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- Do you have properties that you own which are used within a business?
- Have you considered how your business partners will buy out your share and run your business on your death?
- Do your company documents state what happens on the death of a business owner?
- Have you got large cash reserves?
Business owners have so many taxes and rates to think about: income tax, capital gains tax, corporation tax, National Insurance contributions, VAT etc. It is not surprising that Inheritance Tax is often the last tax on their minds. In addition to which, businesses often use land and buildings that are owned by individuals and there can be significant cash reserves on the balance sheet. All of these factors make it increasingly important for business owners to review the business assets when considering mitigating Inheritance Tax and succession planning.
Business Property Relief (BPR)
BPR is the first relief that comes to mind when contemplating mitigating Inheritance Tax for business owners. It was originally designed to enable family firms to be left to younger generations when the major shareholder or business owner dies. When you consider the value of businesses, and the fact that Inheritance Tax is levied at 40% over an individual’s nil rate band, maximising BPR becomes a vital consideration for business owners to ensure the survival of the family business.
People often presume that BPR means that no Inheritance Tax is due on their business when they die, but this is not always the case. The general rule is that 100% BPR is available for a business, an interest in a business or shares in an unlisted company. However, it is important to review what your business does and there are important exceptions to this general rule that need to be understood.
Business owners need to appreciate that some business assets do not qualify for the full BPR relief. If the deceased owned shares that control more than 50% of the voting rights in a listed company or, more importantly, if land, buildings or machinery were owned by the deceased and used in the deceased’s business, then only 50% BPR is available. It is therefore essential to check the ownership of property used in a business because if the deceased owned the land or buildings, rather than the company, then only 50% BPR is available and there could be a sizeable Inheritance Tax liability.
In addition to the above considerations, BPR may not be available at all in the following circumstances:
- If the business asset was not owned by the deceased throughout the two years immediately preceding the death;
- For excepted assets – those assets not used “wholly or mainly” for the purpose of the business;
- If there are substantial cash balances which are not required for an identifiable future business purpose;
- If a business mainly deals with securities, stocks or shares, land or buildings or in making or holding investments;
- If a company is subject to a contract for sale or is being wound up; and
- Businesses who are not-for-profit organisations.
All business owners should think about succession planning and no-one should take Inheritance Tax reliefs for granted. We recommend that business owners regularly review their situation with the assistance of professional advisers. If you need legal advice, Everys’ Corporate and Private Client teams can help you. We work closely together to put the correct paperwork in place to mitigate Inheritance Tax as far as possible, whilst ensuring that your business can continue to operate after your death.
From the 6th April 2017 there were changes to the amount a person can own on death before inheritance tax is payable.
Previously an individual could own up to £325,000 before inheritance tax was payable on their assets when they die. Where they gift everything to their spouse and have not made any gifts to others during their lifetime, then on the second spouse’s death their assets can be worth up to £650,000 before inheritance tax is payable. This is called the transferable nil rate band. Thereafter at present everything above this will be taxed at 40% (except assets that qualify for relief such as business or agricultural property).
From April this year a new residence nil rate band was added to benefit married couples, civil partners and families. In addition to the transferable nil rate band, a person can benefit for more relief from the value of a property that they lived in at some point and is gifted to one or more direct descendants on death. This can be children, step children, grandchildren and great-grandchildren for example.
The maximum amount allowable under this legislation will be phased in as follows:
- £100,000 for 2017 to 2018
- £125,000 for 2018 to 2019
- £150,000 for 2019 to 2020
- £175,000 for 2020 to 2021
So added to the current £650,000, a couple’s Estate could be worth up to £1 million in 2020 before inheritance tax is payable on their Estate.
For those with assets over £1 million, unmarried couples or people not leaving their estate to direct descendants, other tax planning options may be available to them.
To make sure that a family benefit from the greatest tax free advantage provided under the new laws, careful planning is required both in relation to their Wills and lifetime tax planning. We would therefore advise that you speak to Everys to make sure that your affairs are in order. After all, where we leave our Estate to our families, we want to make sure that they receive as much as possible to help their future.
