New rules for those without a will

From October, different rules come into force on how assets should be distributed when someone dies without making a will, but it is still likely to cause a shock to families, particularly where couples were not married or in a civil partnership
New rules on what happens when someone dies without making a will should make it easier for families in future, but the changes don’t go far enough according to experts.
The Inheritance and Trustees’ Powers Act 2014 received the Royal Assent on 14th May 2014 and is expected to come into force on 1st October 2014.
This includes changes to the intestacy rules, which govern how a person’s estate is distributed if they die without a will – which is known as dying ‘intestate’. The estate is made up of the assets owned solely by the person who has died, as any assets owned in joint names will pass automatically to the surviving joint owner, unless there is an agreement between the owners that they own the asset in specified shares.
The main change is that the surviving spouse or civil partner will now receive a higher proportion of the estate to use as they wish, but unmarried partners will still not benefit.
Under the old rules, where someone dies intestate leaving a spouse or civil partner and ‘issue’ – which means direct descendants such as children, grandchildren great grandchildren - the partner would take the first £250,000 and personal belongings absolutely, they would have a life interest in one half of the balance, and the children would take the other half of the balance. A life interest means that the surviving spouse is entitled to use the property or to receive its income until their own death at which point the property passes to the deceased’s issue.
Under the new rules, the surviving spouse or partner still receives the first £250,000 and personal belongings absolutely, but they receive half the balance absolutely, so it is their own property. The remainder of the balance continues to go to the issue.
Another change is that under the new rules, where a person dies intestate leaving a surviving spouse or civil partner but no issue, the surviving spouse or partner will take the whole estate. Under the old rules the spouse or partner would take the first £450,000 and they would have to share the balance, if any, with the deceased’s family, that is, their parents, siblings or nephews and nieces.
Another important change is that under the new rules, where a child is adopted after the death of an intestate parent, the child will not lose their interest under the deceased parent’s estate even though under the Adoption and Children Act 2002 the adoptive parents are to be treated as the only parents of the child for all legal purposes.
But none of the changes make any provision for couples who have not gone through a marriage or civil partnership ceremony. In their case, none would go to the survivor, it will all pass to children or, or if there are no children, then it will go to family, such as parents or siblings.
Said wills and trusts expert Hardeep Nijher of Breeze & Wyles Solicitors Limited: “The rules were last reviewed back in the 1970s. We’ve seen big changes in what defines ‘family’ since then, whether it’s because people are less likely to get married or because we’re seeing more ‘blended’ families following divorce and remarriage. Also, the value of property has gone up dramatically, so many more people who own property in their sole names are likely to be subject to the intestacy rules on how assets pass on.
“So, although these changes are certainly welcome, and well overdue, it remains the fact that without a will, you can’t make sure that your family will be cared for in the way you would wish. Whatever your marital status it’s worth doing – and if you’re not married and have significant assets such as property in sole names, then it really should be top of your list. It’s also particularly important where there is a second marriage, with children from previous relationships. “
He added: “Making a will is something that people often put off, but it’s not a difficult or expensive thing to do, and it means you get the outcome you want.”
ENDS
Web site content note:
This is not legal advice; it is intended to provide information of general interest about current legal issues.
Inheritance and Trustees’ Powers Act 2014

Is it Wonga not to use a Solicitor?

