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

No Fault Divorce

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’

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.

WIGAN 10K & THE LEWY BODY SOCIETY

On Sunday 4th September 3 members (myself included) of McCarthy Bennett Holland will don their workout gear and attempt the Wigan 10k.  We do this not to raise awareness of MBH but in an attempt to raise awareness for the Lewy Body Society.

Most of you are probably thinking right now, what is Lewy Body?  Well a friend and the chairwoman of The Lewy Body Society told me that it is the worst bits of Alzheimer’s and Parkinson’s Disease put together.  Sounds horrendous doesn’t it and yet it is relatively unknown to most.  I am told that wrong diagnosis can cause serious problems and difficulties for sufferers with Lewy Body.

MBH therefore wanted to help.  Of course if you would like to donate to this worthy cause the link is below.  But perhaps just take a moment to read about Lewy Body and share or like this post.  Awareness helps.  Awareness matters.

https://www.justgiving.com/fundraising/lbsorgwigan10k

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

CAN’T AFFORD LEGAL REPRESENTATION?

Nine out of 10 people who have gone through the family courts, suffer strain in their mental and physical health, working lives and finances, according to a report by Citizens Advice due out this week. This has also been reported by the guardian (see link below).

It seems since Legal Aid cuts have been implemented more and more people are finding access to legal assistance extremely difficult.

I have tried to tackle this at McCarthy Bennett Holland by offering fixed fees and payment plans.   Fixed fees at the outset can be discussed and agreed depending on the situation that is right for you.  Whether this is just sending an initial letter, acting on your behalf in a Divorce or representing you at Court in a children matter a fixed fee and payment plan can be arranged.  This ensures that there are no nasty surprise bills heading your way and also gives you time to budget how you will meet the cost of representation.

Some of my clients have monthly standing orders set up to meet payment of the agreed fees. This works well for my clients as they don’t have to worry about finding payment as bills fall due as the money has already been accounted for and held on account.

The strongest advice I can give anyone is to obtain representation at Court. I have had a number of clients come to me after a first Court hearing and state that they didn’t feel like they had done a good job or felt intimidated by the proceedings which has caused them to back down on their position.  This can cause difficulties then moving forward to try and overturn concessions already made.

If you would like to discuss our fixed fee and payment plan services why not arrange an appointment with me? I offer 30 minute FREE no obligation initial advice appointments.

I am available on 01942 206060 or by e-mail to: GillianLavelle@wigansolicitors.com

 About MBH

McCarthy Bennett Holland, established in Wigan since 1971, offers a personal service across a wide range of legal practice areas, including residential and commercial property, family and matrimonial, wills and probate, employment, personal injury and company commercial.

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”

http://www.theguardian.com/law/2016/mar/26/legal-aid-cuts-put-strain-on-divorcees?utm_content=buffer6a02c&utm_medium=social&utm_source=twitter.com&utm_campaign=buffer

The importance of Shareholders’ Agreements

Q: I would like a colleague to come on board as a director and shareholder in our business but I have invested more time and money in it to date. How can we reflect fairly our respective inputs?

Setting up a company with a friend, or having another party join you as a director, is an exciting time for a business. Sharing the workload and ideas can help to propel you forwards much more quickly than through the work of just one director. However, it’s important to protect both parties’ position to ensure that the partnership and the company can develop smoothly.

Shareholders’ Agreements

Trust in any working relationship is key but you should always ensure that, in case anything does go wrong, you both have clearly defined rights. A shareholders’ agreement is a vital document in many organisations; it can be made between any or all shareholders of a business and will protect investment, set out how the company is to run and ensure fair treatment of all investors and stakeholders.

What can it contain?

The agreement may include provisions such as:

  • shareholders’ rights;
  • the obligations of each shareholder and their specific roles;
  • how shares are to be bought and sold;
  • how dividends are to be calculated and paid;
  • the voting rights of each shareholder;
  • how decisions are to be made;
  • how the company will be run, including appointing or removing directors, making financial decisions and making decisions as to the trade and nature of the business; and
  • how disputes are to be resolved.

Agreements should cover minority shareholders (those who own less than 50%) and protect their interests insofar as is possible. This may include allowing for some voting rights for important decisions so that minority shareholders still have a say in, for example, how the business is to be run, whether new shares should be issued or whether new directors should be appointed.

As a majority shareholder, you may want to include provisions that allow you to require a minority shareholder to sell their shares. This will prevent you from being held back when making a business-critical decision at a time of your choosing.

