Family & Matrimonial

No Fault Divorce – Starts today

Posted on by mbhwigan

The new law which is introduced today will allow parties to divorce without blaming each other in a divorce application.  A couple will no longer be able to divorce using adultery, unreasonable behaviour, 2 years separation with consent, 2 years desertion or 5 years separation. 

The changes also brings new changes to the terminology. The petitioner (person bringing the divorce) is now called the applicant.  The respondent remains the same.  Decree Nisi is now named a Conditional Order and Decree Absolute is now named a Final Order.

Moving forward a divorcing couple will be able to provide a joint statement to the Court setting out their reasons as to why the marriage has irretrievably broken down.   A statement will need to be provided by both of the parties to the divorce application confirming their agreement to the same which they will both need to sign and date.  

It is also possible to submit a sole application.  Either a sole applicant or both applicants together can apply to dissolve the marriage providing a statement is provided by the sole or joint applicants stating that the marriage has irretrievably broken down with an explanation.   

The Court will make an order provided that the proper application has been issued and a cooling off period will now take place. This means that the parties will have to wait 20 weeks from the start of the divorce proceedings before they can apply for a Conditional Order (Decree Nisi). This will provide the parties time to reflect on their decision to ensure this is exactly what they want before the divorce is granted.  If the parties still wish to proceed with the Divorce a Conditional Order (Decree Nisi) will be granted. 

Once granted there will then be a minimum 6-week period between the Conditional Order (Decree Nisi) and being able to apply for a Final Order (Decree Absolute).

This is the same as the previous divorce rules.  Once this period has expired, the parties will be able to apply for a Final Divorce Order.  This will mean that Decree Absolute is granted.  Until such time as the Final Divorce Order (Decree Absolute) is granted then the parties will remain married.  

Based on the above timescale, we envisage that it will take at least 6 months to complete a no fault divorce process.  This is similar to the previous timeframe.  

The Court fee of £593 remains the same for all new Divorces. 

If you do require any assistance in relation to issuing Divorce proceedings please contact our family team. Please note that we do offer 30 min free initial advice appointments. 

Tel – 01942 206060

email – Gillianlavelle@wigansolicitors.com

Remarriage and Financial Arrangements

Posted on by mbhwigan

Can I remarry before Financial Arrangements are agreed? A guide to S.28(3) of the Matrimonial Causes Act and the impact or remarriage on financial arrangements.

Divorce and financial matters can be a long process. Whether it be reaching an agreement in respect of finances or waiting for your decree absolute, there is no doubt it can be a long and sometimes difficult process. For some, once a divorce is finalised, financial matters can remain unresolved for quite some time after. This would not usually be an issue, however, when it comes to remarriage issues can arise.

How will remarriage impact financial proceedings?

Issues can arise when a party to the financial proceedings gets remarried. S.28(3) of the Matrimonial Act 1973 specifically addresses the effect of remarriage on financial agreements. The act explains that if after the grant of a decree dissolving or annulling a marriage either party remarries or forms a civil partnership, they will not be entitled to apply for any financial provision order.

How to Protect from the Impact of S.28(3)

Although S.28(3) can cause some issues when applying for a financial order after a divorce, there are still ways in which a financial order can be sought. Firstly, if a party initiates financial proceedings before they remarry, their position is protected. The intent to issue financial proceedings should have been indicated on their divorce petition.

Another possible route for parties who have remarried would be to claim under the Trusts of Land and Appointment of Trustees Act 1996.

Finally, if a party is making a claim for the financial relief of a child from the former marriage, then S.28(3) will not apply and they will still be able to make the application for financial relief.

If you are intending on remarrying therefore before your financial matters from your previous relationship are resolved, please bring this to the attention of your solicitor.  They can then issue a financial application to ensure that you are not barred from bringing a claim in the future.

If you wish to know any more information, please contact Gillian Lavelle in our Family Department on 01942 206060 or at GillianLavelle@wigansolicitors.com

No Fault Divorce

Posted on by mbhwigan

After several delays the Divorce, Dissolution and Separation Act 2020 is now due to be implemented on the 6th April 2022.   This will introduce a no-fault divorce.    Please see the following changes which will take effect from the 6th April 2022.  