Wonga, the UK’s biggest payday lender, has been found to have sent letters “appearing” to be from law firms. Letters threatening legal action were sent to 45,000 of their customers who were in arrears. The law firms named as “Chainey, D’Amato and Shannon” and “Barker and Lowe Legal Recoveries” were in fact non-existent.
Following an investigation by the Financial Conduct Authority (“FCA”), these letters were found to be mis-leading to Wonga’s customers. The letters led Wonga’s clients to believe that their account had been passed to a law firm to consider commencing legal action. To top it off, Wonga added “administration charges” to their customers accounts to cover the cost of sending these letters! These charges totalled some £400,000 Wonga will pay £2.6 million in compensation to their customers due to their conduct.
Clive Adamson, Director of Supervision at the FCA states;
“Wonga’s misconduct was very serious because it had the effect of exacerbating an already difficult situation for customers in arrears. We are pleased that Wonga has been working with us to put these matters right for its customers and to ensure that these historical practices are truly a thing of the past.”
Whilst Wonga have released an unreserved apology to their customers, and are assisting the FCA with their investigation, this case does stress the importance for a Company to ensure that it is using appropriate and professional debt recovery practices. When it comes to legal action, it is best to leave it to the professionals! Failure to chase your debtors in the correct way can have a huge impact on a Company in terms of cashflow / bad press and reputation. Failure to use the right Solicitor can also mean that you will pay far too much in legal fees for chasing your debts.
We at Breeze and Wyles Solicitors Limited have an award winning and experienced Debt Recovery team who can assist you in collecting your debt fairly and legally! Our fixed-fee low cost debt recovery service, allows your business to chase consumers or businesses cost effectively. For more information on your account opening processes, debt recovery, or to request a debt recovery proposal with details of our service, please contact our Maria Koureas-Jones: Maria.Koureas-Jones@breezeandwyles.co.uk or 01992 558411.

To “Trust” or not to “Trust” – that is the question

We are often asked by clients whether, if they give money to their children either during their lifetime or by way of inheritance, those assets will be at risk if that child subsequently marries and divorces. Whilst every parent hopes that their children will be happily married, how to best protect family assets is often a cause for concern. We are equally often faced by a Husband or Wife in the midst of the breakdown of their relationship anxious to protect money that they had been gifted by their parents or had inherited.
Parents wishing to give or leave money to their children are often advised to set up Discretionary Trusts. Under a discretionary trust payments are made at the discretion of the trustees. The assets do not then form part of any person’s estate. However, does this, in fact, protect those assets on divorce?
Under a Discretionary Trust, as no one has any right to the assets or income, the assets belong to the Trust and not the person benefitting. On divorce the Family Court will, however, consider what payments have been made from the Trust and whether the husband or the wife have received income or capital as the sole beneficiary as and when he or she required it. The Court can decide to treat those assets in the Trust as belonging to that party and therefore part of the matrimonial assets available for division. If there are other beneficiaries, however, this will limit the availability of the assets in the Trust for the divorcing party.
In the everyday divorce case the assets are, if the parties are lucky, just enough to cover both parties’ needs. Therefore, where an asset has come from is not an issue. If, however, there are sufficient assets to cover each party’s needs, assets that have come from an external source such as inheritance and which have not been intermingled with the assets acquired during the marriage can be ring-fenced. If assets and income coming from a Trust have been used to support the couple’s lifestyle then, based on recent case law, they can be included as a matrimonial asset.
A Trust, therefore, cannot provide complete protection on divorce and many factors will be taken into account such as the circumstances in which the Trust was created. The best way to protect any asset acquired either prior to marriage or during marriage from inheritance or gift is to have a Pre-Nuptial/Pre-Marital Agreement prior to your marriage or Post-Nuptial/Post-Marital Agreement during your marriage. It may sound unromantic to suggest such an agreement but it will save a lot of heartbreak and legal fees if a couple, when they love each other, agree what should or should not form part of their assets and which, should the marriage breakdown, be divided in the event of separation or divorce. We are regularly asked to draft Pre-Nuptial Agreements and Post-Nuptial Agreement as well as the equivalent for unmarried couples – Cohabitation Deeds and Declarations of Trust.
Olive McCarthy is Director of the Family Department based at our Hertford Office. She is an Accredited Resolution Specialist, Collaborative Family Lawyer and one of only a few Family Law Arbitrators in the UK.

Overcoming the Hurdles to Justice ....