Disclaimer: This article is not intended to constitute legal advice. For legal advice in connection with the above, please contact us directly.
Up until 9th October 2007, it was common for people to have Nil Rate Band Discretionary Trust Wills drawn up as a form of tax planning for the family.
The idea of these wills is that everything up to the inheritance tax threshold on the first to die passes into a Discretionary Trust. The funds in this trust are then held by the Trustees on benefit for the survivor and other beneficiaries such as the deceased’s children and grandchildren. The funds in the Trust usually comprise a half share of the matrimonial home and any sole accounts held by the deceased. Joint accounts will pass automatically over to the survivor.
When the second spouse dies their assets would generally be the remaining half share of the property and their own sole accounts because the other half is still in trust. This should then mean that the second spouse’s estate falls below the inheritance tax threshold thereby saving inheritance tax on their Estate.
From October 2007 the government introduced the transferable nil rate band which meant that where a person leaves their estate to their spouse, then the survivor can benefit from an additional allowance which can be up to double the inheritance tax threshold. Therefore on the first death, the estate should be exempt for inheritance tax purposes because it is passing to a spouse, and then on second death the surviving spouse can have up to £650,000 before any inheritance tax is payable.
In addition there is a Residence Nil Rate band allowance for the family home which from 2020 can allow a married couple (or civil partners) who gift their property to direct descendants (children, step children, adopted children are some that are included) to benefit from an additional allowance of £175,000 each so that a married couple with children could have an Estate up to £1 million before any inheritance tax would be payable.
These changes mean that these type of Wills are not always needed for tax planning purposes. However they can have their own benefits to protect assets for future generations.
Depending on your circumstances it might be that a type of Life interest or a full Discretionary Trust might suit your needs. You may prefer to get rid of the Trust altogether and have simple Wills prepared.
As such the best option would be to speak to one of our specialists who will provide you with the best options for you and your family.
For more information or some preliminary, confidential advice contact a member of our Private Client team in your local office.
With expert knowledge gained over a 30 year career, Alison Jessop is the person you need to speak to when it comes to matters of income and capital gains tax. She is an accomplished tax consultant and a specialist in minimising tax liabilities for individuals, trusts and estates.
Alison’s experience covers:
- Annual self assessment tax returns with online submission to HMRC;
- Annual reviews and income tax repayment claims;
- Annual trust tax returns;
- Capital Gains Tax calculations on the sale of shares and property;
- Agreement of tax position with HMRC to the date of death and tax
- returns where required; and
- Tax returns for periods of administration of an estate.
Many people nowadays are concerned that their assets will be diminished if they move in to a Care Home or Nursing Home in the future. According to Paying for Care* the average cost of a Care Home is £29,250 per year and if Nursing Care is required the average cost is £39,300 per year. In recent years there has been much media coverage advising people to give away assets in order to protect against these fees. The claim is that if you do not own sufficient assets in your own name then you will be assessed as not being able to pay your own fees and as such the Local Authority will pay these for you.
But what are the implications of giving away your assets? And what are the tax consequences of doing so? Here are a few frequently asked questions that we at Everys get asked and some information about the types of things you can do to protect your assets.
What assets are taken in to account when the Local Authority assess your ability to pay your own fees?
If you have capital over £23,250 you will be assessed as being able to meet the full cost of your care whilst in a home. Your capital includes things like the value of your home and the money that you have in your bank accounts.
What assets are disregarded for the assessment?
Your personal belongings which can include your car is generally disregarded, along with most types of income, for example your pension.
Can I give away my home to my children in order to avoid paying nursing home/care fees?
You can give away your home to whoever you like but there are some potential pitfalls of doing this. If you gift your property away then you no longer have control over it. This means that the new owners can sell the house whenever they wish and release equity from it without your consent. There can also be capital gains consequences when the new owner comes to sell the house if it is not their main home. If you give your home away and continue to live in it, the value of the house will also be included in your Estate for inheritance tax purposes – even though you no longer own it. You may also fall foul of the ‘deliberate deprivation’ of asset rules.
What is deliberate deprivation of assets?
