Co-habitation … What Are Your Rights?

Co-habitation … What Are Your Rights?

The biggest misconception most couples have is surrounding the rights that they may have against their partner if they are cohabiting and are not married.

A recent survey carried out by National Centre for Social Research, released in January 2019, confirmed that “almost half of people in England and Wales mistakenly believe that unmarried couples who live together have a common law marriage and enjoy the same rights as couples that are legally married.

“The first findings from this year’s British Social Attitudes Survey reveal that 46% of us are under the wrong impression that cohabiting couples form a common law marriage – a figure that remains largely unchanged over the last fourteen years (47% in 2005) despite a significant increase in the number of cohabiting couples. In contrast, only 41% of respondents rightly say cohabiting couples are not in a common law marriage.

“Responses to the question show that people are significantly more likely to believe in common law marriage when children come into the equation; 55% of households with children think that common law marriage exists; only 41% of households without any children do so.”

This is simply not true: if you are not married, then you are not in a common law marriage and you do not have the same rights as those couples who are married.

So what happens if you are not married?  Currently, in  England and Wales there are no laws in place setting out what rights/claims cohabitees have against their partner if they separate (this is different in Scotland).  It does not matter how long you have been together, or how many children you may have together, the basic point is that you have no automatic rights to make a claim against your partner.  This is often a surprise to people when they come and see us, expecting us to advise them that their partner has a duty to provide them with financial support following the breakdown of their relationship (which may be the case if you are married).

The reality is that there is no one law which sets out a cohabitee’s rights.  There are lots of different laws which deal with different issues.

If you are living with your partner in a house, you need to check how you own it.  Do you own it jointly, does your partner own the property outright, or do you own it?   General property laws apply to the ownership of the property.  If you own it jointly, the position is more straightforward.  But what if you live in your partner’s property, can you make a claim?  It depends on whether you have made a financial contribution to the property, which might be a contribution to the purchase price, a contribution to the mortgage payment, or a contribution to any works carried out on the property.  If you have, then you are likely to have an interest in the property.  If you have made no financial contribution to the property, it is unlikely that you would be able to claim a financial interest in the property.

Does it make a difference if you have children together? In short, the answer is no.  As there are no laws in place protecting cohabitees, and strict property law applies, it usually is not a relevant factor that you have children together.  That does not give you a claim against your partner’s property.  It will give you a claim for child maintenance, and you might have a claim under the Children Act to claim some financial support.  This might be in the form of school fees payments, or a lump sum to cover a specific requirement that the child may have.  It can cover a property for a child, but it is important to note that the property does not belong to the child, it remains the property of your former partner, and they only have to provide a property for you and the child to live in until the child reaches their majority.  Therefore it is not the same as a divorce when, for example, a property is transferred to the wife outright.

Is there anything you can do to avoid these issues?  Yes.  At the beginning of the relationship it is advisable to enter into a cohabitation agreement which sets out the expectations of the parties at that stage should the relationship breakdown in the future.  This can be what might happen to the house, whether one party can stay in the house with the children until a specific date or what each party will receive from the net proceeds of sale.  Whilst it can be depressing to think about the end of the relationship at the beginning, it is better to have the discussion then, and not when you are in the middle of the breakdown of the relationship.

For more information, or preliminary, confidential discussion please contact our Family Team.

Article written by Emma Benyon-Tinker, Associate in our Family Team.

Cohabitation Rights

Cohabitation Rights

Cohabitation Rights Posted on 7th April, 2021 By Moira Reynolds Cohabitation is a term used to describe two people who are in a relationship with each other and are living together but who are not married. There is no such thing as a ‘common law...

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Mark Wilkins

Mark Wilkins

Specialising in the music, digital and tech industries, Mark is a seasoned entertainment lawyer who aims to protect his clients’ rights and revenues through tough negotiations and careful Intellectual Property management. This is particularly crucial for recording artists and songwriters in the era of the “360 degree” deal that has meant that artists are having to cede a wider range of their rights and revenue streams, such as recording, merchandising, digital rights, touring and publishing to a single company or group of connected companies. Mark seeks to ensure that his clients retain as much control over their rights and consequential income as is commercially feasible.

