News

10

Apr

No Fault Divorce - An end to the Blame Game?

No-fault divorce

Legislation is set to be introduced in England and Wales to allow couples to apply for a 'no fault divorce'.

In a bid to end the 'blame game' in matrimonial breakdowns, legislation will introduce a new minimum time frame of six months from the initial petition stage to the final Decree Absolute divorce stage, to allow couples to reflect upon their decision.

Currently there are five grounds for divorce that apply in England and Wales. Three involve attributing blame where divorce proceedings can start straight away and the process is usually completed within 3-6 months:

  • Unreasonable behaviour
  • Adultery
  • Desertion

 The other two grounds for divorce which do not involve blame are:

  • Separation for 2 years with consent;
  • Separation for 5 years if one of those parties does not agree to the divorce.

 The new rules will also remove the ability to contest a divorce, a practise which is currently misused by abusive partners exerting control or coercive behaviour.

Writing in The Telegraph, David Gauke, the Justice Secretary said that under the current 50-year-old divorce law there is a current requirement to find a guilty party which leads to children being caught in the middle of a “fractious and upsetting process”.

Hostility and conflict between partners may leave their mark on children and can damage their life chances.

At Cunningtons we welcome the reforms which bring family law into the 21st Century and will increase family harmony; there will no longer be the need to blame each other for the breakdown of a marriage.

05

Apr

Cohabitation Agreements, Declarations of Trust and Prenuptial Agreements

Cohabitation and prenups

What are they and how do they help me?

Many couples nowadays choose to live together before they get married. What happens where the house is held in one party’s sole name? Does the other party obtain any rights to the property? What steps can be taken to protect each party? What if they buy a property together? What if they get married?

Follow Sarah and Jack’s journey to learn more about the options available to you if you want to protect your assets:

Sarah has been in a relationship with Jack for a year. Sarah’s parents gave her £50,000.00 to help her buy her own property which she purchased two years ago in her sole name. Jack has been living with his parents. Sarah and Jack are ready to take the next step in their relationship and they want to live together. They have agreed that Jack will move into Sarah’s property and he will save up a deposit so that they can eventually sell Sarah’s house and buy a new property together.

Sarah’s parents are worried that Sarah may lose out financially if the relationship turns sour, so they have suggested she gets legal advice from a Family Law solicitor at Cunningtons so she can see what her options are. Sarah explains that she does want to live with Jack but she also wants to make sure he has no claim against her house if the relationship breaks down. Although Jack says he wouldn’t try to make any claim against the property, Sarah is conscious that her parents helped her buy her house and she wants to protect their gift as much as possible.

We advise Sarah that she and Jack could both sign a Cohabitation Agreement which would set out very clearly in black and white that Jack will not acquire an interest in her property, even if he pays rent or contributes towards Sarah’s mortgage and bills. The Cohabitation Agreement can also set out how they will pay their joint outgoings such as utility bills, credit card payments, food shopping etc. Sarah takes our advice and we prepare a Cohabitation Agreement which is signed by her and Jack. This means that if Sarah and Jack did separate and he tried to make a claim against her property, she could produce the Cohabitation Agreement as evidence that he does not have any rights to the property.

Two years later, Jack and Sarah are still happily together and Jack has saved £25,000.00 to put towards their next property. Sarah sells her property and receives net equity of £75,000.00. They buy a new property together for £200,000.00. Sarah puts in her £75,000.00 and Jack puts in his £25,000.00 as the deposit. Sarah and Jack are advised by their conveyancer that there are a few different options as to how they can hold their new house:-

1. Joint Tenants: this means if one of them dies, their share of the house automatically passes to the other. It also means there is a very strong presumption that they intend to hold the property on a 50/50 basis, regardless of who will be paying the mortgage and what they each put into the property.
2. Tenants in Common in equal shares: this means that if one of them dies, their share of the house will pass either under their will or under the rules of intestacy if they don’t have a will. Again it means they hold the property on a 50/50 basis, regardless on anything else.
3. Tenants in Common in unequal shares: this means that if one of them dies, their share of the house will pass either under their will or under the rules of intestacy if they don’t have a will. This means they can specify that they will not hold the property 50/50, but instead will hold the property in a way that recognises the fact that Sarah is putting more money into the property than Jack.

