Do I need a Financial Consent Order when getting a divorce or dissolution?

Do I need a Financial Consent Order when getting a divorce or dissolution?

Do I need a Financial Consent Order when getting a divorce or dissolution?
Posted on 12th August, 2020

This is a question that I am asked many times and one where the consequences of not obtaining one can be devastating. The simple answer to this question is yes.

It is often a misconception that once you are divorced or your civil partnership is dissolved, your ex-husband/ex-wife cannot make any claim against your assets. This will only be the case if you are divorced/have a dissolution, and you have a Financial Consent/Remedy Order.

The best way to explain this is in a real-life scenario that I often see:

A husband and wife get a divorce without any legal advice. They share a house together but decide that one party will carry on paying the mortgage for the time being and they will sort out the equity in the property at a later date. Years go by, and perhaps both parties now have other partners. One party then decides that they would like the property sold so their equity can be released. The other party does not want the property sold. They both, at that stage, seek legal advice. There is a risk that the parties cannot agree, in which case they will then need to attend Court, despite it being many years later after their divorce.

In this scenario, both parties have left themselves wide open to financial claims against each other’s assets. Yes, they only have one joint asset but, by this point, one party may have bought another property, the parties may have considerably increased their pensions, they may have significant savings, or they may have received an inheritance. All of this would be open to a claim being made by their ex-wife/ex-husband because they did not have a Financial Consent Order. Further, their new partner’s assets may be taken into account in proceedings.

The only way to have security over your assets in divorce/dissolution is to have a Financial Consent Order as well. There are many ways in which this can be obtained and there doesn’t have to be huge expense or Court hearings.

If you would like further advice, please do not hesitate to contact the Family team for a one-hour appointment, at a reduced fixed fee of £99 plus VAT.

 

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Wills

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.

 

 

 

The Overhaul of Divorce Proceedings

The Overhaul of Divorce Proceedings

The Overhaul of Divorce Proceedings
Posted on 14th July, 2020

Divorce proceedings can often be portrayed as being lengthy, costly and contentious. This certainly is not the case for everyone, but, unfortunately, this can be the reality for some. I, for one, am extremely welcoming of the new legislation, Divorce, Dissolution and Separation Act 2020.

When will it be implemented?

The Royal Assent was received in June 2020, but this doesn’t quite mean it is law yet. Receiving Royal Assent means that the Bill has passed through the required stages in Parliament and has now passed the formality in which the Queen agrees it can be law. The Government is now working on the implementation and, therefore, it is expected that it will become law in autumn 2021.

How does the divorce process work under the current law?

The current process for divorce is that you must show that your marriage has irretrievably broken down by evidencing this with one of five facts: adultery, unreasonable behaviour, desertion, a two-year separation with consent, or a five-year separation without consent. Not all situations fit into one of these categories and, therefore, if you want to begin your divorce before two years of separation, adultery or unreasonable behaviour are often used. These are both used by asserting blame to one party for the breakdown of the marriage. Placing blame on one party’s behaviour can cause bad feeling from the very beginning which then sets the tone for the rest of the proceedings and can often cause contested, costly and lengthy proceedings.

How will the new law change the way divorce is dealt with in the future?

It is often difficult to look at how a new law will work until it is in practice. However, we do know that the new legislation will remove the five facts that are currently relied upon, so that you will simply need to show, by way of a statement, that the marriage has irretrievably broken down. This means that in situations where the parties are in agreement their marriage has broken down but do not want to have to assert blame, they can begin their divorce process immediately, rather than waiting for two years. Further, parties will be able to make a joint application for divorce to show that they are both in agreement.

The new law has been known within the media as the “no-fault divorce”. The idea is that the new law will encourage and enable parties to focus their attention on the financial settlement and the children, rather than asserting blame on the breakdown of the marriage. If there are children within the marriage, it is extremely important that the relationship as parents is not affected, so that the children are protected from the divorce proceedings and a no-fault divorce will aim to assist with this.

