FAQs

When getting divorced it is often necessary to get specialist valuation reports for properties, art, antiques, yachts etc. We regularly obtain such reports and have contacts around the world that can assist with this. Specialist tax advice is also often needed from different countries regarding the sale or transfer of assets and how different countries deal with the taxation of the payment and receipt of spousal and child maintenance. We regularly obtain this advice, often from accountants that are dual qualified, so that they can advise on the tax implications for a spouse that is living here and a spouse that is living in another country.

When international couples separate, one of them may want to move to another country with the children. You cannot take your children to live in another country without the agreement of your spouse or a court order allowing you to do this. If you do take your children to live in another country without your spouse’s consent this is likely to be considered child abduction. You need to take specialist advice before making any decisions regarding arrangements for your children.

If you can get divorced in more than one country you need to issue your divorce proceedings in your country of choice as quickly as possible, as your spouse may also be taking legal advice and may want to issue divorce proceedings in different country from you because it is more beneficial for them. The country where the divorce proceedings are first issued will usually deal with the divorce.

If you can get divorced in more than one country it is very important that you take specialist advice from a divorce lawyer qualified in the relevant jurisdictions. The financial settlements that divorce courts make vary significantly from country to country. The English and Welsh courts have traditionally been more generous to the less wealthy spouse than in other countries, which has resulted in many high profile international divorces taking place here. Only when you have received specialist advice can you decide which in country is best for you to get divorced.

International couples can often get divorced in more than one country. Where you get divorced can have a significant impact on the financial settlement that you receive and the amount of time that it takes to get divorced. You therefore need to find out what your options are before divorce proceedings are started.

• If you are from England or Wales but currently live in another country, you may not be able to get divorced here unless you or your spouse returns to live here for a period of time. You are likely to be able to get divorced where you currently live. Taking specialist advice at an early stage can help you decide if you need to take certain actions to make sure that you are in the best possible position should you decide to divorce
• If you are not from England or Wales but currently live in England or Wales, you are likely to be able to get divorced here
• If you are not from England or Wales but your spouse is and neither of you currently lives here, you may be able to get divorced here

The executor of a Will is ultimately responsible for ensuring that the deceased’s estate is properly wound up and that the wishes in their Will are carried out.

To remove an appointed executor from a Will, the beneficiaries under the Will, together with any other interested parties, must be able to prove to the court that the executor is ‘unsuitable’ and/or ‘incapable’ of carrying out their duties.

Unsuitability

The court will only take into consideration a breakdown of a relationship between an executor and the beneficiaries, only in circumstances where it makes the take of the executor impossible.

Therefore in the context of unsuitability, to remove an executor evidence will need to be provided that the executor has acted unlawfully and/or in conflict with his duties under the Will. This can involve a range of issues that would be construed as misconduct, ranging from incompetence in the administration of the estate, misappropriation of assets, to acts of dishonesty.

The court does not necessarily need to determine wrongdoing or default on the part of the executor, the guiding principle of the court is to determine the suitability of an executor and whether the administration of the estate is being carried out properly.

Incapability

Such consideration in these circumstances relates to whether the executor is physically or mentally well enough to administer the estate. An executor may be incapable of carrying out their duties if they have suffered a physical or mental impairment. If in the circumstances an executor does not agree to step down, then legal action may be required to prove their impairment and the impact it has on their capacity as an executor.

The Civil Procedure Rules (CPR) in the UK govern the procedure for civil litigation. The costs rules under the CPR outline how costs are managed and awarded during legal proceedings. These rules include guidelines on the types of costs that can be claimed, the assessment of costs, the factors considered by the court when making cost orders, and the procedures for detailed assessment of costs.

The general rules relating to costs contained in the CPR continue to apply in claims under the I(PFD)A 1975. As such, the general rule remains that the unsuccessful party will be ordered to pay the costs of the successful party but the court may make a range of different orders.
As set out by Henderson J in Kostic v Chapman [2007] EWHC 2909 (Ch) at [4]:

‘The costs of a contentious probate action, like those of any other civil claim, are within the discretion of the court, and CPR Parts 43 and 44 will apply. The general rule, enshrined in CPR 44.3(2)(a), is that the unsuccessful party will be ordered to pay the costs of the successful party, or in other words that costs follow the event.’

