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Lands End to John O'Groats: Tick

Arrived at last

 

It is with some pleasure that we can confirm that Murray Fraser, Peter Fitch and Brendan O’Brien returned home after completing the Land’s End to John O’Groats bike ride starting on 7 September and finishing at John O’Groats on the 13th of September. The completion of the ride feels like an amazing achievement because of the distance ridden, the summits reached and the support we are able to give to Home Start Uttlesford (the charity supported by Breeze & Wyles Solicitors LLP in 2013).

 

We, the riders, would like to thanks a number of people. First, Chris Belton and Chris Smith who undertook the support driving, route planning and nutritional supplements. From the first day they stopped every twenty miles or so in laybys and waited for us to arrive. They repaired bikes and kept up the riders’ spirits when rain, distance or simple attrition looked like they might overcome the participants. Without the two of them the riders are in agreement that the completion of the epic journey would not have been possible. Finally, thanks to all of the people who donated to the charity on the page http://uk.virginmoneygiving.com/team/bandwstortford. The pain suffered of which there was much was made less painful since we knew that we were doing this for a very worthy cause.

Pictured Top - the team before departure. From left, Murray, Brendan, Peter, Chris Smith and Chris Belton
Pitcture Under - Pete and Brendan on the Severn Bridge Cycle Path (Day Two)

So to the journey;

 

Day One

 

Bad day that cost all of us a lot. Sickness from yours truly plus lack of training from another meant that Launceston reached at a later time than was necessary. Team then took the wrong A388 out of the town and spent an hour traveling in the wrong direction by 20 miles (toward Plymouth rather than Okehampton). We rectified this but too our cost but ended up only 91 miles from our departure and worse still 45 miles from our destination at a village known as Horsebridge having ridden some distance through the Dartmoor National Park (a place the lejog riders should avoid at all costs). The Van picked us up at around 7 pm and we headed to Tiverton somewhat weary and non-plussed. (expected 122 miles – achieved 91)

 

Day Two

 

So it begins (the catch up). We drive from Tiverton to Okehampton and then set off knowing that we needed to catch up more than 45 miles (only 31 of which would get us to the original day two starting point of Tiverton). The road to Tiverton was not flat (National Park-esque) and we eventually arrived at our hotel (OMG) at 11 am. Following the A38 we headed via Wellington, Taunton and Bridgwater to Bristol circling the ring road to Avonmouth. We stopped in Avonmouth for what was a almost the worst meal that the writer has ever eaten before then heading to the M48 cycle crossing of the Severn to Chepstow. From Chepstow we turned north on the A49 to Monmouth and the writers front light failed almost immediately. Oh what joy 39 miles of no light. Even better my colleagues back light was intermittent so there was very little to follow. For the uninitiated hill climbing is all in the mind. I can prove that. I had no idea whether I was going up or down throughout the ride but my Garmin feedback is that this was one of the hilliest sections of the whole ride.  (expected 120 – achieved 134)

 

Day Three

 

Tour de France day. I describe the day as this because it only in to Grand Tours that I see the cyclists achieve what was required of us (see later). We cycled from the hotel to Leominster (Tenby Wells) and then along the A49 to Shrewsbury. The weather was initially wet and the terrain perhaps the most challenging of the whole ride with one hill in excess of a mile exceeding 18% ( I walked! For a 100 yards). As the day progressed the weather improved such that the outer layers were shed. At some stage late in the afternoon just north of Warrington Pete and I decided that we would keep riding until such time as we had caught up the day one losses. Having lost our way around Wigan (the A49 now becomes the A6) after an hour of enjoying the outskirts if Wigan we found the A6 proper to Preston in the dark with lights now working. The wind previously in our faces had now died and we were able to make excellent progress arriving at the outskirts of Preston – Bamber Bridge at around 8.50 pm. Eventually after reviewing regularly the location of the hotel and our current position we arrived at the hotel to the north of Preston at 9.45pm (expected 118 miles – achieved 139.7 miles)

 

Day four

 

So to Scotland. Leaving Preston we made slow progress as the author had a significant sugar low only fixed by five red bulls plus a talking to from his wife about the effects of taking so much taurene. Still cycling slowing we made Kendal and outer limits of the Lake District. Oh what fun! Following probably the best chicken stew I think that I have ever eaten we set off for Penrith. Sarcasm aside I really mean it when I say fun. As I had been left behind I was able to cycle at my own speed that over the next period was the fastest of the lot. We had the joy of encountering and climbing to the top of Shap Pike (1450 ft – almost from Sea Level). It would have been nice had it been a steady climb but about half way along we had a sudden descent that mislead us into believing that it was all over. How wrong we were. The stiffest part of the climb was to follow. Tired limbed and elated I eventually reached the summit some 4 or 5 hundred feet behind Pete. From the Summit we headed down to Penrith and then on to Carlisle reaching the Scottish Border at about 7pm. Our destination of Lockerbie was achieved at about 8.30pm to the resounding chorus of Volvo trucks as we had booked a Days Inn hotel forming part of a motorway service station – Oh Happy Days – other than Burger King/McDonalds no food and no bar – thank goodness for Chris Smith and his mobile Gin and Tonic still without which sanity would not have been achieved.

