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Latest news and views from Marchants

Nick Aspley

The Bank of Mum and Dad - some considerations

Parents in the UK are spending £6.5 billion pounds this year helping their adult children get on the property ladder up from £5 billion last year. Ranked alongside mortgage lenders this puts them in the top 10 of lenders in the country.

However, if their children divorce or separate from a cohabiting relationship what are the implications?
Potentially serious. There is a risk that the property could be claimed by the other party in a divorce and financial settlement or when a cohabiting relationship breaks down. Parents may not get their money back.

Issues to consider

Is it a gift or a loan?

If a loan, consider entering into a formal written document to confirm the agreed terms and  safeguard the loan repayments by securing an interest in the property. A restriction might be entered on the property title so that any future sale would need the parent’s consent.
If a gift then read on!

Getting married or going to cohabit together?

Cohabitees

Have no rights when their relationship ends unless children are involved. Property rights are sorted out by property and trust law not family law.

Cohabitees need to decide if they are to purchase a property as joint tenants (the other owner will automatically own the whole property on the death of the other) or tenants in common (defining each share in the property).
 

If either or both are providing a deposit from their parents as a gift then consider entering into a declaration of trust to state what proportions they will own the property to reflect the greater contribution by one through their parent’s gift. If there is no declaration then the court will assume the property is shared equally.
If there is no express declaration of beneficial interests in the property a party might argue later that the ownership of the property has changed.

Married Couples

The family home is usually the largest or one of the largest assets of the marriage. Generally, in most cases the net sale proceeds would be divided equally unless the parties and/or children’s needs should be met by some other arrangement, irrespective of one party for example paying more of the initial deposit on purchase.

If one parent is considering gifting some money towards a property purchase either before or during a marriage consider entering into a pre-marital or post marital agreement (often referred to as a pre or post nuptial agreement) to ring fence the gift. Both the parent and spouse will need to take specialist property and family law advice before proceeding with the purchase.

Additional Mortgage Requirements

If the children are getting a mortgage then they will need to let the lender know about any contribution being made by the parents. The lender will want to make sure that it is safe to lend!

Wills

Wills should either be made or updated to ensure that the original gift is passed back to the parents if the child dies rather than to the other party proving the property is held in tenants in common. The other party might be able to make a claim under the law surrounding inheritance but successful claims are rare.

Conclusion

Both parents and children need to take independent legal advice from an experienced conveyancer and a specialist family lawyer before proceeding with the property purchase.
Please contact Nick Aspley at naspley@marchantsolicitors.co.uk for advice on all family law issues.

Nick Aspley

Tuesday September 5th 2017 - 'D Day'

So called “D Day” in the media is referred to at the beginning of every year when couples often decide to separate and a large number of divorces begin. However, September 5th 2017 is when the new style divorce petition has to be used to start a divorce.

The law profession was notified on 17th July 2017 of the change which became operative on 7th August 2017 with both the current and new style divorce petitions being accepted by the court. So, not a long time to get used to the new petition and during the school summer holidays!

The changes are reflected in the look and style of the new petition which is called an “application for a divorce, dissolution or (judicial) separation.” There are no separate notes for guidance but some shorter notes are provided on the righthand side of the form. Overall it should be simpler to complete but this is not reflected in any reduction in the court fee which remains at £550 although it costs the court around half of this sum to administer a divorce.

The Office of National Statistics has recently published new data on divorce rates. The number of divorces (101,055) in 2016 fell by 9% compared with 2015.  Divorces have continued to decline in the last few years as more couples are choosing to live together. However there has been an increase in the so called “grey or silver divorces” with the average age of a divorce has increased year on year. More men are divorcing over 50-60  and more women divorce at 45 and younger. Last year the “median” age for a divorced man was nearly 46 and 43 for a divorced woman.

The increase in age of divorcing men could be a result of a number of factors including the children having left home, increased financial independence and living longer. divorce family separation. Or simply more men wish to "trade up" while still feeling young and active.

For help and advice on your divorce or separation contact Nick Aspley on 01623 655111 and at naspley@marchantsolicitors.co.uk.
Nick Aspley

Divorce – automatic equal asset split no longer fair?

