Pets and Divorce – Who Should Keep the Family Pet?

More often than not, families have a furry friend which become a big part of their lives. But when relationships breakdown, it is not uncommon for arguments to arise as to who the pet shall live with.


How are pets viewed in the law?

In England and Wales, it is the law that pets are considered as “chattels”. A chattel is defined as an item of personal property or something which belongs to you, examples of which would be a chair or a washing machine.

There are a number of factors which would be taken into account when making a decision as to where the pet should live. Such factors include who purchased the pet, who the pet is registered to and who pays the pets insurance. Although it is not the law, the Court may be swayed as to what is in the pets best interests, should you make an application to Court. For example, should your spouse/ex-partner work 10 hours+ a day, whilst you work from home, the pet may be best placed to live with you.


What can I do if I have a pet dispute?

There are a number of things which you can do when you have a dispute over a pet, which are as follows:

  • Negotiate directly with the other person

This of course will be dependent on your relationship with your spouse/ex-partner, and whether the separation has been amicable. It is likely to be more difficult between parties when the pet is older and you have a significant bond with the animal.

  • Instruct a Solicitor

It may be more suitable to instruct a solicitor to draft written correspondence to your spouse/ex-partner, setting out why the pet would be best placed with you. This may be useful if the relationship between you and your spouse/ex-partner is less amicable. The letter should set out your position in detail, taking into account whether the pets chip is registered to you, whether you are the person who pays the vet bills and insurance etc. If you are not this person, your correspondence should rely upon what is in the best interests of the pet, i.e. you could raise the issue as to who has care of the children and whether it is in the pet’s best interests to remain with the children.

  • Attend Mediation

Should solicitor’s correspondence fail, the next option would be to attend Mediation. There are a number of Mediators who will specialise with pets during separation, and research should be done to consider the most appropriate Mediator, prior to attending such appointment. Mediation allows parties to sit down with one another, and discuss matters with the assistance of a Mediator, who is an impartial person. The Mediator can provide you with details of the law, however they cannot advise either party. The Mediator must remain fair and neutral.

  • Attend Court

Finally, you have the option to issue Court Proceedings, although this is rare and is questionable as to whether it is appropriate, taking into account the costs of making such application and the age of the pet.

What steps can you take to avoid such disputes?

Pet-nups, similar to pre-nuptial agreements, can be drafted at any point during the parties’ relationships, and can stipulate the following:

  • Where the pet lives
  • Who pays for the insurance
  • Who pays the vet bills
  • Who pays for the upkeep
  • Who makes decisions in relation to medical treatment
  • What happens should the relationship/marriage breakdown

Further information could also be drafted into the document, i.e. whether the other party can continue to take the pet out, or spend time with the pet, upon your separation.

It may be advisable for such document to be drafted as this avoids added animosity between you and your spouse/ex-partner upon separation. Of course, the older the pet, the more likely that discussions over the pet will become confrontational.

However, similar to pre-nups, pet-nups are not legally binding and the law does not recognise such agreements presently, although should the terms of such pet-nups be sensible, and within the best interests of the pet, certain factors may be upheld by the Court.

Should you be interested in drafting a pet-nup, or would like to obtain any further advice in relation to this topic, please contact the office on 01942 206060 or our Trainee Solicitor, Megan Brookfield at MeganBrookfield@wigansolicitors.com

What is a No-Fault Divorce?

The no-fault divorce bill has now been passed by parliament and has since attained royal assent on 25 June 2020. It is anticipated to be implemented by Autumn 2021, however, no date has been fixed.  

The need for reform has been the view of many lawyers for years however, more recently, in the case of Owens v Owens [2018] UKSC 41, it was the case that the need for reform was suddenly brought into focus. In this case, Mrs Owens filed a divorce petition on the basis of unreasonable behaviour. Mr Owens managed to defend such allegations, therefore leaving Mrs Owens to remain unhappily married until the time came whereby Mrs Owens could file for a divorce on the basis of 5 years separation without consent.

The current divorce legislation is extremely outdated and contested by many. Resolution, mainly run by a group of family lawyers, have campaigned for a number of years for a no-fault divorce to be introduced on the basis that current legislation is causing further animosity between separating couples. Unless the parties have been separated for a period of two years, and consent to the divorce, or a period of five years if the Respondent does not consent, the Petitioner must essentially blame the Respondent for their actions, as the reason to why the marriage has irretrievably broken down.

The new bill will not change the fundamental principle, but will change how this principle must be established.