If you give away your assets either outright or at an undervalue (i.e below the market value) and then subsequently go in to a home the local authority may make a finding that you have deliberately deprived yourself of your assets and as such use those assets in your assessment when deciding whether you can pay your own fees. When making a decision on this basis they will consider what your age and general health was at the time of making the gift.
So what can I do to protect my assets?
At Everys our advisors can help you plan for the future and provide you with advice in order to protect your assets from Care fees, Inheritance Tax and Capital Gains Tax through your Wills and through Trusts. Call us today for an appointment to see how we can assist you.
*A not for profit company. Research from Laing & Buisson Care of Older People UK Market Report 2014/15.
Buying in your sole name
For many people, a house is the most expensive asset they will ever own and buying one, especially for the first time, can be a daunting and stressful experience. In addition to the long checklist of ‘things to do’, it is important to remember to draw up or update your will at this time.
Once you have purchased your property, you will want to make sure that it passes to the right beneficiaries when you die – that your loved ones benefit from your property and money – so it is important that your will allows for this. If it does not, you run the risk of your property passing under the intestacy provisions which may not be in accordance with your wishes.
Buying in joint names
When buying your property with someone else, you need to be careful that your ownership of the property coincides with what is in your will.
If you are buying your property jointly with one or more people, the property can be held in two ways in law. The first as joint tenants which means that when you die your share of the property will pass automatically to the survivor and falls outside the terms of your will. The other is as tenants in common which means that each of the owners of the property has a fixed share; when they die that share passes in accordance with the person’s will, rather than automatically over to the other owners of the property. This distinction is important when considering who will benefit under your will.
Second homes and tax
You may have to pay capital gains tax when you dispose of a second home. The tax that will be payable will be dependent on the amount of ‘gain’ you have acquired from the date the property was transferred to you to the date you either sell it or transfer it to someone else. This includes business premises, buy to let property, inherited property and land.
The gain may be subject to certain reliefs such as Private Residence Relief if the property was treated as your main home.
There may be a way to avoid or defer the tax payable by gifting your property into trust and you should, therefore, discuss your options with a member of the Private Client department.
Buying with parents/children
Problems can occur when there is more than one person who owns the property. It might be the case that a parent and child buy a property together and the child lives in it whilst the parent lives elsewhere. In this instance, it is important to draw up an agreement about responsibilities for outgoings on the property and how it will be divided on sale if unequal contributions have been made to the purchase price. Please ask to talk to someone from our team about a Declaration of Trust if this applies to you.
Selling to pay care fees
If you need to go into a Care Home in the future, and have savings of less than £23,250 but you have equity in your home, your Local Authority can set up a Deferred Payment Agreement which can mean that you do not need to sell your home in order to pay for fees. However, they may charge interest on this and other legal and administrative fees can apply.
In some cases, it is necessary to sell a property to pay for care fees; however, there is some planning that can be done in order to avoid this such as gifting your property into trust in your lifetime or through your will. If you think this might be something you would like to consider, please speak to a member of our team.
If you do wish to sell your home, our Investment Managers can help you make decisions about investing the equity.
Gifts of property
You may wish to enquire about making a gift of your property to someone else. There can be tax implications in doing this as well as a risk to the receiver of the gift. It is important for us to look at your circumstances to advise you if this would be in your best interests. It might be, for example, that you wish to gift your property to your child to avoid complications when you pass away. If so, we would need to assess the implications for your estate, and your child’s, as it can be the case that if you continue to benefit from a gift then it is treated as part of your estate for inheritance tax purposes, even if you are no longer named on the title deeds. Similarly, there might be capital gains tax payable on this if it is owned as a second home by your child.
Our specialists in tax, trusts and wills can advise you to help you protect your assets for the future and guide you regarding this important decision.
Buying a property can give rise to many situations that you might need help with, and the examples above are just a few of them. Please speak to a member of our team today to see how we can be of help.
For more information, or advice please speak to a member of our Private Client Team.
The Government has recently announced that there will be a relaxation of the rules relating to the execution of wills. Jane Flaherty, Associate Solicitor at Everys and a fully accredited member of Solicitors for the Elderly, advises of the changes in the law relating to the witnessing of wills.