Mrs Sharp has just successfully appealed an order in the High Court that her husband should not have half of the total matrimonial assets of £5.45 million and that it was fair that he should have a reduced capital of £2million down from £2.725 million or 37% of the total assets. 

The Court of Appeal have ruled that the general principle of a couple sharing their assets should not apply in the case of Mr and Mrs Sharp. They were married for 4 years and lived together for a short time before marriage. They had no children. Both earned around £100K annual salary at the beginning. However, Mrs Sharp earnt substantial bonusses as a city trader totaling £10.5 million whereas Mr Sharp, who worked in IT, received trivial bonusses in comparison. Mr Sharp took voluntary redundancy and they bought two properties together.

Why didn’t Mr Sharp get his half?

The lead judge, Lord Justice McFarlane, said that “in all cases the nature and source of the parties’ property are matter to be taken into account when determining the requirements of fairness.”

Mrs Sharp’s case was that their marriage was a short, dual career and childless one. They structured their finances a particular way (not shared equally) and she generated significantly more income than her husband without any contribution from him. It was fair that she kept most of the assets.

Mr Sharp’s case was that a short marriage was no less a partnership of equals than a long one. He said it was settled law that all matrimonial property is treated subject to the sharing principle unless there was any special contribution or truly non matrimonial assets.

The judge agreed with Mrs Sharp. Her bonuses were “way beyond the level of her previous earnings purely as a result of her employment …without any contribution from the husband.” He referred to the short dual career marriage and accepted her case was that she kept her capital separately. These factors justified a departure from the sharing principle.

Some commentators have suggested that this decision could lead to more bickering in a divorce over the finances and it poses more questions than answers. For example, what is a “short marriage?” Others have said that pre-nuptial agreements should be used more often to avoid expensive court costs.

All cases are different. What is beyond doubt that most divorces are settled on the basis of needs particularly where children are involved. It is usually best to seek advice from an experienced family law solicitor at the outset to provide comprehensive and realistic advice so that you can sort out your divorce without huge cost, both financially and emotionally. 

For help and advice on your divorce or separation contact Nick Aspley on 01623 655111 and at naspley@marchantsolicitors.co.uk.

Supporting OneWalk… Equal, Safe & Living Life – 22 June

Marchants are supporting a walk in Mansfield Town Centre on 22nd June 2017 at 11am to show our support for people with learning disabilities.

The walk will start outside the Town Hall in Mansfield and will follow a 1.2 km circuit around the town centre. People with learning disabilities face particular challenges and find it difficult to access society, businesses and services that others navigate easily. 

Nick Aspley, Partner said “We are delighted to support this walk. As a business located in the town centre for well over 100 years we have helped people with learning difficulties over the years. They face particular challenges in their everyday life and we, as a community, need to show that they are welcome and have our support.”

The walk is also supported by the Mansfield District Council, Mansfield BID, Nottinghamshire County Council and the local Police Commissioner Paddy Tipping.

Nick Aspley

For richer, for poorer...divorce reduces retirement income

An annual study by the insurer Prudential shows that for this year expected annual income for divorcees will be £16,300 compared to £19,400 for those who do not get divorced - a decrease of more than £3,000 per year.

The study also highlights that those who are divorced are more likely to have retirement incomes below the annual minimum income standard for pensioners of £9,712 (or £186.76 per week) as set by the Joseph Rowntree Foundation. 21% who have divorced expect their income to be lower compared with 13% who have not been divorced.

Debt is also a serious problem with 32% of those who have been divorced expect to retire with debt compared with 21% who have not been divorced.

The only age group where divorce rates are rising according to the Office of National Statistics is women over the age of 55 with most having already retired or have planned for their retirement.

Nick Aspley, Head of Family Law at Marchants Solicitors commented “Divorce is usually one of the worst experiences people go through in life and it does not get any easier the older you get. Your pension can be the biggest asset of your marriage along with the family home and it can be a complex exercise in trying to split your pension. The nearer you get to retirement the more important your pension is, and the consequences on your future financially will be more significant especially for women over 55. In an age when our personal debt has increased substantially these statistics do not surprise me.

You need to take specialist, independent legal and financial advice.” 

For help and advice on your divorce or separation contact Nick Aspley on 01623 655111 and at  naspley@marchantsolicitors.co.uk.