In April 2013, the system of Legal Aid in England and Wales underwent vast changes effectively denying access to Legal Aid in respect of family matters. Legal Aid is now only available to those who are able to show that they are financially eligible and are/have been a victim of domestic abuse occurring within the last 24 months.
Legal Aid also remains available for children matters where a child is a risk of harm from the other parent and also in relation to obtaining protective injunctions such as non molestation orders and occupation orders.
As part of the Governments “Austerity Measures,” the purpose of the changes was clear; to reduce the costs of an ever increasing Legal Aid budget. What was not so clear was whether the Government had properly considered the indirect costs which would increase as a result of the cuts such as the increased burden upon the courts in terms of resources and court time in dealing with the increased number of highly emotionally charged people trying to represent themselves. The Government instead had hoped that people could be encouraged to use alternatives to court, the main one being Mediation. This desire further underlined by the introduction of Mediation Information and Assessment Meetings (MIAMS) and the changes to the Court Process which made attendance at a MIAM compulsory for the vast majority of cases. However, with Mediators across the country reporting a decrease in referrals, this approach has clearly failed and is itself the subject for another discussion.
With regards to the continuation of Legal Aid for victims of domestic abuse, the Governments intentions are laudable. It is however arguable that the current rules of the scheme are such that they fail dramatically to protect the very people that need help most desperately and who are statistically most likely to be female and/or disabled.
The current definition of Domestic Abuse is: Any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality. This can encompass but is not limited to the following types of abuse:
• psychological
• physical
• sexual
• financial
• emotional
Controlling behaviour is: a range of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour.
Coercive behaviour is: an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten their victim.”*
*This definition includes so called ‘honour’ based violence, female genital mutilation (FGM) and forced marriage, and is clear that victims are not confined to one gender or ethnic group.
In order to access Legal Aid on this basis however, the victim must be able to prove that they have suffered Domestic Abuse by providing one of the following;
Types of evidence:
• criminal conviction
• police caution
• police bail
• ongoing criminal proceedings
• protective injunction
• an undertaking
• letter from a Multi Agency Risk Assessment Conference
• finding of fact, by a court
• letter from social services
• letter from a doctor (including a family doctor or 'GP'), nurse, midwife, practitioner psychologist or health visitor
• letter from a domestic violence refuge or refusal of entry to refuge
• referral to a domestic violence specialist support service by a doctor, nurse, midwife, practitioner psychologist or health visitor
• a Domestic Violence Protection Notice or Domestic Violence Protection Order granted
• a bind over
As a firm of Solicitors who are committed to our continued delivery of Legally Aided Services, we are continuing to see clients who are having real difficulty in obtaining the necessary evidence of Domestic Abuse. This can be for a large number of reasons for example;
1) A Victim who has suffered in silence and either not reported it to anyone or not been taken seriously when they have reported it. Victims may fail to report Domestic Abuse because they are scared of the repercussions both perceived and threatened or because they have not recognised that they are in an abusive relationship. They may have been told that if they tell anyone, Social Services will take away their children, that they will have to leave their home, be deported or that their partner will be arrested.
2) Although, the definition of Domestic Abuse is wide, not all forms of Domestic Abuse are usually likely to result in a report or referral being made to any of the above organisations. By way of example; financial abuse might occur where one partner controls the finances entirely down to leaving 50p on the side which allows the mother to attend a mother and baby group but then fails to do so as a matter of control or perhaps he regularly goes off with the child’s pram in the car leaving the mother with no means to go out. In isolation it may mean nothing but it may form part of a pattern of abusive behaviour.
3) The type of evidence which is permitted and the information that it must contain is very specific. If it does not provide all of the necessary information, then Legal Aid will not be available.
Clients seeking Legal Aid must have the evidence before they will be able to see a solicitor under the scheme and therefore they will have to seek this evidence themselves. It is therefore extremely important that if you are a Victim of domestic abuse seeking to access Legal Aid, an organisation who might be approached to provide the evidence or an organisation which may regularly deal with victims of domestic abuse that you are aware of these requirements and can access, assist or at least signpost the victim to enable them to access the help they need.
In order to assist Victims and organisations in obtaining or providing suitable evidence further guidance can be found by following the above links and by visiting:-
Victims will find here the template letters to send to the organisations they feel may be able to provide the required evidence.
If you are an organisation and have been asked to provide evidence to help with a legal aid application, then you can use the following template letters to help provide that evidence in the appropriate form if you are:
• Doctors
o a Doctor (letter following examination)
o a Doctor (letter confirming referral)
• a MARAC
• Social Services
• Social Services providing evidence for a child protection matter
• a Refuge
• a domestic violence specialist support service
There is a long way to go before all of these issues can be addressed and it is likely that there is nothing that can be done overnight to resolve all the issues that these vulnerable clients have in accessing services. A relaxation of the types of evidence which will be accepted is likely to help but this requires changes to be made a Government level.
In the meantime, it is imperative that we spread the word and make ongoing effort to raise awareness of domestic abuse and the support services available in order to empower victims to be able to access the support that they need and provide appropriate reassurance to dispel the myths.
For more information about or services please phone 01992 558411.
Karen Johnson - (Associate Solicitor and Family Mediator) – A Graduate of the University of East Anglia who then completed her Legal Practice Course at the College of Law in London and then Qualified as a Solicitor in 2002 working in a local High Street Firm before Joining Breeze & Wyles Solicitors in 2009 and becoming an Associate with the firm in 2011.
Karen is a highly skilled and experienced Family Solicitor with in excess of 10 years experience of working in Family Law. She is a Resolution Accredited Specialist in the fields of Domestic Violence and Financial Matters. Karen is additionally a Family Mediator trained by and a member of the Family Mediators Association (The FMA) an association with over 20 years experience of Family Mediation.
Karen is a Chair and Trustee of East Herts and Broxbourne Domestic Violence Forum.