I made my first Will eight years ago, when times were simpler. My only concern was who would receive my David Campese-signed World Cup Final program and Fender Telecaster. Since then I have married, own a property with my wife and have two young children. There are now three people more important than anything else. More important than a Fender.
I want to ensure that if anything should happen that my wife and children are provided for and protected. However, if an individual dies without leaving a Will the Intestacy Rules apply. These are far from ideal in many cases.
Under the Intestacy Rules, if you die leaving a spouse and children, the surviving spouse will receive the first £250,000 from your estate outright, with an additional sum of half of the remainder. The other half is left upon trust for your children to inherit at the age of 18. Meanwhile, if you are unmarried at the time of death, the intestacy rules do not provide anything at all for the surviving partner, and the entire estate would pass to your children.
In the event that both spouses die, their estates would pass entirely to their children, but again to inherit at the age of 18. I, for one, would not have been in a position to handle a significant inheritance at this age, particularly following a potentially traumatic event. Furthermore, the intestacy rules do not automatically appoint guardians for children where both parents die. This can result in messy inter-family litigation, and the children may ultimately end up in the care of individuals you would not have chosen.
When parents of young children ask for my advice regarding their Wills, there are three things I ask them to consider. First, is the appointment of guardians. Many will wish to appoint siblings or parents, though you can appoint anyone to act in this position. It is also worth ensuring that the Executors and Trustees of your estate have the power to release funds to assist with the financial burden of acting as guardian.
The next will be the appointment of Executors and Trustees. These are the individuals who administer the estate and control the funds until such time as your children ultimately inherit. Though these can be the same people as the guardians, it is worth considering independent individuals, to ensure there is some neutrality in the management of the funds.
Finally, there is the age at which the children are to inherit. You can impose a specific age, such as 21 or 25. However, I often advise parents to consider the flexibility provided by a Discretionary Trust. Under a Discretionary Trust your trustees will have the discretion to decide as and when the beneficiary is to receive part of their inheritance. For example, part may be used at the age of 18 for University fees, part towards the purchase of a house at 23, and the entire amount at a time when they are more financially responsible. The trustees may also make a loan to the beneficiary for the purchase of a property, to help protect the inheritance from divorce or bankruptcy.
I am aware that becoming a parent is a life changing and financially demanding experience. However, a properly drafted Will is something else to add to the list of travel systems, stair gates, sleep suits, moses baskets and baby monitors.
If you are an expectant parent (or grandparent) and wish to discuss this further then please contact myself, Will Vine, or a member of our team from your local Everys office.
As a consequence of the continuing volume of high-quality work, an opportunity for an experienced fee earner has arisen in our Private Client Department. The role is likely to suit a STEP qualified experienced lawyer who is looking to take on and process an exciting client portfolio.
The successful candidate will be required to provide an important contribution to the work of the Private Client Department and be used to carrying out private client work at a technical level. They will also be required to support the ongoing development of the department’s activities and would be expected to contribute to the growth of client work and fee income.
The candidate will need to work effectively with clients and other members of the Private Client Department. They will also be expected to deal professionally and efficiently with a wide range of work whilst complying with procedures and working practices.
The candidate will need to be able to work confidently with minimal supervision. They may also be required to supervise, support, and mentor more junior members of the team.