Nick Aspley

Ryan Giggs - football genius or just a damn good footballer?

Ryan Giggs is divorcing his wife, Stacey Cooke, after 10 years of marriage which is less half of the 23 years he spent with Manchester United as a footballer. They have 2 children.

Throughout his one club career, which of itself is a significant achievement, he won 34 trophies including 13 Premier League titles, 4 FA Cups and 2 UEFA Champions League trophies. He is probably the most decorated footballer of all time certainly in England and Wales if not the whole world. He played over 1,000 games in his career.

It is reported that he has a £40 million fortune and his wife is seeking half of it. He is to argue that he deserves special treatment because of his footballing genius and that his wife should get less than half.
Will he succeed?

The family court has a wide discretion based on statutory criteria as to how assets should be divided. Prior to 2000 usually ex-wives of wealthy men did not succeed in sharing the assets. However, in the case of Mr and Mrs White in 2000 the House of Lords decided “that each party is entitled to an equal share of the assets of the partnership unless there is good reason to the contrary.” This has become known as the “yardstick of equality.”

Since then it has been a struggle for usually wealthy husbands to argue that the assets should not be shared despite their “exceptional or special” contributions to the marriage which should mean they should keep the lion’s share of the marital wealth and depart from the “yardstick of equality.”

Recently the Laura Ashley Chairman Khoo Kay Peng had to pay his ex-wife over £64 million having spent (with his wife) nearly £9 million in legal costs.

A private equity millionaire Randy Work had to pay his ex-wife £72 million despite most of the marital wealth being created by him.

These are huge sums of money, less than the fortune of Ryan Giggs. He has an uphill struggle in convincing the family court that his wife should not share his fortune.

Watch this space…….

For help and advice on your divorce or separation contact Nick Aspley on 01623 655111 and at  naspley@marchantsolicitors.co.uk.

Nick Aspley

Brexit and Mrs Owens - one can, one can't

While the United Kingdom has triggered a divorce from the European Union poor Mrs Owens cannot divorce her husband after 39 years of marriage. She has failed to convince the Court of Appeal that she can divorce her husband on the basis of his unreasonable behaviour towards her. It appears that although she is stuck in a "loveless and unhappy marriage" she may have to wait until 2020 when she will have been separated from her husband for 5 years to get a divorce.

Who knows, she may get a divorce before the United Kingdom.

As our top judge Sir James Munby, President of the Family Division, said "ought the decision whether or not a marriage should be dissolved to be one of the parties which the State is not in a position to question?"

The whole experience for both Mr and Mrs Owens must have been a terrible one having their dirty washing aired in court quite apart from the costs involved. At a time where court resources are stretched are such cases a good and proportionate use of those resources?

The Law Society, Resolution (the family solicitors organisation) some of the judiciary and MP's have called for the divorce law to change. Is it now time for no fault divorce?
Parliament, over to you.....

For help and advice on your divorce or separation contact Nick Aspley on 01623 655111 and at  naspley@marchantsolicitors.co.uk. For more information log onto www.marchantsolicitors.co.uk

Nick Aspley

Can you really defend a divorce?

This is what Hugh Owens, aged 78, has done up until now. His wife, Tini Owens, aged 65, is challenging the refusal of Judge Robin Tolson in Oxford of refusing her application for a Decree Absolute last year. They have been married for 39 years.

There is one ground for a divorce that the marriage has irretrievably broken down supported by one of five "facts." The most common "fact" is unreasonable behaviour as it is usually a simple process to follow. Not in this case, as Mr Owens successfully argued last year that his marriage had not irretrievably broken down.

This is a rare case. The barrister for Mr Owens has said that " as the law stands, unhappiness, discontent, disillusionment are not facts which a petitioner can rely upon as facts which prove irretrievable breakdown."
The barrister for Mrs Owens has said "It is extraordinary unusual in modern times for a court to dismiss a petition for divorce."

Sir James Munby, President of the Family Division, who is the top family judge, and is considering the appeal by Mrs Owens, with judgment to come at a later date, said "It is not a ground for a divorce if you find yourself in a wretchedly unhappy marriage - people may say it should be."

So, watch this space. Whatever happens how can you describe the state of their marriage especially in the middle of lengthy and costly litigation?

