Pre-Nuptial Agreements

Pre-Nuptial Agreements

It is not the most romantic topic to discuss when you have just become engaged but you may need to consider whether a Pre-Nuptial agreement is something that you might need to discuss with your fiancé.

It might be a second marriage, or it might be you have inherited, say, the family farm and in the event of a marriage break-down, you wish to retain the farm for your children. In these cases, you might want to enter into a pre-nuptial agreement to set out those assets that would remain yours in the event of a breakdown of the relationship.

A pre-nuptial agreement sets out how a couple’s assets will be divided should they separate or divorce.

Although pre-nuptial agreements are not legally binding in the UK, they are increasingly being recognised and upheld in the courts provided certain conditions have been met.

These conditions include entering into the pre-nuptial agreement in plenty of time before the wedding. If you are forced to sign a pre-nuptial the night before your wedding, it is unlikely that a court would uphold the agreement!

There should also be full and frank financial disclosure so that both parties are aware of the assets which would be retained by either party.

It is important that both parties take independent and separate legal advice about the agreement. This is particularly important if you are being asked to sign a pre-nuptial agreement as a pre-nuptial agreement can limit a financial settlement that might otherwise have been ordered by a court on a divorce. You could therefore be agreeing to receive less than you might be entitled to.

The court, on a divorce, will consider all the circumstances surrounding the pre-nuptial agreement and the courts will even reduce the amount one spouse is to receive because of the existence of a pre-nuptial agreement even if the court thinks the pre-nuptial cannot be followed exactly.

It is therefore extremely important that legal advice is sought about a pre-nuptial agreement. However, entering into a pre-nuptial agreement makes it clear what your wishes are and the wishes of your fiancé. We would say it is better to have one than not.

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

 

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.

Changes to the Witnessing of Wills

Changes to the Witnessing of Wills

Changes to the Witnessing of Wills
Posted on 28th July, 2020

Time to read: two minutes

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.

In a press release dated 25th July 2020, the Government announced that the Ministry of Justice will amend the Electronic Communications Act of 2000 which will allow the use of video links for executing wills. This has come about due to the levels of concern expressed during the pandemic, as some practitioners have facilitated wills being witnessed via video link, which is in contravention to current law. There has been a lot of concern regarding whether such wills will be valid and, therefore, possibly open to challenge in the Courts.

The legislation will take effect in September 2020 and will be back dated to 31st January 2020 to cover the full period of the pandemic. The legislation is time-limited and is expected to end on 31st January 2022; however, it could potentially last longer, if deemed necessary, and will be reviewed in line with other legislation that has been passed to deal with issues stemming from COVID-19.

This will be a huge departure from the current process of signing wills which has remained untouched since the Wills Act of 1837. This dictates that there has to be two witnesses physically present to validly witness the testator’s signature.

During lockdown, this has caused difficulties in people being able to sign their wills, especially if the client has been vulnerable and has not been able to find or have access to witnesses to enable them to put their affairs in order. Some people have been self-isolating and have been fearful of coming into contact with others. At Everys, we have implemented various ways to ensure any client that needs to have their will signed has been able to do so. Examples have been witnessing wills over car bonnets, having a portable table to visit clients outside their homes and also having drive-through will signing facilities.

Whilst the pandemic has caused difficulties and introduced the logic of offering some relief to people who have had no choice but to sign remotely, it is imperative that we do not make a change to the law on a permanent basis without fully evaluating the consequences of doing so. The priority must be to ensure that vulnerable people will not be taken advantage of because we have kept to a lowered standard for convenience. I would hope that when we are able to return to ‘normality’, we give serious consideration to returning to the law as it stands today. In the meantime, the traditional ways of executing a will should be followed, if at all possible, as we are unaware of the pitfalls that may occur as a result of this change.

 

 

 

Cohabitation Rights

Cohabitation Rights

Cohabitation Rights
Posted on 7th April, 2021

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 marriage/relationship’. The legal rights of cohabiting couples are very different from those of married couples or civil partners. This is particularly relevant in relation to provisions for children, finances, and inheritance rights. Undoubtedly, these will always come to the fore if couples separate.

