It is true in Jersey as in other jurisdictions that unmarried, cohabiting couples are the fastest growing type of family. More often than not couples will live together before they get married or they may choose never to marry due to cost, ease or because they don’t value the institution of marriage in the same way their parents or grandparents did.  However, the law is a little bit behind in catching up with society’s current mores.

Taking that step to “move in together” can be an exciting time.  However, the reality of the legal consequences that flow from a subsequent break-up is often a source of surprise.  There is no such thing as a common law spouse and no statutory regime protecting people when their cohabiting relationship ends whether through separation or death. 

When the relationship subsisted you and your partner may have had an understanding that you would receive back any contribution you had made to the house that they owned but you lived in as a couple, but those understandings and promises may be forgotten if the relationship sours or if you are left dealing with your deceased partner’s estate. So, what can you do?

It is possible to enter a cohabitation agreement before or once you are living together. This will ensure that:

• Everyone has a clear understanding of what their financial commitments are;
• There is no misunderstanding over who owns what;
• There are no difficulties and disagreements if the relationship ends;
• There is clear evidence of everyone’s intentions should any dispute be referred to court. 

This is a sensible approach and one that can be helpful to guard against misunderstandings. However, the binding and contractual force of the document may come under attack if its terms are ignored during the course of the relationship.  If there are children from the relationship and a Schedule One application arises, the weight attributed to any cohabitation agreement will likely be considered by the Court using an approach similar to that used when approaching pre-nuptial agreements 

In the event the family home is jointly owned but the parties cannot agree whether or not to sell and how the proceeds of sale should be divided, then the blunt instrument that is licitation proceedings can be engaged. This is generally an unsatisfactory and costly solution as it involves making an application to court to force the sale of the property. The property is then put up for auction and may sell at an undervalue. 

Before moving in together and while still in the throes of romance and excitement, it is worthwhile taking a moment to think about the future and the issues that may arise in the event of the relationship ending. It will save time and pain in the long run. The solutions are limited for cohabitees and so protection is essential.  If you are considering moving in together it is worth getting some legal advice beforehand and considering a co-habitation agreement so that both of you are clear on your respective expectations. 

Nina would be happy to help talk you through the issues. 

Please call 875 875 and book yourselves in for a chat or contact us here.

This week marks the annual Family Mediation Week where mediation in family law is promoted. In fact, it is promoted in most of our initial meetings and thereafter by family lawyers.

So, what is mediation?

Mediation is a valuable option for clients wanting to obtain resolution on numerous issues from children matters to financial matters without recourse to the courts. It helps parties take control of their situation with the aim of reducing conflict and cost. The mediator’s role is to facilitate agreement by helping parties to make difficult decisions about their futures. So why would lawyers want to encourage mediation?

At Benest & Syvret we understand that lawyers are only instructed for a period of time and that after our role is finished families need to adapt to their new normal. Sometimes parties will never be able to communicate in a healthy way but those occasions are a rarity. Mediation allows parties to resolve matters in a collaborative way which may enable them to move on with their lives more quickly than might happen if engaged in legal warfare. This means that their future lives are less stressful and moving on less painful.

How does Mediation work?

You can refer yourself to mediation. In Jersey we have a number of options. We have Family Foundation which is a forum for mediation run by the Family Court. It is a free service and can involve other professionals including psychologists and Jersey Family Court Advisory Service (JFCAS) officers where necessary. We also have Family Mediation Jersey which is a means tested service but provides qualified mediators who can offer all different types of mediation including shuttle mediation (where the parties sit in different rooms if emotions are running too high) and also mediation that includes other family members such as grandparents (e.g. if they are seeking contact with their grandchildren after a fall out with the parents). Finally, there is Resolution which is also means tested and provides qualified mediators for all kinds of issues. 

The initial mediation meeting can involve parties individually or together. The mediator considers the issues that need to be resolved and assists the parties to come to an agreement through discussion and negotiation. Lawyers may step away when mediation is taking place. So, do you still need a lawyer?