 

Day Five

 

Rain – I love it, it gets everywhere including inside your water poof socks – hotel bedroom walls being the proof of this as you take them off and spray the walls. We now turn our attention away from the A6 which for some reason changes its name across the border to the A7 or A70 (Murray indicates that this is a Scottish thing thus preventing English raiders from finding their way to anything that matters – chance would be a fine thing). So rain it was all the way to Edinburgh.

 

At this point came our lucky escape. Having cycled too far into Edinburgh was were redirected by the locals towards the Forth Road Bridge (our trusty interpreter close at hand when needed) only to find that the locals who were rotund in size and shape (hint: non-cyclists) were directing us to roads that could not be used by cyclists or pedestrians. Completely stumped by this piece of information we sat for what seemed like an age at the point that we could progress no further but which infact turned out to be 30 seconds cogitating on our misfortunes when a cyclist hereafter known as ‘Rob the Cowdenbeath’ arrived at our shoulder and indicated that if it was the FRB we were after that we should follow him. Putting aside the age old warnings of following strangers Pete decided that he’d had enough and would follow our new leader across the water. Disappointed that there was no walking on water but in need of a stop and a bite to eat it seemed appropriate that the rest of us should follow. Hey Presto we are across the Forth before we know it no walking on water included. Indeed I am still unsure that I could find my way there from the same place even if I had a hundred goes. So I raise my glass to Rob the Cowdenbeath even if it is a glass of Teachers. So at around 7.45 pm we arrive in Perth to all the fanfare of the wet raspberry as RtC had stated that it was only 25 miles to Perth failing to tell us that he meant from Cowdenbeath not where we were at the point when he said it. The author’s legs were like jelly upon arrival it taking him 30 second to work out how to negotiate a flight of six steps. So in reality only 5 slower than normal. (expected 112 – achieved 106 miles)

 

Day six

 

When describing this day to the other participants I spent a lot of time saying that this would be the most difficult day. Heading out of Perth in a ‘northerly’ direction our sniffer dog Pete explained that there was something wrong but his support and direction needed there. We set off quite nicely to the south of the city and then spent the next five miles traversing the city on the ring road. The A9 borders the Cairngorms without really heading up into the highest p[art thankfully. With the wind in our faces we turned west and began to head north west and then north. It was almost with surprise that we reached the Dromochter Summit at 1529ft  and began the descent to Aviemore and then to inverness. Arriving in Inverness we had cycled more than 5 miles downhill with the average speed in excess of 30 mph (often exceeding 42mph) in driving rain. Ignoring the rain I didn’t pedal once and it was with this that I realised that there were benefits to the pain of climbing. (expected 115 – achieved 119)

 

Day Seven

 

Tough – you have no idea. Any romanticism about mileage/human endurance had been truly exorcised at this stage. Although the average height above Sea Level remained a constant 250ft my Garmin Connect tells me that the amount of elevation gained exceeded any other day. The reason being that we climbed 12000ft during the day to the tops of cliffs and then back down to villages at Sea Level.

 

However, the good news is that we arrived as a team all of us having cycled on our own for significant periods of time either at the front or at the back or in the rain or in the sun. We faced challenges from hills, ourselves and lorries to mention a few but perhaps the biggest challenge was the disappointment of John’OGroats when we arrived. Despite that disappointment nothing could dampen our good humour having pushed to and through human endurance to achieve 831 miles in 7 days.

 

Thanks to Peter, Murray, Chris and Chris without whom this would not have been possible. Please remember that this achievement was carried out in aid of Home Start Uttlesford for whom I have the utmost respect. If you wish to make a donation please give generously at http://uk.virginmoneygiving.com/team/bandwstortford.
Brendan O'Brien
Very Tired
Director
Breeze & Wyles Solicitors LLP

The Author getting his passport ready for the Border Crossing


Tip sheet 12, Divorce, Residence orders, custody - who will the children live with?