When people decide to set up home together, few think much about what will happen if their relationship ends or, sadly, if one of them dies. For married couples, the law is fairly clear-cut, but for people who cohabit things can become very problematic. You should consider the effect that living together has upon the following examples, for instance:

  • Owning a home together
  • Having children together
  • Impact of separation and rights to make financial claims
  • If you were to die without making a will

Buying a house 

It is possible to own property as “joint tenants” or “tenants in common”. If you own property as joint tenants, then this means that if one of you dies the property will automatically pass to the other person by way of survivorship. It is irrelevant what you have said in your will about that property. If you own the property as tenants in common (which will specify the shares in which you hold the property and may not be equal), then this means that your share of the property, whatever that may be, can be left under the terms of your will or by the rules of intestacy. Therefore, if you own the property as joint tenants and do not wish your spouse to inherit the property if you die, then it will be necessary to sever the joint tenancy of the property to change it to tenants in common.

If you intend to buy a property together, a Declaration of Trust allows you to state clearly what should happen regarding your property ownership and individual financial interests in that property. If you want to be sure of what will happen to a property if you were to split up, this document is unequivocal and can be relied upon to represent your respective considerations at the point of purchase.

Having children together

There are various considerations here, e.g.:

  • Parental responsibility
  • Financial support
  • Whose name the child should have
  • Child arrangements if you were to split up

In England and Wales, a father will automatically have parental responsibility over a child if they are named on the birth certificate or married to the mother. Parental Responsibility gives you the right to make decisions about a child’s upbringing.

If the father is not married to the mother and has not been named on the birth certificate, there are other ways to get parental responsibility. If the child’s mother, or anyone else with parental responsibility (like a grandparent), agrees to provide parental responsibility, it is possible to make a joint application to Court.

So, what legal protection is offered to cohabiting couples with dependent children? In short, there are no specific legal provisions for cohabiting couples when it comes to separation or one person’s death. When it comes to dividing the family home, this will fall to property law, and, where children are involved, the Children Act 1989 will need to be relied upon.

Neither of these areas of law will make provisions for the needs of the parents themselves and they will not take into account non-financial contributions that either person has made to the relationship (such as giving up work to raise the children). This means that one parent could find themselves destitute as a result of their separation.

Where there are children of that relationship, the only claim that a party has is for child support which is the money that a parent without day-to-day care of the children must pay to a parent with day-to-day care to assist with the maintenance of the child or children involved. This is calculated by the Child Maintenance Service, in accordance with a fixed formula.

This can be particularly worrying for a parent who does not own or have any rights in the property in which the family were living. This could be particularly concerning where that parent will continue to be the main carer for the children. This, again, is where the Children Act can play a role in addressing the financial needs of a child. It is possible to make Schedule 1 claims against the other parent so as to allow the Court to address some of the financial needs of dependent children. Please be aware that these needs are those of the child(ren) and not those of the parent.

In certain cases, the Court has the power to award the following:

  1. The transfer of a property. The housing needs of a child are met by transferring property (usually the former family home) to a parent until that child is an adult.
  2. Lump sum payments to cover capital expenditure. This is usually for items which depreciate such as cars, computers or, perhaps, to cover expenses already incurred.
  3. Periodical payments to address the costs of a child’s disability or school fees, or to provide top-up maintenance.

*

The child can take either the mother’s or the father’s surname at birth. Both parties should think very carefully before agreeing which name the child should have as, once this is on the birth certificate, neither parent (with parental responsibility) will be unilaterally able to change that child’s name without the formal agreement of the other and, usually, a Court Order is required.

Child arrangements

It is important to note that both parents have just as much right to contact with their child as the other. This is not dependent upon the amount of child support paid. When two parents do not live together, or have separated, it is important to try and create a practical timetable when each parent can see the child.

Both parents can agree on this informally or, if this is not possible, a mediator can help you to reach an agreement – although a decision reached through mediation is not legally binding. If either parent does not stick to the agreed schedule, it may be possible to make an application to Court. This should be the last resort.