As a Solicitor and member of Resolution, my priority is to settle matters for my clients as effectively as possible. I am sure the new legislation will have its initial teething problems like all new processes, but I welcome any amendment that will look to reduce conflict and confrontation for my clients.

If you have a matrimonial query, please do not hesitate to contact me for advice.

Lisa Miller

 

 

Related Services

Family Law

Can an estate be diverted to someone else?

Can an estate be diverted to someone else?

Can an estate be diverted to someone else?
Posted on 6th July, 2020

Read time: about 8 – 10 mins

A wife (W) has died, leaving her entire estate of £700,000 to her husband (H), which includes the family home and a rental property from which she received an income. However, H believes that W would have preferred to leave her estate to her childhood friend (F). H is trustee and executor of W’s will so what options could he use, in his capacity as beneficiary of W’s will, to divert the estate to F?

First of all, caution should be exercised by the adviser here: a full understanding of the circumstances surrounding the matter is required.

We would need to satisfy ourselves that H wishes to give the gift freely and is not under any undue influence from F and that he has the requisite mental capacity to gift the assets.

An understanding of why H believes that W had wished to gift the asset should also be considered as well as knowledge of the circumstances in which W’s will was drafted.[1] Any letter of wishes or other accompanying documents should also be taken into account to obtain a clear understanding of H’s motivation.

Financial advice would clearly need to be sought by H. Consideration should also be given as to whether he is likely to require care from the local authority in the not too distant future.[2]

Should the adviser be satisfied that H has the ability to make the gift, having taken all the circumstances into account, then the following options would be available to H as beneficiary:

Deed of Variation

1) An absolute gift of assets held in the wife’s sole name

H can vary the provisions of W’s will at any time. If H signs an instrument of variation within two years of W’s death, then special tax treatment of the disposal should apply so that any disposal is treated as being a disposal directly from the deceased rather than the donor of the gift.[3]

Such a variation could include some or all of the assets that H is due to inherit from his late wife’s estate.

The benefits of a deed of variation are that H can direct to whom W’s estate will pass.

The negative impact of a gift by variation however would not only be the financial consequences for H (since his estate would be greatly reduced by the gift) but this could also have several negative consequences for tax purposes both for H and F.

Under the present arrangement, all W’s assets will pass to H free of inheritance tax regardless of the value, assuming that they are both UK domiciled. H’s estate will also be able to benefit from W’s transferable nil rate band (providing it has not been used up in her lifetime) and benefit from W’s unused residence nil rate band, assuming the property on his death passes to direct descendants and their joint estates are not over £2 million, in which case the residence nil rate band element is reduced by £1 for every £2 above the threshold.[4]

Should H wish to direct any portion of his beneficial interest to F, his transferable nil rate band will be eaten into and his estate will have a percentage available allowance depending on the value of the gift that has been passed to him.[5] Depending on the value of the gift, there might also be an immediate charge to inheritance tax.

Any gift through a deed of variation though, as long as H reserves no benefit from it once gifted, will reduce H’s taxable estate accordingly.

2) An absolute gift of assets passing by survivorship to the husband

Should H have inherited any assets through survivorship then he will be able to sever the joint tenancy post death and redirect W’s share of the asset to F should he wish.

If the family home was held as joint tenants and H severs the joint tenancy so that it is held as tenants in common and then gifts a half share (or other portion) to F he should consider this position carefully. If H wanted to sell the property, then he would need to have F’s consent. Problems can also arise between joint owners as far as maintenance of the property is concerned. If H wants to proceed with this option then a Declaration of Trust outlining the duties and responsibilities of the owners of the property in detail would be advisable. Separate legal advice would need to be sought by each party.[6]

If there is a charge on the property, then consent from the lender might be required for any change in ownership and it might be a requirement for F to become party to the mortgage.

In addition, the same impact for inheritance tax purposes will apply here where assets are passing to F as a non-exempt beneficiary.

