The Importance of Witnesses
8th July, 2020
Another element for making a Will is released – looking for a signature and witness, although legislation says an attestation clause is not required.
Cohabitation is all the rage. It may dismay the traditionalists, but according to recent figures from the Office of National Statistics, the rate of marriage continues to decline as couples decide to opt out of the walk down the aisle in favour of simply moving in together.
As a family lawyer for the last 25 years, I have seen the odd few cohabitation cases (disputes about property or children) turn into a steady flow, which can account for up to half of my work at times. Cohabiting relationships have increased by over 25 % since 2008, for instance.
The legal protection and rights afforded to cohabiting couples are very different to that afforded to spouses and even though they have opted out of the legal relationship regime, they still need to take advice in order to understand how they can protect their finances and what claims they may have against a former partner.
On the breakdown of a marriage, the judge at court can use their discretion to allocate assets and income as they think fit, to satisfy the needs of the parties and of any children. With cohabitee cases, the court has no discretion to reallocate property assets, the judge must try to follow the intention of the parties as to who would own what share. The judge has a larger role in cases concerning the financial support of the children, but nothing like the powers they can wield in divorce cases.
Resolution (a voluntary association of family lawyers) is pushing for reform so that cohabitees are afforded greater legal protection on the breakdown of a relationship. This follows the recommendations of the Law Commission who recognised that many parties (mostly women) were left vulnerable by financial decisions made whilst they were in long term relationships. However, but the appetite for reform in Parliament is minimal. It is not a vote winner, it’s as simple as that.
I qualified as an accredited specialist in cohabitation cases with Resolution four years ago and since then have advised many clients as to the best ways in which they can own property jointly, the importance of recording agreements with their partner in writing and their options for resolving disputes, whether via the courts or alternative means.
It is vitally important that awareness of cohabitation issues increases and that is why I support the Resolution campaign #ABetterWay.