If you cannot reach an agreement about how often the children spend time with you or your former partner, you can make an application for the Court to decide. It is likely you will need to attend a mediation session before you can make the application.

Separation

Aside from potential issues arising with contact and the children, couples who are unmarried have no automatic entitlement to financial support from each other when they separate. Nor can they register home rights to prevent their partner from selling the house without having a legal interest in the property in their own right. This creates a great deal of uncertainty.

If the couple own a home together, there is no automatic right for the person with care of the child to remain in that property. Similarly, if you are an unmarried partner of a tenant (in private or social housing) then you will not usually have rights to stay in the accommodation if the tenant asks you to leave.

To avoid these issues, consider the Declaration of Trust as detailed above if you own property jointly. If in social housing, you could consider being joint tenants with equal rights and responsibilities.  If you are in private rental, then one person may remain and seek the tenancy in their own right but will have to repay to the other half any deposit that person has paid and be able to meet the monthly rent payments in their own right.

Death

In certain circumstances, cohabitees can benefit from the deceased partner’s pension. You need to have taken very clear advice from the Pension Provider and usually must be named on the Policy as a benefactor. There is no automatic right otherwise. It might also mean that the remaining partner is not entitled to the deceased’s partner’s life insurance policy unless specifically stipulated. Pension policies tend to differ dramatically, so if you are in a relationship and are not married to your partner then you should stipulate to whom your pension should be paid in the event of your death. For some pension schemes this can be relatively simple and done through an “expression of wishes form”. For other schemes this may not be possible, and you may need to seek legal advice on what to do. For life insurance policies, if you want your unmarried partner to be the recipient of a pay-out in the event of your death then they must be named in your policy as the recipient.

In addition to the above, it might be possible to bring a claim against the deceased person’s estate.  For instance, if you have children with the deceased, under the Inheritance (Provision for Family and Dependents) Act 1975 you may make a claim for financial support in respect to those living children.

In terms of the other assets of the deceased, a surviving partner will only inherit if this is stated in the deceased partner’s will. This can come as an extremely nasty surprise to some people who are already mourning following the loss of their loved one, sometimes after many years of living together, and are having to deal with everything else that follows a close bereavement.

This aside, as is the case when anybody passes away without leaving a will, the “rules of intestacy” apply. This means that the relatives of the person who has passed away will be the beneficiaries of their estate (even if they were not on speaking terms, had not seen each other for years or did not even know each other), and the surviving partner, who might have lived with the deceased for the last 50 years, receives nothing.

What can you do if you do not want to get married?

If a cohabiting couple does not want to get married but does want to put measures in place to legally protect themselves in the event of a separation, there are steps they can take. One option is to put a Cohabitation Agreement in place.

With a Cohabitation Agreement (also known as a Living Together Agreement), a couple can set out exactly how they will manage their money during the relationship, as well as what will happen in the event of their separation.

A Cohabitation Agreement will not interfere with any provisions made for children under the Children Act 1989, but it can help the couple to agree on how money matters should be dealt with between them.

A Cohabitation Agreement will not affect the will status and/or pension status as detailed above.

There is an awful lot to consider before you begin cohabiting and it is best to take advice as to how you can both protect your positions. If you would like to speak to someone, we are happy to help. Please call 01392 848911 to speak to one of our Family solicitors.

****

This article was originally written by Moira Reynolds for the website MyBump2Baby.

Related Services

Property
Wills

The Future of Farming & Rural Business

The Future of Farming & Rural Business

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/

What happens if I lose mental capacity and I have not made a lasting power of attorney?

What happens if I lose mental capacity and I have not made a lasting power of attorney?

What happens if I lose mental capacity and I have not made a lasting power of attorney?
Posted on 17th March, 2021

What do I mean by mental capacity?

