legal

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

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.

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.

 

 

Stuck In An Unhappy Marriage – Literally

Posted on by mbhwigan

It has been in the headlines recently regarding a couple who wished to Divorce but did not pass the test of unreasonable behaviour and as such the Courts refused to grant them a Decree of Divorce.

The Law

Under the current law in England and Wales, to obtain a Divorce you must prove your marriage has irretrievably broken down based upon one of five facts; adultery, unreasonable behaviour, desertion, two years’ separation with consent of your spouse or, lastly, the only other way to obtain a divorce without your spouse’s consent is to live apart for a period of five years.

Owens v Owens

In this case, Tini Owens, 68, has been denied a divorce from her husband, Hugh Owens. The Supreme Court ruled that a joyless marriage is not a sufficient reason without the consent of both parties.

It is not unusual to hear of couples separating because they’ve fallen out of love or simply don’t see eye to eye anymore. However, the law currently states that these reasons would not be sufficient grounds for a divorce. Mrs Owens petitioned the Court for a divorce in May 2015 based upon unreasonable behaviour claiming that her husband prioritised work over family life, no longer treated her with affection, and was often moody and argumentative. She was denied her divorce as it was said that she hadn’t provided evidence that her marriage had, in the legal sense, irretrievably broken down.

Mr Owens, 80, defended the divorce denying the unreasonable behaviour cited in the petition, and stating that if the marriage had in fact broken down, it was the fault of Mrs Owens, not him.

As Mr Owens would not provide his consent to petition based on 2 years’ separation and after exhausting all of her possible appeal routes, Mrs Owens now has no option but to remain in the marriage until at least the year 2020 when the couple will have been separated for 5 years and the consent of Mr Owens is no longer required for her to divorce him.

The Future

Family Lawyers in England and Wales have been eagerly awaiting the outcome of this case as they have campaigned for a change to the law to introduce a ‘no fault’ divorce so couples who have simply fallen out of love can proceed to issue divorce proceedings. It is hoped that this case will highlight how important a change in the law could be for couples going through divorce so that they can both move on with as little distress as possible.

Keep an eye on Resolutions website and Twitter feed for further updates regarding their campaign for no fault divorce.

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

Can I change my child’s name?

Posted on by mbhwigan

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?

Posted on by mbhwigan

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

Posted on by mbhwigan

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

An Analysis of Personal Injury Awards in Ancillary Relief Proceedings

Posted on by mbhwigan

On divorce or separation, parties often issue financial proceedings to divide the matrimonial assets. This is a difficult process in itself but further complications can arise where one party to the proceedings has received a personal injury award post-separation. Undoubtedly, this gives rise to the question of whether or not said settlement will be considered by the Court in deciding on the fairest division of assets and on any lump sum to be awarded.

The starting point is usually s25 Matrimonial Causes Act 1973, which highlights the factors that the Court will consider, such as the income and earning capacity of either party as well as their respective needs, responsibilities, contributions to the relationship and their conduct. These factors will always be considered against the yardstick of equality,[1]so the starting point is generally an equal distribution of assets unless something causes the Court to distribute differently. In order to achieve this, it is important to establish whether or not any personal injury award forms part of the ‘matrimonial pot’ and therefore subject to distribution and/or a claim by the other party.

The case of Wagstaff is a good indicator of the Court’s treatment of personal injury awards.[2]In this case, the Husband suffered an accident in 1981, and the parties subsequently parted way in 1983. It wasn’t until 1988 that the Husband received an award for the personal injuries sustained, and that award was in the sum of £418,000 which enabled him to purchase his own property and to renovate it to accommodate his disabilities. There was an initial lump sum order made for £32,000 for the Wife, but this was overturned on appeal, given the Husband’s needs being of paramount importance and that the Wife had no immediate financial needs. On further appeal by the Wife, the Court held that an award for damages for personal injury was a financial asset to be consider pursuant to the s25 factors. The Court was of the opinion that the award left a clear disparity between the parties which needed to be redressed and in a bid to restore fairness, the Court re-imposed the lump sum order.

This case made substantive reference to the earlier decision in Daubney,[3]in which both parties had received personal injury awards following a car accident. However, the Husband invested his award in a business which later failed, whereas the Wife invested hers into the purchase of a flat (separate to the matrimonial home). The Husband applied for the matrimonial home to be transferred to him and the registrar allowed the transfer subject to the Wife’s beneficial interest of five-twelfths of the proceeds. On appeal, the Judge reduced her interest to 30% but did not take into account the flat that she had bought with her award. On appeal by the Husband and cross-appeal by the Wife, the Court again found that such awards needed to be taken into account when assessing the financial circumstances of each party and reduced her interest to 15% (factoring in her absolute interest in the flat).

However, whilst the above may lead the reader to believe that personal injury awards are very much within the confines of ‘matrimonial pot’, but regardless of that, the Court will also prioritise need over compensation/sharing. The ongoing medical position of the injury party will be of absolute prominence in any decision. Thus, if the entirety of that award is what is needed to meet the ongoing needs of that party, it may not be interfered with (regardless of whether or not it is deemed a matrimonial asset). As an example, the case of C v C,[4] the Husband was awarded damages in excess of £5million by way of structured lifetime payments and on application for provision by the Wife, the Court considered that given the Husband’s extreme needs, there was no capital that could be distributed to the Wife. It is the writers opinion that therefore the balance is not an easy one to strike, and whilst the Court will be prepared to consider such monies as matrimonial assets, there would likely need to be a surplus (once the needs of the injured party have been assessed) for any considerable distribution to take place.

The Powers of the Court to make such an Order are broad at the best of times, but any damages received by one party will be taken into consideration when assessing. Next, the ongoing needs of the parties (including any children) will be considered alongside where the award came from and what the purpose of that award was. As such, cases need to be considered on a fact-by-fact basis. Of course, the situation could have been avoided in its entirety if nuptial agreements were made in the first instance, but often this is not the case.

[1] Miller v Miller [2006] UKHL 24

[2] Wagstaff v Wagstaff [1992] 1 WLR 320

[3] Daubney v Daubney [1976] 2 WLR 959

[4] C v C [1995] 2 FLR 171

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”