There might also be capital gains tax implications on a disposal of the family home on F’s share if it is a second home for him.

3) A variation onto discretionary trust

H can opt to settle some or all of W’s estate onto discretionary trust through an instrument of variation.

In this case the Trustees would exercise their discretion over the trust assets, but discretionary payments of income or capital could be paid to a number of potential beneficiaries.

Here, both F and H could be potential beneficiaries as well as any other relevant beneficiaries perhaps as outlined in W’s will.

The flexibility of this arrangement could be beneficial for all parties since it might provide H with some financial security should he need it in the future and F with some benefit if this is in accordance with W’s wishes, subject to Trustees’ agreement to make distributions.

Inheritance tax will be payable on trust assets over the nil rate band and exit charges will apply.

It is unlikely to be desirable for H for the family home to be put into discretionary trust since the Trustees would need to exercise their discretion in relation to H’s occupation of it. If he wishes to continue to reside there then a market rent should be payable in relation to the portion held in the discretionary trust otherwise it risks being treated as a sham.[7]

It may however be favourable for H to consider this option for some of the assets. The same IHT treatment will apply for H’s estate in that it will affect his estate’s available transferable nil rate band, but the trust assets should be outside of his estate for IHT purposes on his death.

On trust income over £1,000 the trust assets will be charged at 38.1% on dividend income and at 45% on all other income which is pertinent for the income that will be received from the rental property[8].

Capital gains tax will also apply to trust assets, but holdover relief should be available.

4) A variation onto a life interest

Another option would be for H to vary his entitlement so that it passes onto a life interest for him with the future capital interest passing to F.

In this scenario H would be entitled to the income from the trust for life and would be able to benefit from any interest or dividends from cash savings as well as the income from the rental property. On H’s death the capital value would pass to F.

For IHT purposes the value of the life interest would be aggregated with H’s free estate but his estate would be entitled to benefit from any available transferable nil rate band (and RNRB if applicable) on death.

This type of trust is more rigid, and the default position is for income only payments to be made to H[9]. It may however mean that the capital value of the trust would not be taken into account as far as his financial assessment is concerned should he have the need for care in the future.[10]

An ability to distribute capital to H during his lifetime (or to F) could be included in the trust instrument to allow more financial flexibility for the beneficiaries but any capital payments would be subject to the Trustees’ agreement.

The income tax position would be more favourable here as dividend income will be taxed at 7.5% and all other income at 20%[11].

If there is a lifetime termination of the interest then it will be treated as a potentially exempt transfer (‘PET’) (see below) and CGT may apply.

Lifetime gift

As mentioned above, any gifts through variation passing to non-exempt beneficiaries will affect the amount of transferable nil-rate band available for H’s estate and might incur an immediate IHT liability. H could consider making a lifetime gift of assets passing to him from W’s estate to F.

This would be treated as a PET for inheritance tax purposes and therefore he would need to have survived seven years from the date of the gift for its value to be outside of his estate for inheritance tax purposes[12]. Reducing rates apply where H has survived the gift for between four and seven years.

Any gift over the nil rate band through variation would create an immediate liability to inheritance tax which a lifetime gift by H could avoid.

It should be ensured that no benefit of the gift is reserved by H to ensure that his estate is reduced for IHT.[13]

Disclaim

H could disclaim a gift due to him under W’s will.[14] But it is not possible to disclaim in favour of someone i.e. to re-direct the gift so if H disclaims any part of his inheritance then it will pass in accordance with the next entitled under the will or the intestacy rules.[15] If F was the next entitled under the provisions of W’s will then this might satisfy H’s wishes to surrender the entire estate. If this is not the case, then this course of action will not meet H’s objectives.

It should be noted that H cannot disclaim W’s share of property passing to him by survivorship and any joint tenancy cannot be severed by H post-death so that he can disclaim.