Mental capacity is a complex subject but, at its most simplistic, it can be defined as our understanding of a given concept, situation, or predicament. It refers to our ability to be able to weigh up the pros and cons of a situation and make an informed decision. It is not black-and-white because very often it is not a case that one day we can make all our decisions and the next day we cannot make any. It is time and task-specific. This means that it depends on our understanding at a specific time, which is important if our capacity is fluctuating especially if we have good days and bad days, and it depends on what we need to understand about that specific decision we are being asked to make.

The important question that we should ask ourselves is who will make decisions for me if I cannot make them for myself? The starting point is always to check whether the person whose mental capacity is in question has done any planning for this possible eventuality by making a lasting power of attorney or if there was an old-fashioned enduring power of attorney in place.

There are two types of lasting powers of attorney:

  1. finance and property; and
  2. health and welfare

These are two very different and specific areas and you have to have both powers in place in order to make decisions in both categories.

If you have an enduring power of attorney in place you have covered the decisions that may need to be made on your behalf in relation to property and finance. However, they do not apply to welfare decisions.

Not everyone makes lasting powers of attorney and there are often various reasons why this is the case. In my experience, It can be because people are not aware that they can make powers of attorney. It can be because people think that this will impact upon their independence and don’t see it as a support tool. Sometimes the older we become the harder it is to make these decisions because we are nearer to the prospect of needing support. Some families have relationship difficulties with their children or between their children and so it makes it very difficult to decide who would be the appropriate person to be involved. In these circumstances, sometimes people choose not to make that decision because it’s easier to do that than run the risk of causing any more friction within the family. Some people do not have family and don’t know that they could ask a professional to do this for them.

If, for any reason, you or a loved one loses mental capacity, and you have not had the foresight to prepare for this situation, it is not the end of the road. There is an alternative that may offer some assistance. That is the Court of Protection.

What is the Court of Protection?

The Court of Protection is a special court that makes decisions on behalf of people who cannot make decisions for themselves. Someone could apply to the Court on your behalf and ask that they be appointed as a deputy to have the authority to make decisions on your behalf that you cannot make for yourself. That person would be referred to as a deputy.

There are two pathways for appointing a deputy. The first pathway is for property and finance which will involve stepping into your shoes and managing your affairs on your behalf in accordance with the powers conferred by the court in their order. It is very important to set out the powers that you will need when making your application.

The second pathway is for health and welfare. The Court is more reluctant to appoint a health and welfare deputy because it would prefer to deal with issues of welfare on a matter-by-matter basis. It recognises that to give someone a carte blanche ability to make welfare decisions for someone is to give them a lot of power over that person. However, the Court will look at appointing a health and welfare deputy where there are decisions that are going to need to be made about someone’s care, medical treatment, and place of residence. This will be particularly important if there are conflicting ideas as to what is the most appropriate way forward for the person who is unable to act for themselves.

The initial application to the Court is a paperwork application. The matter will only go before the Court if it is disputed. The outcome is the same as appointing an attorney but there are some extra protections for the named person. That being an insurance policy has to be put in place so that if the appointed deputy acts negligently, or if there is any impropriety, the named person will be put back into the position that they would have been in had the deputy not been appointed.

The deputy also has a duty to prepare an annual report to the Court giving an account both of the finances that have been spent in the current deputy year and any decisions that they have had to make on their behalf. The report also includes the people that the deputy has had to consult during that year.

The process for applying for a deputy does take longer than making lasting powers of attorney. In my experience, when a family is applying to the Court for an order it is because something needs to happen that cannot happen without it. This can be quite stressful for the family. It is also more expensive because you have to consider your solicitor’s fees, court fees, the cost of preparing a medical report, and the ongoing insurance costs. In most circumstances, these costs will come out of the named person’s estate.  However, if it is a disputed matter then not all costs may be allocated to the named person. That would be a matter for the Court to decide.

The plus side of a deputyship is that there is annual accountability scrutinised by the Office of the Public Guardian.

If you would like more information regarding making a Court of Protection application or making lasting powers of attorney, please contact me on jane.flaherty@everys.co.uk or 01404 541904.

 

 

 

Related Services

Wills
Property