At the moment when applying for divorce there is a requirement to establish one of five facts to prove that a marriage has irretrievably broken down.  These facts are as follows:-

1.         Adultery

2.         Behaviour

3.         2 years separation with consent

4.         2 years desertion

5.         5 years separation

The new law that is to be introduced will allow parties to divorce without using one of the above facts.   This therefore removes the blame element from a divorce application.    Moving forward from April 2022 a divorcing couple will be able to provide a joint statement to the Court setting out their reasons as to why the marriage has irretrievably broken down.   A statement will need to be provided by both of the parties to the divorce application confirming their agreement to the same which they will both need to sign and date.  

It may also be possible to submit a sole application.  Either a sole applicant or both applicants together can apply to dissolve the marriage providing a statement is provided by the sole or joint applicants stating that the marriage has irretrievably broken down with an explanation.   The Court will make an order provided that the proper application has been issued and a cooling off period has taken place (20 weeks from the start of the divorce proceedings).  This will provide the parties time to reflect on their decision to ensure this is exactly what they want before the divorce is granted.  

After the 20 week period has expired, the parties, if a joint application is submitted, will need to provide confirmation to the Court that they wish to apply for Decree Nisi/A Conditional Order. 

This is the same as the previous divorce rules and once an application for a Decree Nisi/Conditional Order has been made a further 6 weeks and 1 day must pass before the Divorce Order (Decree Absolute) is granted.   Once this period has expired, the parties will be able to apply for a Final Divorce Order.  This will mean that Decree Absolute is granted.  Until such time as the Final Divorce Order / Decree Absolute is granted then the parties will remain married.  

Based on the above timescale, we envisage that it will take at least 6 months to complete a no fault divorce process.  This is similar to the current timeframe.  

If you are waiting for the change of legislation then of course you are able to instruct solicitors at any time to ensure that the application is ready in anticipation of the same.  If you do require any assistance in relation to this please contact our family team on:-

Tel – 01942 206060

email – Gillianlavelle@wigansolicitors.com

Delay on the ‘No Fault Divorce’

Posted on by mbhwigan

The long awaited No Fault Divorce has been delayed even further, following ministers announcing that the Government will now be working on a commencement date of 06 April 2022. This announcement came by way of a response to a Parliamentary question.

In a written response to the question, Courts minister Chris Philip MP stated the “deadline for implementing the provisions of the Divorce, Dissolution and Separation Act 2020 must be put back”. It was stated by Philip that this year’s target was ambitious and relays the fact that such amendments are the biggest reform of divorce law in 50 years.

At least 6 months later than originally indicated, it is understood that by Resolution that this delay may allow the online GOV.UK divorce application to be updated. Despite being informed that the legislation would come into force in Autumn 2021, it carried a lot of uncertainty in terms of specific dates. The new date given by Parliament however is now fixed as a matter of Parliamentary record.

It is understood that work is underway to identify and create the necessary amendments to the Court rules as well as the online service. Philip went on to say:

 “The Ministry of Justice is committed to ensuring that the amended digital service allows for a smooth transition from the existing service which has reformed the way divorce is administered in the Courts and improved the service received by divorcing couples at a traumatic point in their lives. Following detailed design work, it is not clear that these amendments, along with the full and rigorous testing of the new system ahead of the implementation, will not conclude before the end of the year”.

Whilst it is unfortunate for those couples who are awaiting the implementation of such legislation, rather than relying on the current facts of Divorce, ensuring the procedural rules are correct is extremely important. If the rules aren’t fully workable, it would likely cause even further delay to an already lengthy process. As Law Society President Stephanie Boyce said “we welcome the continued commitment to ensuring the reforms are fit for purpose.”

Like to know more about the no fault divorce and what this entails? Contact Gillian Lavelle or Megan Brookfield at 01942 206060.

Uncovering the Myths of Family Law – Why is it Important to Seek Legal Advice?

Posted on by mbhwigan

For many us of, when we are faced with an unknown situation and we are looking for a quick solution, our automatic reaction is to search online. However, with so much “fake news” out there, does our search engine provider always have the answer? Here, we look at the importance of obtaining initial legal advice to banish many misconceptions.

