Weightmans ‘Advice’ Advent – Some helpful tips to guide you through the festive season
The festive period is here, and with it comes the Weightmans 'Advice' Advent Calendar.
The festive period is here, and with it comes the Weightmans 'Advice' Advent Calendar.
Designed to offer some handy support and guidance at the busiest time of year, our 12 days of Christmas will offer informative advice relating to the top legal issues we experience during the festive period.
For more information book a free consultation with our expert Private Client lawyers.
Buying and selling property – will you have moved by Christmas?
Buying or selling a house can be a testing process at the best of times, but especially in the run up to Christmas and the New Year. Why? Because to get things done, depends, quite simply, on people.
For many, completing your house purchase well before Christmas takes priority over everything else on your wish-list – including knowing what storyline the John Lewis advert will use to reassure you that cuddly toy penguin was an essential purchase. But are you using conveyancers that have the resources to provide a 24/7 service throughout the holiday period?
A few things to note:
1. Be realistic with time frames
More often than not it is helpful to have a set deadline in mind for when you wish to complete. Aside from focusing the mind, it can encourage greater co-operation between you and the other party to the transaction to achieve a mutual goal. The deadline ought still to be realistic - it need not necessarily be agreed at the outset. It is important for all parties to understand the factors involved that may affect your timescale. Such factors include: whether your transaction forms part of a wider chain, you have secured the necessary funding and the requirements of third parties such as your current landlord, lender, help-to-buy agency or local council. Above all, make sure your chosen conveyancer will be available during the countdown to your pre- Christmas completion.
2. Do your research
Use solicitors, estate agents and lenders who have a reputation for doing what they say they will do on time. Do not just go for the cheapest on offer.
3. Be prepared
Providing as much information as you have about your property can save time from the outset. And start early – your conveyancer will be dependent upon the speed of response of search providers.
4. The future is blockchain
The ghost of Christmas future will doubtless complete in Bitcoin using a blockchain digital ledger system to register the transaction, verify the title and speed up the payment process. In the meantime, remember that the whole process currently involves people whose time may be limited by the number of transactions undertaken.
You will not be the only person wanting to complete in the same timeframe so make sure your chosen firm, like Father Christmas, has the capacity to deliver.
Weightmans LLP is a top 45 national law firm
Sophie Smith is a member of the residential conveyancing team
Grandparents and Christmas – Access to Grandchildren
- 14 million grandparents in the UK
- Two thirds provide regular childcare for their grandchildren
One step removed, grandparents will be faced with the dilemma as to when to share their views regarding the decisions their children are making. If parents reach the decision to separate then new arrangements are likely to affect grandparents and their ability to spend time with their grandchildren.
The strains and stresses parental separation put on families are likely to be felt more acutely over the festive period. Sadly there will be some grandparents hoping that next year things will be different and wondering what, if anything they can do to influence this.
Grandparents do not have an automatic legal right to spend time with their grandchildren. They can, however, apply to the court for permission to bring an application for an order that they can spend time with their grandchildren. The order is referred to as a child arrangements order and the courts will consider all the circumstances of the individual case before reaching a decision and undertake a careful analysis of what is in the children’s best interests.
In the first instance, however, supporting parents to try to keep the dialogue open and promoting the option of talking matters through in mediation, or with a family therapist should be thoroughly explored. A court application places immense pressure on all parties and makes repairing relationships that much harder.
If one - or both - parents raise objections to children spending time with their grandparents and no agreement can be reached with assistance from a mediator, family therapist or legal advisers and a child welfare officer, the court will hear evidence and make a decision.
It is essential for grandparents to receive expert legal advice to ensure that they are well positioned to persuade the court of the benefit and importance for the children of maintaining their on-going relationship.
Having obtained legal advice, giving parents the space they need to adjust, even if it means time spent apart from grandchildren for a while, could prove beneficial in the longer term. Equally, seeking to remain neutral, not taking sides between the parents, could provide great relief and stability for children coming to terms with new arrangements.
Separated Parents urged to settle disputes over Christmas Child Arrangements
- 22% of all dependent children in UK live with lone parents (Office of National Statistics (ONS) bulletin: Families and Households in the UK: 2016).
- Nearly 100,000 children under 16 are involved in divorces each year (64% of whom are under 11 years old) (ONS 2013).
- The number of children of unmarried, separated parents, caught up in family breakdown each year is not captured in the statistics, but obviously numbers are high given that cohabiting couple families were the fastest growing family type between 1996 and 2016, more than doubling from 1.5 million families to 3.3 million families [ONS 2016].
In the weeks leading up to Christmas, the family courts get very busy trying to deal with disputes between separated parents about how the children should divide their time over Christmas.
Separated parents are advised to try to finalise arrangements for spending time with their children over the festive period as constructively, and as quickly, as possible. Many courts will already be fully booked and unable to accommodate court hearings before the Christmas period.