Most divorces take around 6 months and are agreed. Surely it is now time for the no fault divorce which is supported by many judges and other organisations in the family justice system including the Law Society?
For advice on divorce and other family issues please contact Nick Aspley at naspley@marchantsolicitors.co.uk or call 01623 655111.

Nick Aspley

New Year 2017 Resolutions

Happy New Year to you all. Here are 6 New Year Resolutions that you may like to think about.

  1. Make a Will. If you are not married and made no will your partner gets nothing. Even if you made a will some time ago it may need reviewing. Make sure your loved ones and family get what you want. Plan ahead.
  2. Create a Power of Attorney. We are all living longer and getting more sick. If you lose the capacity to do things that you would normally do make sure you have appointed someone who you trust to make decisions and act on your behalf before it is too late. Prepare for the future.
  3. Marriage or relationship over? Unfortunately if you are in this position you need to know your rights and options for the future. We can help you decide.
  4. Moving House? New year, fresh start? We can help you plan ahead and ensure your biggest financial commitment runs as smoothly as possible.
  5. Had an accident? Winter and bad weather can lead to more accidents at this time of year. Let us help you to get what you are entitled to.
  6. Fixed Fee Advice. Remember we offer fixed fees wherever possible to ensure you can budget accordingly and know how much it will cost with no unexpected big bills later on.

    Don’t take our word for it look at our testimonial page!

Nick Aspley

The Help and Support for Separated Families Mark

Marchants Solicitors have been awarded The Help and Support for Separated Families Mark which is government initiative designed to help and support parents who are separated or who are separating. It demonstrates that we are committed to helping parents work together to resolve their disputes and focus on the interests of their children.

Nick Aspley Head of Family Law at Marchants Solicitors, said “We are the only firm with offices  in Mansfield and Kirkby in Ashfield who have been awarded this mark, and it again demonstrates our commitment and service to clients who are going through tough times particularly during this time of the year. Christmas is always a difficult time for families for all sorts of reasons and we have always helped clients to try and think of their children when they are separating.”

For more information including fixed fees that may be available to you contact Nick Aspley at naspley@marchantsolicitors.co.uk.

Nick Aspley

Archers' child name disputes - what can be done?

Any Archers fan will have listened in the last few weeks to the situation of Rob and Helen Titchener calling their son by different first names. This is quite rare as usually the argument is over a child's surname but what is the law?

At birth, a child must be registered in accordance with the Births and Deaths Registration Act 1953 within 42 days of the birth. The child's birth certificate is then issued giving identity to the child. Where the parents are married the duty lies with both. One married parent may register the birth as Helen did in the Archers before Rob was able to.

Where the parents are unmarried the duty is the mother's alone. The father's details can only be registered if either both parents attend together or a statutory declaration has been made or a relevant court order. If there is a dispute what happens?

All those with parental responsibility should be consulted. If an unmarried father is not registered as the child's father he does not have such responsibility and has no right of consultation. Consent should be sought preferably in writing.

Therefore if an unmarried mother registers or changes a child's surname without consent of the father and he finds out, he can apply to the court for determination of the child's surname. If there is a Child Arrangements Order in force as to whom a child should live with, then an application for permission to change is made under Section 13 of the Children Act 1989. If not, then an application is made for a Specific Issue Order under Section 8 and he could also apply for a Prohibited Steps Order to prevent a child's surname being changed.

The welfare of the child will be the court's paramount consideration. The change, or registration of, a child's surname "is a profound and not merely a formal issue." 
A change of surname has been permitted by the court to protect children from the possibility of abduction by the father and, in a rare case, where it would have been detrimental to the children if the father had tracked them down.
The birth can be re-registered if the child's natural parents have married each other since the birth or where it is agreed that the father's details are added.

A deed poll or a change of name deed is evidence of a child's change of name. A deed poll is enrolled with the Central Office of the High Court. A solicitor can help in drafting either document.

For more information contact Nick Aspley at naspley@marchantsolicitors.co.uk.

Nick Aspley

I want a divorce and am going after your inheritance

As part of their divorce settlement it was agreed that Mrs Randall would keep the first £100,000 of her mother’s inheritance with the remaining balance split equally between her and her husband.

