are the administrator of a Will and the Will is present you will require  Letters of Administration. To simplify the process and to receive expert help, please contact our solicitors to act on your behalf to do this.

How long does the process take?

The length of time this process takes is dependent on how complex the deceased’s estate is. For example, if there are multiple houses, bank accounts, assets which were not known to the executor it could take a long time. On average, if the Will is not contested, the whole process can take anywhere between 6-12 months, but it can be much quicker if the estate is simple. A way of minimising delays is to ask a qualified solicitor to make the application on your behalf. This will help to ensure that the Probate application is correctly completed and we would encourage you to contact us today to help you.

How we can help

At JW Hughes & Co. Solicitors we have a team of dedicated solicitors who are ready to help you resolve your query or issue relating to this area of the law as quickly and effectively as possible. If you need assistance with obtaining a grant of probate or letter of administration, or simply want advice on dealing with the Probate Registry, our solicitors have a wealth of experience. They can help you through what can be a difficult time, dealing with estate and trust property and complex estates. Please contact Nick Passey or Rhys Lewis in Conwy on 01492 596596 or Phil Kentish in Llandudno on 01492 874774.

Living with Dementia and Planning Future Care

Living with Dementia and Planning Future Care

Last week as part of Dementia Awareness week 2019 our Rhys Lewis took part in the Law Society’s Solicitor Chat on Twitter about living with dementia and planning future care.  His replies to the questions are summarised below.

How can a solicitor help someone living with dementia plan for their future?

Appropriate legal advice is important for people and families who are living with dementia. Things can be put in place at an early stage to ensure peace of mind for a person who is suffering with dementia and their relatives. This can be by way of updating their Will and entering into a Lasting Power of Attorney (if they capacity to do so) or, alternatively, making an application to the Court of Protection to appoint a Deputy. If residential care home fees are a consideration for the person with dementia, then a solicitor can provide advice in this respect. 

What are Lasting Powers of Attorney and what do they cover?

They are documents that enable a ‘donor’ to appoint an ‘attorney’ or ‘attorneys’ to make decisions on their behalf. There are two different types of LPA: one for financial decisions (which includes buying or selling property, paying bills, investing money etc) and one for health decisions (which includes decisions about medical care, where the donor should live, what activities the donor should take part in and even things as simple as what the donor should eat).

They can only be entered into if the donor has the mental capacity to do so but once they are registered with the Office of the Public Guardian, they will remain valid until the donor dies or cancels it.  

Even if a person is not suffering with any form of mental condition, a Lasting Power of Attorney can be created at an early course and kept in storage just in case it is ever required. This ensures that you have someone you trust implicitly managing your affairs should you not be able to.

What is a deputy and how can you become one?

A deputy is appointed by the Court of Protection to manage the affairs of someone who lacks mental capacity. This would be appropriate way forward if a person has already lost mental capacity and cannot create a Lasting Power of Attorney. To become a deputy, you must apply to the Court of Protection by completing several application forms and paying the appropriate fee(s).  A Solicitor can assist with completing the application forms. 

What is an advance statement and how can it help someone living with dementia?

When a person lacks mental capacity and there is no Lasting Power of Attorney or Court appointed Deputy in place, then decisions about a person’s care or wellbeing are taken by a professional such as a Doctor. In these circumstances an Advance Statement helps to ensure that a person’s wishes in respect of their care are considered when these decisions are made. It is not a legally binding document but in practice it must be considered by professionals if they are deciding what is in a person’s best interests.

What advice would you give to someone living with dementia when it comes to planning for the future?

Take appropriate legal advice at an early course. If a person has any significant assets (property, pension, savings etc) the quicker things are put in place for the future the better. If a person has any specific wishes in terms of care either just by personal choice or by way of religious values or beliefs, a Solicitor can assist to ensure that these wishes are protected.

If you would like to make a Will or a Lasting Power of Attorney, please contact Rhys Lewis or Nick Passey in our Conwy office on 596596, or Phil Kentish in our Llandudno office on 874774.