You may have seen the term ‘common law marriage’ used for those who have been in a cohabiting relationship for a long time but have never married. However, in England and Wales the law for cohabiting couples is very different to those who are married. Cohabiting couples do not have the same rights as married couples and their claims can be very limited. Most claims are dependent on whether property is held jointly and if held in one person’s name, financial contribution can be key to proving an interest. Obtaining legal advice is a must in this area of law!

Many newspapers and celebrity magazines will tell us of “quickie divorces”. There is also no such thing as a “quickie divorce” and the process is the same for everyone including the cost! We also see stories of couples divorcing based upon “irreconcilable differences”. Whilst this is true in some ways, most don’t realise you have to rely on 1 of 5 facts to prove irreconcilable differences! Also at this time, there is no provision for a ‘no fault divorce.’

You are likely to have many questions when it comes to dividing the finances when you are married “The house is in his sole name – do I have to leave?” “The mortgage is in joint names – do we both have to pay half?” I’ve paid for everything, my spouse never worked, am I entitled to receive more than them?” Generally, the answer to these questions is NO.  The law states that the starting point is 50:50 when dividing the finances & various factors are taken into consideration. We’ve also heard the phrase “we’ve only been married a short time, I should be able to keep everything I brought into the marriage!” but this is not necessarily the case. What may seem like a short marriage could in fact be a much longer ‘marriage’ than first thought once any period of cohabitation is added!

We have often heard the phrase “the Court will always favour the mother when it comes to where children live.” However, this is not the case & in most cases both parents have equal rights and responsibilities. The Court will consider what is in the best interests of the children and actively encourage the parents to work together to reach an agreement as to the arrangements.  

There is so much to consider when a relationship breaks down. Here at MBH Solicitors we offer a FREE 30 minute consultation to dispel those myths and provide advice and guidance during what can be one of the most difficult and stressful times of your life. Contact Gillian Lavelle or Megan Brookfield to arrange your free consultation today on 01942 206060 or e-mail us at mbh@wigansolicitors.com

Pets and Divorce – Who Should Keep the Family Pet?

Posted on by mbhwigan

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?

Posted on by mbhwigan

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.

What is a No-Fault Divorce?

Posted on by mbhwigan

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.

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.

  1. 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.

  1. 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 who will be happy to assist you.

Update on Covid-19 and Compliance with Child Arrangement Orders

Posted on by mbhwigan

It is understandable that parents have been extremely concerned about adhering to Court Orders during these unprecedented times, and of course, when they will next be able to see their children.

The Government Guidelines are rapidly changing, and new rules are put in place to ensure the safety of each person, and to attempt to relieve the strain from the NHS.

Each family’s circumstances will differ. The Guidance below is general and has been released as a guideline for separated families to consider when making the necessary decisions about contact arrangements.

 

  1. Parental Responsibility lies with the Mother, and the Father (who is named on the birth certificate, or married to the Mother, or has a Parental Responsibility Order in their favour) of the child. It does not lie with the Courts. It is down to the parents to make the decisions in the best interests of the child. If you believe your child, yourself, or someone in your household is at risk, then you should isolate in line with the Government’s Guidelines.
  3. You must continue to act in line with the Governments ‘Stay at Home Rules’, put in place on 23 March 2020. Under these rules, it is no longer permitted for a “a person, and this includes a child, to be outside their home for any purpose other than essential shopping, daily exercise, medical need or attending essential work”.
  5. Contained in the Stay at Home Rules, is guidance relating to child contact arrangements stating that “where parents do not live in the same household, children under 18 can be moved between their parent’s homes”. The guidelines do provide an exception to the ‘Stay at Home Rules’, however it is important to note that this is not mandatory. The Government have stated that you should make a sensible assessment of all the circumstances, and whether this is in the best interests of the child and immediate family around the child during contact. For example, if someone in the household is at high risk, contact should be suspended at this time.
  7. Separated parents should communicate with one another, and if possible, come to an agreement as to a practical solution. It is understandable that parents who have limited contact with their children will be frustrated, however it must be considered first and foremost, the best way to maintain the child’s safety. Even if one parent believes contact is safe, the other parent may completely disagree and feel genuinely worried about the situation.
  9. If a Child Arrangement Order is in place, and parents wish to suggest alternative contact arrangements or vary the Order, they are free to so do. To avoid disputes, parents should write this agreement down, by way of email, text message or paper.
  11. If one parent wishes to vary the Court Order due to sufficient and reasonable concerns, that parent may exercise their Parental Responsibility to vary such Order to ensure the protection of their child, to one they consider to be safe.
  13. Should this be raised at any Court hearing, the view of the Court would be to consider whether the parent acted reasonably and sensibly in light of the official advice, along with any evidence relating to the child or the family.
  15. As noted in our previous blog, parents who are unable to see their children during this time should be offered alternative contact to maintain the relationship, as well as being offered remote contact, whether through Skype, FaceTime, WhatsApp or any other video connection. If this is not possible, the parent should be offered contact via telephone.

