Civil Partnerships For All

A heterosexual couple have won their application for the right to enter into a civil partnership rather than a marriage. This has overruled a previous judgement made by the Court of Appeal.

Background

The couple have been in a long-term relationship and have two children. They decided that they did not want to get married and instead wanted to enter into a civil partnership which reflected their values and beliefs.  Unfortunately, civil partnerships do not apply to heterosexual couples.

What is a Civil Partnership?

A couple who enter into a civil partnership would be entitled to the same legal rights in relation to financial matters, for example in terms of inheritance and pensions and also upon dissolution of the partnership, as a couple would be who chosen to enter into a marriage. A civil partnership would also be free from any of the religious implications which are often associated with marriage. The law currently provides that a civil partnership is only an option available to same-sex couples.

Argument

Due to this, the couple issued a Court application to state that, when the law changed and allowed same-sex couples to marry in 2013, same-sex couples were given the choice as to whether they wanted a civil partnership or a marriage. This same choice was not granted to heterosexual couples as the Civil Partnership Act only applies to same-sex couples. They argued that this breached their human rights.

What Next?

The Court have now ruled that the Civil Partnership Act is incompatible with the European Convention on Human Rights due to the inequality for heterosexual couples who have only had the option of marriage. This is welcome news to many who say that there can be no justification for the difference in treatment between same-sex and heterosexual couples and the law should be brought in line to reflect the changes made providing for same-sex couples to marry.

Unfortunately, the Judgment does not mean that the government now has to change the law. However, it is likely that the government will act upon this historic decision made by the Court, and a change to the Civil Partnership Act will therefore be eagerly anticipated.

Keep an eye out on McCarthy Bennett Holland’s blogs for more updates as and when they happen!

Please do not hesitate to contact our family solicitors Gillian Lavelle or Kim Busby if you wish to discuss any of the above further. McCarthy Bennett Holland are able to offer a free 30 minute initial consultation and are more than happy to assist.

www.wigansolicitors.com Tel: 01942 206060 Address: 26 Bridgeman Terrace, Wigan WN1 1TD Twitter: @MBHSolicitors

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Fresh Legs & New Blood for McCarthy Bennett Holland

Mark Boon having been a partner in MBH Solicitors for 34 years has decided to retire as a Partner with effect from the 30th April 2018.  Mark will however remain as a Consultant to the firm continuing to serve his established clients, many of whom have become friends over the years.  Mark will also continue to provide professional consultancy services to the practice as and when required.

Paul Aynsley will replace Mark as Managing Partner in the practice and Caroline Rooks will join the practice in addition as joint Managing Partner.

MBH are also pleased to announce that Gillian Lavelle has now returned from maternity leave and has been named its newest Partner, effective from 1st May 2018. The promotion strengthens one of the firm’s core practice areas: Family Law and adds further depth to the firm. Gillian has been with the firm since 2015 and already has a wealth of experience in her respective area of expertise.

Gillian initially trained and qualified as a Legal Executive whilst working for a top 500 firm before continuing with her education and dual qualifying as a solicitor. She has worked in the field of Family Law since 2010 in the Wigan & Manchester area. She has experience in Family Law including divorce, financial, children and cohabitation disputes. Gillian is highly respected by clients and fellow professionals alike.

“We welcome Gillian 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 dedicated to the future of the firm and is well-deserving of this promotion” says Paul Aynsley, Managing Partner.

We are also pleased to announce that Kim Busby has qualified as a solicitor as of 1st February 2018.  She is now dual qualified as a Fellow of the Chartered Institute of Legal Executives and as a Solicitor.

“We would like to congratulate Kim on her dedication and professionalism”, says Caroline Rooks. “Our clients will continue to benefit from her expertise and further training.  We are delighted that Kim has qualified as a Solicitor and her dual qualification will strengthen the family team”

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

What about Liam?

What about Liam?

 

For many parents, it can be a conundrum choosing a name for their new baby. We are all aware that there has been a decline in the use of traditional names being chosen by parents for their children, often opting for something more unique, evening including Gandalf and Superman.