Mediators are skilled individuals with common sense and an ability to find solutions however, they may not have all the information needed to consider the legal implications of an agreement. That is where your family lawyer comes in again. Once you have reached agreement it is best to seek advice from your lawyer about whether the agreement is sensible legally and also whether it needs to be put into an order for registration with the court so it is binding on both parties. 

Sometimes, sadly, mediation fails. It may be because the emotions are too raw or because one party is willing to compromise and one person is not. Mediation may be something to attempt again in the future when this happens. If we think it is the wrong timing, we will always advise you to try again in the future if there is a chance it will resolve matters at a later date. 

Mediation is not the enemy of family law. Quite the opposite! It is a valuable service for us and one which we continue to support. It goes to the heart of family law which is always resolution in the best interests of the family as a whole. 

If you would like more information about how we can assist you to bring about resolution after separation using all options available to us, please contact Nina or Clare for an initial chat on 875875 or email us – info@benestsyvret.com

It can be one of the most exciting times in life when you, as a young couple, buy your first home together. You’ve worked hard to save a deposit, you now earn enough to borrow the money you need to secure a mortgage, you think you may have found ‘the one’ and just want to put down some roots and get on the first rung of that ever-elusive housing ladder.

Marriage isn’t really on the cards yet, after all you’re still quite young, but buying a home together is a good start and will hopefully be the building bricks for your future together.

You’ve found the perfect flat, your offer is accepted and so you apply for a mortgage and contact your solicitor to ask them to go ahead with all the legal stuff. You are given your completion date and the countdown begins…

It’s a heady and exciting time, filled with discussions of which paint colour will match those cushions and do we really need a wine fridge? No one really wants to bring things down by talking about money and what might happen if, god forbid, anything might turn sour in a few years’ time. 

However now is exactly the time to consider the legal implications of making the biggest purchase you have ever made.

Your deposit will probably be made up of money saved or given to each of you and then pooled together to buy the flat. This will most likely not be in equal shares and so it is important to consider who will get what if you go your separate ways and have to sell your lovely home.

An equity agreement can help you here. It is an agreement which sets out how the proceeds of sale of a property will be shared if the property is sold. The agreement will also detail the mechanics of how a sale price is agreed on and timescales for each person to work within to make sure neither person drags their heels or refuses to co-operate.

For example, if Sheila contributes £50,000 to the deposit and Bob contributes £10,000, it is reasonable for Sheila to expect to get her larger deposit back if the property is sold, rather than sharing the sale proceeds 50/50 with Bob. If there is no equity agreement then the sale proceeds would usually be split equally, but with an agreement in place a fairer outcome can be arranged.

Of course, everybody’s circumstances are different. One of you may have residential qualifications allowing you to buy, but the other does not. In that case an equity agreement can protect a contribution made by a non-qualified partner as well as providing arrangements to transfer the property into joint ownership as soon as that is permissible.

So, when buying your first home, do get swept away with the excitement of it, but also remember to discuss an equity agreement with your solicitor before you sign on the dotted line and protect all of that money you have worked so hard to save.

Abigail would be happy to talk you through your co-habitation agreements. Please call 875875 to make an appointment.

Client: “We are common law husband and wife as been together for so long”.

Lawyer: “No, I’m afraid you are not.” 

All too often we hear clients tell us that as they have been living with their partner for a few years they are considered common law husband and wife and we have to inform them that despite what the media may suggest the common law spouse does not exist. Indeed, it never existed in Jersey and has not existed in England and Wales since 1753!

So, what happens if your relationship with your partner breaks down?

Unfortunately, comparatively you have hardly any rights compared to married partners or civil partners. 

• There is no chance of any maintenance being paid to help you get on your feet. You can still seek child maintenance but in the event that you gave up work to care for the children you share, there is no chance of seeking anything like spousal maintenance to help you whilst you get back into the workplace. 
• If your ex owns the house and you have no agreement in place you have no automatic right to stay in the property if your ex asks you to leave and no chance of you obtaining any money back that you have contributed.
• If you rent your home and the tenancy is in your ex’s name only, you will have no automatic right to stay if your ex asks you to leave.

