Family law in UK differs from the other European countries in that it comprises of precedents and statutes. For instance, most European countries have property regimes which give spouses, as well as same-sex partners an opportunity to determine who deserves how much on dissolution of a partnership or in case f divorce. In the English law, the court has the jurisdiction to decide a fair order between spouses or same-sex partners. This means that in case a marriage suffers divorce or dissolution, it is very crucial that they consult an expert in English family law. The English courts often demand English law to be applied to divorce and civil partnership cases that have any English element irrespective of the place of marriage/partnership, the parties’ residence, nationality, or domicile. In other words, the outcome of a divorce or dissolution case may differ with the outcome from other countries. The decision to get a divorce is a very hard one. But finding a correct divorce solicitor is the most involving task.
UK is home to four million people who live together and yet are not legally married. Even though they may have some legal protections, such protections are often few in numbers and limited, as compared to the rights of married couples or people in a civil partnership. It is also important to note that after living for a couple of years, the two do not automatically become ‘common law husband and wife’. The words ‘common law’ only applies in rare and extra-ordinary situations. It is worth noting that there are definite legal applications that relate to property, as well as domestic violence for the couple that lives together. As a matter of fact, couples that live together cannot have similar rights as civil partners or married couples. Many people presume that when two people of the opposite sex live together for some period of time, then they have legal rights just like any married couple or civil partnership. UK law has no provision for ‘common law marriage’.
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In the case of Ahmed and Padma, they have been cohabiting for six years. This is very tricky case, since Ahmed is entitled to own the house by the virtue of beneficial state. The two had been habitual residents of UK during their stay together. There is nothing like common law marriage, since the couple was not legally married to each other. Many people often assume that when two people of the opposite sex live together for some time, UK law has no provision for ‘common law marriage’. When conflicts arise and the couple breaks up, it is not clear whether to treat it as a divorce or partnership dissolution. However, there are diverse legal provisions that help to handle certain areas. The words ‘common law’ apply only in rare and extra-ordinary situations. It is worth noting that there are definite legal applications that relate to property, as well as domestic violence for the couple that live together. This encompasses the same-sex partnership, which is also referred to as civil partnership. This law is known as a branch of UK family law, or the law of cohabitation.
To begin with, the house where Ahmed and Padma live is not in their joint names, even though they have lived together for six years and had one child. It is worth noting that couples who live together have limited rights, as compared to married couples or civil partners. This means that Ahmed has no automatic right to stay in the house, since Padma has asked him to leave. This is because the tenancy is in the name of Padma and not the two of them. Ahmed will find it very difficult to stop Padma from pulling him out of the house, since he has no legal rights to stay there. Secondly, Padma and Ahmed did not register jointly as the parents of Zoe in the birth certificate. This also means that Ahmed has no automatic parental responsibility over Zoe.
According to the Family Act 1996 Part IV section 36, one cohabitant is entitled to live in their dwelling-house by virtue of a beneficial state or any contract that gives him the right to remain in occupation. It also applies if one cohabitant is not entitled to occupy the dwelling-place. This section also states that one cohabitant who is not entitled can petition the court on the right to occupy the house for a given period of time. In case the cohabitant is employed, he has the right not to be evicted or excluded from the resident house or any part of it by the respondent for a specified duration of time. During the same duration, the respondent is also deterred from excluding or evicting the applicant from the dwelling-house or any part of it. In case the applicant is not in any occupation, this section provides that he or she can seek a court that gives him or her the right to enter and occupy the dwelling-house within a given timeline. The respondent is also mandated to allow the applicant to exercise the order requirements within the stated period of time.
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Based on the information above, Ahmed will be able to remain in the house for a specified period of time. During this period, the respondent, Padma, is mandated to allow him to exercise such legal rights. Since their interests are not protected, Padma has a right to vacate Ahmed from the dwelling house after the stated duration is over. The English law still treats Ahmed and Padma as two separate individuals with no legal rights to each other in the eyes of the law in case their relationship ends, unless they enter into a civil partnership which gives them legal protection, as well as rights or liabilities towards each other. Lack of legal rights for couples who live together has far-reaching consequences, particularly, in regard to their dwelling house or any other biggesr assets that they may acquire in the process. In this case, Padma has the sole parental responsibility over Zoe. Ahmed, on the other hand, can not automatically be assumed to be the father of Zoe.
It is important that couples follow some given steps so as to protect themselves in case of dissolution of partnership or divorce. These steps may help to reduce financial or legal problems that are likely to occur in case they choose to terminate their relationship. First, the couple should seek to ensure that their tenancy or the dwelling house is in their joint names. Many couples assume this fact until they are faced with the reality of a possible fall out. In the English law, unmarried couples or cohabiters have legal rights to their partner’s property or its maintenance in case of a break up. In other words, what belonged to the husband is his, whatever belonged to the wife is hers, and anything that was jointly owned is equally divided between the two. This law applies to every asset including the dwelling house or home.