Shareholders, especially those with a minority shareholding, should be prevented from disclosing confidential information or working with a competitor and an agreement should set out when, how and, most importantly, to whom, shares can be sold. You will likely wish to prevent shares being sold by another shareholder to a competitor and this can be incorporated within the agreement, as well as setting out how share values are to be calculated.

The company already has Articles of Association. Why do we need this as well? 

A shareholders’ agreement and the company’s Articles should reflect and be consistent with each other. The primary difference between the two is confidentiality; a shareholders’ agreement is a private contract between shareholders and only those party to it need to know the information it contains. Articles of Association are filed at Companies House and are publically available; therefore anyone can find out what is in that document. Further, Articles of Association are often drawn up using a template document which doesn’t consider closely the needs of your specific business. A shareholders’ agreement is far more tailored to suit your situation. 

Do we need to put the agreement in place now? 

You are well advised to put the agreement in place as early as you can in your working relationship. As with any legal document, if it’s put off and delayed, you may find that you need it before you have any firm terms in place. Make your shareholders’ agreement a priority so you know you’ll be protected right from the outset.

Is a shareholders’ agreement legally binding?

The agreement will form a contract between shareholders which can be relied upon and considered by a court; it’s therefore important to ensure that it is properly drafted, signed and dated to create a binding document that accurately reflects all parties’ interests.

 

Mark Boon, partner at MBH, deals with company commercial matters and will be happy to discuss any issues affecting your business, partnership or limited company. Contact Mark to make an appointment on 01942 206060.

 

About MBH

McCarthy Bennett Holland, established in Wigan since 1971, offers a personal service across a wide range of legal practice areas, including residential and commercial property, family and matrimonial, wills and probate, employment, personal injury and company commercial.

Contact Mark Boon to discuss your commercial or other legal requirements in confidence at:

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

What is a ‘Lasting Power of Attorney’?

Q: I have been advised to sign a ‘Lasting Power of Attorney’ but I don’t know whether I need to. What is the document and how does it work?

Lasting Powers of Attorney (“LPAs”) are often completed and signed at the same time as your Will is drafted or updated.

LPAs are legal documents which allow you to appoint nominated people to act on your behalf, making decisions or dealing with your affairs, in the event that you are unable to do so yourself without assistance. You are known as the ‘donor’ in the document, and your nominated persons are ‘attorneys’. Many people choose to appoint friend or family members (often adult children), or occasionally a trusted professional such as a solicitor.

The LPA will be used in the event that you are unable to deal with affairs and make decisions yourself; for example, you may have an illness or accident. At this point, you are referred to as ‘lacking mental capacity’.

There are two types of LPA, and you may choose to complete either or both of these:

  • Health and Welfare

This LPA allows your nominated attorneys to make decisions about matters such as your daily routine (including washing, dressing and eating), your medical care, life-sustaining treatment and the process of moving into a care home. The Health & Welfare LPA can only be used when you are unable to make your own decisions.

  • Property and Financial Affairs

Dealing with money and property issues, under this LPA you appoint your attorney to manage a bank or building society account, pay bills, collect benefits or pension or deal with the sale of your home. The Property & Financial Affairs LPA can be used by your nominated attorneys as soon as it is registered, provided that you give your permission.

When should I make a Lasting Power of Attorney?

You must be over 18 and have full mental capacity at the time of signing your Lasting Power of Attorney. You should be able to make your own decisions, to be aware of the document’s effect and to sign it at the time you complete the document.

Who should my attorneys be?

You may choose one or more attorneys. If you choose to appoint more than one, you will need to decide whether they must make decisions jointly (so all decisions must be agreed by all attorneys) or whether they can act separately (attorneys can act together or on their own).

Attorneys must be over 18 and they must be able to make their own decisions (having ‘full mental capacity’). You should consider how well your attorneys look after their own affairs, how well you know them and whether you trust them to make decisions in your best interests. Attorneys must be willing to act on your behalf

How do I make sure that the Lasting Power of Attorney is properly completed?

We always recommend that you use a local solicitor to prepare both your Will and your LPA. They can advise as to the contents of each and ensure that they are satisfactorily signed, dated and safely stored.

LPAs need to be registered with the Office of the Public Guardian after they have been completed. The process takes around 8-10 weeks and the registration fee is £110 per LPA (there are some exemptions and reductions available if you are on a low income), with legal fees charged in addition to this; you can choose to notify people that you have put an LPA into place, and notifications will be distributed after you have applied for registration.