So you want a "quickie" divorce?....

You may have seen advertised by various organisations that it is possible to get a “quickie” divorce. This is also (unhelpfully) emphasised by the media when reporting that a celebrity couple’s divorce has gone through within a matter of weeks.
So what is the true position when getting divorced? Is there such a thing as a “quickie” divorce? How long does it take?
These are the types of questions asked by clients during their first appointment with us and unfortunately they are somewhat surprised when given a (realistic) time scale of how long a divorce can take to finalise. This reaction is understandable given the misconceptions of advertising a “quickie” divorce and reports made by the media that it can take only weeks!
The process of divorce is relatively straight forward as it mainly consists of completing various forms along the way and generally it can take around 4 – 6 months to finalise. However, this is on the basis that there are no complications and all financial and children matters have been agreed. If these matters have not been agreed then it can lengthen the time scale necessary to finalise the divorce.
At Breeze & Wyles Solicitors Ltd we have a team of specialist Family Lawyers who are committed to assisting our clients during the divorce process. Whilst we may not be able to offer a “quickie” divorce (as unfortunately this is just not possible!), we are able to offer efficient and cost effective services to our clients.
We would urge any person considering a divorce to check out our fixed fee divorce services on our First for Divorce website (http://www.firstfordivorce.co.uk/). We offer a range of fixed fee services from £149.99 to £499.99 (inclusive of VAT) to cater for all clients who wish to obtain legal advice on a budget. The advantage of our fixed fee services is that clients know exactly how much they are paying.
Furthermore, there have been drastic changes to Legal Aid funding which have resulted in clients being unable to secure such funding for divorce, irrespective of their financial position, unless there has been domestic abuse within the past 24 months which can be evidenced by an organisation (such as police, doctor, refuge).
We are very proud to say that we are one of the firms within Hertfordshire to still have a Legal Aid franchise as we are committed to helping clients in need of legal advice. Therefore, please do not hesitate to contact us on 01992 642 333 should you wish to be assessed for Legal Aid in relation to divorce.
We are able to see clients in any of our offices across Hertfordshire (Bishop’s Stortford, Enfield and Hertford). If you are unable to attend our offices we are also able to offer appointments via telephone or Skype.
Please do not hesitate to contact us about our fixed fee divorce services or visit our website for further details - http://www.firstfordivorce.co.uk.

