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Is It Time For No Fault Divorce In England and Wales?

Of course, we are talking about the appeal of Mrs Owens before the Supreme Court in May this year against the decision that she be denied a divorce further to her divorce petition in 2015 citing the fact of her husband’s unreasonable behaviour.

In order to obtain a divorce in England and Wales an applicant (until recently known as the ‘petitioner’) must demonstrate to the Family court that the marriage has irretrievably broken down, and she/he does that by relying on 1 of 5 facts.

In a nutshell, these are adultery, desertion, 2 years’ separation with consent, 5 years’ separation or, in the case of Mrs Owens and countless other applicants, so-called unreasonable behaviour.

The situation as it stands is prescribed by the Matrimonial Causes Act 1973, and guides the Family court that it can only determine that the marriage has irretrievably broken down, on an unreasonable behaviour application for divorce, if the applicant satisfies the court that the respondent spouse has behaved in such a way that the applicant cannot reasonably be expected to live with the respondent (MCA 1973, s. 1(2)).

In Mrs Owens case back in 2017, the court was not so satisfied, and her divorce was refused by Judge Robin Toulson QC. Mrs Owens took her case to the Court of Appeal, to save herself from being trapped in what she described as a loveless marriage until 2020. The decision was upheld by the Court of Appeal, with the President of the Family Division, Sir James Munby, stating that the appeal judges were not prepared to interfere with the earlier decision.

We of course know that to establish unreasonable behaviour draws on both subjective and objective elements. The applicant must believe that the behaviour constitutes unreasonable behaviour to this standard but, with the word ‘reasonably’, comes a requirement for objectivity.

In Mrs Owens case, it was clear that the court expected a certain standard of ‘bad behaviour’ to have been reached to enable a successful petition and, even though Mrs Owens believed her husband’s behaviour was sufficiently bad to justify a divorce, the court decided that it was not.

So what’s left for Mrs Owens to do in this situation? She took her case to the Supreme Court and this was heard in May this year. If she is unsuccessful, she will have to wait until 2020 to rely on 5 years’ separation to obtain her divorce. All the while she continues to live separate and apart from her husband, whilst being denied the financial remedy she would have access to within divorce proceedings.

Resolution: First for Family Law, intervened in the proceedings, and are using the Owens decision to advocate ‘No Fault Divorce’. Nigel Shepherd, Resolution’s immediate past Chair, has said, “Owens v Owens must be the spark that ignites a fundamental change in our divorce law”.

Onions & Davies Solicitors is championing the cause and our family lawyers believe that it’s time for change.

Currently, if parties wish to divorce within 2 years, Resolution lawyers repeatedly find themselves in the paradox of helping their clients find a constructive, child-focused resolution to the end of the marriage, whilst having to justify the reason for the divorce to the court. It doesn’t take much to see the merit in a system which takes the blame away.

However, even if Mrs Owens is successful, this will not ‘end the blame game’. We need Parliament for that. It’s just a step closer in the effort towards a system of no-fault divorce – what Resolution is calling ‘a better way’.

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Conveying property in this country ‘doesn’t need to be a labyrinth’ says Law Society President Joe Egan, when commenting on the Ministry for Housing’s ideas as to improving the buying and selling process.

In his office as Communities Secretary, Sajid Javid said that he wanted to make it ‘cheaper, faster and less stressful’, and few would disagree with this comment when moving house has notably been ranked up there with divorce as one of life’s biggest stresses.

So how could this be achieved?

One of the proposals put forward has been e-conveyancing. A concept that would see technology picking up the pace of the transaction, with assistance from other facilities such as digital signatures, and easing the process for verifying ID. On the face of it, the benefit looks clear, with many of our clients living a distance from our offices and perhaps abroad, and with the hassle that producing up to date ID can cause, especially for repeat clients.

Another has been an emphasis for the seller to provide more information upfront. Haven’t we seen this before? We await to see how much information the Ministry for Housing would be expecting sellers to provide, in the wake of the failed HIPs initiative.

Given the doctrine of Caveat Emptor (‘Buyer Beware’), there continues to be, and quite rightly in our view, a reluctance for conveyancers to act for both buyers and sellers. Whilst conveyancing is essentially non-contentious, both parties need to have confidence that their interests are properly represented.

So, it is very much a work in progress but one that we are keen to embrace at Onions & Davies Solicitors, recognising the need to move with the times to meet the best interests of our clients, whilst continuing to protect their interests.

For help with buying or selling a property, call 01630 652405 and speak to Lisa in our Property Team.

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A recent survey by Legal & General found that the total amount of lending by parents to enable children to buy property is £6.5 billion. This makes the bank of mum and dad the ninth largest lender in the country!

Over a quarter of all property transactions involve the use of funds from friends and family.

Naturally, parents (or as is often the case, grandparents) wish to use their resources to help the younger generation get on to the property ladder. This has become more and more common, as the cost of borrowing from the usual high street lenders is so high and their criteria for lending has become so strict. But what are the advantages and disadvantages of these arrangements?

This can depend on whether the parents make a gift or a loan or decide to own a share of the child’s property.

Gift

A gift keeps things clean, in that, there is no ongoing tie between parents and child but there are implications for both.

If they all fall out, is there an expectation that it should be repaid? Is the gift to just the child or the child and their spouse/partner (who may later separate)? Is it fair to the other children?

A gift has implications for the amount of inheritance tax that has to be paid when someone dies and this can affect not only the person who has made the gift but also the person who has received it.