Residence Orders A Residence Order is “an Order settling the arrangements to be made as to the person with whom a child is to live”. The law in this area is governed by the Children Act 1989 which sets out the rules concerning applications for a Residence Order. The aim of this information leaflet is to give you details of how the Court deals with disputes over where a child lives. It used to be known as “custody”. A parent of a child can apply to the Court at any time for an Order that a child should reside with that parent. Other people connected to the child, such as grandparents, aunts, uncles or older brothers or sisters of the child would need to apply to the Court for the Court’s permission to issue an application in the first instance. Court Procedure There is a procedure for applying for a Residence Order which is as follows:- 1. A written Application is made to the Court with the appropriate fee. 2. The Court arranges a preliminary appointment, usually within 21 days of receiving the application. The papers are then sent to the other party. At this preliminary appointment, known as a “Directions Appointment”, an Officer of the Children and Family Court Advisory and Support Service (CAFCASS) is usually present and the parties are given the opportunity to see him or her to discuss the case to see if any agreement can be reached. If no agreement is reached the Judge will set a timetable for how the case is to proceed. 3. Another CAFCASS officer will be asked to prepare a report on the case. This currently takes up to seven months to conclude. The Court relies heavily on the recommendations of the CAFCASS Officer (formerly called the Court Welfare Officer) in reaching its final decision. The CAFCASS Officer is a very experienced person, usually with a social work background. He or she will see both parties in a case, and usually interviews the child too to see what the child wants. The CAFCASS Officer reports the wishes of the child to the Court to avoid the need for the child to have to go to Court. 4. The parties may also have to file statements setting out their version of the case. Although the filing of Statements is usually deferred until after it is apparent that an agreed settlement cannot be reached, to avoid the hardening of attitudes and prejudice to the possibility of settlement, the filing of Statements might be ordered at the preliminary hearing in a case in which it is clear that it is unlikely that an amicable settlement will be agreed and it is desirable to reach the final hearing without unnecessary delay. 5. A review hearing is fixed for a couple of weeks after the CAFCASS Report is due to be completed. 6. If the matter still cannot be resolved, a final hearing is arranged so that a Judge can hear evidence about the case and make a final Order. The Court has to give “paramount consideration” to the welfare of the child when deciding with whom the child should reside. The Court also has to pay specific attention to the following criteria:- (a) The ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding). (b) His physical, emotional and educational needs. (c) The likely effect on him of any change in his circumstances. (d) His age, sex, background and any characteristics of his which the Court considers relevant. (e) Any harm which he has suffered or is at risk of suffering. (f) How capable each of his parents, and any other person in relation to whom the Court considers the question to be relevant, is of meeting his needs. (g) The range of powers available to the Court. Generally, Courts do not like children to have to move homes, and it is relatively rare for the Court to make an Order which will result in a child having to change his or her main home. Thus the Court may wish to preserve the “status quo”. It is important that serious thought is given to a case before an application is made for a Residence Order. The reason for this is that it is an inherently stressful type of case, and will have an unsettling effect on the entire family and especially the children. The outcome of a case will have important consequences in terms of maintenance payments, statement benefits and the division of any joint property. At the same time as being asked to look at where a child should reside, the Court can look at the contact arrangements (previously known as “access”) and indeed any other issue which relates to the upbringing of a child. As an alternative to applying to the Court for a Residence Order, a referral could be made for mediation. This is where the parties with the dispute visit a trained mediator who can listen to both sides of the argument and then help the parties to see each other’s point of view. Sometimes this can be a very effective way of resolving a problem. If you would like further information about the mediation services that are available locally, please let us know. Please note that this information sheet is designed to cover a wide number of circumstances and cases. You will be given additional information about your own particular case. Please speak to one of our specialist family solicitors for further advice on 01992 558 411

Tip sheet 11, pre-nuptual,post nuptual agreements

Pre-Nuptial agreements and Pre-Marital agreements are widely known as agreements entered into prior to marriage or a civil union.

Due to divorce rates, the number of re-marriages and the ability to marry a number of times and with people living longer, pre-nuptial agreements or “pre-marital agreements” as they are now to be known, are increasingly popular. That popularity has increased due to the decision of the Supreme Court in the case of Radmacher -V- Granatino.

By a majority decision of the Supreme Court some clarity to the approach taken by the English Family Court has been provided for. The decision in this case holds the husband to a pre-marital contract he had signed before marriage to his wealthy wife. The contract provided that the husband would not be able to make any financial claims on divorce, and such agreement was to be binding on the parties in Germany where the wife is from and the contract was drafted, and France, where the husband was from.

The Supreme Court’s decision was an appeal by the husband from the Court of Appeal. His decision was upheld, holding him to the terms of the agreement that he had signed, save for some financial provision to enable him to facilitate his responsibilities as a father. The Court declared that Courts should “give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications, unless in the circumstances prevailing it would not be fair to hold the parties to their agreement”.

As a result of this now considered fundamental, principle set out in the Judgment of this case, consideration should be given to the following:

1. Are there any circumstances surrounding the making and execution of the agreement which would lessen the weight which should be attached to the agreement which would justify asking the Court to depart from its terms?
2. The agreement must be voluntary, i.e. both parties must have wanted to agree to its terms without pressure from any source or party.
3. Both parties must be informed of the implications of the agreement such that they seek legal advice. A refusal to take the opportunity to take legal advice is unlikely to justify a departure from the terms of the agreement. The parties should disclose their financial position to each other.