 


World Cup fever grips with the threat of Employee Absence

With World Cup football fever taking grip, fans across the country are cheering on the England team.
But for UK business, many employers may be secretly hoping for an early knock-out for the home team, when faced with the potential of lost working hours due to employees staying home to watch the games.
It’s not too late to tackle the challenge, according to experts, who say that being clear what’s acceptable can avoid confusion and disagreement with staff, by setting out the ground rules now and looking at ways to encourage staff to turn up for work.
For example, sickness absence must be monitored and the formal procedure for any unauthorised absence carefully followed. Any ‘under the influence’ alcohol policies should be rigorously enforced. And there needs to be a clear policy on watching games during working hours, whether on company computers or employee’s own equipment, together with a reminder of company policy regarding personal use of internet during working hours. If companies don’t have policies for any of these areas, now is the time to get them sorted.
It’s also worth considering other options, such as allowing staff to work from home for part of the day, taking only part of a day’s holiday, if they are prepared to log on and catch up before or after the game. Another option may be to have screens set up at work, or agree that staff can keep up with the game online, but whatever is offered, it’s best to avoid setting a precedent that staff may point to for any future major events such as Wimbledon or the Grand National, unless that sort of flexibility is intended.
Said Roger Thompson Employment Law expert at Breeze & Wyles Solicitors Limited : “Whatever is decided upon, it’s important to remind employees of the terms of the employment contract and to be clear about what’s acceptable, what’s not and avoid having any attitude that appears to favour the football fans over those who are not interested, or even favouring home-team fans over the opposition.
“It’s all about being fair and consistent, so avoid using the red card with one employee when someone else has been given the nod for similar behaviour. If you’re a football fan and let staff get away with arriving late after an England game, but then you won’t allow someone else time off to watch Andy Murray at Wimbledon next month, you’re setting yourself up for a difficult match.”
ENDS
Web site content note:
This is not legal advice; it is intended to provide information of general interest about current legal issues.

Whats it worth to put a ring on it!

