No Fault Divorce – Starts today

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

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

Delay on the ‘No Fault Divorce’

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.

“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”

Third Party Debt Orders (TPDO) Under CPR 72: Enforcement of a Judgment Debt

Where a judgment debtor continues to refuse to pay, there is still a card left to play which should be within the repertoire of any specialist litigation solicitor, that of the Third-Party Debt Order (previously known as Garnishee Orders) provided by Part 72 of the Civil Procedure Rules. In short, a TPDO allows you to enforce the debt against monies owed to, or more importantly held for, the debtor. Thus it enables you to seize the monies from the bank accounts of the person who owes it to you (as long as they have enough money in the account). It is done by way of a two-part process:-

  1. Obtaining an Interim TPDO (made without notice to the debtor); and then
  2. Obtaining a Final TPDO (made with notice to the debtor).

The Interim Order will fix a date for the hearing of the final Order and will direct that the third party (i.e. a bank or building society) must not make any payment from the debtor’s accounts which will reduce the funds therein to less than the amount owed. Basically, it operates so as to freeze the bank accounts (without the need for a Freezing Order or other injunctive relief) insofar as to ensure the account maintains a funding level sufficient to discharge the debt if the Court makes a Final Order. However, a debtor in extreme financial hardship can ask the Court to authorise the release of small amounts of money to help them though this must be done by way of an application.

The Third Party will also have to undertake a search of the accounts held by the Judgment Debtor and confirm the same to the Court within 7 days of being served with the Interim Order. Details of the accounts, whether they are in credit and if so, whether there are sufficient funds to discharge the debt. This allows you, as the creditor, to ascertain whether or not other types of enforcement action are necessary.

If the debtor or the third party wish to dispute the debt in its entirety or to allege someone else has a claim to the monies, they must serve written evidence on all parties as soon as possible, not less than 3 days before the final hearing. If the creditor disputed the debtors case, they too must serve counter evidence in writing.

At the hearing for the final Order, the Judge can either award a final TPDO, dismiss the application or rule on any issues in dispute/direct a trial to take place to determine those issues. If the final Order is granted, it is immediately enforceable and the third party must pay the monies due to the creditor. At that point, the third party is discharged from their debt to the creditor.

TPDO’s rank in accordance with priority, i.e. when they were secured. This is of importance if you suspect that a number of people may apply, so it is essential that action is taken quickly. Other points to note include the fact that they cannot be made against insolvent debtors or against monies held by the Court.

If you are owed money by someone, or have a judgment debt, our specialist litigation department is on hand to assist quickly. We have considerable experience in securing this type of Order and can advise you on all aspects of the procedure, as well as the other types of enforcement that may be available to you. If you are in need of assistance, or would like to better understand your options for pursuing a debt, do not hesitate to contact us at mbh@wigansolicitors.com or by phone on 01942 206 060.

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

Implications of the Pre-action Protocol Changes relating to Debt Claims

Currently, there is no specific Pre-action Protocol that needs to be followed in respect of debt claims, claimants must simply follow the general Practice Directions on Pre-Action Protocol under the Civil Procedure Rules. From 1st October 2017, claimants and their advisors will need to comply with the latest protocol which will now specifically apply to debt claims, where a business is claiming recovery of a debt from an individual. It will not apply to business-to-business debts, unless the business is a sole trader.

It is geared at increasing pre-action communication and negotiations between the parties, and will involve a two-step pre-action process which negates the unnecessary disclosure of further information to a debtor, often when the debtor is non-responsive to the creditor.

Letter of Claim

The first step is in issuing a letter of claim, which must contain:-

  1. Information regarding the debt and any interest accruing thereon;
  2. Details of the agreement under which it arises;
  3. Details of any assignment of the debt;
  4. Details of any instalments being offered/paid and why they are not acceptable;
  5. Details of how the debt is to be paid or how to discuss payment options;
  6. Address for return of the response form.

The letter must now also be accompanied by an information sheet, response form and financial statement form (all of which are contained in standard form in the annexes to the Protocol). Strict provisions on service apply. The debtor then has a period of 30 days in which to respond before proceedings are issued.

Response

During the 30 day period, the Creditor and Debtor are expected to liaise over the content of the response form and to discuss any documents required to understand the position of the other party. The creditor would then have 30 day period to provide any information requested or to explain why the information cannot be provided.

Alternative Dispute Resolution (ADR)

The parties are then expected to consider ADR to reach a settlement, and if agreement is reached, the creditor should not issue proceedings whilst the debtor complies with the agreement. If no such compliance takes place, a further letter of claim needs to be send before commencing proceedings, though disclosure need not be re-sent.

Taking Stock

The Protocol contains a ‘taking stock’ provision, requiring the parties to re-assess their positions following compliance with the Protocol’s. If agreement still cannot be reached, the creditor must give the debtor a 14 day warning that they are going to issue.

This new Protocol has clearly been developed following LJ Jackson’s 2010 report on Civil Litigation Costs and on the amount of Court time/costs that business debt actions take up. The Protocol seeks to serve the overriding objective and help facilitate an out-of-court resolution to debt issues. The procedure as whole appears to greatly benefit the debtor, and the main aim of the process is to enlighten the debtor by ensuring they have requisite information to understand their position and seek advice on their position.

If you are a business contemplating debt recovery action against an individual (including a sole trader) once this Protocol comes into place, then it is advisable that you seek professional advice to ensure compliance with the Protocol and therefore with the CPR. The Courts can be quick to penalise a claimant for non-compliance, and this can have a substantive impact on the prospects of success and on claims for costs.

The Litigation department at McCarthy Bennett Holland Solicitors has a wealth of experience in pre-action conduct and is readily available to advise on compliance with the CPR ahead of issuance of proceedings. If you do require assistance with this, or with the commencement of proceedings generally, please do not hesitate to contact us directly on 01942 206 060.