In addition the Supreme Court removed the distinction between pre-nuptial and post-nuptial agreements. It remains, however, the position that nuptial agreements either pre or post are not binding on the English Divorce Court. The Court will continue to retain the ultimate jurisdiction to determine financial positions on divorce. It does, however, seem that the burden will now be on the person seeking to get out of such an agreement and to justify where they should not be held to its term if properly entered into. The Court will look at the effect of the agreement on the parties, and will not uphold an agreement which results in one party being left a real need.

Who will benefit from entering into a pre-nuptial agreement?

It is thought that those who wish to protect inherited wealth, pre-marital assets or provide specifically for their children from a previous marriage, will benefit most from these agreements and, indeed, the decision of the Supreme Court.

Like anything in life, situations change; a pre-nuptial agreement entered into before marriage should be reviewed, renewed or varied after marriage. Post-nuptial agreements are agreements made between husband and wife after marriage which govern their financial affairs, to be made by a couple who intend to stay together or by a couple who intend to separate.

For further information and assistance in drafting a pre-nuptial or a post-nuptial or advising on the effects of a proposed pre-nuptial or post-nuptial, please contact Olive McCarthy at our Hertford office on 01992 558411.


Tip sheet 10, Special Guardianship Orders

A Special Guardianship Order provides another option for legal permanence for children who cannot grow up with their birth families. It gives the special guardian legal parental responsibility for the child which is expected to last until the child is 18. However, unlike adoption, these orders do not remove parental responsibility from the child’s birth parents and therefore, the birth parents retain parental responsibility for the child. You would have more clear responsibility for all day to day decisions about caring for the chid and for taking important decisions about his up bringing, for example his education. More importantly, although the birth parents will retain their legal parental responsibility, you only have to consult with them about these decisions in exceptional circumstances.

There are a specific group of people who can make an application to be a special guardian and the grounds on which you can make an application is if you have the consent of the birth parents, who have parental responsibility and in the event that they do not provide the said consent, you can make an application for leave in order to apply.

The process involved in making the application is that you must give the Local Authority three months notice in writing that you are going to apply for an Order and the Local Authority is required to produce to the Court a report on all the children, not just the child who you are looking after, when the application is made. This report must include information about the child, his wishes, his birth family, contact arrangements, you and recommendations about whether or not an Order should be made. The Local Authority is expected to start work on this report or arrange for somebody else to do it as soon as possible after receiving the notice. The Court cannot make an Order without having received a report and the Local Authority are expected to ensure that the Social Worker who prepares the report is suitably qualified and experienced but there are no restrictions on who can write the report as there are for adoption.

Before making a Special Guardianship Order, the Court must consider whether to vary or discharge any other existing Orders made under Section 8 of the Children Act 1989. The Court can also decide to make a Contact Order at the same time as the Special Guardianship Order if, for example, either parent apply in order to ensure that they have regular contact with the child. In any event, in all circumstances the Court must consider the whole range of options available before making a Special Guardianship Order.

There is support which is available for special guardians and the Adoption and Children Act 2002 and the regulations made under it require the Local Authority to make arrangements for the provision of support services to a special guardian. These include financial and other support and also services for the children and birth families, for example, mediation services to assist contact between the child and their birth family.

By contrast of adoption, where birth parents lose all their parental responsibility, under the Residence and Special Guardianship Orders, the birth parents retain the right to consent or not to adoption and they can also apply for contact with their child through the courts. Adoption Orders are almost always for life whilst Residence Orders last until the child is 16 or 18. Special Guardianship Orders last until 18 but the Court is asked to take into account of the child’s need for a life long relationship with their special guardian at the time the Order is made.

Please speak to one of our specialist family solicitors for further advice on 01992 558 411.


Tip sheet 9, Resolving financial issues in the divorce process

The purpose of this information sheet is to explain the different ways in which financial issues following a separation can be resolved. These are:

1. Negotiations through solicitors
2. Court proceedings
3. Alternative routes

Of course if you and your partner are able to reach agreement directly, we would be happy to advise you if that agreement is likely to be approved by the Court in divorce proceedings and to draft the necessary documentation.

1. Negotiations through Solicitors

Through Solicitors In most cases, we will seek agreement in relation to the finances through voluntary financial disclosure and negotiation. This does not mean that matter will necessarily become acrimonious; indeed, we follow the code of conduct of Resolution (formerly the Solicitors’ Family Law Association) and endeavour to resolve matters in a constructive and non-confrontational way. If a settlement can be reached through correspondence between solicitors, we will then draft the necessary documentation to record that agreement.