Nearly everyone knows Beyonce’s song “Single Ladies (Put a ring on it)” and it has to be said that it is the majority of little girls dreams to be a Princess on their Wedding Day and live happily ever after with their Prince. But what it is worth to “put a ring on it”?.
Perhaps the starting point to answer this question is to explore couples who are living together as this has dramatically increased over the recent years. As Family Lawyers, we are seeing an increase of instructions by clients in a cohabitating relationship. They often seek advice about setting up home with their new partner or what their legal rights are upon separation.
The majority of such clients are of the view that there is such a thing as a “common law spouse” or “common law wife/husband” as these terms are commonly used. For example, when applying for car insurance there is the option to select “common law spouse” to confirm your relationship status. Unfortunately, these terms have no legal recognition and the truth of the matter is cohabiting couples do not have the same rights as a married couple.
It is not all doom and gloom for cohabitating couples as there are (limited) options available to them to assist in protecting their positions. For example, if one person has contributed more towards the purchase of a property there is the option of recording this in a Declaration of Trust. Therefore, if the property has to be sold upon separation a Declaration of Trust should confirm exactly how the sale proceeds are to be divided between them.
A cohabitating couple should also consider setting out their living arrangements, as well as establishing rights should the relationship breakdown in a Cohabitation Agreement.
A Cohabitation Agreement is entered into as contract between the parties and is somewhat flexible as to what can be included within it. For example, ownership of real or personal property, payment of bills/mortgage/rent, children arrangements.
If a cohabiting couple is considering entering into this type of agreement, it is advisable that they seek legal advice to ensure it has been correctly drafted to avoid any implications should it be necessary to enforce any of the terms upon separation.
Cohabitating couples should also be made aware of the situation where one party moves into a property solely owned by the other party. In this situation, the presumption is that party owns all of the beneficial interest and the other party will have a fight on their hands to establish a claim in the property. These types of claims are not easy to make as the other party will need to show either a direct contribution towards the purchase price or that there was a common intention to share ownership which they have acted upon to their detriment.
When comparing the position of a separating cohabiting couple to a separating married couple it could be said that it is worth “putting a ring on it”. This is because the law relating to the financial provision on marriage breakdown is very different and both parties acquire rights for the very fact they are married.
When a married couple seek to formalise their marriage breakdown by commencing divorce proceedings, the Court obtains powers to make financial orders. The extent of the Court’s power means that they are able to re-distribute assets irrespective of who they are owned by.
The Court will look to consider what is fair, taking into account all the circumstances of the case including both of spouse’s needs, incomes, earning capacities, resources, length of marriage, standard of living, conduct and contributions. Where there are children, the needs of any child are considered paramount.
The above approach taken by the Court when determining how to distribute assets upon marriage breakdown could be said to be more balanced and fair compared to a separating cohabitating couple that could potentially be leaving a relationship with nothing unless they can prove they have a claim.
This article is by all means not suggesting that cohabitating couples should rush to “put a ring on it” just because of the rights they acquire upon marriage. However, the article has very much highlighted the difference of rights available upon separation. It has to be said that due to the increasing amount of cohabitating couples it is crying out for there to be a change in this area of law.
If you are engaged to be married you may wish to consider a pre-nuptial agreement and we would recommend that you speak to Ms Olive McCarthy based at our Hertford Office on 01992 558411 who is one of the few Family Solicitors in the country to become a Family Law Arbitrator.
There is an option for everyone and please do not hesitate to contact us to obtain friendly, efficient and affordable legal advice about your situation.
Samantha Murphy - (Assistant Solicitor) - A Graduate of the University of Hertfordshire, who then completed her Legal Practice Course at City University Law School in London. Samantha qualified as a Solicitor in April 2012, working in a local High Street firm. Samantha specialises in family and matrimonial matters, including divorce, separation, children, finances, and cohabitation disputes.
Samantha is passionate to ensure people can obtain access to justice by providing correct and practical legal advice in order that people can make informed decisions. Samantha is committed to resolving disputes in a non-confrontational manner by adopting the Resolutions Code of Practice.