Mark helps early post-revenue businesses obtain finance through his wide connections in the corporate finance and venture capital sectors. Mark’s network of investors are actively seeking to assist in the expansion of those tech and online businesses benefiting from rights acquisition, management and exploitation that operate in industries including music and media.

Mark works as a Consultant Solicitor for Everys and acts for creative and corporate clients on deal negotiations, drafting contracts and managing the licensing of a variety of Intellectual Property rights.

Co-habitation Agreements

Co-habitation Agreements

Family LawCo-Habitation Agreements Regardless of how long a couple has lived together, and whether or not they have children within that relationship, English and Welsh Law does not recognise co-habitation as being of equal status to marriage and, therefore, does not...
Property

Property

Home 9 Search query for: co-habitation-...-what-are-your-rights PROPERTY YOUR EVERYS EXPERTS Buying a house is probably the biggest financial investment of your life. Whether you stay there for a few years or forever, it is going to be your home. You do not want...
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International Women’s Day

International Women’s Day

Every year for the past 110 years, there has been a day dedicated to bringing awareness to the rights of women.  It is only since 1975, though, that the United Nations recognised the day and adopted 8th March as International Women’s Day (IWD).  Each year since, the UN has promoted a different theme for IWD and this year’s is #BalanceforBetter which is about creating a more gender balanced world in all aspects of life: education, health, work, pay, politics etc.

It all began in 1908 when a march was organised in New York which saw 15,000 women demand better rights.   The following year, the Socialist Party of America established “Women’s Day” on 28th February, 1909, and on 19th March, 1911, it became known as International Women’s Day with the date later changing to 8th March in Germany in 1914.  On that same day in 1914, there was a march in London in support of women’s suffrage, and in Petrograd, Russia, women textile workers went on strike, demonstrating in the streets.  Thereafter, 8th March became associated with International Women’s Day (IWD).

Probably because of its socialist beginnings, prior to 1975 the day was mostly observed by communist countries and socialist communities but that all changed in 1975 when the UN took up the mantle due to it being International Women’s Year, and now there are many events held throughout the world celebrating the day.

Although women’s rights have come a long way in the last 100+ years, change has been slow and there is still a considerable way to go.  According to the World Economic Forum’s Global Gender Gap Report 2018, it will take the original 106 countries (that have been included in the report since it began in 2006) 108 years to close the gender gap in all areas.  The UK, however, has been steadily closing its gap.  We are currently ranked 15 out of 149 countries and we have reached 77.4% gender parity (Iceland is ranked number one with 85.8% parity).  If Britain were to  close its gap entirely, $250 billion (£190 billion) could be added to our economy.  That’s something for the government and business leaders to think about over their morning cornflakes.  In the meantime, the political empowerment gap across the 149 countries will take 107 years to close whilst the economic opportunity gap will take 202 years; so, just another seven generations until women can enjoy pay equality throughout the world.  Until then, we shall keep bringing awareness to the importance of gender equality, not just for women, but for the economic benefit of the country.

https://www.internationalwomensday.com/ 

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What is a parental order?

What is a parental order?

To begin with, it is important to point out that a parental order is not about access to surrogacy.  The granting of a parental order affects the transfer of parental responsibility and legal parenthood to the commissioning/intended parent of a child born out of a surrogacy arrangement.  The granting of the parental order extinguishes the status of the surrogate mother (and her husband or civil partner, where appropriate).  By the making of a parental order, the intended parents are treated as though the child was born to them in first instance.

The parental order is only sought after the child is born and the intended parents are expected to make an application within six months of the birth of the child.  Prior to the case of Re Z (A Child) (No.2) [2016] EWHC 1191 Fam, single adults faced some difficulty in obtaining a parental order under section 54(1) and (2) of the Human Fertilisations and Embryology Act 2008.  The importance of Re Z is significant for single adults wishing to use the surrogacy process to build a family.  The President of the Family Division, Sir James Munby, declared in this case that certain provisions of one of the two principal statutes governing the area were incompatible with a father and child’s rights pursuant to the European Convention of Human Rights.