Can I change my LPA once it’s been registered?

Yes, provided that you still have full mental capacity to make your own decisions. You are able to make changes to your LPA by using a ‘Partial Deed of Revocation’, or to withdraw it completely by way of a ‘Deed of Revocation’.

Your LPA will come to an end automatically if your nominated attorney dies, loses their own mental capacity, divorces from you (if you have nominated your husband or wife) or if your attorney is removed by the Court of Protection. Bankrupt persons or those subject to a ‘Debt Relief Order’ cannot act as attorneys under a Property and Financial Affairs LPA.

 

McCarthy Bennett Holland’s Paul Aynsley can advise on your Will and Lasting Power of Attorney, ensuring that both are up-to-date and meet the needs of you and your family.

If you would like to discuss your future planning, contact McCarthy Bennett Holland to make an appointment with Paul on 01942 206060.

 

About MBH

McCarthy Bennett Holland, established in Wigan since 1971, offers a personal service across a wide range of legal practice areas, including residential and commercial property, family and matrimonial, wills and probate, employment, personal injury and company commercial.

Contact Paul Aynsley, partner at MBH Solicitors, to discuss your Wills, Trusts, Probate or other legal requirements in confidence at:

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

 

Dealing with directors’ disputes

It’s a fact of life that directors and shareholders of businesses won’t always get on; the close working partnerships that these roles require can put a great deal of strain on a relationship, particularly where livelihoods and income are concerned. But what are the most common causes of dispute and how can they be managed?

Grounds for disagreement

There are countless reasons why directors and shareholders may disagree, such as:

  • Financial reward; is one director receiving a greater share? If so, is that share justified or is it unfair?
  • Business strategy; is the direction the business is taking agreed by all parties or do some feel that change is necessary (or to be avoided)?
  • Behaviour of one party; for example, is one director not acting within the best interests of the company? Do they have sideline interests or investments which conflict with their role?
  • Unequal contributions; this may be financial or in terms of time spent working in the business, but if one or more parties feel that another is not pulling its weight in contribution, this can lead to discontent.
  • Share pricing; if and when shares are bought or sold, some directors and/or shareholders may feel that the pricing is incorrectly calculated.

Avoiding disputes

Key to any successful relationship is good communication. Directors should prepare themselves properly prior to board meetings and perhaps even discuss some trickier points beforehand to enable the meetings to be as productive as possible. During board meetings, ensure that proceedings run smoothly with time controlled and the agenda observed. Voting should be efficient and conducted at the right time once an issue has been discussed appropriately.

Non-executive directors can add a different dimension to a board; they may have particular business expertise which can assist in decision-making and, as they do not have a personal stake in the company, can offer advice which is unbiased and more practically-led.

Managing a disagreement

The first port of call for guidance should be the company’s own Articles of Association and/or any shareholders’ agreement which may have been prepared. Both documents should contain a procedure for managing conflict between directors and may allow, for example, for decisions to be passed by a majority.

In the absence of any other procedure, and in the interests of equality, directors generally have one vote each during a meeting. If there is an even split, the chair may be given the casting vote. There are some company decisions which also require the approval of shareholders, such as:

  • the appointment or removal of directors;
  • declaration of dividends;
  • proposed changes to Articles of Association or the company’s trading model;
  • any proposal to wind up the company; and
  • proposed property transactions

Termination

If, as a shareholder or director, you feel you want to terminate the relationship, there are a number of ways to deal with this depending on your role; you may be a director, employee or shareholder and you will need to ascertain this. Resignation can, and likely will, impact on your employment rights and you may also be required to sell your shares on departure.

If you are a shareholder, the clearest way to exit will be to sell your shares; the Articles and any shareholders’ agreement will deal with the process for this, including anyone who is to be offered the shares in preference to others. Directors are able to resign and the process is straightforward for this, although you are recommended to seek legal advice to ensure that you are excluded from any future liability in respect of decisions made during your directorship.

 

Mark Boon, partner at MBH, deals with company commercial matters and will be happy to discuss any issues affecting your business, partnership or limited company. Contact Mark to make an appointment on 01942 206060.

About MBH

McCarthy Bennett Holland, established in Wigan since 1971, offers a personal service across a wide range of legal practice areas, including residential and commercial property, family and matrimonial, wills and probate, employment, personal injury and company commercial.

Contact Mark Boon to discuss your commercial or other legal requirements in confidence at:

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