Some situations where the law is commonly misunderstood in family circumstances
Often we speak to clients who believe they have, or don’t have certain legal rights – which are often commonly held perceptions in the general public however, not necessarily correct.
As there are many misconceptions about family circumstances and the law, we thought it would be helpful to provide a brief summary of a few situations and beliefs we commonly come across about common law marriage rights, father’s rights, divorce grounds, Wills and Lasting Powers of Attorney, to help you understand your true legal position.
If you do find yourself in any of the below situations though, it is always important to seek independent legal advice to understand your individual position and rights.
‘We have a common-law marriage so I have rights’
Living together, sometimes for many years and even with children does not give you the same legal rights as a married couple – despite many unmarried couples believing they do have legal rights akin to marriage due to length of time living together.
You do not automatically have rights over property held in the other person’s name and indeed may have no legal rights. You also have very limited other financial claims against the other party compared to a married couple.
There is no automatic entitlement to any of the estate of your partner if they pass away without a Will in place benefiting you. You can learn more about why unmarried cohabiting couples should consider entering into a cohabitation agreement in our previous blog here.
‘I am the dad, I have rights’
An unmarried father does not have Parental Responsibility for a child unless he has signed the child’s Birth Certificate. Parental Responsibility brings with it an entitlement to have a say in important decisions relating to a child such as education, religion, consent to medical treatment and so on. If you are the father and have not signed the Birth Certificate it is possible to acquire Parental Responsibility by agreement or by a court order.
Parents often state that it is their right to see their child. Whilst, usually both parents will be able to spend time with their children, the courts’ concern is the welfare of the child. In some cases, there may be circumstances where it is not in the child’s best interests to spend time with a parent. This could for example only be due to a risk of child abuse, as a result of the impact of domestic violence or abduction risks.
‘We don’t need a Will our circumstances are straightforward’
Often handling someone’s estate after they pass is much more complicated than people believe. In the absence of a Will, an estate is dealt with by the law of intestacy, which could mean that the benefit does not pass as intended by the deceased, or how loved ones may expect it to.
Making a Will ensures not only that the people you wish to inherit your estate do so, but also deals with other issues such as appointing people you choose and trust to deal with your estate as executors, or appointing your choice of person as testamentary guardian for any children you may have.
‘We don’t need to do Lasting Powers of Attorney we are married and not old enough to worry about that’
Many people think that only elderly people need to consider making Lasting Powers of Attorney ‘LPAs’, but that is not the case.
Younger people can become very ill or have accidents which means they cannot deal with their own affairs too. Even if you are married, it is rare that all assets, liabilities and bills are in joint names. This means dealing with even simple issues such as paying utility bills can be very difficult if the named bill holder is unable to do so themselves.
If some unforeseen circumstances happen and LPAs are not in place, this may well result in an application having to be made to be appointed as that person’s deputy. This is a lengthy, expensive process which can cause additional distress and expense at often already difficult times for families.
Having LPAs in place in advance of someone being unable to deal with their own affairs allows those you trust and have appointed as your attorneys to take over managing your affairs for you without any additional worry and stress at an already difficult time.
‘I want to divorce but I don’t have grounds’
After the introduction of the No-Fault Divorce law in 2022, you no longer have to prove grounds such as unreasonable behaviour or adultery to obtain a divorce.
If the marriage has broken down and cannot be repaired then it is possible to obtain a divorce. We always recommend that you still seek your own independent legal advice before proceeding with a divorce, to fully understand your rights and position.
For further advice on any family law, Wills and probate or Lasting Power of Attorney matter, speak to our specialist team today on 01484 442 700 (Holmfirth), 0161 427 0084 (Marple Bridge) or email firstname.lastname@example.org.
Written by Carol-Anne Baker