Sarah and Jack decide to go with option 3. Their conveyancer prepares a Declaration of Trust which specifically states that they hold the property 75% to Sarah and 25% to Jack. This means that if they split up, Sarah will receive 75% of the net equity and Jack will receive 25%. Another option would have been to state that Sarah will always get the first £75,000.00, Jack will get the next £25,000.00 and the balance would be divided equally between them. Unless Jack could prove that they had entered into a subsequent agreement to the contrary, Sarah’s money would be protected.

5 years on ...

5 years later, Jack and Sarah finally decide to take the plunge and get married. Sarah recently read an article about Prenuptial Agreements and wants to find out more about them, so she returns to her Family Law solicitor at Cunningtons Cunningtons.

We advise Sarah that, once she marries Jack, if they later get a divorce then the divorce courts will not automatically be bound by the terms of the Declaration of Trust, and they might decide that Jack should get more than 25% of the house. We explain to Sarah that a Prenuptial Agreement is a formal Agreement entered into by a couple before they get married. Its intention is to set out very clearly what the parties have agreed will happen to their assets in the event of a future separation or divorce.

A 'prenup' should deal with the following different types of assets:-

a) Assets that each party held in their sole name prior to the marriage;
b) Assets held in joint names prior to the marriage;
c) Assets each party acquired in their sole name during the marriage;
d) Assets acquired by the parties in their joint names during the marriage;
e) Assets acquired by way of a gift or inheritance during the marriage.

A Prenuptial Agreement is not automatically binding on the Divorce Courts of England and Wales and nor is it automatically enforceable. Any Divorce Court has the power to depart from a Prenuptial Agreement if it feels that it is necessary to do so. Having said that, Prenuptial Agreements are usually upheld by the Court if:-

A. Both parties fully and honestly disclose their assets and means to each other before the Prenuptial Agreement is signed;
B. Both parties obtain their own independent legal advice from a solicitor before signing the Prenuptial Agreement;
C. The Prenuptial Agreement is signed at least 21 days before the wedding takes place;
D. The Prenuptial Agreement is fair and just;
E. The Prenuptial Agreement has a review clause so that it can be reviewed regularly;
F. The Prenuptial Agreement sets out in very clear terms that both parties understand;
G. The Prenuptial Agreement states that you both intend to create legal relations.

Sarah discusses this with Jack and they agree to enter into a Prenuptial Agreement that says if they divorce, they will still hold the house 75/25 to Sarah, and they will each keep assets held in their sole names.

What does this mean for you?

If you own your own home and want to live with someone, but you also want to make sure they can’t make a claim against your home, contact us to get advice on a Cohabitation Agreement.

If you are going to be buying a property with someone and you are putting more money into the property which you would like to protect, talk to us about a Declaration of Trust.

If you intend to get married soon but would like to protect your own assets and protect your financial contributions in the event of a divorce, speak to us about a Prenuptial Agreement.

26

Mar

Using a barrister in Family Law proceedings

Barristers can really help in your Family Law case

Picture this scenario:

You’ve separated from your ex-partner and you’ve tried to reach an agreement about what to do with the house, or the children, or both. Discussions have been unsuccessful.

You’ve been to see a mediator to see if they can help you and your ex-partner to sort out a long term plan. That hasn’t worked either.

You finally decided to instruct a solicitor to help you sort out your family law issues. Letters are being sent and received left-right-and-centre, but still you can’t reach an agreement. After months of trying, you are still no further along and you’re feeling like you will never get your life back.

Finally, your solicitor advises you to apply to court to resolve your dispute because then (one way or another!) your issues will be resolved once and for all.

You are nervous. You want to get on with your life but you haven’t ever had to go to court before. You don’t know what to expect, but you trust your solicitor – after all, they know your case inside and out, they have a detailed understanding of 'The Big Picture' and you know what to expect from them. You and your solicitor have been ‘in it together’ for months. In fact, you speak to them more often than you speak to your own mother. They have looked after you so far so you duly issue your court application.

You then receive a letter from your solicitor telling you the court has listed a hearing and they have booked a barrister to attend court with you. Questions flood your brain: What is a barrister? How much is that going to cost? How do I know I’ll like them? How will a barrister, a total stranger, ever get their head around my case and all the little details that might seem inconsequential but actually add up to a great big significant factor?

The truth is, any good solicitor will fully brief a barrister in plenty of time before the hearing and choose a barrister who they think will be appropriate for your case. Barristers are amazing at absorbing information quickly and building up an understanding of the issues. Although you might be apprehensive about using a barrister, by the end of the hearing you’ll feel like they know you and your family as well as your solicitor.