Therefore, it is with this in mind that serious consideration must be given before issuing an application to the court, there are significant potential costs consequences to litigation.

Under the Inheritance (Provision for Family and Dependants) Act 1975, an application for reasonable financial provision from the estate of a deceased person must typically be made within six months from the grant of probate. However, the court does have the discretion to allow applications to be made after this time frame in certain circumstances, but it’s generally recommended to adhere to the six-month limit whenever possible.

Unfortunately in litigation there are no guarantees on timescales, the amount of time necessary to resolve a claim is very much based on the facts of any given case. This will depend on which court the application is issued in, it can range from between 9 to 18 months to resolve unless there is an earlier settlement

The court has a wide discretion of what Orders may be made under the I(PFD)A 1975. If the court is satisfied that reasonable financial provision has not been made for the applicant, it has a wide discretion under I(PFD)A 1975, s 2 to make a variety of orders to ensure such provision including:

• (a) an order for periodical payments;
• (b) an order for a lump sum payment;
• (c) an order for the transfer of estate property;
• (d) an order for the settlement for the benefit of the applicant of estate property;
• (e) an order for the acquisition of property out of estate assets for the claimant or for settlement for his benefit;
• (f) an order varying ante or post-nuptial settlements made on the deceased’s marriage, the variation being for the benefit of the surviving spouse, any child of the marriage or any person treated as a child of the marriage;
• (g) an order varying trusts on which estate assets are held, whether under the will or intestacy rules; and
• (h) an order varying any settlement made during the subsistence of a civil partnership or in anticipation of a civil partnership the variation being for the benefit of the surviving civil partner, any child of the civil partnership or any person treated as a child of the civil partnership

When assessing a claim under the Inheritance (Provision for Family and Dependants) Act 1975, the court considers various factors to determine the appropriate provision to be made. These factors include:

• Financial needs and resources of the claimant: The court examines the claimant’s financial situation, including their income, assets, and liabilities, as well as their future financial needs and obligations.
• Obligations and responsibilities of the deceased: The court considers the deceased’s obligations towards the claimant, such as any financial support they provided during their lifetime or any promises made regarding inheritance.
• Size and nature of the estate: The court assesses the value and composition of the deceased’s estate, including any property, investments, savings, and other assets.
• Any other relevant circumstances: The court takes into account any other factors that may be relevant to the case, such as the claimant’s relationship with the deceased, the duration of the relationship, and the reasons why the deceased’s will or intestacy rules do not adequately provide for the claimant.

Based on these factors, the court determines what provision should be made from the estate to ensure that the claimant’s financial needs are met fairly and reasonably. This could involve adjusting the distribution of the estate or making additional financial provisions to address a claimant’s needs.

The I(PFD)A 1975 came into force on the 1st April 1976 to replace and update the Inheritance (Family Provision) Act 1938 and sections 26–28 Matrimonial Causes Act 1965. Whilst the I(PFD)A 1975 applies only in England and Wales, legislation in neighbouring jurisdictions in the UK have adopted similar provisions.

The I(PFD)A 1975 provides a mechanism which eligible claimants can seek ‘reasonable financial provision’ from a deceased’s estate, whether it is subject to a Will or falls under the Intestacy Rules. What this mean is that certain individuals, who were maintained by the deceased, may be eligible to bring a claim if they believe that the deceased’s Will or the Intestacy Rules do not adequately provide for them.

However, in order to be eligible to pursue a claim pursuant to the I(PFD)A 1975, a prospective claimant must be able to demonstrate that they fall within the relevant class as set out in I(PFD)A 1975, s 1(1) this includes:

• The spouse or civil partner of the deceased;

The burden rests with a claimant to prove their marital or civil partnership status for the purposes of any claim. Ordinarily, exhibiting a marriage certificate or civil partnership document to the applicant’s evidence will suffice this requirement.

Further advice may be required in circumstances where the marriage was foreign, religious or void marriage.