- Working with HNW clients
- Good knowledge of trusts including administration and creation
- Tax planning expertise including BPR, APR, and foreign aspects
- Complex probates
- Advising on and preparing Wills, Codicils, and Lasting Powers of Attorney
- Providing inheritance tax planning and family succession advice
- Mentoring and supporting junior members of the department
Skills/ Knowledge/ Experience
You must be able to demonstrate the following:
- Experience of successfully working in a Private Client Department undertaking the work above
- Ability to meet deadlines and prioritise effectively
- Excellent IT skills including the use of case management software and Excel
- Ability to produce work that is accurate and presented in a well-ordered manner
- Excellent organisational skills
- Clear, concise, and effective written and verbal communication skills
- Demonstrate ability to follow procedures in accordance with professional body requirements (for example Lexcel compliance) and firm’s internal procedures, together with meeting all compliance and quality targets
- Excellent communication and relationship management skills with a focus on developing and maintaining professional and effective client relationships at all levels
- A flexible approach and the capability to work well and flourish within a team environment
- Ability to work effectively with other colleagues internally, both within the wider team and across all practice areas and offices
- A flexible and enthusiastic approach, which demonstrates commercial awareness and business aptitude in making decisions on a day-to-day basis
Everys has a flexible approach and we are interested in applications relating to any of our offices. Although office-based to start with, once the successful candidate is familiar with our working practices, remote working combined with some office time each week is also available.
This is an excellent opportunity to become an integral member of our Private Client Department and to thrive in a professional and friendly environment. If you are looking for a new challenge please send your CV and a covering letter to email@example.com.
The first Autumn Budget to be delivered on a Monday since 1962. Philip Hammond began his speech with a promise of ‘a Budget for Britain’s future’.
Below is outline of the Budget announcements:
- Increasing funding to help department prepare for Brexit to over £4 billion
- £20.5 billion more for the NHS by 2023-24
- Increasing mental health funding by more than £2 billion a year by 2023-24
- £650 million for social care funding next year
- £1 billion extra for defence over the next 2 years
- An additional £160 million of Counter Terrorism Police funding for 2019-20
- Up to £19 million to commemorate the Centenary of the WWI Armistice
- £10 million for air ambulance services in England
- £400 million extra for schools this year
- £30 billion to improve roads, including £420 million to Local Highway Authorities (tackle potholes, bridge repairs and other minor works).
- £1.6 billion to fund advanced technologies like nuclear fusion and quantum computing
- Increasing the Annual Investment Allowance to £1 million (from 1 Jan 2019 – 31 Dec 2020)
- Increasing UK Export Finance’s direct lending facility by up to £2 billion
- Digital tech giants will be taxed 2% on the money they make from UK users
- £1.5 billion to support local high streets (including 1/3 off business rates for small retailers)
- £5.5 billion for the Housing Infrastructure Fund (to support the building of 650,000 new homes)
- £950 million more for the Scottish Government (£150 million for a Tay Cities Deal)
- £550 million more for the Welsh Government
- £320 million more for a Northern Ireland Executive
- £12 million over the next 3 years for cutting edge fisheries technology and safety
- Consulting on a plastic packaging tax for April 2022
- Freezing fuel duty for the ninth year in a row (saving the average driver £1,000 since 2010)
- Freezing duty on beer, cider and spirits
- Air Passenger Duty on short-haul flights will not rise
- A new Railcard for all young people aged 26-30 by the end of this year
- Increasing all existing Universal Credit work allowances by £1,000 a year, and supporting claimants moving onto Universal Credit
- The National Living Wage rises to £8.21 per hour from April 2019
- Increasing the tax-free personal allowance to £12,500 in April 2019
- Increasing the higher rate threshold for income tax to £50,000 in April 2019 (1 million fewer people will pay the higher rate than in 2015/16
- New commemorative 50p Brexit coin from Spring 2019
For more information visit – https://www.gov.uk/government/news/budget-2018-24-things-you-need-to-know
Charlotte Thomas-Collins is a Senior Associate and Head of the Private Client department based at Exmouth.
With over 12 years’ experience in private client matters, Charlotte’s expertise lies in elderly and vulnerable care; tax; trusts and succession; and trust creation and administration. Described as “charming in manner”, “courteous” and “warm” by the Legal 500, Charlotte’s approach to her work particularly suits her elderly and vulnerable clients whom she often visits at their home or our other offices. Charlotte also acts for clients in relation to their wills, probate, lasting powers of attorney, and estate planning.
Charlotte graduated in law from Brasenose College, Oxford and qualified as a solicitor in 2006. She is a member of the Society of Trust and Estate Practitioners (STEP).