Due to the lack of available court time, and because the courts increasingly see joint parenting decisions as the best way for parents to bring up their children, parents need to take a constructive approach to resolve their issues in a sensible way that suits the children, rather than the adults.
Unless a case is very urgent, or involves a risk of harm to children, in every child dispute, parents are now obliged to explore the option of family mediation before issuing court proceedings. Family law mediators are trained to help separated couples resolve disputes, including financial settlements and arrangements for any children. A mediator is impartial, and meets the parties together to assist them in identifying those issues that are not yet agreed upon and help them to try and reach agreement.
Many parties enter into mediation and pursue it to the conclusion of a satisfactory settlement in respect of child arrangements. It is usually advisable for parties going through mediation to retain their own solicitors to provide independent advice following sessions.
Mediation is not a suitable forum for all cases and clients need to consider carefully how they wish to proceed. To assess whether mediation might be appropriate, parties should seek expert family law advice.
In any event, with only a few weeks before Christmas, parents are advised to consider practical compromises this year, to ensure that their children do not get caught in the cross fire with their memories overshadowed by parental disputes.
Fiona Turner is a Partner in the family law team: email@example.com.
A dog is for life, not just for a happy relationship
We're a nation of animal lovers, but does UK law give pets the same status as we do? When it comes to pets and divorce – who retains 'custody'?
Linzi Perriman is a solicitor in the family law team at national law firm Weightmans: firstname.lastname@example.org.
Is your will Christmas wedding-proof?
The Christmas wedding and civil partnership season is now in full swing and thousands of couples will tie the knot this December - for better or for worse! While there are 1001 tasks to remember when planning a wedding, let alone one at Christmas, careful consideration should be given to your Will.
A marriage or civil partnership automatically revokes any Will that you have. If you do not then make a new Will, upon death the intestacy provisions will dictate how your estate is distributed and may not accord with your wishes. However, you can prepare a Will before a marriage or civil partnership, and ensure, with suitable wording, it is not then revoked upon the exchange of vows.
An increasingly popular means of protecting assets is a pre-nuptial agreement. These agreements are now generally upheld by the Courts unless considered to be very unfair, and can offer protection if one individual is bringing greater wealth to the partnership than the other. Pre-nuptials are often used for second marriages.
Most couples receive gifts from friends and relatives in celebration of their marriage or civil partnership. Giving money in lifetime can be a useful method of estate planning. While many gifts stay in your estate for 7 years for inheritance tax purposes, gifts upon a marriage or a civil partnership can leave your estate immediately. The current limits are £5,000 from each parent to their child, £2,500 from a grand-parent or great-grandparent and £1,000 from any other individual. The gift must be made either on or before the marriage or civil partnership.
Weightmans can offer expert legal advice on the above issues.
*all references to marriage also apply to civil partnerships.
Richard Leslie is a Consultant in the Wills, Trusts, Tax and Probate Team
Christmas, debt and the Family Court
As the festive period continues, many families will be stretching their finances to breaking point to pay for Christmas - with more than a third of Britons estimated to borrow money to pay for presents, according to a poll by the Money Advice Trust.
For any couple in the process of divorce, debts can be a tricky area. The way in which debts are treated by the Family Court will depend on a number of factors, as the court strives to achieve a fair solution for both parties. The name the debt is in bears little weight in proceedings as the Family Court has the power to allocate assets so that debts are fully accounted for when reaching a fair deal, but of course, creditors only have legal redress against the named debtor themselves, regardless of whether the family court has ordered both parties to contribute towards paying off a debt.
The Family Court will look at whether the debt is ‘matrimonial’ which would give it full status for consideration on a financial settlement on divorce. Key features of a matrimonial debt include:
- The debt has arisen during the course of the marriage
- Both parties would have been likely to have benefitted from it
In this instance it is arguably fair for them to share responsibility for its payment. However if a debt is ‘non-matrimonial’, perhaps arising prior to the marital relationship, it may be arguable that it is fair for the debtor to remain solely responsible for that rather than for both parties to be expected to share responsibility for it.
The purpose of the debt is also relevant. For example, where a wife has spent money on a credit card to buy Christmas presents for the family, it is likely to be classed as matrimonial debt that should be shared by the parties. But if a husband has incurred credit card debt buying diamond earrings for his new girlfriend, the court is, understandably, far more likely to make the husband take sole responsibility for that.
There can be occasions where a court deems expenditure to be so unreasonable that the money spent is ‘added back’ to the financial resources, meaning that on paper at least, there are more assets available to be divided by the court, usually in the non-spender’s favour. In order for this to apply, case law dictates that expenditure has to be ‘wanton’ and ‘reckless’ and as such, much more than the usual run of expenses. Expenditure has to be extreme in the context of the resources available to the family.
Specialist legal advice should be taken about debt and how it will be treated on divorce, and often importantly, what can be done to stop or reduce debt from continuing to be accrued. It is also important to seek help from experts about debt management/consolidation such as the Citizens Advice Bureau.