• A former spouse or former civil partner of the deceased;

In cases where the deceased passes away shortly after a divorce or dissolution, the I(PFD)A 1975 provides a discretion for the court to effectively treat the former spouse as though there had been no divorce or dissolution.

I(PFD)A 1975, s 14 provides that the court may exercise its discretion where the deceased died within 12 months from the date on which a marriage/ civil partnership was brough to an end, be it by Decree Absolute, Final Order or Decree of Nullity.

Specifically, s 14 provides the circumstances that the court will consider: –

(a) application for a financial provision order under MCA 1973, s 23 or a property adjustment order under MCA 1973, s 24 has not been made by the other party to that marriage; or

(b) such an application has been made but the proceedings thereon have not been determined at the time of the death of the deceased.

• A cohabitee;

If the deceased died on or after 1 January 1996 and, during the whole of the period of 2 years ending immediately before the date when the deceased died, the person was living:

(i) in the same household as the deceased, and
(ii) as if that person and the deceased were a married couple or civil partners.

• A child of the deceased;

Under I(PFD)A 1975, s.25, claims are not just limited to current biological children. Claims can be brought on behalf of a child that has yet to be born (en ventre sa mere), and children that were ‘treated as a child of the deceased’, for example a step-child.
Regarding the latter, circumstances are dependent on the specific facts of the case. In deciding whether reasonable provision has been made for a non-biological child, in addition to the factors appliable to all claimants further additional considerations must be given, this can include but is not limited to: –

• whether the deceased maintained the non-biological child, if so, consideration is to be given to 1) the length of time for which contribution were made; 2) basis on which the deceased did so, and 3) to the value contribution made by way of maintenance and, to what extent the deceased assumed responsibility for the maintenance;
• whether in maintaining or assuming responsibility for maintaining the applicant the deceased did so knowing that the child was not their own child; and
• the liability of any other person to maintain the child (i.e. biological parent to a step-child).

• Any person (not being a person included in the foregoing paragraphs of this subsection) who immediately before the death of the deceased was being maintained, either wholly or partly, by the deceased.

The inclusion of this class of claimant can be far reaching in scope. I(PFD)A 1975, s 1(3) provides that ‘a person is to be treated as being maintained by the deceased (either wholly or partly, as the case may be) only if the deceased was making a substantial contribution in money or money’s worth towards the reasonable needs of that person, other than a contribution made for valuable consideration pursuant to an arrangement of a commercial nature.’

The concept of a person that was maintained by the deceased was considered further in the case of Ilot v Mitson (No.2) [2017], where the courts determined the following criteria: –

• Maintenance connotes payments which enable an applicant to discharge the costs of their daily living at whatever standard is appropriate to them; the provision is to be made to meet recurring expenses, being expenses of living of an income nature.
• An award can be made by way of a lump sum, paying off debts or the purchase of a property to meet a housing need.
• The level of maintenance to be provided is flexible and falls to be decided on the facts of each case: it is not limited to subsistence level but is to be judged by the standard appropriate in the circumstances.
• The applicant must show “something more” to establish a claim beyond living in necessitous circumstances and having a qualifying relationship with the Deceased.
• Determining whether reasonable financial provision has been made for the applicant by the Will or the intestacy rules should be assessed as at the date of the hearing and not for example as at the date the Will was made. The circumstances of the applicant may have changed owing to chronic illness or incapacity.

This can be difficult and other options will need to be explored. Outside of traditional lending a specialised loan facilities for legal proceedings can be considered.

A litigation loan, also known as litigation funding or litigation finance, is a financial arrangement where a third-party funder provides funding to cover the costs associated with litigation in exchange for a portion of any financial recovery obtained through the litigation.

Here’s how it typically works:

• The litigation funder agrees to provide funds to cover legal fees, court costs, expert witness fees, and other expenses associated with pursuing a legal claim.
• In exchange for providing funding, the litigation funder typically receives a portion of any financial recovery obtained through the litigation. This could be a percentage of the damages awarded by the court or a percentage of any settlement reached between the parties.

Litigation funding can be particularly useful for individuals or businesses who may not have the financial resources to pursue a legal claim on their own. It allows them to access the legal system and seek redress for their grievances without having to bear the full financial burden of litigation upfront.