Trust your solicitor to do what is best for you. If you want to do your own research and choose your own barrister, have a conversation with your solicitor about that as early as possible.

21

Mar

Engagement Rings – who gets to keep it if it all goes wrong?

11 engagement ring

Christmas Day, New Year’s Eve and Valentine’s Day see more than their fair share of marriage proposals every year.

Newsfeeds are full of couples changing their relationship status to 'Engaged', mobile phones are pinging with the sound of ten thousand Facebook likes and photographs of The Ring are popping up on Instagram (#NoFilter).

But planning a wedding is stressful and often involves a series of disagreements about guest lists, gift lists and to do lists that can take their toll on a relationship.

So what happens if popping the question leads to blowing up the relationship completely…who keeps The Ring?

The Law Reform (Miscellaneous Provisions) Act 1970 provides that an engagement ring is presumed to be an absolute gift. That presumption can only be rebutted if the ring was given on the express or implied condition that it should be returned if the marriage does not go ahead. It is generally accepted that if the ring is a family heirloom then it is implied that it will be returned if the relationship fails.

So, unless the proposer either implies or expressly states that The Ring is to be returned if the marriage doesn’t happen, The Ring can stay on the finger (or be immediately taken to the pawn shop).

08

Mar

If You Cannot Afford A Solicitor

reduce solicitor costs

HELP! I can’t afford a solicitor!

Many people are having to go through family law court proceedings without having the benefit of legal advice, simply due to the costs involved in instructing a solicitor. Going to court and representing yourself is a terrifying prospect for most people…is there anyone who can help?

Solicitors

It is always worth contacting a few local solicitors to see what they actually charge. You might be surprised. Also, many solicitors will agree that you can “pay-as-you-go” to get advice, i.e. you can pay upfront for a fixed fee and fixed duration appointment to allow you to pick their brains or have them check a statement or application you have prepared, before you file it at court. This is an excellent way of keeping your legal costs under control whilst also getting the reassurance and advice you need in order to put forward your strongest case.

McKenzie Friends

If you need to attend a court hearing and you won’t be able to afford to have a lawyer attend with you and speak for you, you may want to have a McKenzie Friend attend with you instead.

McKenzie Friends are not usually qualified lawyers, they are “lay people” who attend court to give you moral support, take notes (if the judge gives them permission) and help you manage the court papers.

McKenzie Friends can’t have any personal interest in the case so relatives can’t usually be a McKenzie Friend.

McKenzie Friends can’t speak in court on your behalf unless the Judge specifically gives them permission which is exceptionally rare, but they can help you to ensure you make yourself heard.

There are many organisations that provide McKenzie Friends so look online but beware! They are not regulated and won’t owe you a duty of care. Also their fees can sometimes be higher than a solicitor, so do your research first.

Royal Courts of Justice – Citizens Advice Bureau

There is a CAB at the Royal Courts of Justice that can try to help people who are facing court proceedings without a lawyer through their pro bono system. Visit their website at www.rcjadvice.org.uk or give them a call on 020 7288 7678. They can help even if your case isn’t being dealt with by the Royal Courts of Justice.

Bar Pro Bono Unit

The Bar Pro Bono Unit is a charity which helps you to find free legal assistance from volunteer barristers. This can include representation at a hearing or even just general advice if the case isn’t going to court.
They will only help if you can’t afford to fund your case yourself and if you aren’t entitled to legal aid. There is no guarantee that they can provide assistance from start to finish, and they can’t offer assistance to everyone.
To apply for help from the Bar Pro Bono Unit, you have to be referred to them by an agency such as the CAB, a solicitor or your MP.

Visit www.barprobono.org.uk.

Our Locations

Braintree - 01376 326868

Cunningtons LLP in Great Square and Tofts Walk in Braintree, Essex, is the head office for Cunningtons Solicitors across the UK. Established in 1748, the Braintree head office in Great Square is still in its original offices. This amounts to almost 300 years of Experience and Tradition.

The Senior Partner at Cunningtons’ Braintree office is David Drake. Paul Fenton is the Joint Managing Partner. He, along with Johanna Withams are the residential conveyancing partners at the Braintree practice. They are supported by qualified Solicitors and Licenced Conveyancers.

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