How can you protect yourself?

• If you are renting a place together, think about putting both names on the tenancy. This gives you equal rights and ensures you cannot just be kicked out. The discomfort of living together whilst going through a separation is less uncomfortable than finding yourself out on the street! 
• If you are buying a new place together it is worth thinking about how it will be divided on separation. Our property team can talk you through this. 
• If you are moving into a property that your partner already owns it is worth considering a cohabitation agreement setting out what will happen to your contributions in the event that you separate. Whilst not binding it may carry some weight with the Court if you entered into litigation regarding unjust enrichment (the only remedy available to parties faced with this dilemma in Jersey). 
• Make a will. If you are concerned about what would happen in the event that you die and you want your property to go to your co-habitee you need to say so in your will. Our Wills team will be happy to guide you through this. 

No one knows what life will bring but we can help you protect yourself from some of these issues. Nina would be happy to talk you through your co-habitation plans.

Please call 875 875 to make an appointment or contact us here.

In Jersey, if you have children with your partner and you are not married or in a civil partnership, you have nearly the same rights as far as the children are concerned as you would if you were. However, there are some differences. 

Parental Responsibility

The mother of a child, whether or not born in wedlock or to a civil partnership, always has parental responsibility for her child.

The father also has parental responsibility for such a child if the child is born on or after the 2nd December 2016 and he is named on the birth certificate as the child’s father.  Unmarried fathers of children born before 2nd December 2016 do not have automatic parental responsibility.  They will only acquire it by entering a parental responsibility agreement with the mother and lodging it with the Court or making an application to Court for a parental responsibility order.

Parental responsibility means you are able to make certain decisions about your child’s life and are entitled to information. 

Fathers married to their child’s mother at the time of the child’s birth will automatically have parental responsibility for their child. 

Child Maintenance

Anyone who has a child has a moral and legal obligation to support them financially.  It is not possible to extinguish that liability. Child maintenance is not dependent on marital status or gender. Regardless of whether you are married you are able to pursue child maintenance in court if necessary. There are different sections of the law that are engaged depending on whether you are married but the legal principles applied are the same.

Spousal Maintenance

You are not entitled to spousal maintenance if you are unmarried.  As the term suggests spousal maintenance only arises on the breakdown of a marriage.  Therefore, if you stayed at home as an unmarried parent to raise the children this fact in itself does not provide a legal ground to apply for periodic payments for you per se.  Financial provision is only available in cases involving unmarried couples where there are children and a claim arises under Schedule One of the Children Law.

Family Home

If you are a cohabiting couple with children and the house is owned in the name of your partner you have no recourse to the property unless you can prove unjust enrichment. This means essentially that your contribution to the property should be repaid on the basis that it is equitable to do so or the other person will receive an unjust benefit. Although this is possible it is a costly option and is likely to be contested.   You may have recourse to financial assistance from your former partner to help you provide a roof over your children’s heads by making a Schedule One application.

If you would like to chat about your situation with one of our family team, we would be happy to help. Please call and make an appointment with Nina or Clare on 875875.

Where one member of a cohabiting couple dies the surviving member has no rights in Jersey law to the deceased member’s estate, unless they have been provided for by will.  This is in stark contrast to the position in England, where a surviving cohabitee may make a claim on their deceased partner’s estate, where they died without making a will, or failed to provide adequately for them in their will.

Ownership of the family home (Immovable Estate)  

The matrimonial or civil partnership home (“family home”) is often one of the most important assets in a family.  Where one spouse or civil partner owns the family home and dies without making a will, the surviving spouse or civil partner will inherit the family home where there are no children. Where there are children, the surviving spouse or civil partner will be entitled to the life enjoyment of the family home and an equal share in the reversionary interest with each of the children. 