This ruling has changed the landscape to the granting of parental order, because the courts are now prepared to consider the making of such orders for single adults.  Prior to this case, a single adult wishing to have a family was reliant on the process of adoption under the Adoption Act 1926.

As it stands, practitioners are eagerly awaiting the proposed amendments to statute and following the Law Commission’s consultation.

For single adults considering surrogacy as a way forward for them, it is vitally important to obtain legal advice from a family law specialist. For more information, or a preliminary, confidential discussion contact our Fertility expert Anne-Marie Hamer.

Children FAQ’s

Children FAQ’s

1. What rights do Grandparents have?

Grandparents, currently, do not have any legal rights over their grandchildren. The only people with legal responsibility for a child is their parent, or anyone with the benefit of a court order in their favour, such as a Child Arrangements Order or a Special Guardianship Order.  If the relationship has broken down between the grandparents and the parents of the child the grandparent would need to seek a court order to see their grandchild. The first step is to seek the court’s permission to make the application. The court’s only concern is the welfare of the child and will only make an order if the court believes it is the best interest of the child.

2. I am their parent, surely it’s my right to have my children half of the time?

Although as a parent you have legal responsibility for your child, this does not mean that you have a “right” to have your child with you half of the time. It is for you as parents to agree on what time your child should be spending with each of you. If you cannot agree the arrangements, then a court would make the decision. The court starts from the point that the child has a right to a relationship with both their parents and will then make an order which is in the child’s best interest.

3. I want to take my children abroad on holiday, surely I can do this?

If you have a Child Arrangements Order in your favour confirming your child should live with you, then you can remove your child from the jurisdiction of England and Wales for 28 days each year. If you do not have an order, then you must obtain the consent of the other parent who holds parental responsibility for the child. If they consent (and you should get this in writing) then you can take your children on holiday abroad. If they will not consent to the holiday, then an application to the court is required and the court would decide whether or not you should take your children abroad on holiday. The likelihood is that the court would consent unless you were proposing travelling to a dangerous country or removing the children from school for a lengthy period of time.

4. Can I stop the other parent moving away with my children?

You cannot stop your former spouse/partner moving away. However, if you have what is called parental responsibility for your children, then you have to consent your children moving. If you do not, an application would need to be lodged with the court by the other parent. The court would then have to consider the benefit of the move and consider whether this is in the best interest of the children.  If the move would not impact on the time the children are spending with either parent, the move is likely to be approved.

5. My former partner is not letting me see the children, and is not giving me any information about the children, what can I do?

If you have parental responsibility for the children you are entitled to ask for information about your children from their school or GP direct.  If you and your former partner cannot agree on the arrangements for the children, then you would need to make an application to the court asking for an order for the children to spend time with you. The older the children are, the more impact their views will have on the court-ordered arrangements. A 14-year-old’s views have a greater weight than a 5-year-old’s views. This is because of the child’s level of understanding. The court will then make an order based on the child’s best interests.

6. I have had a letter from social services and there is a meeting, what do I do?

If you have received a letter from social services you must not ignore the letter and you must attend any meeting. It may be a meeting to discuss concerns that have arisen and it may be possible to agree a plan with social services that if followed will mean they will close their file. Or it could be a meeting where social services indicate that they have serious concerns about your children and that they want to take court action to consider removing the children from your care. It is important that whatever letter you receive, you immediately take legal advice so you can understand the consequences of the letter.

7. I work long hours, my partner looks after the children, but social services are involved, why?

Your partner may, unfortunately, not be providing a good enough level of care to the children whilst you are at work. This could be for any reason. Social Services will want to discuss the childcare arrangements with you to see if you are able to share the childcare more; what you can do to help your partner or what other action needs to be taken to look after the children properly. You should engage with the social services.