For instance, if the Ahmed had purchased their dwelling house jointly, then each would have been equally entitled to its possession. However, this is not the case, since the house is singly owned by Padma, and Ahmed is not legally entitled to its ownership by the virtue that they are not legally married to each other. Secondly, they can also agree on setting up living together/cohabitation agreement. If such agreements are not made, the parties can end up in a very messy dispute.
This case would take a different form if the two people were legally married. In any marriage relationship, every property that is acquired during the period of marriage belongs to the two parties. For instance, any child born in a marriage relationship is presumed to be the father’s child unless proved contrary. The father is legally allowed to have his name put in the birth certificate of the child, whether or not he is the actual father of the child. Each party in the marriage relationship has parental responsibility over the child until the child reaches 18 years of age, when he/she is described as an adult. This case remains the same even in case of divorce or separation. A married couple can decide to separate informally, but they are still considered to be married, unless they end the marriage formally through the court. Both partners are entitled to stay in their dwelling house/home until a court order is issued that requires one partner to leave.
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Couples that live together and are not legally married do not have any legal duty to support the other partner financially. Padma has no legal duty to support Ahmed financially, since he has no occupation. However, if the two had been married for six years, each partner has the legal duty to support the other one. If any partner fails, the other can seek a court to force that partner to support him or her.
Unmarried couples that live either in a private or public accommodation will claim the ownership of the house depending on their tenancy status. One partner has no right to stay in the accommodation if the other with tenant right asks him/her to leave. The unmarried partner can, however, apply for a temporal residence by applying to court. When the period is over, he or she will have to leave when asked to. One partner can also get different rights if the other partner acts in a violent manner. The case is different with married couples. Both married partners have the legal right to stay in their matrimonial house or home irrespective of whose name appears in the tenancy agreement, unless stated otherwise by a court order. This implies that in case of a divorce, the court is mandated to ensure that each partner gets the fair share of their properties, including the home. In other words, both married parties have home rights.
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In England, divorce is only granted when the marriage is beyond retrieval. In other words, divorce cannot be granted on the grounds of irreconcilable differences. In case a property is to be divided, the court must first determine whether the property is non-marital or marital. If it is non-marital, then sole ownership will remain on the partner on whose name it is registered. If the property is marital, the court will determine the ratio of share entitled to each party. For example, any property that one party acquired prior to the marriage may be considered non-marital, unless stated otherwise. All property during the marriage period is marital and, therefore, is liable to equitable division at the point of divorce.
In the above case, the house in which Padma and Ahmed lived belonged to Padma. At the point of divorce, the house may be considered non-marital, unless stated otherwise. Nevertheless, Ahmed still has the legal home rights as his matrimonial home and, therefore, can petition the court so as to be given a share of it. According to the Matrimonial Cause Act 1973, upon divorce, the former spouse is entitled to a fraction of the value of all the assets that belonged to the marriage (marital assets).
Section 25 of the Matrimonial Cause Act 1973 (MCA 73) states that it is in the jurisdiction of the court to decide whether to exert its powers in ensuring that they provide a clean break between the married partners. This decision must take into consideration all the circumstances surrounding the case. Some of the circumstances that can be considered include the family standard of living prior to the break up, the financial obligations that each party has, or is likely to have in future, any mental or physical disability that either of the party might be having, the contributions of each partner towards the welfare of the family, the value accrued to each partner that is attached to the marriage, such as pension arrangements, the earning capacity financial resources, income, or property that each partner has, or is likely to have in the nearest future, the age of each partner, and, lastly, the duration of the marriage.
There are future legislative changes that are stipulated to be enacted to the Family Law Act 1996 (FLA 96). These are intended to reform the provision of the Matrimonial Cause Act 1973, particularly the procedures. It is stipulated that divorce request will only granted when the couple has stayed together for at least one year and given the condition of the marriage, it can be considered irretrievable. For instance, the case T v T of 1998 showed that it was very significant for the court to put emphasis on the needs of the former spouse with regard to the application of the earmarking process.
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A married couple can decide to separate informally, but they are still considered to be married, unless they end the marriage formally through the court. Both partners are entitled to stay in their dwelling house/home until a court order is issued that requires one partner to leave. Couples that live together and are not legally married do not have any legal duty to support the other partner financially. Padma has no legal duty to support Ahmed financially, since he has no occupation. However, if the two had been married for six years, each partner has the legal duty to support the other. If any partner fails, the other one can seek a court to force that partner to support him or her.
Unmarried couples that live either in a private or public accommodation will claim the ownership of the house depending on their tenancy status. One partner has no right to stay in the accommodation if the other, with tenant right, asks him/her to leave. The unmarried partner can, however, apply for a temporal residence by applying to court. When the period is over, he or she will have to leave when asked to. One partner can also get different rights if the other partner acts in a violent manner. The case is different with married couples.
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Both married partners have the legal right to stay in their matrimonial house or home, irrespective of whose name appears in the tenancy agreement, unless stated otherwise by a court order. This implies that in case of a divorce, the court is mandated to ensure that each partner gets the fair share of their properties, including the home. In other words, both married parties have home rights.