Presently, there are 5 factors that can be shown to prove the ground of irreconcilable breakdown of a marriage. These are as follows:

  • Adultery and Intolerability
  • Behaviour (which you find unreasonable)
  • 2 years desertion
  • 2 years separation with consent
  • 5 years separation without consent

It is often the case that many separating couples use behaviour to enable them to get Divorced quickly and to assist them in resolving their financial dispute.  There is often a view that bad behaviour will have an impact upon and will be taken into account when calculating a financial settlement between the parties. This is very rarely the case. It is often viewed that blame upon another will be a distraction for the parties and the idea of blaming another may also have an impact upon the children and any future contact arrangements.  The no-fault legislation aims to limit such conflict between the parties to ensure the focus remains on reaching a resolution as quickly and amicably as possible.

In the past, Divorce was looked down upon and was extremely rare. However, more recently, relationship breakdowns are considered one of life’s realities, leaving more and more couples separating on a daily basis. The new changes will hopefully mean that this will become easier for couples to separate amicably and without blame (where appropriate).

Key changes to be implemented in the new legislation

  1. No more statement of case

This amendment will remove a major amount of animosity and conflict alone. Within the current divorce petition, when the Petitioner is to use the fact of unreasonable behaviour or adultery and intolerability, a statement of case must be produced. This consists of a number of small paragraphs as to the Respondents actions during the relationship which have resulted in the Petitioner unable to remain married to the Respondent. The new bill will remove this section entirely and will allow couples to apply jointly for a divorce, and should this not be consented, will still allow one party to apply solely. It is believed that the petition may come with a Statement of Truth for the parties to sign, and the Court must take the same as conclusive evidence that the marriage has broken down irretrievably.

  • Removes the ability to contest a divorce

Given the fact no evidence is required to stipulate the relationship has broken down, and the parties/party must instead make a sworn statement that the marriage has irretrievably broken down, the Court is expected to take the statement as conclusive evidence to make an Order.

Presently, it is often the case that although being ‘blamed’, parties will agree to the wording of the statement of case. This, in essence, reduces the amount of contested applications.

  • Time lines introduced

The new legislation will introduce a 20 week period between the filing of the divorce application, and obtaining the ‘conditional order’ (the Decree Nisi). It shall remain the same that from the first stage (Decree Nisi) until the second stage (Decree Absolute) the parties must wait at least six weeks and one day from the date of the conditional order before filing for the final divorce order.

The new minimum period to obtain a divorce has been increased by three months, and the reason to do this was allow parties to reflect on their marriage and whether the marriage can be reconciled.  Lawyers do however, continue to raise questions in this regard and state that the decision to divorce will require reflection and thinking. 

Our thoughts

The new no-fault divorce is most definitely, a step in the right direction. It is still the view by many, however, that there is much further to go. It is noted that there is still very little protection for cohabiting couples and other diverse family types.

Should you wish to discuss matrimonial matters with us, please contact Gillian Lavelle or Megan Brookfield on 01942 206060 who will be happy to assist you.

SDLT Holiday Extension announced in today’s budget. How does this affect Buyers?

Good news for house buyers as Chancellor Rishi Sunak has today confirmed in his budget speech that the stamp duty will be extended.   He has stated that property purchases up to a value of £500,000.00 will pay no stamp duty, provided completion takes place on or before 30th of June 2021.  Following this, there will no stamp duty payable for purchases up to a value of £250,000 until 30th September 2021, with SDLT rates to return to their previous level on 1st October 2021.

This will of course come as good new to anyone who is currently in the process of buying a property or who intends to purchase a property before 1st October 2021.

For more information contact the Conveyancing team on 01942 206060.

Commercial Property – Update to the Use Classes Order

On 1st September 2020 The Town and Country Planning (Use Classes) (Amendment) (England) Regulations 2020 brought in various changes to the planning use classes. 

What are planning use classes?

Use classes categorise the different uses of property in England. Planning permission is required where the propertys proposed use is different to the class it holds.

The new classes which have been created are detailed below:

Class E – an intentionally wide class which covers offices, retail, some food and drink businesses, healthcare, service uses and more;

Class F.1 – covers learning and non-residential institutions (e.g. schools and libraries); and

Class F.2 – covers local community and includes community halls, small local shops and sport facilities.

Other uses have been re-categorised under the separate, use class ‘sui generis’ preventing an easy change of use for such properties. 

Permitted development rights allow for changes of use from one class to another without planning permission as such. For this to happen, the Local Planning Authority would need to sign this off. There will be no changes to these rights until 31st July 2021.

