How Are The Assets Divided When a Married Couple or Civil Partnership Split?
By Helen Prins
When a married couple or civil partners separate or divorce/end their civil partnership, how are their assets and monies divided? Every case is different. The aim is to be 'fair'. In striving to achieve 'fairness', English law requires that 'all the circumstances of the case' be taken into account, 'first consideration being given to the welfare while a minor of any child of the family.....' and for the following factors to be especially regarded:-
a) the income, earning capacity and financial resources of the parties. So if, for example, one party's income and mortgage borrowing capacity greatly exceeds the other's, the difference will be taken into consideration.
b) the financial needs of the parties. This means, for example, the needs of the parties to be housed as well as their need to be able to 'make ends meet'.
c) the standard of living of the family before the parties' relationship broke down.
d) the ages of the parties and the duration of the relationship. For example, a short relationship will not be dealt with in the same way as a long relationship. Living together prior to marriage can be taken into account when determining the duration of the relationship.
e) any physical or mental disability of either party.
f) contributions made (or to be made) to the welfare of the family. So, for example, the wage-earning party cannot successfully claim an enhanced settlement as against the non wage-earner who has stayed at home to look after the children and the home.
g) conduct if 'inequitable to disregard it'. The conduct or misconduct of a party is very rarely relevant. It usually has to be related to the parties' finances. For example, a heavy gambler who has recklessly depleted family money on gambling or a party who has attacked his or her partner and caused an injury which has prevented them from working (and therefore earning an income).
h) the value of any benefit which a party will lose when the divorce/dissolution goes through. This commonly (but not exclusively) means pension benefits which can now be shared between divorcees or civil partners whose partnership has been dissolved.
The starting point for distribution is 50-50 but it will be obvious from all the above that in many cases, proper consideration of the above factors would result in a 50-50 division being unfair to one of the parties. Adjustments often therefore have to be made.
Happily, most cases do not 'go to court' (i.e. are not 'fought out' in front of a judge who determines the outcome). Over the last 45 years, following the introduction of the above statutory guidelines, there have however been very many cases which have had to be determined by the court and those decisions have put 'flesh on the bones' of the statutory guidelines. These cases also provide family lawyers with assistance when they endeavour to secure a fair outcome for their clients.
This article cannot be and is not more than a 'snapshot' of the law. There is much to consider. At Robert Barber Solicitors, we have experienced solicitors who will advise and guide you so the best outcome can be secured for you and your family.
What Happens When You Can’t Make Decisions For Yourself?
By Alison Playle
We all dread the thought of ill health robbing us of the ability to make important decisions about our lives.
We would like to explain how to take control of your future by doing a Lasting Power of Attorney.
The number of people suffering from dementia is now increasing and will continue to do so. It is impossible to predict the future but you can act now to protect your interests in case your mental or physical capacity becomes impaired.
Lasting Powers of Attorney enable you to nominate someone, such as a family member or trusted associate, to make decisions on your behalf.
The Property and Financial Lasting Power of Attorney allows you to appoint someone to look after your financial affairs.
The Health and Welfare Lasting Power of Attorney lets you grant an attorney authority over such matters as healthcare and the kind of medical treatment you receive (but will only come into effect when you no longer have the mental capacity yourself to make such decisions).
Lasting Powers of Attorney can prevent your family suffering the trauma of having to go to the Court of Protection for permission to take decisions for you in order to look after you properly.
In order to use a Lasting Power of Attorney it needs to be registered with the Office of the Public Guardian. The good news is that the registration fee has recently been reduced and it now costs £82 to register the Lasting Power of Attorney.
Since this is such an important decision, we would recommend that you obtain proper professional assistance from a solicitor to draw up your Lasting Power(s) of Attorney so you can ensure that they accurately express your wishes.
Should you require any further information please contact Alison Playle, solicitor, of our Wills, Probate and Elderly Client Department on 0115 8789000.
23rd March 2018
Freehold Management Companies and Rent Charges
By Aaron Bailey
There is a common myth amongst purchasers of property that management company fees only affect leasehold estates. However it has become increasingly more frequent that freehold property is also subject to management company fees, and both private estates where there are freehold and leasehold properties mixed or solely leasehold or freehold.
In these scenarios management companies are usually set up for the purpose of maintaining communal areas which may just simply be private roads; but can also extend to things such as electric lighting, landscaped gardens, communal parks, street lighting, refuse areas, sewer pipes etc.
Where a purchaser buys a freehold estate that is subject to management company fees, these are usually set out in the transfer deed that they will have signed in order to purchase the property. A good transfer deed will have set out the responsibilities of the management company as well as the responsibilities of the purchaser and any specific contributions that they are responsible for within the deed. It will also include dates payment should be made and whether any accounts will be provided to the purchaser either annually or otherwise. It is important that any purchaser understands these obligations and if the responsibilities or payments are not clear that their legal representative queries these matters prior to an exchange of contracts.
On freehold Estates it will be important to check that there are no restrictions that may affect the purchaser during their ownership of the property; these can be restrictions on things such as external decorations, parking, external alterations, and aerial or satellite dishes.
If you have already purchased your property but are unsure about the information that was contained in your transfer deed a copy can be obtained from the land Registry website for a small fee.
Where properties are freehold they may be subject to a rent charge sometimes called a chief rent, these can only be applicable on Freehold Estate and will not affect Leasehold Estates.
A rent charge is usually an annual sum of money paid to a third party who has no other interest in the property. They are called the rent owner. These rent charges are usually historic and go back many centuries to an historic system when people would sell land for development and could charge people for living on it.
Estate rent charges are only legal if they are supported by covenants in the transfer which carry obligations to provide services and repair etc.
For any queries relating to this article or Conveyancing queries in general, please email Aaron: email@example.com or contact us on 0115 955 2299
20th February 2018
By Paul Richardson
Family Mediation is fast becoming one of the most attractive ways for separating couples and others involved in family disputes in attempting to resolve their issues.
Family mediation can offer separating couples the opportunity to come together with the aid of a purely impartial mediator to discuss the issues, whether these be in relation to children, property and finances or all of these issues. The mediator ensures that the process is balanced and each party has their say and can be heard.
The benefits of mediation compared to the use of solicitors or Court proceedings include:-
- Both parties remain in control of what decisions are made for themselves and if applicable their children, whereas Court proceedings could result in a Judge or Magistrates making an Order that both parties would be bound by and neither could be entirely happy with.
- With the average costs of Court proceedings being in their thousands of pounds, mediation offers a more affordable alternative to resolving the issues.
- Mediation can also provide a much quicker way for the issues to be resolved rather than protracted negotiations via solicitors or Court proceedings which can last for months or even years in some cases.
- The informal nature of mediation, with the discussions being without prejudice which means that whatever is discussed or said in mediation cannot be used in any subsequent Court proceedings, can provide a less stressful platform for the parties to attempt to reach mutually acceptable proposals for themselves and their children.
Should Family Mediation be a process which you feel could assist you to resolve outstanding issues between you and your former spouse or partner then please contact us at Accord Mediation on 0115 969 4800 for further information.
30th January 2018