2. Court Proceedings

We may advise you to make an application to the Court to deal with financial matters (known as “An Application for a Financial Remedy Order”). An application can only be made to the Court if divorce or Judicial Separation proceedings have been issued. It does not matter which spouse has petitioned for divorce; either can make an application to the Court to resolve financial matters. In some circumstances, we will advise you to do so immediately. Please note that except in limited circumstances an applicant must have attended a Mediation Information and Assessment Meeting (“MIAM”) before an application can be made to the court.

Issuing Court proceedings does not mean that negotiations will stop, and throughout the Court process we will continue to try to negotiate a settlement. Court proceedings can be a more expensive way forward because more work is needed in order to take the case to Court and it will be necessary to attend Court hearings. The whole process can take around 18 months, but if agreement can be reached at an early stage, the Court process can then be halted and a Final Order made by consent. If no agreement can be reached, the Judge will decide what should happen at the Final Hearing.

3. Alternative Routes

here are alternative ways of reaching a financial settlement which may be suitable for you if you would like to reach agreement with your spouse face to face or without making an application to the court.

(a) Mediation Mediation may be suitable for you if you think you will be able to agree financial issues amicably, with some guidance. You must be confidant that your spouse will be completely frank and you will understand his or her financial position. You will both need to be committed to finding a solution and prepared to compromise. Mediation can often be more cost effective, and generally the parties feel that they have had the opportunity to control the process rather than having a solution imposed upon them. You and your spouse negotiate directly with the help of a trained mediator who remains neutral. If agreement can be reached, you will be advised that you should each check with your own lawyers that the agreement is fair and likely to be approved by the Courts.

If we act as your solicitors in negotiations or Court proceedings, we will be precluded from acting for you in mediation but can refer you to other mediators. We can continue to advise while you are attending mediation with another solicitor/mediator and if agreement is reached, we can draft the necessary documentation. If mediation breaks down, we can continue to act for you in negotiations or Court proceedings.

(b) Collaborative Law
If you would like to opt out of the Court process altogether, it may be possible to resolve financial matters through what is known as Collaborative Law. You and your partner work with specially trained collaborative lawyers to discuss and resolve issues at face to face meetings which can also include other professionals such as financial specialists. Both parties set the agenda and remain in control of the process without feeling pressurised by the threat of Court proceedings. You would both sign an agreement at your first meeting confirming that neither of you would commence Court proceedings while in the collaborative process.

If we act for you in the collaborative law process and this is unsuccessful, we will be disqualified from representing you at Court so that you would then need to instruct new lawyers to proceed to Court. There is therefore a risk that if the process breaks down, you will have to start again with another lawyer and this can entail some extra costs.

(c) Arbitration
In Family Arbitration, you and your ex- partner/spouse appoint a family Arbitrator who will make a decision that will be final and binding between you, on any financial and property disputes arising from the breakdown of your family relationship. Once appointed either by agreement or through nomination from the Institute of Family Law Arbitrators (“IFLA”) the Arbitrator will deal with all stages of your case from start to finish and will make a decision after hearing from both of you or your representatives.

We are able to advise on both the Arbitration process and in addition, Olive McCarthy, Director of our Family and Matrimonial Department is a qualified Family Arbitrator and member of the Chartered Institute of Arbitrators and is able to offer the Arbitration process to parties.

The Duty of Full and Frank Disclosure

Whichever route is used, you should understand that you and your partner are under a continuing duty to disclose to each other full and frank details of your financial position. Your financial position includes income, outgoings and capital – such things as savings, shares, premium bonds, the value of any property you own, collections, business assets, value of pension funds, etc. It also includes any likely future changes in your position and the duty of disclosure is ongoing, so that if anything changes before a Final Order is made, you are obliged to disclose this as well.

Please speak to one of our specialist family solicitors for further advice on 01992 558 411


Tip sheet 8, Parental responsibility, the rlegal ights and responsibilities of Mothers and fathers to their children

Parental Responsibility is defined as “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property”.

The mother of a child automatically has parental responsibility for her child. A father will automatically have parental responsibility if at the time of the birth or at any time after that the mother and father are married.

A father who has not been married to the mother will automatically have parental responsibility if the child was born after December 2003 and both parents registered the birth with the father’s name on the birth certificate. If the child was born before December 2003, the father can obtain parental responsibility by:
•entering into a formal Parental Responsibility Agreement with the mother; or •asking the Court to make a Parental Responsibility Order.

Parental Responsibility recognises the rights of both parents to be consulted about major issues that may occur during the life of the child such as education and schooling matters, the child’s religious upbringing, medical treatment, agreement to adoption, consent to marriage or removal out of the country.

On a day to day basis, having parental responsibility means that a parent who does not live with the child would have the right to obtain information from the child’s school or doctor about the child’s progress. It does not however, give that parent the right to interfere on a day to day basis with routine matters such as what a child eats or what time the child goes to bed. Further, it does not give that parent the power to override the decisions of the parent with whom the child lives. In the event of a dispute on a matter relating to the upbringing of the child, either parent can apply to the Court for an Order to decide the matter in question.