Should H choose to disclaim his share of the estate passing to him from W then there would be an immediate inheritance tax charge payable, subject to any applicable reliefs.

Will

It may be that H’s objectives could be achieved by a gift in his will to F. An understanding of his circumstances would be required to take into account any competing claims under the Inheritance (Provision for Family and Dependents) Act 1975.

Such a gift would not have the same negative impact on his transferable nil rate band, nor would it incur an immediate IHT charge on W’s death. Furthermore, it would allow H financial security for his lifetime, but it would mean that F’s beneficial entitlement would be postponed until H’s death.

 

Notes:

[1] A Larke v Nugus ([2000] WTLR 1033) letter may be required

[2] See Care Act 2014 and deliberate deprivation rules

[3] S142 Inheritance Tax Act 1984 and s62 Taxation of Chargeable Gains Act 1992

[4] Sections 8D-M and s18 of the Inheritance Tax Act 1984

[5] Finance Act 2008 Schedule 4

[6] Solicitors Regulation Authority Code of Conduct Version 21 Chapter 3 and 4

[7] Rahman v Chase Bank Trust Co (CI) Ltd. (1991) JLR 103

[8] See Finance Act 2019 and Income Tax Act 2007

[9] Statutory powers of advancement will apply, subject to contrary provision in the trust instrument

[10] This might also be applicable to some of the other options listed

[11] See Finance Act 2019 and Income Tax Act 2007

[12] s3A Inheritance Tax Act 1984

[13] See HMRC Manual IHTM14333

[14] See RE Stratton’s Disclaimer [1958] Ch 42, [1957] 2 All ER 594

[15] re Scott, Widdows v Friends of the Clergy Corporation [1975] 1 WLR 1260 [1975] 2 ALL ER 103

Government Guidance on the safe reopening of businesses on 4th July

Government Guidance on the safe reopening of businesses on 4th July

Government Guidance on the safe reopening of businesses on 4th July
Posted on 25th June, 2020

The Government has updated its guidance for businesses to reopen safely on 4th July, 2020. See the links below for more information.

 

Environmental Health 01395 517456 environmentalhealth@eastdevon.gov.uk
Licensing for Premises licences and temporary event notices licensing@eastdevon.gov.uk
Temporary structures to extend your outside seating see EDDC Planning planning@eastdevon.gov.uk

Can an estate be diverted to someone else?

Be in control of your estate … make a will!

Be in control of your estate … make a will!
Posted on 12th June, 2020

These are unprecedented times, and with difficult times comes difficult conversations. That includes thinking about what we want to happen to our estate when we die.

Making a will may not resolve all your fears or issues, but it goes a long way to giving you peace of mind to know how your estate will be dealt with upon your death. 

People often think that if they die without a will all their estate will go to their spouse or civil partner. This is not the case and it depends on the size of your estate. Another misconception is that unmarried partners will be entitled to a share of their partner’s estate if they die without making a will. This, also, is not the case and partners can be placed in a position of having to make a claim against an estate at a very difficult time for them.

There are important questions we may need to ask ourselves such as who will look after my children? Does my family know my funeral wishes? How will my digital assets be accessed? Do I need to do some tax planning or care fee planning?

Making a will puts you in control. You can choose the person, or persons, whom you want to sort out your estate. You might have a vulnerable child and want to protect their assets or a care package by placing monies into a trust.

My best advice is to discuss those important questions with a qualified adviser who can guide you through your choices that help you to achieve your objectives.

At this time, we are responding to the challenges of preparing wills and we have found flexible ways of working whilst maintaining professional standards. Our offices are not yet open to the public. Most instructions are taken via the telephone or by FaceTime, Zoom or Teams.  The signing of wills can be done remotely if clients can source their own witnesses. If not, we are now able to offer will signing outside some of our offices. Some home visits are available where it can be done safely, and all parties involved feel comfortable.

If you would like to discuss making a will, please call 01404 43431 or email Jane Flaherty at jane.flaherty@everys.co.uk.