However, it’s important to carefully consider the terms of any litigation funding arrangement, as the costs associated with litigation finance can be significant. Additionally, not all cases may be suitable for litigation funding, so it’s advisable to seek legal advice and explore all available options before entering into such an arrangement.

The cost of a TOLATA (Trusts of Land and Appointment of Trustees Act 1996) claim can vary widely depending on several factors, including the complexity of the case, the level of cooperation between the parties, the need for expert evidence, and whether the case goes to trial. Some potential costs associated with a TOLATA claim may include:

• Legal Fees: Legal fees can vary depending on the law firm’s hourly rates, the amount of work required, and whether the case settles or goes to trial. In some cases, lawyers may work on a fixed-fee basis for certain stages of the case.
• Court Fees: There are fees associated with filing court documents and initiating court proceedings. The amount of these fees can vary depending on the value of the claim and the specific court where the case is heard.
• Expert Witness Fees: If expert evidence is needed to support the parties’ positions, there may be additional costs associated with hiring experts, such as property valuers or surveyors.
• Mediation or Alternative Dispute Resolution (ADR) Costs: If the parties choose to pursue mediation or other forms of ADR to resolve the dispute, there may be costs associated with hiring a mediator or participating in the process.
• Trial Costs: If the case proceeds to trial, there may be additional costs associated with preparing court documents, obtaining witness statements, and presenting evidence in court.

Overall, the cost of a TOLATA claim can vary significantly depending on the specific circumstances of the case. It’s essential for parties considering a TOLATA claim to discuss potential costs with their legal advisor and consider the most cost-effective strategies for resolving the dispute.

No, but it is sensible to get independent legal advice, particularly is there are points of contention regarding the division of assets.

If a separation is amicable, parties can still benefit from legal advise as a well drafted separation agreement can capture the terms of the settlement which includes primarily financial matters to avoid any future disputes that could cost thousands of pounds. A separation agreement will provide certainty

Yes there are alternative options to court litigation. Alternate Dispute Resolution (ADR) in the UK refers to methods of resolving disputes outside of traditional court proceedings. ADR methods are generally considered to be faster, less formal, and more cost-effective than litigation. Some common forms of ADR in the UK include:

• Mediation: A neutral third party, called a mediator, facilitates discussions between the parties to help them reach a mutually acceptable resolution. Mediation is voluntary, confidential, and can be used to resolve a wide range of disputes, including those related to family, employment, commercial, and property matters.
• Arbitration: Parties submit their dispute to an impartial arbitrator, who makes a binding decision based on the evidence presented. Arbitration can be faster and more flexible than litigation, and parties can choose their arbitrator and the rules that will govern the process.
• Negotiation: Parties can attempt to resolve their dispute through direct negotiation, either independently or with the assistance of legal representatives. Negotiation allows parties to reach a settlement agreement tailored to their specific needs and interests.
• Collaborative Law: Each party is represented by their own collaboratively trained lawyer, and all parties agree to work together to reach a mutually acceptable resolution. Collaborative law encourages open communication and cooperation between the parties and their lawyers.

ADR is often encouraged by the courts in the UK, and parties may be required to consider ADR before proceeding to trial. ADR can offer numerous benefits, including cost savings, faster resolution times, and greater control over the outcome of the dispute. However, it’s essential for parties to carefully consider their options and seek legal advice

Absolutely. A party can propose settlement before litigation commences or at any during the dispute. In fact, the court actively encourages this by making early offers for settlement. In the context of TOLATA (Trusts of Land and Appointment of Trustees Act 1996), this is done through a Part 36 offer. This refers to a formal offer to settle the dispute between the parties outside of court proceedings, which is by Part 36 of the Civil Procedure Rules (CPR) for the procedure for making and accepting such offers.
A Part 36 offer in a TOLATA claim typically outlines terms for resolving the dispute, such as a proposal to buy out one party’s interest in the property, a division of the property’s proceeds upon sale, or other terms aimed at achieving a settlement.