A cohabitee in a similar situation will have no entitlement to the family home.  The deceased cohabitee’s children will inherit the family home equally between them. If there are no children, the deceased cohabitee’s siblings will inherit.  Indeed it may come as a surprise to many that prior to a change in Jersey law as recent as 2011, children born outside wedlock had no entitlement to their deceased father’s estate, unless he had provided for them by will.   

Cohabitees would be well advised to ensure that the family home is owned jointly for the survivor of them. Alternatively, the cohabitee who owns the family home may wish to make a will gifting at the very least the life enjoyment of it to their cohabitee in the event of their death. 

Stamp Duty on the family home 

The family home is exempt from stamp duty where it is left to a surviving spouse or civil partner by will.   Where one member of a cohabiting couple leaves the family home to the surviving cohabitee by will, stamp duty is payable on registration of the will in the Public Registry.  By way of example, stamp duty on a property with a value of £850,000 is currently £19,250.  

Where the matrimonial home is owned jointly for the survivor there is no stamp duty payable on the death of the first one of the joint owners.  

Ownership in Common/Jointly for the Survivor 

In blended families it is not uncommon for cohabiting couples to hold the family home as owners in common, rather than jointly for the survivor of them.  Cohabiting couples may choose this form of ownership because they have each made differing financial contributions towards the cost of the family home and they wish to ensure that when they die, their children inherit their share of it rather than their cohabitee.  In this scenario careful succession planning is necessary to ensure that the surviving cohabitee is adequately provided for in terms of a place to live.  One option is to grant the surviving member of the cohabiting couple a life interest over the deceased member’s share of the family home.   This may present challenges where there is a significant age difference between the cohabiting couple and there are minor children from a previous relationship to be provided for. 

Movable Assets (e.g. bank accounts, investments, family home contents)

Where a spouse or civil partner dies without making a will, the surviving spouse or civil partner will be entitled to inherit their entire movable estate where there are no children. Where there are children, the surviving spouse or civil partner will be entitled to the first £30,000 and half of the remainder. The children will inherit the other half.  

Contrast that with the surviving cohabitee who will have no entitlement to the deceased cohabitee’s estate, unless they have been provided for by will.  

Even where a cohabitee has been provided for by will, the children of the deceased cohabitee may claim two thirds of their parent’s movable estate by way of légitime, which would reduce the surviving cohabitee’s share to one third of the estate at the very most. 

Holding assets jointly for the survivor, where possible nominating the cohabitee as beneficiary of assets by way of an expression of wishes form, putting in place adequate life assurance for the benefit of a cohabitee and making a will, are some of the options available to avoid unwanted consequences on death.  

The starting point for any cohabiting couple is to make a list of your assets, understand how you own them and consider who you wish to provide for on your death. Taking succession planning legal advice will ensure in so far as is possible that upon your death your assets will pass in the way that you intended. 

Claire would be happy to talk you through your Estate Planning plans.
Please call 875 875 to make an appointment.

The Domestic Abuse (Jersey) Law 2023 creates an offence of domestic abuse.

The Law contains provision for the imposition of domestic abuse protection orders and requires people who commit domestic abuse offences to provide personal information to the police.  The Law was registered by the Royal Court on 5 August 2023 and will come into force on a day to be specified by the States by Act.

A person who intentionally or recklessly engages in behaviour that is domestic abuse commits an offence and is liable to imprisonment for a term of up to 5 years and to a fine. The behaviour must be abusive and must consists of more than one act (or failure to act) and the behaviour must cause, or be reasonably likely to cause, harm. In determining whether the behaviour causes harm, or is reasonably likely to cause harm, a person must look at the cumulative effect (or reasonably likely cumulative effect) of all of the acts and/or failures to act (rather than the effect of each act or failure to act in isolation).

The Law contains powerful sanctions and a domestic abuse protection order may require a person to leave their home. Article 8 of the European convention on Human Rights protects a person right to respect for their private life, family life, and home. Interference by a public authority with the exercise of this right must be necessary and proportionate and it will be interesting to see how courts will apply this provision of the law.