 

Whilst the UK may be a little more relaxed that other countries in relation to children’s names, what parents may not be aware of is that it is possible for the Family Court in England and Wales to intervene regarding the use of names that they consider may be harmful to the child. However, case law states that this will only happen in the most extreme cases. For example, previously, the Family Court in Swansea made an Order preventing a mother from naming her twin children ‘Cyanide’ and ‘Preacher’.

 

This is not the only case in which the Courts across the world have intervened. More recently the Courts in France have intervened preventing two parents from naming their baby girl Liam, a traditionally male name, over fears it could cause confusion in later life. It is understood that they are due to launch an appeal in relation to this decision.

 

We await what 2018 brings…. Perhaps William and Kate will opt for something unusual!

Kim Busby

Solicitor

Who Owns the Engagement Ring?

We are approaching perhaps the most romantic time of the year and it is often the case that there will be an increase in marriage proposals around Valentine’s Day.

Sadly though it is sometimes the case that, for many different reasons, an engagement will break down before the big day.

However, when one person has spent a lot of money on the engagement ring, who should retain it? The parties may make a decision between themselves based upon moral obligations, perhaps the ring is a family heirloom or one party feels guilty for being the one to break off the engagement. But what does the law say?

The Law Reform (Miscellaneous Provisions) Act 1970 states that “the gift of an engagement ring shall be presumed to be an absolute gift; this presumption may be rebutted by proving that the ring was given on the condition, express or implied, that it should be returned if the marriage did not take place for any reason.”

This means that, unless there was a specific or implied agreement that the ring should be returned to the proposer, the ring belongs to the recipient as a gift to them.

It is possible to make an application to the Court to determine the matter, particularly in cases where the ring is an expensive heirloom, but our advice would be that an application should always be a last resort.

If you require any advice or assistance in relation to family matters, do not hesitate to contact our specialist team on 01942 206060.

Can I change my child’s name?

I am often asked following the breakdown of a relationship whether it is possible to change a child’s name; perhaps the father has been absent for a long period of time or does not pay any maintenance or the mother remarries.

The consent of each person with Parental Responsibility is required in order to change a child’s name. In the event that each person consents, the process is relatively straight forward.

In the event that one person does not consent, the only other way to change a child’s name is to obtain an Order from the Court. However, it is only in very rare circumstances that a Court will order a change of name and the examples set out above are highly unlikely to be reasons to satisfy the Court that there should be a change.

There has been an example of such a very rare case in the news recently. The mother made an application to the Court for removal of her daughter’s middle name because of “its association with a notorious public figure.” The father argued against this on the basis that the name was not “offensive” and that he used both the child’s first and middle names. However, the Judge ruled that the association for the child was enough that the continued use of the name would “damage the child’s emotional welfare” and it was ordered that the middle name should be removed.

Please do not hesitate to contact our Kim Busby if you wish to discuss any of the above further. McCarthy Bennett Holland are able to offer a free 30 minute initial consultation and are more than happy to assist.

www.wigansolicitors.com Tel: 01942 206060 Address: 26 Bridgeman Terrace, Wigan WN1 1TD Twitter: @MBHSolicitors

 

“Summer, summer, summertime, time to sit back and unwind” or maybe not?

The summer holidays are fast approaching and this is usually a time when families are packing their suitcases and heading to the airport to enjoy a much needed break in the sunshine.

However, when parents separate or divorce things can be extremely difficult. It is not necessarily a commonly known fact that should one parent wish to take the children abroad, that the written consent of the other parent is needed (unless one parent has an Order providing that the children live with one parent meaning that they can take them abroad for 28 days without the other parent’s consent. However, we would always encourage parents to speak to each other and plan ahead). Unfortunately, where there is animosity between the parents this can lead to difficulties meaning that the children are unable to travel.

At McCarthy Bennett Holland Solicitors we believe in providing practical advice to try to avoid such difficulties and to encourage the parents to continue to co-parent even when they are separated.