Nicola Grant is a Chartered Legal Executive dealing with all types of civil litigation disputes and claims, including wills/estates/inheritance disputes, property disputes (including boundaries and other neighbour disputes), contract and tort disputes. She also deals with employment law matters for employers and employees, including advising on settlement agreements, disciplinary matters, dismissal, policies, and procedures.
Nicola joined Everys in August 2021 and is based at our Taunton office, although she is happy to travel to see clients at any of our West Country offices. Prior to joining Everys, Nicola spent four years in a similar role at another well-respected regional firm. Nicola has worked in law firms in Somerset since 2009, after having spent a short time living abroad. Before that, she worked in local government for 15 years as a Trading Standards Officer, and latterly as a Licensing Officer dealing with the implementation of new liquor and public entertainment licensing laws in the early to mid-2000s.
Nicholas Strong is a highly experienced Chartered Legal Executive with over 30 years’ practice. He joined Everys in 2002 and specialises in probate matters. Nicholas is skilful in resolving complicated issues, especially those arising out of intestacy. His diligence ensures that the estate is administered according to best practice including finalising tax affairs, arranging for the tax due on an estate to be paid, preparing the accounts for the estate and distributing money or gifts due to beneficiaries.
Nicholas is a Chartered Legal Executive (a practising fellow of the Chartered Institute of Legal Executives).
Joan Pullin is an Associate who specialises in a variety of private client work including advising on and drafting wills, Lasting Powers of Attorney and Enduring Powers of Attorney. She also acts for executors in relation to estate administration and can assist with applications for BPR and APR as well as advise in relation to deeds of variation.
Although based at Honiton, Joan is happy to travel to see clients at any of Everys’ offices or their homes, if this is preferred.
Joan studied at the University of Southampton and at the College of Law in Guildford. She was admitted as a solicitor in 2013 and is an associate member of the Society of Trust and Estate Practitioners.
Sue is a Trust Manager based in our Sidmouth office.
Sue joined Everys in September 2015 having gained her trust experience over many years at a London based international tax advisory company. She has a wealth of experience in setting up and administering trusts and companies in various jurisdictions worldwide. She specialises in administering various types of trusts including charitable, discretionary and life interest.
Rural economies throughout Europe, not just the UK, have been neglected politically for years, and the people living and working in them are angry and upset for having been ignored. From Brexit in the UK, the “Gilets Jaunes” movement in France and the Five Star government in Italy, to the growing tensions in Spain, Austria, Germany and Eastern Europe, the status quo has been rejected.
From the UK perspective, there will be change. That much is clear from the Agriculture Bill, Environment Bill and the Stacey Report, which sets out the direction of travel the government has in mind over the years to come.
It’s up to us, collectively, to fight these inequities (and many more besides) and force the government to listen and act. Everys created a series of podcasts with farmers, rural businesses, scientists and others, so that we can all learn more about each other’s businesses, share ideas and support what we all demand.
Making these podcasts has been both fun and informative. Everys is also supporting the Sustainable Food Trust where it can, particularly in its campaign to halt the decline of small, low throughput abattoirs. Its reports make the case for changes to farming that, by and large, we all support. The link to their website is set out below.
There are six podcasts for you to listen to:
- Sally and Roger Maynard farm near Exeter. They describe how they diversified their farming operations over the years into, amongst other things, the outdoor toy business, and discuss the important business principles that they consider key to success.
- John Coles describes how he diversified into the meat trade, establishing a low throughput abattoir on his farm. There were 200 when he started 40 years ago; only four remain. The rapid decline in the number of small abattoirs is putting the niche, high-quality livestock producer out of business.
- Steve Williams and Pete Woodham-Kay started a charcuterie business just over four years ago in Steve’s garage. They now have an industrial unit full of equipment required to cure, using “only salt and natural Exe and Clyst Valley air”.
- Andrew Parr is the fifth generation to run the family’s oak bark tannery business in East Devon – the last oak bark tannery in the whole country. At the beginning of the last century, Devon had 160 such tanneries. Andrew supplies top quality leather to the Northampton shoe industry, saddlers and the French and Italian fashion houses.