The overall note is to ensure you act within the best interests of your child to ensure their safety.

 

Still have questions? Please do not hesitate to contact the Family Team on 01942 206060.

 

 

The dangers of DIY leases

Posted on by mbhwigan

Gemma. March blog photo

The dangers of DIY leases

It may be tempting for both landlords and tenants of commercial properties to try and save money on legal costs by dealing with the matter between themselves. There are a number of downfalls that a landlord / tenant may fall foul of. Commercial property Solicitor, Gemma Eastham, looks at the pitfalls.

SDLT liability – tenants

Whether SDLT will be payable will generally by determined by whether a premium is being paid for the grant or assignment of the lease, the value of the annual rent per annum and the length of the lease.

Where no SDLT is payable, a tenant may still be required to notify HMRC (submit a return to HMRC).

Failure to submit a return and pay the duty (if any) within 14 days of the effective date of the transaction will lead to a fixed penalty of £100 and interest being charged on any SDLT and if the date of submission is more than 3 months after the filing date, the fixed penalty will increase to £200.

When do you need to register a lease at H.M Land Registry?

Leases granted for a period of more than seven years and certain other types of leases need to be registered at HM Land Registry.

It is worth pointing out that any easements contained in a lease, such as rights to access the demised premises through common areas or the use shared facilities, i.e car parks, will not take effect at law unless they are registered, even where the lease itself does not require registration.  For a tenant, it is therefore important to ensure that any registration requirements are adhered to.

Unwritten tenancies

Unwritten tenancies are dangerous for both parties to a commercial tenancy because there is no clear record of the terms that have been agreed.

A landlord, for example, will have no right to forfeit the tenancy in the event of a breach of the terms of the agreement because an express forfeiture clause is required for this.

With a business tenancy it is important to ascertain whether the agreement is within the security of tenure provisions contained in the Landlord and Tenant Act 1954 (the right for the tenant to renew the tenancy at the end of the term).  If there is no express clause excluding these provisions in the agreement and the Landlord and Tenant Act 1954 has not been ‘contracted out’, the tenancy will be deemed to be within the Act.

This means that the tenant will generally be entitled to request a new lease from the landlord at the end of the contractual term of the existing lease. The landlord would only be able to bring the tenancy to an end by serving notice on the tenant in the prescribed form, which requires the landlord to give the tenant not less than 6 months’ notice.

This may affect any provisions which have been agreed between the landlord and tenant.

For example, a landlord and tenant may have verbally agreed that either party can bring a lease to an end by giving one month’s notice to the other party. Legally, the landlord would not be able to rely on this provision and would need to follow the above statutory procedure (6 months’ notice).

The full extent of this topic could be covered in something far longer than a blog, but these are some key areas that both landlords and tenants should consider before proceeding. Seeking appropriate legal advice at the outset could potentially save a landlord and/or tenant money in the long run. Legal advice is always recommended.

For further information, please contact our Commercial team at MBH Solicitors:

http://www.wigansolicitors.com Tel: 01942 206060 Address: 26 Bridgeman Terrace, Wigan WN1 1TD.