The End of the Shot Gun wedding – Forced Marriages become illegal

A forced marriage is where one or both people do not (or in cases of people with learning disabilities, cannot) consent to the marriage and pressure or abuse is used. It is an appalling and indefensible practice and is recognised in the UK as a form of violence against women and men, domestic/child abuse and a serious abuse of human rights.
The pressure put on people to marry against their will can be physical (including threats, actual physical violence and sexual violence) or emotional and psychological (for example, when someone is made to feel like they’re bringing shame on their family). Financial abuse (taking your wages or not giving you any money) can also be a factor.
On the 16th June 2014, it became a criminal offence for parents to force their child to marry. Parents found guilty of this crime can face a sentence of up to 7 years imprisonment. It applies to people forced into marriage in England and Wales and also to UK nationals forced to marry abroad.
These new laws further bolster the provisions which already existed and which allowed applications to be made both by and on behalf of a potential victim for Forced Marriage Protection Orders. Breach of a forced marriage protection order has also become a criminal offence and if found guilty can be punished by up to 5 years imprisonment.
These new rules are however not the end of the matter and there is concern amongst campaigners that the new laws will not make much difference as the victims may not want to report the issues as they do not want their family to be imprisoned or criminalised.
The government's Forced Marriage Unit dealt with 1,302 cases last year. Of the cases dealt with 82% of victims were female and 18% male while 15% were under the age of 15. The cases involved 74 different countries with 43% relating to Pakistan, 11% to India and 10% to Bangladesh. Given that these are only the cases which came to the attention of the unit, it is likely that the actual number far exceeds this and it is hoped that these new laws will not only give further protection by way of deterrent but also raise more awareness of the issue both generally and to ensure that people are aware that they have the full backing of the government and legal system in supporting their right to choose and not be forced into a marriage against their will.
At Breeze & Wyles Solicitors Ltd we are to able to advise on forced marriages and all forms of domestic abuse. We understand that these are extremely sensitive issues and as such we aim to provide friendly and easy to understand advice to ensure that our clients are informed of all of the options available to them.
If you require advice about forced marriages or any form of domestic abuse please contact a member of our family law department to arrange an appointment with one of our specialist Family Law Solicitors on 01992 642 333.
Henal Gautam - (Associate) Qualified as a solicitor in 2004 and joined the Family Department at Breeze and Wyles Solicitors Ltd in 2005. Specialising in family law specifically relating to children. Representing parents, family members and children in a wide variety of public law cases. In addition adoption and special guardianship and representing parents in s8 Children Act proceedings. Henal deals with most of her own advocacy, being instructed in a number of complex cases involving cruelty to children and serious allegations of harm, adoption within the UK and overseas.
A member of the Law Society Children’s Panel, Resolution and the Association of Lawyers for Children, Henal is also a Trustee of the Broxbourne East Hertfordshire Domestic Violence Forum and the Hertford Contact Centre.
Samantha Murphy - (Assistant Solicitor) - A Graduate of the University of Hertfordshire, who then completed her Legal Practice Course at City University Law School in London. Samantha qualified as a Solicitor in April 2012, working in a local High Street firm. Samantha specialises in family and matrimonial matters, including divorce, separation, children, finances, and cohabitation disputes.
Samantha is passionate to ensure people can obtain access to justice by providing correct and practical legal advice in order that people can make informed decisions. Samantha is committed to resolving disputes in a non-confrontational manner by adopting the Resolutions Code of Practice.

IS IT ANOTHER “PRICEY” DIVORCE FOR KATIE?

Is it a surprise to read that Katie Price could be divorcing husband number 3 following discovery of his affair with her best friend. Katie and Kieran have been married for a little over one year and have one child together with another child on the way. It begs to ask the question – should a marriage simply end following the discovery of an affair or should efforts be made to try and save it?

It would seem that there is no longer the “stigma” attached to divorce compared to the olden days where such action was frowned upon. Many married couples seem to be quick to make the decision that their marriage is at end. As divorce lawyers, we are under an obligation to explore the possibility of reconciliation with our clients when they seek advice from us in relation to divorce. Unfortunately, it is often the case that by the time the client has approached us, the hope of saving the marriage has passed. However, there is the rare client who still holds onto such hope and there are organisations such as Relate which offer services to assist with reconciliation of the marriage.

So will it be another “Pricey” divorce for Katie? Within divorce proceedings you can only rely upon one ground which is that your marriage has irretrievably broken down. You then apply one of five facts (adultery, unreasonable behaviour, 2 years separation with consent, 5 years separation or desertion) to show this. If it is another divorce for Katie, it would be interesting to know which fact is relied upon. Of course we would not be privy to such information as family proceedings are private unless an accredited representative of newsgathering and reporting organisation or any other unaccredited person whom the Court permits to be present at a hearing.

Are all divorces “Pricey”? The answer to this question is that they do not have to be! Lots of firms, like us, are now offering fixed fee divorce services making it is easier for our clients to access friendly and efficient legal advice on a budget. The part of the divorce which unfortunately causes legal fees to increase is sorting out what is to happen to the matrimonial assets. This can often lengthen the time it takes to finalise a divorce. This is because decree absolute, which is the document that confirms you are divorced, simply ends your marriage and does not end financial claims that you and your spouse may have against each other. It is therefore important to sort out what is to happen to the matrimonial assets alongside the divorce application and record this within a court order to end your financial claims/ties against your spouse. After all if you are lucky enough to win the lottery you do not want your ex-spouse making a claim against your winnings because you did not sort out the matrimonial assets within your divorce application!