UseUse Class – before 01 September 2020Use Class – after 01 September 2020
ShopsA1E
Financial and professional servicesA2E
Food and Drink – Café or restaurant (mainly on the premises)A3E
Business, other than those within class A2B1E
Non-residential institutions (i.e nurseries)D1E
Assembly and Leisure (sports facilities and gyms)D2E
Non-residential institutions (education, art gallery, museum, public exhibition hall, public library,  places of worship and law courts)D1F.1
Local community – Shop no larger than 280sqm (selling mostly essential goods and at least 1km from another similar shop), community hall, community swimming pools and ice skating rinksA1F.2
Pub, bar, any drinking establishmentA4Sui generis
Hot Food TakeawayA5Sui generis
Cinema, Concert Hall, Bingo Hall, Dance Hall, Live music venueD2Sui generis

What does this mean for you and your business?

If your property’s use now falls under class E, you will benefit from a wider class and have more flexibility as to what you can use the property for.

Some properties may be restricted by the recent development. For example, pubs and cinemas will not benefit from this amendment and must still obtain planning permission to change the use.

If you require any further information, please call our team on 01942 206060 or e-mail Gemma.Eastham@wigansolicitors.com

Exciting Announcement – Name Change & LLP

We are delighted to announce our decision to convert to a Limited Liability Partnership (LLP) which will be effective 1st January 2021.   The firm will become McCarthy Bennett Holland Solicitors LLP, trading as MBH Solicitors.

Caroline Rooks, Senior Partner says “I am delighted to announce that today MBH Solicitors will become an LLP. This change has enabled us to move to a more modern structure that better reflects the size and profile of our firm.

This year has been especially challenging for us due to the Covid-19 pandemic but we have worked hard and we are looking forward to 2021.”

About MBH Solicitors

MBH Solicitors has been in business since 1971 and has a widespread and diverse client base. The firm is forward thinking and offers electronic or traditional ways of conducting your case.  A modern approach is taken to ensure that you are provided with an efficient service.

MBH offer the following services:

  • Commercial Advice
  • Commercial Property
  • Company Share Sale & Acquisition
  • Landlord & Tenant
  • Commercial Leases
  • Business Acquisition & Sale
  • Wills & Probate (Estate Management)
  • General Litigation & Dispute Resolution
  • Personal Injury & Clinical Negligence
  • Residential Conveyancing
  • Family, Children & Divorce Law
  • Employment Law

MBH’s prices are competitive and fixed fees can be offered where appropriate.

Contact MBH Solicitors on 01942 206060 or by e-mail to mbh@wigansolicitors.com

For further information please visit our website www.wigansolicitors.com

Congratulations to our newest partner

MBH are also pleased to announce that Sammy-Jo Woodward has been named its newest Partner. The promotion strengthens one of the firm’s core practice areas: Residential Conveyancing and adds further depth to the firm. Sammy has been with the firm since 2014 and already has a wealth of experience in her respective area of expertise.

Sammy initially trained and qualified as a Licensed Conveyancer in 2016 whilst working with MBH Solicitors before continuing with her education and dual qualifying as a solicitor in 2018. She has worked in the field of Residential Conveyancing since 2015 and trained with Senior Partner & Head of the Conveyancing Department, Caroline Rooks. Sammy is highly respected by clients and fellow professionals alike.

“We welcome Sammy to the Partner team, and fully expect that she will continue to use the experience, skill and work ethic she has demonstrated since joining our firm to achieve the best results for our clients. She is a key member and is dedicated to the future of the firm.  She is well-deserving of this promotion” says Caroline Rooks, Senior Partner.

About MBH Solicitors

MBH Solicitors has been in business since 1971 and has a widespread and diverse client base. The firm is forward thinking and offers electronic or traditional ways of conducting your case.  A modern approach is taken to ensure that you are provided with an efficient service.

MBH offer the following services:

Commercial Advice & Litigation

Commercial Property

Company Share Sale & Acquisition

Landlord & Tenant

Commercial Leases

Business Acquisition & Sale

Shareholder Agreements

Wills & Probate (Estate Management)

General Litigation & Dispute Resolution

Personal Injury & Clinical Negligence

Residential Conveyancing

Family, Children & Divorce Law

Employment Law

MBH’s prices are competitive and fixed fees can be offered where appropriate.

Contact MBH Solicitors on 01942 206060 or by e-mail to mbh@wigansolicitors.com

For further information please visit our website www.wigansolicitors.com

Why should you choose a local firm of solicitors to deal with your conveyancing transaction?

with my conveyancing transaction?