- Professor Michael Lee runs Rothamsted Research at North Wyke near Okehampton and he cogently sets out the scientific case for both keeping red meat as part of our diet – although less of it – and for drinking more milk. Indeed, he believes that the decline in milk consumption is already having profound effects on our health.
- Catherine Broomfield writes for the farming and national press about countryside matters and argues that the Agriculture Bill will only work if every element of it is implemented.
Sustainable Food Trust – https://sustainablefoodtrust.org/
Who should pay for what in the immediate aftermath of a break up?
There are no rules as to who should pay for what in the immediate aftermath of a break up. Initially it is usually best to continue as you were whilst you are sorting out the new arrangements.
If one party has moved into new accommodation, then the joint income which was paying for one household and all bills, now needs to pay for two households and all bills. It will be a financial calculation in each case as to who can afford to pay for what. If one party is the higher earner, and they have moved out of the family home, they may well be expected to continue to make a substantial contribution to the running of the former family home.
Any extras such as gym membership should be made by the party that it will benefit.
In the longer term an agreement will be reached as to whether one party needs to pay spousal or child maintenance to the other.
What is financial disclosure and what information am and I my partner expected to share?
Financial disclosure is information about all capital, liabilities, income, expenditure and pension provision that a spouse may have.
Both spouses are required to provide this information to each other and to provide documentary evidence in support.
The purpose of disclosure is so that both parties are aware of the true financial picture of the marriage and both parties can then negotiate a fair settlement based on what is available for division between them.
The situation is slightly different if you are cohabiting. Then you need to discuss the assets and liabilities which are in your joint names.
How can a solicitor help to decide what is a fair settlement?
Once full financial disclosure has been exchanged it is not as straightforward as working out what there is and dividing it equally between you as you may have different needs and resources and lots of factors need to be weighed in the balance.
The welfare of any children you have will take priority and the following factors are also considered by the court and guide our advice on parameters for settlement:
- The length of the marriage: the longer the marriage the stronger the likelihood that the assets will be divided equally
- Your ages: needs will correspond with the stage in life of each of you
- The reasonable needs of each of you: this is loosely based on the standard of living you enjoyed during the marriage although it is important to remember that when the money is divided between two households it will not go as far
- The resources of each of you: this includes not only the assets, pension and income you have now but also your earning capacity (which may not be maximised currently) as well as mortgage capacity
- Contributions made by either of you: A significant contribution to the marital assets made by one of you (for example, property brought into the marriage or an inheritance/gift received at any time during the marriage) – this will be more likely to be ring-fenced if it has been kept completely separate or the marriage was short.
- Any health issues
- Any pre/post nuptial agreement you entered into
- Benefits which either of you could lose as a result of the divorce (such as widow(er)’s pension benefits)
Taking into account all the factors, a solicitor can then advise on what might be a fair settlement in your particular circumstances. It should be a settlement that meets the needs of all parties, particularly the needs of the children.
Again the situation is different if you were cohabiting. In that case, none of the above factors would matter. It would be a case of who owns what and whether each of the parties have an interest in the assets.
Who decides what level of maintenance estranged partners must pay?
There is a calculation which sets out what level of child maintenance should be paid which is based on income of the party paying. There is a helpful calculator on the Gov.uk website which does the calculation for you. This would apply whether you were married or cohabiting.
Spousal maintenance will depend on the needs and resources of the parties. If one party has been a stay at home parent, then it is likely that spousal maintenance will be paid by the other party. Spousal maintenance can be for a limited term, or it can be for an unlimited term. There is no set calculation, unlike for child maintenance.
How are pensions divided on divorce?
Pensions are just part of the matrimonial pot which are to be divided on a divorce. There are various ways in which pensions can be included in a settlement:
- Pension Offsetting – this is where one party elects to receive more capital rather than a share of the other’s party pension.
- Pension Sharing Order – this is where the pension pot is divided between the parties in the agreed shares. The party who is receiving the pension sharing order will elect their own pension to have their share paid into, and then each party has their own pension. This therefore results in their being two separate pension schemes which are not related to the other.