Perhaps one of the most important aspects of parental responsibility is that if a parent with parental responsibility dies the surviving parent with parental responsibility automatically becomes the child’s guardian. If there is any dispute about where a child should live after the death of the parent, the dispute can be referred to the Court.

Courts generally like fathers to have parental responsibility in appropriate cases. In deciding whether to make an order for parental responsibility, the Court looks at the following three particular points:
1. The degree of the father’s commitment to the child.
2. The degree of attachment to his child.
3. His reasons for applying for the Parental Responsibility Order.

The fact that a father is not paying maintenance does not mean he will not get parental responsibility, although it may be argued that failure to pay maintenance shows a lack of commitment to the child.

Please speak to one of our specialist family solicitors for further advice on 01992 558 411.


Tip Sheet 7, Ownership of the family home, Matrimonial Home rights

Ownership of the House Changing the way in which you own the house Most couples who purchase a property together put it in joint names. If your property is in your spouse’s sole name, you may need to register your Matrimonial Home Rights with the Land Registry to protect your right of occupation in the event of separation or divorce. If you think your property is in your spouse’s sole name, it is important that you discuss this with us even if you have not yet decided to separate.

If the property is in joint names, it can be owned in one of two ways, as “joint tenants” or “tenants in common”. The difference is that, if you own the property as joint tenants you will each own an undivided share of the property and should the property be sold, you will each have an equal entitlement to the sale proceeds subject to any claims that may exist as a result of divorce or children between you. If one of you dies, the whole property will pass to the survivor automatically, regardless of what is set out in any will and regardless of the amounts contributed by either party to the purchase price or payment of the mortgage.

If you own the property as tenants in common you will each have a defined interest in the sale proceeds subject to any claims that may exist as a result of children between you or upon divorce. Should either of you die the property will not automatically belong to the survivor and the deceased persons share will pass in accordance with a will or the rules of intestacy subject to any claim that may exist under the Inheritance (Provision for Family and Dependants) Act. Your interests could be specified as 50/50 or something else for example reflecting differing contributions.

Where a property is being purchased or transferred into joint names it is really important that all the intended owners understand the various options that are available and the implications and often this will mean that independent legal advice will be recommended. This is particularly important if you are making unequal contributions to the purchase price and wish to protect those contributions or the intended owners are not married to each other. The law in relation to the ownership of property is complicated but unless you are married to each other the starting point is always going to be what the parties intended at the time the property was purchased.

Our family solicitors are specialists in advising in relation to co-ownership issues and can advise people who are in the process of purchasing a property about the available options and advise as to the best way to protect their interests whether that is by way of Declaration of Trust, Nuptial Agreement and/or Cohabitation Agreement.

In the event that your relationship breaks down you should keep in mind the following;

– If you are not sure how your property is owned, we can find out by carrying out a search at the Land Registry.

– If you are married and your property is in your spouse’s sole name, you may need to register your Matrimonial Home Rights with the Land Registry to protect your right of occupation in the event of separation or divorce. If you think your property is in your spouse’s sole name, it is important that you discuss this with us even if you have not yet decided to separate.

– If you are joint tenants and are separating or divorcing, you may wish to consider changing the way in which you own the property. You can do this by serving a simple notice on the other owner. The effect of this is that you will then become tenants in common and will then be able to leave your share of the property to whomever you chose in your will. Please note, however, that if one party to a marriage dies without making provision in their will for the other, in some circumstances the surviving spouse may be able to make a claim to the Court under the Inheritance (Provision for Family and Dependants) Act 1975 for financial provision, challenging the other’s will.

The disadvantage in altering how a property is held is that, should anything subsequently happen to your spouse, you would not automatically inherit their share of the property. Advice before any action is taken is, therefore, always essential.

The Mortgage

If the property is in joint names, it is very likely that the mortgage will be also. Both parties are liable to pay the mortgage on the property, even if one has moved out. If the bank or building society re-possessed the property, both would be responsible for any shortfall if the mortgage debt (including interest, penalties and legal costs) exceeded the money received on any sale. Some mortgage terms also oblige you to ensure that the premiums on any endowment or life insurance policies are kept up to date. If you do not do this, you could be in breach of your mortgage terms. If you are in difficulty paying the mortgage it is advisable to discuss this with your lender as well as with us.

Remember…

•You should not sign any documents relating to the property or to financial matters without first taking legal advice.

•If you are separating or divorcing, it is important that you discuss with us the overall financial situation as well as ownership of your property. It is not generally advisable to make any changes or deal with assets on a piecemeal basis.

•If Decree Absolute has been granted and you are considering remarrying before any Order has been made in relation to financial matters, you must discuss this with us as soon as possible, and definitely before you arrange the marriage. The reason is that if no order has been made and no application issued with regard to the finances, you will be automatically be prevented from making an application once you have remarried and you could lose out financially.