There are many online conveyancing firms advertising  both online and on social media that claim to offer the same level of service as local solicitors and conveyancers at a lower price, however sometimes these offers can be too good to be true as there are often extras, detailed in the small print, which are added on at the end of the transaction for which you may not have budgeted for.

Since buying a property is likely to be one of the biggest investments that you make during your lifetime, it is wise therefore to consider all the options available to you when choosing a conveyancer. 

Some of the benefits of choosing a local firm are:-

  1. Local Knowledge

    A local firm will have a good knowledge of the local area and also have an idea of any potential issues that may arise due to their experience of dealing with other properties in the vicinity.  Many also already have a good relationship with local estate agents which may come in handy should there be any issues in the chain as local agents may be more willing help conveyancers who they have an established relationship with.

    They will also have good connections with local mortgage brokers who they could recommend if you require assistance on obtaining mortgage finance to assist in your transaction.

  2. A Personalised service

When choosing a conveyancer it is best to choose someone who will take the time to speak to you and who you feel confident will have your best interest at heart during what can be a very stressful time.

When using a local firm, it is highly likely that you will speak with the same people (i.e. your conveyancer and/or their assistant) during every step of the transaction.  This will enable you to establish trust and build a good relationship with the people dealing with your transaction. 

Many larger conveyancing firms that you see advertised online generally consist of a team of people and you may not get to speak to the same person more than once.

  • A local office


This makes thing easier should something need to be dealt with urgently, or should you need to make an appointment to see your conveyancer or drop off any documents which are needed to progress the transaction.

  • Other legal services available

Following completion of your transaction, it may be that you require other legal services such as making a Will, dealing with Probate of relative or friend who has passed away, matrimonial or employment advice,.  Local firms will usually have other departments who are able to deal these issues for you whilst offering the same personal and professional service that you received during your conveyancing transaction.


Here at McCarthy Bennett Holland, we have a great team of people (many of whom live locally) who have many years of experience between them of dealing with all types of conveyancing transactions. To obtain a quote or to speak to one of team, please contact us by telephone on 01942 206060 or by email at mbh@wigansolicitors.com

You can also obtain a quote by using our no obligation online quote tool at https://www.wigansolicitors.com/residential-conveyancing-quote.html

Making a Will

With the Covid-19 pandemic and especially the lockdown, we had an unprecedented demand from clients wishing to make a will so as to ensure the correct persons inherit from their Estate.

Death is something we all try to avoid thinking and talking about, albeit the lockdown has made a number of our clients put their affairs in order as to whom should benefit from their Estate.

No matter how old you are, it is desirable to make a Will and it is not unusual to change your Will at least 3 times during your lifetime as personal circumstances often change.

The stigma that you only need to make a Will when you have assets, for instance a property to bequeath, is not necessarily correct. You could be a parent who wants to ensure your children are taken care of by the guardian of your choice. You could be a single person, with no children or, no nearest relatives, but have friends who have helped you during lockdown, that you wish to make some provision for. There is a vast differential of circumstances for making provisions in a will.

On the 25th July 2020, the Government legalised the remote witnessing of Wills so as to make it easier for people to record their final wishes during the coronavirus pandemic. These changes will be made via new legislation in September, which amends the law to include video-witnessing.

This move maintains the vital safeguard of requiring two witnesses- protecting people against undue influence and fraud.

Should I make a Will?

•    To ensure the correct persons inherit your estate. Without a Will, the law dictates who will inherit your estate (nearest blood relative).

•    For married couples or civil partnerships, to make sure your spouse or partner inherits everything from your estate if that is your wish.

•    For unmarried couples, to make sure that your partner is provided for.

•    Ensure your children are taken care of by the guardian of your choice, and to make financial provisions for your child’s upkeep and education.

•    identify the person(s) who will sort out your financial affairs after your death . Whoever you appoint will become an ‘Executor’ and are often family members, friends or professional advisors such as your solicitor.

•    To minimise the amount of Inheritance Tax payable on your estate, or to help preserve assets in relation to care home fees.

•    To ensure all is not lost for the children after a parent’s second marriage.

In essence it is necessary for you to make a Will, so don’t put it off until it’s too late.

Contact our Private Client Department on 01942 206060 or email darrenearnshaw@wigansolicors.com

Instructions can initially be provided by telephone, home visit, at the office or by Zoom Meeting.

Shareholder’s Agreements – What are they?

What are they?

Shareholder agreements regulate the relationship between shareholders

They can assist with the situation where a shareholder dies, becomes bankrupt or simply wishes to sell their shares on the open market.

