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Three things all family lawyers tell their children

NUMBER ONE : “There is no such thing as ‘common law marriage’"

Half of the people surveyed in 2013 believed that if you live with someone for a certain period of time you become a “common law” spouse. They must have had long memories, because that hasn't been the law since 1753, and it isn't coming back.  If you aren't legally married, there's no "common law divorce" that enables the court to give you a fair deal when you break up.  You're on your own in more ways than one.  Sadly, the fact that 50% of people believe something doesn't make it true.

Just because you live with someone, have their children, help them build up their business, and generally think of yourselves as “husband and wife”, that doesn't give you any legal rights against them while you are together or if you split up.  Think of Jerry Hall and Mick Jagger. When they separated it emerged that they were not legally married. Suddenly the distinction that people had not appreciated or cared about became very important – particularly to the two of them and their lawyers.

If you aren't married, you won't have a claim on your partner's pension if you separate.  When your partner dies, you won't be the next of kin, and you won't have a right to a share of your partner's wealth unless there's a Will in your favour.  You may end up with less support than you need, and less than your partner meant you to have.  If you own a property or a business together you may have some legal rights, but they won't come from "common law marriage" - they come from whatever legal contract you have signed that says what rights you have, as a property owner or business owner, not as part of a couple. 

It's extraordinary that this belief in rights as a common law wife or husband still persists, despite all the horror stories of penniless partners who, after decades of working, homemaking and child rearing, end up with no legal protection.  Ask any family lawyer and they will tell you this is a real problem for people – one that can only get worse as more and more people live together and have children without the legal protection that marriage provides.

If having children means that you'll have a lower income, a lower pension, or less ability to build up capital, it's better to be married. OK – perhaps what you tell your daughter might differ from what you tell your son.  It is presumed that Mick came off better than Jerry in their negotiations! But perhaps not.  Increasingly men can lose out in the same way as women when there are children around - they're becoming more equal at last!  Decisions about childcare frequently disadvantage one parent more than the other.  If you are unmarried the court can't redress any imbalance unless you have planned for the possibility of separation or death and made your plan a legally binding contract.

As a mediator I have helped many couples make fair arrangements even though their legal rights might not be evenly balanced.  Parents usually want to do the right thing and be seen by their children to do the right thing - so a successful mediation may lead to childcare solutions that are nearer the legal outcome of a divorce than the free-for-all of a split between cohabiting parents.  Nevertheless I have warned my daughters to plan ahead if they intend to have children - and make that plan binding.


NUMBER TWO: "If you have children with someone from another country, it's complicated!"

Whether you live in this country or your partner's, whether you have your children here or abroad, be aware that fathers in particular may have more rights in some countries than others, and that as a general rule you can't take a child from one country to another unless both parents agree.  You can't snatch a child from another country just because it's your child. 

If your children are born in a country where you have decided to settle, the law of that country will apply to them.  If your relationship breaks down, the local court may not let you bring the children home with you if their other parent does not agree, however badly your partner has behaved towards you, and no matter that the relationship is at an end.  If you are the parent wanting to go “home” because you are no longer financially or emotionally supported in your relationship, or you face having to live thousands of miles away from your children, this is hard to resolve without pain.kid 

It is fair to say that courts in some countries may allow parents to take children back to a parent's home country if the parent will have support there and the family will be better provided for both emotionally and materially, but the law in some other places insists on the right of a child to grow up in the country where they were born or have spent most of their life, even if the child is too young to express a preference, and regardless of a parent's wishes. 

An increasing number of parents are having to face the prospect of living far apart from their children or living somewhere which is no longer financially or emotionally supportive following the breakdown of their relationship. This can be a heartbreaking situation for parents and children alike.

Different countries' laws may treat international families in different ways, but what is clear is that there will often be at least one unhappy parent, and often a conflicted child who can't spend as much time with one or other parent as they would like or as may be good for them.  Look at Madonna and Guy Ritchie’s son Rocco as an example of what can happen, even in circumstances where there was no financial barrier to restrict the travel of parents and child across the dividing oceans.

If you fall in love, and decide to have children somewhere other than where you lived before, think about what you might want to happen if your relationship does not work out. Talk about this frankly with your partner.  Any agreement you come to may not be legally binding if one parent changes their mind, but it is better - for you and the children - to start with a shared view of these issues before you and your partner have children together.  If you agree something, put it in writing, making it clear what you have decided and why.  It will be better than nothing if you end up in court or mediation.  


NUMBER THREE: "You too can be a victim of abuse"

I will keep this one short.  A lot is said about it, but still people think it happens to someone else and won't happen to them.

If you are forming a relationship with someone, and they make you feel bad about yourself - that feeling in your stomach - or you find yourself walking on eggshells to keep the peace - ditch them.

Listen to the Rob and Helen storyline in the Archers archives, to get the full flavour of how abuse can start very subtly and build up over time. Get out at the first sign. A victim of abuse does not start as a weak person – nor is the victim always a woman.  Strong people and men get abused too.  If I had a penny for every time I have been told “it's not the physical stuff that's so bad, it's the mental abuse”...

Don’t be fooled by loving words if you're being encouraged to behave differently: “you are not like anyone else – they do this or that” (especially if you can’t see what is wrong with this or that!).  This is a good sign to get going ... quick!

Having a partner who blows hot and cold emotionally, so that you pander or cajole to make things right, is exhausting and not a recipe for a happy life.  At the start of a relationship, people are surely on their best behaviour.  There may be good times too, but bad times at the beginning will always be there: these are things that don't get better.

You don't have to be fair to a partner who abuses you.  They don't deserve the benefit of the doubt.  You may get used to their volatility and mood swings, they may say sorry when they hit you, but what attracted you to this person in the first place is not their dominant behaviour and won't win out in the end.

We understand how this works and have a specialist to help you. The decision to act is always yours but we will tell you where you stand so you have all the information you need and can decide what to do, with our help if you need it.  To talk it through in confidence, please ring us and speak to my colleague Carole Hack.

Posted in: Family Law

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