For more information or some preliminary confidential advice, please contact a member of our Family team on 01392 848925 / 848916.

 

Residential Property Disputes

Residential Property Disputes

Home 9 Search query for: co-habitation-...-what-are-your-rights RESIDENTIAL PROPERTY DISPUTES YOUR EVERYS EXPERTS Residential property disputes can arise in the terms of ownership of your property, usually where the rights you have over your neighbour’s property,...
Lisa Mitchell

Lisa Mitchell

Lisa Mitchell is a matrimonial solicitor, who specialises in divorce, financial settlement and children matters. Lisa also has experience in non-molestation applications, cohabitation agreements and pre and post-nuptial agreements.

Lisa is a member of Resolution and is committed to their Code of Practice which, amongst other things, aims to reduce or manage any conflict and confrontation to effectively settle matters.

Lisa joined Everys in 2020, and prior to this was a matrimonial solicitor at another regional firm. Lisa is based at our Taunton office but is more than happy to travel to other offices to assist clients.

Lisa understands that when clients seek her services they are often going through a very emotional and/or stressful time. Knowing how important it is for her clients to feel trust and to be able to confide in her, Lisa takes the time to build rapport with her clients right from the start.

In her spare time, Lisa enjoys spending time in the countryside with her family (including the dog!). She loves to travel and experience new places.

Notable Assignments:

  • Lisa represented a father in successfully locating his child after the mother moved herself and the child out of the country without warning to the father. Lisa also successfully obtained the father parental responsibility.
  • Lisa represented a wife in matrimonial proceedings to ensure she obtained a significant share of the husband’s high net worth pensions and assets.
  • Lisa represented a husband in what had begun as highly contested and emotional matrimonial proceedings and was able to settle the matter efficiently to ensure the husband sufficiently protected his assets.
  • Lisa represented and supported a mother, who was the victim of a serious violent assault by her child’s father, in securing a no-contact order between the father and the child.

 

 

 

 

Moira Reynolds

Moira Reynolds

Moira Reynolds is a Partner and Head of the Family Department and is available to see clients at all our offices.

Moira is a pragmatic and tenacious lawyer who has been recognised in the Legal 500. She advises on all aspects of relationship breakdown; whether that relates to a marriage, civil partnership or cohabiting couples, and includes financial settlements, child contact and abuse within a relationship. She also advises those considering a future with their partner on cohabitation agreements and pre and post-nuptial agreements.

Moira is a technically excellent lawyer and has particular expertise in dealing with complex and/or high net worth financial matters which have a business or pension element. She advises clients who have built up considerable NHS/Forces/Police Service pensions, and those who have worked in industry for many years. She focuses on the strategic elements of the case with a determined emphasis on an effective resolution.

Moira prides herself on listening to her clients and fully understanding their position. Having worked in Family Law since 2000, and qualifying as a solicitor in 2005, Moira has developed a vast knowledge base and an ability to empathise with her clients. Knowing that trust is a vital ingredient in the client/lawyer relationship, Moira ensures that she develops a strong connection with her clients, helping them to feel in control and able to make informed decisions that are right for them.

Providing constructive support and expert advice, Moira strongly believes that, where possible, separating couples should try and resolve the issues between themselves as amicably as possible, particularly where there are children involved.

In her spare time, Moira enjoys all things music related: concerts, festivals and shows, and spending time with her family and dogs.

Moira is a member of Resolution, the national organisation for Family Lawyers.

Notable Assignments:

  • Moira represented a father in a parental alienation matter where all contact had been stopped. She restored overnight and holiday contact with a Contact Order.
  • Moira represented a wife in financial relief proceedings where the husband had failed to disclose full financial details. She secured 70% of the equity in the former matrimonial home, a share of the pension and Wasted Costs Order.
  • Moira represented a wife who had been subject to threats of harm. She secured a two-year Non-Molestation Order.
  • Moira represented a husband in financial relief proceedings where the wife had a significant income and pension provision. She secured property from a property portfolio, capitalised maintenance payments and a share of the pension.