There be a “right of first refusal” between the shareholders.

This means that there is a set procedure for offer and acceptance to the other shareholders first.

They can agree the value of the shares, with a referral to independent person if necessary.  

It might be necessary for you to agree between yourselves in the agreement that the articles of association will be varied to make sure that directors accept a transfer of shares.

It can also anticipate the costly and upsetting risk of a minority shareholders dispute.

Therefore it can try to reduce any risk of this by allowing for agreed exit clauses, non – solicitation clauses, and non – compete clauses.

Why would I need a Shareholder’s Agreement?

A Shareholder’s Agreement is a contract between two or more shareholders of a Company.

It can normally be sued upon in the English Courts, under contract law.

They often describe the shareholdings at the outset of the Company, as well as capital contributions and the declaration of dividend income.

They can note arrangements that govern who is to have the day to day running of the Company, perhaps where somebody is to take an advisory role as an investor.

They can also regulate decision making upon items of extraordinary expenditure, which may preferably need full ratification, from all members.

It sits apart from the Articles of Association and will need to be drafted in conjunction with the same.   For this reason it will also have an “agreement to prevail”, so it does not conflict.  

There is often a buy – out clause in a shareholders agreement that benefits some or all shareholders, should one or the other(s) wish to leave.

He must offer his shares first to the other for purchase at market value under a procedure before offering them to the market.

This triggers a procedure by giving an offer notice and then completion should occur not less than a certain time period after the date of the seller’s Notice.  

The timescale is often set at the outset, and agreed between the parties. If the Purchasing Shareholder fails to purchase within that timeframe then the Seller can sell on the open market within an agreed period, but often only at the agreed Price.

The Price is set by valuation by an independent auditor (or an auditor of the Company), at market value, with any disputes regulated by Arbitration (if preferred).

The advantage of shareholders agreements is that they are flexible and can include the contractual provisions you think you may need, to give your start-up business an agreement to work from.

There are often provisions relating to “Non-competition” after one party has left.

This is often a point of reference, but for a non-competition clause to be effective, it depends on the circumstances, and the relative bargaining powers of the parties.    

There are often some “boiler plate” clauses, which are quite standard.

These include :-

  • Stopping somebody else having the benefit of the agreement ,
  • Deleting a clause in the future that is agreed surplus to requirements,
  • Termination of the Shareholder’s Agreement by agreement between the shareholders,
  • Termination upon death, bankruptcy, and mental incapacity of one of the shareholders.

In essence they make litigation less likely, and give you the peace of mind to run your business, with a fully considered business plan, in place at the outset.

Where can I have one drafted?

Should you feel the need to take any advice on the drafting of a Shareholder’s Agreement, then please do not hesitate to contact our David Formby, Solicitor, who would be more than happy to assist.  

Help to Buy – Is the current scheme ending?

Help to Buy – Is the current scheme ending?

 

The current Help to Buy scheme is set to end on the 31st March 2021.

Under the scheme, the property previously had to be built by the builder by the 31st December 2020 for buyers to qualify to use this scheme. However, due to COVID-19 the government have extended this deadline to the 28th February 2021. This means that you can still use the current Help to Buy scheme if the builder is able to complete the house ready for you to move in to by the 28th February 2021.

Some buyers may be allowed more time to buy and move into the home and for the builder to finish building if you reserved the property before the 30th June 2020. If you reserved before the 30th June 2020, you may be able to complete the purchase and move into the property up to the 31st May 2021. However, this is only if severe delays have been caused due to COVID-19. This may not apply to all buyers and you should discuss this with your builder if you are concerned

If you have reserved after this date, the property must be built and ready for you to move in to by the 28th February 2021. If the property does not complete before this time you will not be able to get the equity loan funds. We would recommend discussing the anticipated completion date with your builder.

If you are unable to complete your purchase on time due to being unable to get the equity loan funds, the builder must unconditionally release you from the contract, the only exception is if you reserved prior to the 30th June, as you may be entitled to complete up to the 31st May 2021.

If the purchase does not go ahead, the builder must return the reservation fee but may be entitled to deduct reasonable charges, but they must inform you of this. You will have to pay any legal fees and/or any financial advisor fees, if applicable.

We would advise you to contact your builder to discuss the anticipated build date of the property you have reserved and whether any extension is needed.

A new Help to Buy Scheme will start on the 1st April 2021 and this will end on the 31st March 2023.

Please contact our residential property department on 01942 206060 if you have any concerns.