If a Part 36 offer is made and accepted within the specified time frame, it can have significant cost consequences for both parties. For example, if a party rejects a Part 36 offer and later fails to obtain a more favourable outcome at trial, they may be required to pay the other party’s legal costs from the date the offer was made. Conversely, if a party rejects a Part 36 offer but later achieves a better outcome at trial, they may be entitled to receive enhanced costs and interest.

Parties involved in TOLATA disputes should therefore carefully consider any Part 36 offers made and seek legal advice to assess the potential implications and determine the most appropriate course of action.

The cost implications of losing a TOLATA (Trusts of Land and Appointment of Trustees Act 1996) claim can vary depending on several factors, including the complexity of the case, legal fees, court costs, and any potential adverse orders made against the losing party. Some potential cost implications may include:

• Legal Fees: The losing party may be required to pay their own legal fees as well as a portion of the other party’s legal costs. Legal fees can accumulate quickly, especially in complex or protracted cases.
• Court Costs: The losing party may be ordered to pay court costs, which can include fees for filing court documents, expert witness fees, and other associated expenses.
• Damages: In some cases, the court may order the losing party to pay damages or compensation to the other party for any losses incurred as a result of the dispute.
• Adverse Orders: The court may make adverse orders against the losing party, such as requiring them to sell the property or granting exclusive possession to the other party. These orders can have significant financial implications.
• Appeal Costs: If the losing party decides to appeal the court’s decision, they may incur additional legal fees and court costs associated with the appeal process.

Overall, losing a TOLATA claim can result in substantial financial consequences, so it’s essential for parties involved in such disputes to carefully consider their legal options and seek professional advice to minimise potential costs.

If the parties are able to settle their differences out of court by direct or solicitor negotiation or there is a successful mediation then the likely timeframe is a few months. If a TOLATA (Trusts of Land and Appointment of Trustees Act 1996) claim is issued in court then it can take between 9 to 18 months to resolve depending on the nature and complexity of the matter as well as the the capacity and caseload of each specific court.

The primary difference between TOLATA (Trusts of Land and Appointment of Trustees Act 1996) and matrimonial laws MCA 1973 (Matrimonial Causes Act 1973) lies in the nature of the relationship they govern and the assets they address.

TOLATA deals specifically with disputes over property ownership and interests among cohabiting or non-married partners, family members, or business associates. It focuses on establishing beneficial interests in property and resolving disputes related to land ownership, trusts, and trusteeship.

Matrimonial laws, on the other hand, govern the division of assets and responsibilities between spouses during divorce or separation. These laws address issues such as property adjustments (sale or transfer), lump sum order, spousal maintenance, pension adjustments and/or clean break orders.

In summary, while TOLATA focuses on property disputes outside of marriage or civil partnership and is subject to stringent statute and case law; the MCA 1973 specifically addresses the division of assets and responsibilities within the context of marriage or civil partnership and typically offers the court more discretion to divide the assets based on ‘fairness’.

Under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA), claims can be issued by a range of persons, this can include co-owners of a property, individuals with a beneficial interest in the property, trustees, those with an interest in the land, unmarried couples, cohabiting partners, family members, or business partners who have a stake in the property. 

In circumstances where a property is registered in the name of only one party, under TOLATA, you may be able to make a claim for a beneficial interest in the property if you can demonstrate that you have made significant contributions to the property, such as paying towards the mortgage, renovations, or household expenses, and have a legitimate expectation of benefitting from the property. Establishing a beneficial interest in a property under Trust Law, is principally achieved using one of the following methods: – 

1. Constructive Trust: If you can show that there was an agreement or understanding between you and your partner that you would have a share in the property, even though it is in your partner’s name, you may be able to argue for a constructive trust. This would entitle you to a share in the property’s value corresponding to your contributions and expectations.
2. Resulting Trust: Similarly, if you can demonstrate that you contributed financially to the property with the intention of acquiring a beneficial interest, you may be able to claim a resulting trust, which would entitle you to a share in the property’s value proportionate to your contributions.
3. Proprietary Estoppel: You may also have a claim under the principle of ‘unjust enrichment’ if you can show that it would be unfair for your partner to retain sole ownership of the property without compensating you for your contributions.