Please call Moira on either:
Exeter 01392 848925  or  Taunton 01823 362892 

 

 

Rebecca Wilson

Rebecca Wilson

Rebecca joined Everys as an Associate solicitor in August 2021 and has over 20 years’ experience in family law. She is a committed member of Resolution and has previously served on the Devon Resolution Committee.

Rebecca specialises in the financial aspects of separation and divorce as well as the issues arising out of relationship breakdown between non-married and same-sex partners. Rebecca also increasingly advises clients at the outset of relationships in the preparation of living together or pre-marital agreements. She is experienced in handling cases involving complex assets including businesses, trusts, and pensions. Clients include business owners, members of the Armed Forces, and other emergency services, as well as other professionals. Earlier in her career, Rebecca advised Armed Forces personnel on base and therefore has a detailed knowledge of Armed Forces pensions and the issues facing separating service families.

While Rebecca is committed to resolving cases by agreement, she is a confident and experienced litigator and is comfortable advising and assisting clients through the court process.

Rebecca believes in providing clients with full information and a range of options at the outset to enable them to make informed decisions. She is used to working closely with colleagues in other departments as well as other professionals, including accountants and pensions experts, to provide clients with composite advice.

Farming & Rural Business

Farming & Rural Business

Home 9 Search query for: co-habitation-...-what-are-your-rights FARMING & RURAL BUSINESS YOUR EVERYS EXPERTS Sometimes the only way rural businesses can stay in business is to constantly look for ways to develop and that often means expansion and...
New Appointment strengthens Everys Litigation Team

New Appointment strengthens Everys Litigation Team

Everys Solicitors has appointed Kathy Trist to its Litigation Team. Based primarily in their busy Exeter office, Kathy will undertake general litigation matters with particular interest in property litigation, professional negligence and commercial contract disputes.

Kathy qualified as a solicitor in 2004 and given her years of experience has come across most types of property dispute. Property litigation covers a wide area from disputes over who owns what and on what basis, to boundary disputes, construction complaints and when in dispute what rights both parties have over their respective properties. Kathy also advises on clauses in Deeds or Leases and their implications for both the commercial entity and the private individual. Commercial entities can have issues in relation to their business premises whether as owner or when considering their occupation of leasehold premises.

As an Accredited Civil Mediator Kathy uses this additional skill set when fighting her client’s corner, giving robust and realistic advice whilst continuing to keep her eye on the goal they seek to achieve.

Kathy is a member of the Property Litigator’s Association, the Association of Contentious Trust and Probate Specialists and the Civil Mediation Council.

Gay Cherryson, Partner, Head of Litigation at Everys, said: “Litigation is a key practice area for Everys, and Kathy is a solicitor with a vast knowledge and experience of this sector. Our clients expect the very best service from us, and we pride ourselves on delivering that service. Kathy’s appointment has strengthened our ability to give our clients what they want and we are excited to have her join our team”.

Please contact Kathy if you require assistance on law@everys.co.uk or on 01392 477983.

Photo (from left to right): Gay Cherryson, Partner, Head of Litigation  |  Kathy Trist  |  Ellen Stratton

Rachel Craddy

Rachel Craddy

Rachel Craddy is an Associate Solicitor in the Conveyancing Department based in Honiton. With over 13 years’ experience, Rachel has vast practical knowledge of all aspects of conveyancing and has advised on:

  • Residential conveyancing
  • Rectifying deeds
  • Woodland
  • Restrictive covenants
  • Development plots
  • Deeds of Grant
  • Transfers of parts
  • Unregistered land
  • Leasehold enfranchisement
  • Right to buy / social housing
  • Matrimonial

Rachel’s experience includes:

  • Acting for clients acquiring a site for residential development, then drafting and dealing with the subsequent individual plot sales and management company set up for the communal areas.
  • Acting in the surrender and re-grant of residential leases from a resident-owned management company, including re-drawing plans to reflect the individual demised premises, negotiating service charge proportions and maintenance responsibilities.
  • Drafting deeds to assist in the grant, release or variation of easements e.g. rights of way, and covenants (restrictions on use of a property).
  • Lease extensions for both landlords and tenants on a consensual basis.
  • Rural conveyancing including flying freeholds, septic tanks, conversions, listed buildings, S157 residency restrictions.