So what advice can we provide?

  1. Make plans in advance and speak to the other parent about your plans. Provide full details of flight times, accommodation and emergency contact details.
  2. Obtain the other parent’s consent before making any formal booking. Ensure this consent is in writing and put this with the children’s passports for safekeeping.
  3. Consider where you wish to travel to i.e. is this a safe destination? The other parent is more likely to be concerned about your holiday plans and be reluctant to provide consent if they are not in the best interests of the children.
  4. Be flexible in agreeing alternative arrangements for contact with the other parent if the holiday impacts upon their normal contact so that no one feels that they are missing out.
  5. Remember that the paramount consideration is the best interests of the children and therefore it is extremely important to put parental conflict to one side and let common sense prevail.

In the event that consent is unreasonably withheld by the other parent, it is possible to make an application to the Court but this will need to be made well in advance of the holiday and should always be a last resort.

Please do not hesitate to contact our Gillian Lavelle or Kim Busby if you wish to discuss any of the above further. McCarthy Bennett Holland are able to offer a free 30 minute initial consultation and are more than happy to assist.

www.wigansolicitors.com Tel: 01942 206060 Address: 26 Bridgeman Terrace, Wigan WN1 1TD Twitter: @MBHSolicitors Find Gillian on Facebook: “McCarthy Bennett Holland – family solicitor”

Obtaining Information from a Judgment Debtor under CPR 71

It is often the case where someone is owed money, be that under a judgment debt or not, and the debtor quickly becomes elusive and non-responsive. This makes the enforcement process substantially more difficult as the relevant information needed to pursue the debtor is unavailable or the debtor simply will not provide it. When it comes to enforcing a debt, knowledge is most definitely power, knowledge regarding what assets or finances are available to the debtor or their employment status and this information will prove invaluable in recovering the debt.

Part 71 of the Civil Procedure Rules provides an answer to all of the above problems. This rule allows a creditor to apply to the Court for an Order that a debtor attends at Court to give evidence, under Oath, about his/hers or their assets, their value and their whereabouts as well as any other necessary information for enforcing the Judgment Debt. It is particularly useful prior to the issuance of an application for a Third Party Debt Order (see previously published blog on this topic), where the bank accounts of an individual may not be known.

When the Court makes an Order, it will fix a date and time for the information hearing and will specify that the debtor must bring documents within his control to the hearing and that they will have to answer questions under oath. Therefore, this subjects the answers given to the rules regarding perjury. The questioning is often conducted by a Court officer, but occasionally by a Judge. The Creditor (or their legal representative) can attend and ask questions.

Many people would at this point consider the possibility of the debtor simply not turning up for questioning. If this is the case, the end sanction could be committal to prison for being in contempt of Court. Applications for sanctions of this sort should be conducted pursuant to Part 81 of the Civil Procedure Rules and are outside of the scope of this article. However, Part 81 aside, there are sanctions contained within Part 71 also for non-attendance or refusal to answer questions which in itself contains provisions relating to committal. It should be noted that this course of action will not be taken unless the Creditor has complied with their obligations under 71.4 and 71.5 (to pay travel expenses and file a Judgment Creditors affidavit).

Alternative directions could be made, such as a suspended committal order (which is almost always the case, directing that the Committal Order will not take place if the debtor attends for questioning at a future date and complies). The Judge could also opt for a penal notice to be attached to an Order directing attendance and simply adjourn the first hearing.

In summary, there are a number of procedural elements which need to be closely complied with if such an application is to be successful and it is important that experienced professionals are instructed to deal with the application. Our team is readily available to assist and/or advise on any of the elements to ensure compliance and also to help with the enforcement process generally. If you would like to speak to a member of our litigation department, please contact mbh@wigansolicitors.com or call us on 01942 206 060 to discuss further.

Contact Paul Aynsley, solicitor or James Ford, trainee solicitor at MBH Solicitors, to discuss your debt recovery / litigation disputes in confidence at:

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

Twitter: @MBHSolicitors