•If you own the property as tenants in common, or sever the joint tenancy, it is essential that you make a will. You should always keep your will up to date; you do not need to wait until Decree Absolute is granted to deal with this. Please ask if you would like to make an appointment to discuss your will.

•If you are not married you must take legal advice before severing the joint tenancy as your position may be different from that of married couples.

Please speak to one of our specialist family solicitors for further advice on 01992 558411 (Hertford – Olive McCarthy/Karen Johnson).  01279 715330 (Bishop’s Stortford – Karen Johnson).


Tip sheet 6, Contact Orders, child welfare and access in divorce proceedings

Child Arrangements Orders are a type of order which the court can make and govern the arrangements for a child. There are two types of Child Arrangements Order namely a Child Arrangements Order (lives with) and a Child Arrangements Order (Spends time with). As the names suggest the orders set out who a child lives with and how often a child should see someone with whom they do not live.  The law in this area is governed by the Children Act 1989 which sets out the rules concerning applications for a Contact Order (Section 8). The aim of this information sheet is to give you details of how the Court deals with disputes about how often a child should see someone with whom he or she doesn’t live. This used to be known as “access”.

A parent of a child can apply to the Court at any time for an Order to allow a child to have contact with them. Other people connected to the child, such as grandparents, aunts, uncles or older brothers or sisters of the child need to apply to the Court for the Court’s permission to issue an application for contact in the first instance.

Orders cannot usefully be obtained to make an absent parent see a child.

Court Procedure

1. A written Application is made to the Court with the appropriate Court fee. Except for limited circumstances the person wishing to make the application must have first attended a Mediation Information and Assessment Meeting (“MIAM”)

2. The Court arranges a preliminary appointment, usually within 21 days of receiving the application. The papers are then sent to the other party. At this preliminary appointment, known as a “Directions Appointment”, an Officer of the Children and Family Court Advisory and Support Service (CAFCASS) is usually present and the parties are given the opportunity to see him or her to discuss the case to see if an agreement can be reached. If no agreement is reached, the Judge will set a timetable for how the case is to proceed.

3. Often another CAFCASS officer will be asked to prepare a report on the case. This currently takes up to seven months to conclude. The Court relies heavily on the recommendations of the CAFCASS Officer (formerly called the Court Welfare Officer) in reaching its final decision. The CAFCASS Officer is a very experienced person, usually with a social work background. He or she will see both parties in a case, and will usually interview the child to see what the child’s views are (subject to their age). The CAFCASS Officer reports the wishes of the child to the Court to avoid the need for the child to have to go to Court.

4. The Court may also direct that the parties have to file statements setting out their version of events relating to the case.

5. A review hearing is fixed for a couple of weeks after the CAFCASS Report is due to be completed.

6. If the matter still cannot be resolved, a final hearing is arranged so that a Judge can hear evidence from each party about the case and make a final Order.

The Court’s starting premise is that it is in the child’s interest to have contact with an absent parent, so that the child grows up with a balanced view of that parent and has the opportunity to know both parents. In cases where there has been violence there is no automatic bar on the violent parent having contact, but Courts are becoming increasingly careful as to how such cases are dealt with.

The Court has to give “paramount consideration” to the welfare of the child when deciding an issue of contact. The Court also has to pay specific attention to the following criteria:
(a) The ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding).
(b) His physical, emotional and educational needs.
(c) The likely effect on him of any change in his circumstances.
(d) His age, sex, background and any characteristics of his which the Court considers relevant.
(e) Any harm which he has suffered or is at risk of suffering.
(f) How capable each of his parents, and any other person in relation to whom the Court considers the question to be relevant, is of meeting his needs.
(g) The range of powers available to the Court.

It is important that serious thought is given to a case before an application is made for a Contact Order. The reason for this is that it is an inherently stressful type of case, and will have an unsettling effect on the entire family and especially the children. Also reviews of the final Order are common, increasing the cost and length of any Court proceedings.

As an alternative to applying to the Court for a Contact Order, a referral could be made for mediation. This is where the parties with a dispute visit a trained mediator who is independent who can listen to both sides of the argument and then help the parties to see each other’s point of view. Sometimes this can be a very effective way of resolving a problem.

If a parent refuses to comply with a Contact Order once it has been made, further proceedings can be taken against that parent to force him or her to comply with it. Ultimately, a parent who refuses to comply with a Contact Order runs the risk of being imprisoned for contempt of Court and/or be the subject of a fine.

Please note that this information sheet is designed to cover a wide number of circumstances and cases. You will be given additional information about your own particular case.