Rachel is a member of Women in Property and also the Devon & Somerset Law Society.

You’ve made an offer – what now?

You’ve made an offer – what now?

If you research house buying online you will find many websites and blogs give helpful advice on the practical aspects but don’t explain the process after you have found the property you want to call home. Instead, they often simply refer to the ‘complicated legal stuff’ when advising you to instruct a solicitor.

Essentially, you need a solicitor to assist you in making the property officially yours. It can be a confusing process filled with legal jargon and whilst the system can appear archaic and back to front (having to spend money investigating the property title, instructing a survey and obtaining mortgage finance before either you or the Seller commit to the purchase) this article is intended to help simplify what your solicitor is doing for you.

  • The Seller, through their solicitor, provides evidence they own the house, along with a plan showing the area they are selling, together with details of any rights the property enjoys or is subject to, and any obligations you will need to comply with whilst you live there;
  • The Seller also provides forms giving more practical details of the property (known as the Property Information Form) which includes information on such matters as boundary responsibility, alterations, occupiers, utility providers and a list of items they will be leaving at the Property (called the Fittings & Contents Form);
  • Your solicitor will check these forms and documents to ensure any relevant documentation to supplement or evidence the information is provided or obtained, and that the information does not reveal anything to cause concern;
  • Your solicitor will carry out relevant searches with Local Authorities, Water Companies, Environmental consultants and any other third parties to provide further information about the property, its services and locality held on various registers;
  • Your solicitor will make any further enquiries of the Seller arising from the information supplied, or ask for information omitted, or raise any enquiries or concerns that you may have; and
  • If you are buying with a mortgage, your solicitor will check the offer and that the property meets the lender’s criteria as suitable security.

This investigation period can take, on average, about four to six weeks, but varies on the expediency of the various authorities contacted and the seller themselves.  Once your solicitor is happy with the information provided, you will be advised that exchange of contracts is now imminent.  This is the exciting time when both you and the Seller commit to the purchase and a legally binding contract comes into force.  It is also when you pay over your exchange deposit.  Before doing so, your solicitor will provide you with explanations of their investigations and summarise the information for you in plain English.  This is when you can ask questions to make sure you understand what you are about to buy and any financial or other commitments you will become responsible for before you sign any documents.

Once you are happy you want to go ahead, the solicitor is satisfied the title is good and any issues have been resolved or managed, you then pay over the deposit money to your solicitor, sign the Contract, and any other forms, and agree a completion date with the Seller.  Typically, a completion takes place about two weeks after exchange to allow you to make necessary arrangements such as hiring removals, obtaining finance and contacting utility/web suppliers.

Once you and the Seller (and any other parties in the chain) are happy to go ahead, then the solicitors involved will agree an exchange of contracts on your behalf and the completion date (more excitingly known as the ‘move-in date’) will be agreed.  Although it might seem an anxious wait for confirmation the deal has gone through, you will be told the good news as soon as the solicitors have finalised the technicalities on your behalf.  All in all, a typical time line from the first steps above to when you can collect the keys is approximately two months.

Whilst the solicitor will still be busy carrying out the final pre-completion checks, arranging the transfer of funds and then attending to the post-completion formalities for you, your wait is nearly over – you will soon be a proud homeowner and can start planning that house warming party.

 (Based on a freehold purchase)

Author – Rachel Craddy, Associate in our Conveyancing Team, Exeter

Kathy Trist

Kathy Trist

Kathy Trist is Head of Property Litigation. She is based at the Exeter office but travels as and when required to see clients at all of Everys’ West Country offices.