Loan

If it is a loan, what are the repayment terms? Is it subject to interest (this could be taxable income in the hands of the parents) and at what rate? When should it be repaid and should this be as one lump sum or in instalments? What happens when one or other of the parties dies?

A loan should be protected by a charge registered against the title to the property. This may cause problems if there is another lender involved – a commercial lender would expect a first charge, which would take precedence over the parents’ charge, and the lender may impose certain conditions or try to insist that it is a gift and not a loan.

Neither a Gift nor a Loan

The parents may decide that they would want a share in the ownership of the child’s property. This should be protected by a declaration of trust, setting out what percentage share each of the parties has. But what about further expenditure on the property – who pays and who benefits, because if it increases the value of the property, the value of each party’s respective share will change? Does this need recording and would further professional valuations be required?

Who is to be responsible for the usual outgoings: utilities, repairs/maintenance, insurance and council tax? Usually, the person occupying the property – the child, but the parents would want to make sure that there is adequate insurance protecting their interest, in case the property burns down for example.

This option could create a Stamp Duty Land Tax problem though, as there is now a higher rate SDLT charge for people who buy a second (or subsequent) property. A share in a property counts just as much as owning a separate property does.

The same applies to Capital Gains Tax and so, when the child sells the property at a later date and the value of the parents’ share has gone up, there could be tax to pay.

For all of these options, what control do the parents have on who lives at the property with the child and what security of tenure they may obtain? For example, the child may bring in a new partner.

It is vital for both parents and child to make a Will in these circumstances. A Will controls what happens to a share in a property and it can include such things as a right to live in the property, the cancelling of a loan and the balancing out of an estate to produce fairness amongst all the beneficiaries.

With so many things to consider in an arrangement such as this, it is vitally important that expert advice should be obtained before committing to anything. A detailed and transparent plan should be produced and discussed with all parties and it is likely that each ‘side’ should obtain their own independent legal advice on the final arrangements.

Chris Milne, who heads up our Private Client department, works closely with our Property Team in these transactions, combining their expertise to ensure that our clients receive the best possible advice and that everyone’s interests remain protected.

It is best to be well prepared and properly advised. Contact Chris by email or call on 01630 652405.

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Solicitor, David Lago, talks about the organisation – Resolution – and what being a member means to him.

| Comments Off on Solicitor, David Lago, talks about the organisation – Resolution – and what being a member means to him.

Resolution provides a code of “good practice” for Family Lawyers, for dealing with client, the “other side”, and/or their solicitors.

It provides a professional and non-confrontational, and conciliatory approach to managing the process of Family Law issues whether divorce-related; cohabitation breakdown, children or financial/property issues.

Resolution provide an information and resources website for clients or parties as well as Family Lawyers involved in separation/divorce and above issues.  “I often refer clients to the Resolution website and it is a very useful resource”. (www.resolution.org.uk)

Resolution publish a professional “Good Practice” Guide for all aspects of our work.  Family Lawyers who follow the Code of Practice believe in constructive resolution of issues that arise when a couple or family split up.  This focuses attention on the best interests of the children, and an approach to Family Law that is sensitive, cost-effective and aimed to promote an agreed settlement of issues where possible.

“Being a proud member of Resolution provides me with an anchor for my professional role in giving advice and managing the process of a client’s case.  It may mean I sometimes give advice that a client is reluctant to hear; that I try not to exacerbate the anger or distress that come with relationship breakdown.

When a Resolution member on the other side, then I am confident we will both try to consider the parties and children involved and that respect for, or awareness of, their positions and circumstances is factored into discussion and advice with our respective clients.

Resolution has been a guiding light for all the years of my practice as a Family Solicitor.  My colleagues and I at Onions & Davies Solicitors abide by the Code of Practice and offer our clients a non-confrontational, calm and rational approach to resolving their issues.”

For an appointment with one of our Family Lawyers at Onions & Davies Solicitors, please contact Sharon on 01630 652405 or send an email

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Protecting Your Assets Against Your Children’s Divorce.

| Comments Off on Protecting Your Assets Against Your Children’s Divorce.

The purpose of this article is to show how you can use Trusts, either within your Will or set up in your lifetime, to protect assets that you wish to leave to your children but which you would not want to be the subject of a divorce settlement.

Recent figures from the Office for National Statistics show that the divorce rate rose by 5.8% in 2016, with 8.9 divorces for every 1,000 same-sex couples. The increase is mostly due to more people of an older age getting divorced. The average age is now 46.1 for men and 43.7 for women, having increased every year since 1985.

Here at Onions & Davies Solicitors, we have an experienced and approachable family law team that can advise on all issues surrounding divorce, the division of assets and arrangements for children. If this is relevant to you or your children please contact David Lago on 01630 411223 or email.

Is your child going through a relationship break-down at the moment or considering divorce? Do you fear that this could be the case in the future? Putting assets that you would otherwise leave to that child in a Trust would protect them and would provide opportunities to benefit them (or perhaps their children) in other ways. When all danger has passed, the assets can be released and the Trust can be wound up.

There are many forms of Trust. They can be used for a multitude of purposes, including;

  • Saving tax
  • Protecting assets from payment of care fees
  • Keeping control of assets while removing value from your estate
  • Providing the flexibility of a range of beneficiaries, who you can choose between at a later date
  • Protecting assets for disabled beneficiaries, whilst not making them lose state benefits
  • Controlling how assets are used for wayward beneficiaries
  • Protecting assets from situations such as divorce and bankruptcy

Chris Milne, a full member of the Society of Trust and Estate Practitioners, specialises in this area. If you would like further advice on how Trusts may help your own situation or that of your family members, then please contact him on 01630 411221 or email.

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