Please speak to one of our specialist family solicitors for further advice on 01992 558 411


Tip sheet 5, Documenting a financial settlement, maintenance during divorce proceedings

Following a separation, if agreement regarding financial issues has been reached, the agreement should be documented. How this is dealt with will depend on whether divorce or Judicial Separation proceedings have been started or will be started imminently. In order to attempt to reach agreement, there must be an exchange of full and frank financial disclosure so each party is aware of the other’s financial position so negotiations can take place on an informed basis. Financial disclosure can take place through solicitors, be it within the divorce process or through Collaborative Law or through Mediation.

Sometimes parties do not wish to embark on any Court process but wish to secure some certainty about the arrangements for the children or deal with the finances. A Separation Deed can be drafted if agreement is reached on such matters after financial disclosure. We will advise you whether a Separation Deed is appropriate in your circumstances.

If divorce or Judicial Separation proceedings have already commenced, the agreement will be set out in the form of a draft Order. Once proceedings have reached the Decree Nisi stage, this draft Order, setting out what has been agreed, is signed by both parties and their solicitors and this is submitted to the Court. As the parties are in agreement as to the contents of the draft Order, it is known as a “Consent Order”. The Court must check whether the agreement is fair before making the Order. It does this by reading a summary of your and your spouse’s financial position; this is called a Statement of Information and is set out on a standard Court form. If the settlement is approved by the District Judge, the Order will be made. You do not usually need to attend Court for the Consent Order to be considered.

It is preferable to obtain a Consent Order within divorce (or Judicial Separation) proceedings sooner rather than later. There are two main disadvantages with a Separation Deed as opposed to a Consent Order. The first disadvantage is that if a Separation Deed is breached, it is not enforceable by the Family Courts. The second disadvantage is that if later on there are divorce or judicial separation proceedings, the Court has very wide powers to decide financial issues. In that way you do not achieve finality with a Separation Deed as there is the possibility that the Court will not hold the parties to it. It is possible for the Court to completely override what is in the Separation Deed, it is less likely to do so if both parties have made full and frank financial disclosure and taken legal advice in relation to the agreement reached in the Deed to ensure that the Deed takes account of all the factors which the Court is required to consider.

Whether or not you can initiate divorce proceedings immediately with a view to obtaining a Consent Order will depend upon your circumstances. We can advise you whether you or your spouse has grounds to petition for divorce or Judicial Separation immediately.

Please speak to one of our specialist family solicitors for further advice on 01992 558411 (Hertford – Olive McCarthy/Karen Johnson), 01279 715330 (Bishop’s Stortford – Karen Johnson).


Tip sheet 4, Financial Orders, the Court Timetable

When an application is made to the Court to deal with disputes regarding the financial aspects of the divorce (known as “An Application for a Financial Remedy Order”), a strict court timetable is set out which needs to be followed by both parties:

1. The Court issues a Notice of Application and lists a “First Appointment” which is the first hearing at Court and will be heard within 12 to 14 weeks from issue.

2. 35 days before the First Appointment, both parties will be required to complete a Financial Statement, known as Form E, which is in a questionnaire to which certain documentary evidence will need to be attached, including bank statements for the last 12 months and up to date valuations of any assets. The parties (through solicitors) exchange Forms E and supporting documents simultaneously. At the same time, copies of the Forms E are sent to the Court for the Court file.

3. 14 days prior to the First Appointment both parties are required to set out what they believe to be the main issues in the case in a document known as Statement of Issues and provide a Questionnaire setting out further information or documents that are required. Finally a Chronology is provided as to the significant events of parties’ relationship. As your solicitors, we will draft these documents in consultation with you.

4. At the First Appointment, the District Judge will make a “Directions Order” setting out how the case will proceed. Directions may include filing and service of Replies to the Questionnaires (which must be approved by the District Judge), and of any other evidence needed such as valuation reports if the value of the assets such as the family home is disputed. If all the evidence needed is available before the First Appointment, it is possible for the First Appointment to be treated as a Financial Dispute Resolution hearing (see below); otherwise the District Judge will order that a date be set by the Court for the Financial Dispute Resolution hearing.

5. The next hearing will be the Financial Dispute Resolution Hearing (FDR). The objective at the FDR is for the parties through their legal representatives to try to reach agreement with the assistance of the District Judge. The District Judge cannot decide the case at the FDR but if the parties reach agreement he can make an order by consent. If no agreement is reached the District Judge would then give directions for a final hearing. This District Judge would not be able to hear the final hearing. Although he will not have heard all the evidence, he may have heard a summary of the issues from legal representatives and seen offers to settle made “without prejudice”. The District Judge who hears the evidence at the final hearing will not usually have had any previous involvement with the case or seen offers to settle.

6. If matters still cannot be resolved, the case will be set down for a Final Hearing. Barristers are often instructed to represent the parties at the FDR (or occasionally at the First Appointment) and will almost invariably represent the parties at a final hearing where a decision will be made as to settlement. It is always open to the parties to agree settlement right up until the final hearing commences.

Please speak to one of our specialist family solicitors for further advice on 01992 558 411