Kathy has dealt with most areas of litigation in her 20 years’ experience.  Her particular area of expertise is in Property Disputes, and she is familiar with concerns that face both owners and occupiers of commercial and residential properties. Kathy frequently advises clients where there are challenges regarding boundaries, rights of way, party walls, nuisance, trespass, and misrepresentation claims.

Kathy enjoys dealing with the more complex commercial contractual disputes and advises clients in resolving complex disputes between shareholders and/or directors.  Particularly interesting are the cases where serious allegations of company/director misfeasance are involved, and it is imperative that the consequential advice and assistance is swift to protect the company.

Kathy also advises on the meaning and implications of the wording in contracts, title documents, leases, and notices, and, in certain circumstances, the validity of the same.

Kathy is an accredited Civil Mediator and utilises this additional skill set when advising and representing her clients.

Kathy qualified as a Legal Executive in 2001 and then as a solicitor in 2004.  She joined Everys in June 2018, having worked locally since qualification.  Kathy is a member of the Property Litigators Association, a member of the Civil Mediation Council, and is also Chair of the Devon and Somerset Law Society Panel of Mediators.

 

Regulatory

Regulatory

Home 9 Search query for: co-habitation-...-what-are-your-rights REGULATORY YOUR EVERYS EXPERTS Our Regulatory team advises businesses, banks, financial institutions and a wide range of other organisations achieve maximum benefit from their dealings with...
FAQ’s Family Breakdown

FAQ’s Family Breakdown

1. How long does it take?

Currently, the court is taking approximately 12 months to process a divorce from start to finish.  It is the same process whether you divorce on the grounds of adultery, or on the grounds of 2 years separation to which your spouse consents.  There is no such thing as a quickie divorce often referred to in the newspapers.  There is also no such thing as an automatic divorce after a period of separation.

2. How much will it cost?

Currently the court fee is £550 to issue a divorce petition.  Solicitor’s fees are usually in the region of £500 to £750 plus vat depending on whether you are the petitioner or the respondent.  It is possible to ask that your spouse pays your costs if you are divorcing on the grounds of adultery or unreasonable behaviour.  Or you can agree to share costs.

Usually when someone refers to their divorce being expensive, they mean the costs associated with the financial settlement.

3. I am divorced, so I don’t need a financial agreement?

A divorce simply ends a marriage it does not dismiss the financial claims which have arisen as a result of the marriage.  These need to be separately dealt with by way of a financial order being made.  This could be a clean break order, or a substantial order.  If you do not obtain a financial order, then your former spouse could make a financial claim against you at a later date!

4. Do I have to go to court or speak in court?

A divorce is usually a paper based process and there is no need for you to attend court.  If a financial order is also made by agreement, then no court hearing is usually required.  You would only have to attend court if there was a dispute between you and your spouse about either the financial order or the arrangements for the children.  You would only have to speak in court at a final hearing if you were required to give evidence.

5. Do the children have to go to court?

Children do not attend court. They are not involved in a divorce or associated financial proceedings.  If there are proceedings related to the children, they may be spoken to by a CAFCASS officer, but would not attend court, or speak in court.

6. Will I have to see my spouse in court?

Both you and your spouse are normally present in court.  However if you are both legally represented then you would not need to speak.  If there are any particular safety issues, the court can be arranged so that although you may be in the same room as your spouse you cannot see them.

7. I am a common law spouse, what rights do I have?

Contrary to popular opinion, there is no such thing as a common law spouse.  You are either married or not.  If you are not married then there are currently no laws in place in England and Wales which set out what you might be entitled to.  It would depend on whether you could prove you had a legal interest in the house you lived in with your partner as to whether you could make a claim.  You are not entitled to any of your partner’s assets such as their pensions or savings.

For more information, or some preliminary confidential advice contact a member of our Family Team from your local office.

Why business owners can’t forget about Inheritance Tax

Why business owners can’t forget about Inheritance Tax

  • 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.

100% BPR

 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.

50% BPR

 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.

No BPR

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.

Professional advice

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.