It’s essential to seek legal advice from a solicitor experienced in property and family law to assess your individual circumstances and determine the strength of your claim. They can provide guidance on your legal rights and options for pursuing a claim to the property or its value

TOLATA stands for the Trusts of Land and Appointment of Trustees Act 1996. It’s a piece of legislation in England and Wales that deals with disputes relating to the ownership and occupation of land. 

TOLATA primarily focuses on resolving disputes between co-owners of land, particularly in cases where there is a dispute over the sale, management, or use of the property. It provides a framework for the resolution of such disputes through court proceedings and aims to ensure fair and equitable outcomes for all parties involved.

Under Schedule 1 of the Children Act 1989, a claim can be made for financial provision for a child, including claims related to property. This provision allows the court to make a variety of orders regarding property in order to provide for the welfare of the child. Some of the claims that can be made under Schedule 1 regarding property include:

• Transfer of Property: The court may order the transfer of property to provide a home for the child or to meet their financial needs. This could involve transferring ownership of a property from one parent to another or from a parent to the child.
• Settlement of Property: The court may order the settlement of property for the benefit of the child, such as placing property in trust or creating other arrangements to ensure the child’s financial security.
• Sale of Property: In some cases, the court may order the sale of property and distribution of the proceeds to meet the child’s financial needs, particularly if other options are not feasible or practical.
• Financial Assistance: The court may order one parent to provide financial assistance to the other parent or the child to help meet housing or other needs, which could indirectly involve property-related arrangements.

These orders are made with the primary consideration being the welfare of the child. The court will take into account various factors, including the financial resources and needs of the child and both parents, as well as any other relevant circumstances. It’s important to seek legal advice from a solicitor experienced in family law to understand your rights and options under Schedule 1 of the Children Act 1989 regarding property matters concerning children.

If the property is solely owned by your partner, but you have lived together for years and contributed financially or otherwise to the property, you may still have a potential claim to the property’s value or an interest in it under certain circumstances.

Applications of this nature would be issued under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA). Under TOLATA, you may be able to make a claim for a beneficial interest in the property if you can demonstrate that you have made significant contributions to the property, such as paying towards the mortgage, renovations, or household expenses, and have a legitimate expectation of benefitting from the property. Establishing a beneficial interest in a property under Trust Law, is principally achieved using one of the following methods: –

• Constructive Trust: If you can show that there was an agreement or understanding between you and your partner that you would have a share in the property, even though it is in your partner’s name, you may be able to argue for a constructive trust. This would entitle you to a share in the property’s value corresponding to your contributions and expectations.
• Resulting Trust: Similarly, if you can demonstrate that you contributed financially to the property with the intention of acquiring a beneficial interest, you may be able to claim a resulting trust, which would entitle you to a share in the property’s value proportionate to your contributions.
• Proprietary Estoppel: You may also have a claim under the principle of ‘unjust enrichment’ if you can show that it would be unfair for your partner to retain sole ownership of the property without compensating you for your contributions.

It’s essential to seek legal advice from a solicitor experienced in property and family law to assess your individual circumstances and determine the strength of your claim. They can provide guidance on your legal rights and options for pursuing a claim to the property or its value.

Yes, in the UK, you can seek an order for sale on a property even if you are not married. This can apply in various situations, such as if you jointly own a property with your partner and are unable to reach an agreement on what to do with the property following the breakdown of your relationship.

Under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA), individuals who own property together, whether as joint tenants or tenants in common, can apply to the court for an order for sale if they are unable to agree on the division or disposition of the property. This legislation applies to cohabiting couples as well as married couples.

When considering an application for an order for sale, the court will take into account various factors, including the interests of any children, the financial contributions made by each party to the property, and the circumstances surrounding the breakdown of the relationship.

It’s important to seek legal advice from a solicitor who specialises in family law if you are considering applying for an order for sale on a property owned with a partner outside of marriage. They can provide guidance on the process and help you understand your rights and options.

In the UK, unmarried partners generally do not have an automatic right to claim maintenance from each other in the same way that married couples do. However, there are certain circumstances in which a partner may be able to claim financial support from the other:

Children: If you have children together, you may be able to claim child maintenance from your partner to help support the children’s upbringing. This can be arranged privately or through the Child Maintenance Service (CMS).