Matthew Taylor is a Solicitor in the family law team: email@example.com
Could a cohabitation agreement be the gift of peace of mind for unmarried couples this Christmas?
Many couples embrace the romance of Christmas and the New Year to move their relationship to the next stage, deciding to move in together. With the number of cohabiting couples having doubled over the last twenty years, it is more important than ever they understand their rights in the event of a relationship breakdown.
It remains a popular misconception, often erroneously promoted in certain aspects of the press and media, that once a couple have lived together for two, five or more years, they acquire the status of a ‘common law spouse’ and with it, financial remedies on separation arising from their relationship. This is wrong, and we, as family law professionals, continue to work hard to dispel that myth.
It is wrong to say that in all situations, a cohabitant has no legal rights in the event of a relationship breakdown, but the legal remedies are extremely restrictive and based solely on the law of property and trusts, rather than any element of fairness/discretion, as would apply on a divorce. Unless the couple start a family together, when a different legal regime applies to cater for the financial needs of any children (albeit the regime is not as generous as that on divorce), there is no obligation for one party to support the other with maintenance payments, and there may well be no recourse to any property/a home.
The court is unable to consider the financial and housing needs of the parties and cannot take into account non-financial contributions to the relationship, such as looking after the home or caring for any children of the relationship. This can leave one partner extremely vulnerable if the relationship subsequently breaks down. As there is no obligation for one party to support the other financially post separation, even if one partner has given up work to care for dependent children they would not be entitled to maintenance payments for themselves. They would be entitled to child support from the other parent if the children made their main home with them.
One partner can also be placed in a precarious position if the couple have been living in rented accommodation but the tenancy is only in one partner’s name. Similarly one partner can be left vulnerable if the property the couple have been sharing is owned in the sole name of just one of them. In such circumstances they would not have an automatic right to continue living at the property if their partner asked them to leave. Although they could apply to the court for what is known as an “occupation order” in certain, limited, circumstances, litigation can be expensive and there are no guarantees that any such application would be successful.
Many cohabitees are also unaware that they are unable to claim a share of any savings or assets held in their partner’s sole name which they have acquired out of their own money. This will include any pension assets the other party may have acquired.
For many separated couples, in the absence of establishing a claim, the economically weaker party, often the woman, can face a poor financial future, possible homelessness, a lack of pension and no income.
As mentioned above, the law may be more generous in the event of the parties having children, when an alternative legal regime applies.
It is prudent for all cohabitees to consider entering into a cohabitation agreement, if they have not already done so. Such an agreement can set out the couple’s intentions with regards to not only financial arrangements whilst they continue to live together, but also the ownership of assets upon separation. Couples deciding to purchase a property together should always explore the possibility of a declaration of trust defining each of their shares in the property.
Rachel Lim is Solicitor in the family law team
'Mad Friday' brings fears of spike in domestic violence call-outs
With the festive period in full swing, the emergency services are counting down the days until one of their busiest days of the year. Mad Friday is usually the last Friday before Christmas when businesses and offices break up for the holidays. This year it will fall on December 22 but with some businesses breaking for the holidays sooner, today - December 15 - is also expected to be busier than usual.
Mad Friday has traditionally seen a large increase in police callouts and A&E admissions. Last year police in Manchester expected more than £15m to be spent in bars, pubs and clubs in that night alone, while 2015 saw calls to police forces across the country increase by up to 50% compared to a normal weekend.
Any large-scale event involving an increase in alcohol consumption can have a corresponding effect on incidents of domestic abuse. Research by the Institute of Alcohol Studies has shown that up to 50% of domestic abuse perpetrators had been drinking at the time of assault, while cases of severe violence and rape are twice as likely as others to have links to alcohol abuse.
Victims of domestic violence have a number of legal routes to protect themselves from further attacks. The first port of call in the aftermath of an incident, or where a potential victim finds themselves in danger, should be the police. Criminal charges may follow and a Restraining Order can then be made restricting contact between the parties.
Where there are no criminal charges or where a police investigation is pending, the Family Court has the power to grant Non-Molestation and Occupation Orders. A Non-Molestation Order is similar to a Restraining Order and will commonly include provisions that someone should not use or threaten violence, harass or intimidate another. It can also limit communications between the parties.
An Occupation Order can be used to exclude a party from a property and restrict them from coming within a certain distance of a property. Both forms of Order will include a power of arrest so that criminal proceedings can be brought swiftly in the event of a breach.
Not all domestic abuse takes a physical form and the same orders can be made in respect of emotional, sexual or psychological abuse. If you are experiencing any form of domestic abuse, whether linked to the Christmas party period or not, you should consider contacting a Family Law solicitor for further advice about what can be done.
Matthew Taylor is Solicitor in the Family Law team at national law firm Weightmans LLP