- Pension Attachment Order – this is not a very popular as it means that the party keeps their pension, and on their retirement, the pension company will pay an agreed percentage each month to the former spouse. The problem is that if the person with the pension should die, then the former spouse does not receive anything.
It should also be noted that if the value of the pension pots are “shared” equally it does not mean that each party will receive the same income. Income is calculated by a pension actuary, and generally the same pension pot will lead to a smaller income for a woman than it would for a man. If parties are trying to achieve an equal income in retirement, then an actuary will need to produce a calculation to state what percentage one party might need to receive.
Who keeps the house?
Who keeps the house is just one of the factors to be considered when determining what is a fair settlement in a divorce based on all the other factors that must be considered, as set out above. It cannot be considered in isolation without reference to the other assets, liabilities and pensions that the couple may have. The key issue to determine whether the house is kept by one party, or sold is usually the needs of the children. However keeping the house must also be financially affordable. It is often common that the sale of the house is postponed until the children have finished school or until the spouse remaining in the home remarries or cohabits. At that point the house would be sold and the equity divided.
If you are cohabiting, then it would depend on who owns the house. If the house is in one of the party’s sole name, then they will retain the house. If the house is in joint names, an agreement would need to be reached as to who will buy the other’s interest in the house or whether the house is sold and the proceeds split.
For more information, or some preliminary confidential advice contact a member of our Family Team from your local office.
Eleanor Weller is a solicitor in our Private Client Department, having joined Everys in 2018. Her work includes Wills, Powers of Attorney, probate and estate administration, as well as Court of Protection matters.
Eleanor has a background in Mental Health and Mental Capacity Law, having previously represented people detained under the Mental Health Act and dealt with proceedings before the Court of Protection. She therefore specialises in dealing with vulnerable people and capacity issues and also has an interest in advising those acting under a Power of Attorney.
Eleanor is based in Taunton but is happy to meet with clients at home or at our other offices.
Eleanor studied law at Cardiff University and is an accredited member of the Law Society’s Mental Health Scheme.
EVERYS SOLICITORS’ EMMA GRAY APPOINTED DEVON & CORNWALL REGIONAL CO-ORDINATOR OF SOLICITORS FOR THE ELDERLY
Solicitor Emma Gray, of Everys Solicitors in Honiton, was appointed as Regional Co-ordinator for the Devon & Cornwall region of “Solicitors for the Elderly” (SFE) in June 2018.
Established in 1996, SFE is a national network of highly skilled lawyers providing legal services and expert advice on Powers of Attorney, Living Wills, tax planning, funding for social care and many other related issues, specifically for the elderly and vulnerable. Prior to joining SFE, as well as being fully qualified solicitors who spend 50% of their time on older client law, potential members must obtain both the ‘SFE Older Client Care in Practice Award’ and the ‘Older Client Law in Practice Award’. These develop the soft skills necessary for dealing with elderly and vulnerable clients which includes understanding the issues affecting health and wellbeing in later life, as well as being able to detect elder abuse such as when a client is being coerced. As a benefit of the membership, SFE ensures its members are kept fully abreast of the latest developments through newsletters, updates, on-going training and events.
As a Regional Co-ordinator, Emma Gray is the main point of contact for Devon and Cornwall and links in with the national group. Together with the support of the Devon and Cornwall committee, she ensures that information is communicated to the local members through meetings and training sessions provided by experts in the field of elderly client legal services. As well as being responsible for running the local branch, and being a key contact for legal advice in this area, Emma is a local ambassador for SFE; raising awareness of elderly client issues with local organisations.
Emma said: “I have been a Dementia Friend for a number of years and have, unfortunately, both been a carer for a family member and suffered the heartache of bereavement. My new role as Devon and Cornwall Regional Co-ordinator gives me the opportunity to continue furthering the legal knowledge and understanding of all the issues surrounding the elderly and vulnerable within our community.”
Everys Solicitors is an independent law firm with recognised expertise in legal issues affecting the elderly and vulnerable. With Emma’s new appointment, clients can have the confidence that Everys has the specialist knowledge and skills required to handle their case with sensitivity and professionalism.
Tel: 01404 540941