Cohabitation Agreement: If you and your partner have a cohabitation agreement in place that includes provisions for financial support in the event of separation, you may be able to enforce those provisions.

Property Rights: Depending on your contributions to property owned jointly or solely by your partner, you may have rights to a share of the property or financial compensation if the relationship ends.

Financial Dependence: In certain circumstances, if you can demonstrate that you were financially dependent on your partner and have suffered a financial disadvantage as a result of the relationship ending, you may be able to make a claim for financial support. This is typically less common and depends on the specific facts of the case. This is often referred to as a claim for “financial provision” or “financial remedy.” It’s important to note that claims for financial provision for unmarried partners are generally less straightforward than claims for spousal maintenance in divorce proceedings.

An application for financial provision from a former partner in an unmarried relationship would typically be made under the provisions of the Family Law Act 1996. Specifically, Part 2 of the Act deals with financial relief for parties to a cohabitation agreement or for former cohabitants. This part of the Act allows individuals to apply to the court for various financial orders, including lump sum payments, property adjustment orders, and maintenance orders, following the breakdown of a cohabiting relationship. Each case is assessed on its own merits, and the outcome can vary depending on the specific circumstances involved.

In such cases, the partner seeking financial support would typically need to demonstrate:

• They were financially dependent on the other partner during the relationship. This could include relying on the partner for housing, living expenses, or other financial support.
• They have suffered a financial disadvantage as a result of the relationship ending. This could involve loss of income, loss of housing, or other financial hardships.
• Courts may consider various factors when determining whether to grant financial provision, including the length of the relationship, the contributions made by each partner (financial and non-financial), the financial needs and resources of each party, and any children of the relationship.

It’s important to seek legal advice tailored to your individual circumstances if you are considering making a claim for maintenance from a partner you are not married to. The laws and procedures regarding financial support for unmarried partners can be complex and may vary depending on the jurisdiction.

If you believe you may be entitled to financial provision from a former partner, it’s advisable to seek legal advice from a family law solicitor who can assess your situation and provide guidance on the options available to you.

In the UK, there is no legal recognition of “common law marriage” or “common law spouse.” Regardless of how long a couple has lived together or whether they have children together, unmarried partners do not have the same legal rights and protections as married couples.

This means that in the event of separation or death, unmarried partners may not automatically be entitled to a share of each other’s assets, property, or pensions, unless specified in a legally binding agreement or through other legal means.

As a result, it’s important for unmarried couples to consider creating a cohabitation agreement to outline their rights and responsibilities, as well as any arrangements for property, finances, and children. Additionally, individuals in such relationships may wish to explore other legal mechanisms, such as drafting wills or creating joint ownership arrangements, to protect their interests and provide for their partner in the event of unforeseen circumstances

This depends on the complexity of a couple’s finances and what you seek to achieve. A straightforward agreement with modest assets and finances will be relativity inexpensive. A complex cohabitation agreement will be more as each case is costed on an individual basis.

The costs of entering into such an agreement to definitively establish a parents ‘common intentions’, can potentially avoid significant sums been expended on contested court proceedings if there is a future dispute.

Yes, you can enter into a cohabitation agreement at any point during your relationship in England and Wales, whether you’re just starting to live together or have been together for some time.

It assists in ensuring that there is cohesion between your separation agreement and other legal documents that may reflect ownership, to avoid any situations where there is ambiguity over the parties common intention.

It is important therefore to have open and honest discussions with your partner about your intentions and expectations before entering into such an agreement. Additionally, seeking legal advice can help ensure that the agreement is drafted properly and meets the necessary legal requirements to be considered if needed in the future.

The amount of time necessary to construct a Cohabitation Agreement will largely be dependent on how complex your affairs are.

Preparing a Cohabitation Agreement for first-time buyers with modest savings and no children for example will take a few weeks to negotiate, draft and conclude. Conversely if the finances are complex and involved then it could take significantly more time.

Consideration will need to be given to how assets are to be divided upon separation, and ideally independent legal advice should be secured to ensure both parties have been advised on the merits and pitfalls of any agreed terms may mean for them.