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

CHILDREN & COMMUNICATION

Disputes over children are becoming more and more common as time goes on. The Courts have tried to combat this by insisting that for every dispute over children the parties have to attend mediation before they are able to turn to the Courts.  Unfortunately, I find that clients who come to see me at this stage fall into 2 categories:

  1. They just want advice before they tell their ex-partner that they are not happy with the current situation.
  2. They have already told their ex-partner they are not happy with the situation which has already led to a fall out and increased animosity between them.

I find that if the parties fall into (1) above then mediation is definitely worthwhile and should be encouraged. Unfortunately, if it is (2) the majority of time mediation does not assist as the party’s communication has already broken down and they are unable to mediate over the issues.

Most arguments ensue because each party believes that it is their decision what should happen with the child and they fail to realise that it is the child’s right to contact with each parent. The Court will always allow sufficient contact with a parent unless that parent is a risk to the child.

If mediation does not work then a Court application is always open to the parties. I find that when Court attendance becomes necessary it can take a lot of work for the parties to begin communicating again.  Furthermore, the decision in respect of contact is taken out of the parents hands and is put into the hands of the Courts.  Not everyone is always happy with the outcome.  It should be encouraged at every stage for the parties to try and agree what is in the best interests of their child.  I find that if the parties can work together then they remain happier in the long term which will benefit their child.

This is why in most cases I always strongly advise my client’s to try and work it out between themselves first.  Come see me for a free 30 minute appointment, take my advice and try and work it out between yourselves.  Solicitor involvement should only be where all other lines of communication have failed.

Contact Gillian Lavelle, solicitor at MBH Solicitors, to discuss your family & matrimonial requirements in confidence at:

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

Digital Assets on Death: I leave my Facebook account to…

A question that many people do not stop to consider is what, if anything, happens to your online presence when you die? Most of us now possess some form of digital asset, be it an Email account, Amazon, online banking or simply the sharing or streaming of our photos and videos online.

Generally speaking, the Service Provider will have their own terms and conditions in respect of what will happen to your accounts on your death, and often these are the terms that people just ‘skip’ or agree to without a second thought when setting up the account initially. For instance, Facebook states that you cannot transfer the account to anybody else without their express permission. There is also a designated option to submit a request for the account of a deceased person to be removed/memorialised.

Another example can be found in MIcrosoft Outlook which confirms that the program is given to you on licence, not sold outright, and as such, you can appoint a ‘next of kin’ to whom Outlook will provide a digital copy of all of your emails etc.

 

It is important to ensure that, when a loved one has died, information on their digital assets is collated to ensure that their ‘digital estate’ is also administered properly. In reality, a copy Grant of Probate should be sent to the Service Provider before the next of kin or Executor attempts to access any online accounts (to avoid being guilty of an offence under the Computer Misuse Act).

What can I do?

To plan ahead, it is recommended that you collate a list of all your online accounts, complete with usernames, passwords and any memorable information that may be needed to access it. You could then consider depositing a copy of the list along with your Will or Lasting Powers of Attorney.

It is also worth appointing a Digital Executor, which can be done using your will in the same way that you may normally appoint an Executor or Trustee (the individual(s) who would be able to apply for the Grant of Probate and begin administering your estate). This will allow for someone to be given your express authority to manage/close your online accounts or assets.

This is a complex area of will writing as it is important to keep a distinct separation of powers to avoid any conflicts with the general executors, and any gifts of digital assets need to be kept and drafted separately.

Whilst there are many complications surrounding the passing of digital assets on death, particularly in cross-border estates, it is something that you should consider putting into place. Our specialist Wills Team are on hand to ensure that your digital assets are appropriately protected and any digital Executors are appointed.

If you would like to discuss the sources used in making this article, or would like any assistance with your own Will, please do not hesitate to contact us.

Contact Paul Aynsley, solicitor or James Ford, trainee solicitor at MBH Solicitors, to discuss your wills, probate & estate management requirements in confidence at:

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

Twitter: @MBHSolicitors

STAMP DUTY & ADDITIONAL HOMES

For those of you buying a 2nd, 3rd or even 14th home you will probably know about the changes to the law that come into effect on Friday 1st April 2016.

From Friday, anyone buying an additional home for any purpose will pay more stamp duty land tax. It is understood that the higher rates will only apply to additional residential properties purchased in England, Wales and Northern Ireland on or after 1 April 2016. The higher rates will be 3 percentage points above the current SDLT residential rates and they will be charged on the portion of the value of the property that falls into each band. See the table below:

Band     Existing residential SDLT rates New additional property SDLT rates
£0* – £125k     0% 3%
£125k – £250k     2% 5%
£250k – £925k     5% 8%
£925k – £1.5m     10% 13%
£1.5m +     12% 15%

This has led to our conveyancing department having an unprecedented amount of purchases due to complete before Friday’s deadline.

Our conveyancing partner, Caroline urges those people who are looking at buying a further home to carefully assess whether they can afford not only to buy it but whether they can afford the new stamp duty rates. Also, if you are in the process of buying a further home check with your solicitors whether completion will take place before Friday.

Unfortunately, the changes also affect jointly owned property and this also affects those people looking to buy another home with their partner even if one of them doesn’t own a property. It may also affect any divorce settlements.  Our family solicitor, Gillian would strongly advise those who have agreed or are thinking of agreeing to keep their name on a property following separation to assess whether these new changes will cause them any issues in the long term.

Contact Caroline Rooks to discuss your property or other legal requirements in confidence at:

Contact Gillian Lavelle, solicitor at MBH Solicitors, to discuss your family & matrimonial requirements in confidence at:

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