Let’s hope Katie has been sensible and entered into a Pre-Nuptial Agreement before she married Kieran!

Please visit our First For Divorce website to view our fixed fee divorce services to avoid making it a “Pricey” divorce for you! http://www.firstfordivorce.co.uk/

Samantha Murphy is an Assistant Solicitor at Breeze and Wyles Solicitors Ltd. Samantha qualified as a Solicitor in April 2012 and specialises in family and matrimonial matters, including divorce, separation, children, finances, and cohabitation disputes.

Samantha is passionate to ensure people can obtain access to justice by providing correct and practical legal advice in order that people can make informed decisions. Samantha is committed to resolving disputes in a non-confrontational manner by adopting the Resolutions Code of Practice.


Leave the Tennis for Wimbledon, Child Arrangements are not a game!

Child Arrangements Orders were introduced by the Children and Families Act 2014 to replace Residence and Contact Orders. The new Act is designed with children’s best interests at heart and rules that both parents should be “in their children’s lives”.
Under the new Child Arrangements Programme anyone who wishes to make an application for a Child Arrangements Order must attend a Mediation Information and Assessment Meeting or MIAM prior to making the Application. Before, when disputes arose and communications broke down between parents, parents tended to make applications in order for the Court to deal with the same within their domain. The new law has been designed to make sure that separating couples always consider Mediation, not just first but as a real alternative to battling things out in Court. At a MIAM session parties will have explained to them what alternative dispute arrangements may be suitable for them, whether it be Mediation, Arbitration etc.
In terms of who can apply for an Order, the new Act has not changed the position and a parent of a child can apply to the Court at any time and this is not depending on whether or not they have parental responsibility. You are also able to apply if you are a step-parent or you have lived with a child for at least a 3 years period. Other people connected to the child, such as grandparents, aunts, uncles or older brothers or sisters of a child need to apply to the Court for the Court’s permission to issue an application for a Child Arrangements Order in the first instance.
The Court has to “give paramount consideration” to the welfare of the child when determining any questions with respect to the upbringing of a child. The Children Act 1989 states “when a Court determines any question with respect to the upbringing of a child.....the child’s welfare shall be the Court’s paramount consideration”. The Court also has to pay specific attention to the following criteria:
a. The Ascertainable wishes and feelings of the child concerned (considered in light of their age and understanding).
b. The physical, emotional and educational needs.
c. The likely affect on them of any change in their circumstances.
d. The 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 parent or any other person in relation to the question to be relevant, if they are meeting the child’s needs.
g. The range of powers available to the Court.
This list is not comprehensive but is more of a checklist and although the new Act has not really changed the previous position, the terminology has changed. The new law intention is to send an important message to parents that the valuable role which they both play in their child’s life as well as helping to promote greater understanding about the way in which Court decisions are made. The Government anticipates that the new law would encourage separated parents to adopt less rigid and confrontational positions with regards to the arrangements for their children. Therefore the Court can now make an Order that facilitates and improves parental involvement in the life of a child and the Court can make what is known as an Activity Direction when it is considering making a Child Arrangements Order. This means that the Court can order an individual to undertake activities to establish, maintain or improve the involvement in the life of the child concerned, of the party to proceedings.
As a result of cuts in Legal Aid for family cases there are a number of parents who are representing themselves in Court however a lot of people representing themselves do not understand enough of the law to advance an argument likely to succeed and often do not know when or how the Court can apply particular rules to their case. At Breeze & Wyles we can assist you through this difficult time in order to achieve the best outcome for your child and for yourself be it through Mediation or representing you in Court proceedings.
If you have any questions regarding Child Arrangements Orders and the Children and Families Bill please contact a member of the Family Team on 01992 558 411