Tag Archive for mediation

Unsettling Times

In these unsettling times, many parents are feeling a strong sense of fear – fear of the unknown, fears surrounding family finances, fear of getting sick or of loved ones getting sick. Added to this are the underlying fears for many that the other parent will not be making careful decisions, that they might be taking unnecessary risks or that Coronavirus might become an excuse to withhold a child or children. Many parents are experiencing heightened anxiety during these times.

Advice from Government initially wasn’t clear. Michael Gove first told parents that children ought to stay where they currently were. Although this was quickly corrected, this has led to confusion where only his original and uncorrected advice has been shared. Cafcass Government advice to parents is now here and Cafcass advice to parents is here.

There is a presumption that the existing court order or parenting plan reflects a determination that meaningful personal contact with both parents is in the best interests of the child. So, what happens when parents cannot agree or cannot work out how to implement their court under these new circumstances where:

  • one parent might have an underlying health concern,
  • a family member suspects that they have contracted Covid-19,
  • one parent might be a key worker exposed to the virus, or
  • a parent who might have become temporarily out of work?

As parents, most issues involving the safety and wellbeing of our children can feel like an emergency, and often this would lead to applications to court. However, Covid-19 has placed the court system under immense pressure, too. Judges, lawyers and litigants in person are having to learn to harness remote technologies and online video conferencing platforms such as Skype, Zoom and sometimes phone calls to conduct trials, and this is significantly adding to the delays experienced in the courts.

So, court proceedings in times of a pandemic are unlikely to offer a timely solution to short term adjustments to contact arrangements which are, in truth, matters for joint decision making between parents. Courts will expect to see parents who are in dispute over Covid-19 arrangements to have each made reasonable efforts to come to mutual decisions, which the Head of the Family Division has made clear here, as above.

So, parenting orders are still in effect, term time arrangements still stand even when the children are absent from school and the expectation is that parents will work together to try to implement their court order or parenting plan, in the interest of their children’s wellbeing.

However, if you can’t manage to agree matters, mediation can support you to reach an agreement. Mediators can respond quickly and can work with you online to reach agreements that a court would take weeks if not months to hear and conclude. Mediators are skilled at supporting you to work out what the issue is and how to come up with a joint response that works for each of you. Parents who would not normally need the support of a mediator and parents who ‘parallel parent’ and have little contact with one another could find mediation a useful tool to manage these unusual circumstances. Mediation works for different families at different points along their timeline. If mediation wasn’t right for you when you separated, perhaps it would now work for you in coming up with your family’s response to the global pandemic.

Unmarried cohabitees – the myth of the ‘common law marriage’

Did you assume that when unmarried couples have lived together for two years or more they are automatically entitled to financial and property rights as a ‘common law wife’ or a ‘common law husband’ if they separate? If the answer is ‘yes’ then you are not alone. Many people believe this, but it is not true in England and Wales (NB the rules are rather different in Scotland).

Unfortunately, this misunderstanding can lead to a good deal of conflict when cohabitees split up. For example, did you know that on separation:

  • Cohabitees have no right to ask for maintenance for themselves from their ex-partner
  • Cohabitees have no automatic right to make a legal claim against a property owned by their ex-partner, unless they can show that they have acquired an interest in it by making a financial or other contribution
  • Cohabitees have no automatic right to claim a share in the money, savings or investments owned by their ex-partner in their sole name
  • Cohabitees have no right to ask for a share of their ex-partner’s pension
  • Cohabitees may be left in a very difficult position if their ex-partner dies first without having made a will.

However, cohabitees can:

  • Ask for child maintenance to be paid by their ex-partner, and if this is not agreed an application can be made to the Child Maintenance Service and a formula will apply.

It is becoming much more usual for couples to live together without getting married, and so it is more important than ever that they think in advance about what would happen if they were to split up. One possibility is to think about making a ‘Living Together Agreement’ that spells out what you would both like to happen in the event of a separation. This might not cover all the eventualities, but it would be a starting point.

However, the reality is that many cohabitees who have lived together for many years, and may have had children with their partner, are completely taken by surprise when the worst happens and the relationship ends and they discover to their dismay that they may have very few ‘rights’, but a lot of ‘responsibilities’!

Here at CFMS, our mediators are very experienced in helping separating cohabitees to put in place their own sensible agreements about the arrangements for their children, and about what should happen to their homes, bank accounts, personal possessions and other assets.

We encourage each client to take independent legal advice about their separation agreements so that they have a proper understanding of their rights and responsibilities. In this way, it is to be hoped that expensive, time-consuming and stressful litigation can be avoided, as the law relating to cohabitees rights is notoriously complex.

If you are unmarried and separating from your ex-partner, contact us for further information about how mediation  could help you both to work out a practical way forward for the whole family.

In addition, we can give you lots of information about the FREE Separated Parents Information Programme, which can be extremely helpful for all parents who are separating, regardless of whether they are married or not.