However Mrs Randall’s mother left exactly £100,000 to her with the remaining balance of her estate of around £150,000 to Mrs Randall’s children. Mr Randle brought a claim challenging the validity of the will wanting to get his £75,000 share in accordance with the agreed divorce settlement.

Without getting into the complex legal arguments that took place, the court last week gave Mr Randall the green light to bring a probate claim to set aside the will. Time will tell if he is ultimately successful or not. Watch this space.

This case reminds those couples going through a divorce (or are about to) is on what basis does the divorce court take into account future inheritance?    

In any divorce the court has to take into account a menu of factors in deciding what is a fair financial settlement and one of those factors is “a financial resource which one of the parties to the marriage has or is likely to have in the foreseeable future.” This potentially includes an inheritance.

The assets that Mr and Mrs Randall had were modest and they wanted to avoid a costly 2 day final hearing. The agreement was that Mrs Randall kept the sale proceeds of the house while Mr Randall had the prospect of a capital sum from her inheritance to supplement his small pension fund. Both had solicitors acting for them and know that the agreement could not in any way bind Mrs Randall’s mother as to the terms of her will. The risk was to avoid potential care costs in her old age.

Nick Aspley, Head of Family Law at Marchants Solicitors in Mansfield and Kirkby in Ashfield said “ultimately each case falls on its own facts under the court’s discretion as to what a fair settlement is. For example, if a case is based on the need of one party the court may look at a claim on an inheritance. However as a judge said in the case of Mr and Mrs Robson in 2011 “judges should be cautious and not invade inherited property unnecessarily.” 

Find out more by contacting Nick Aspley at naspley@marchantsolicitors.co.uk or ring 01623 655111.

Nick Aspley

Building construction / repairs and maintenance

You may from time to time be involved in disputes either as a consumer or as a contractor/subcontractor.  If a dispute or claim occurs we can provide a fixed fee package which could include negotiation [to help maintain the relationship] Alternative Dispute Resolution [Mediation] or if necessary litigation.

If this is an area in which we can assist please do not hesitate to contact Debra Higgins on 01623 655111 or email dhiggins@marchants.co.uk

Nick Aspley

Negligent care of the elderly

As can be seen in recent cases there have been unfortunate incidents where the elderly have been subject to either neglect or abuse from both nursing and residential homes.  If you have reason to believe that anyone receiving care is either being neglected or abused you may be entitled to compensation, similarly if you have been the victim of an unprovoked act of violence you may be entitled to pursue a claim for compensation through the Criminal Injuries Compensation Scheme.

Please contact Debra Higgins on 01623 655111 or email dhiggins@marchantsolcitors.co.uk who can assist further.

Nick Aspley

Slips and Trips

Many slips and trips are caused by derelict pavements.  The local Authority have a duty to ensure that roads and pathways are inspected regularly and to repair any defects within a reasonable time.  If you find yourself the unfortunate victim of either a slip or trip you could be entitled to compensation.

Please contact Debra Higgins on 01623 655111 or email dhiggins@marchantsolicitors.co.uk who will be happy to assist.

Nick Aspley

Contested Wills and Estates

The death of a loved one is never easy.  But often after a death in the family arguments can arise over what has and what has not been left.  Members of the family may believe that they have been left insufficient financial provision or that a Will is not valid or that the Testator did not have the mental capacity to make a valid Will or was unduly influenced. 

We can offer fixed fee packages to review any potential claim that you may have. For further assistance, please do not hesitate to contact Debra Higgins on 01623 655111 or email dhiggins@marchantsolicitors.co.uk

Nick Aspley

Dispute Resolution

You may from time to time be involved in disputes either as a consumer or as a contractor/subcontractor.  If a dispute or claim occurs we can provide a fixed fee package which could include negotiation [to help maintain the relationship] Alternative Dispute Resolution [Mediation] or if necessary litigation. 

If this is an area in which we can assist please do not hesitate to contact Debra Higgins on 01623 655111 or email dhiggins@marchants.co.uk

Nick Aspley

Employer and employee help

Although at Marchants we do not have a specialist employment solicitor we can direct you to a specialist firm of solicitors who will provide solely employment advice.

  If you have a dispute with your employer or are an employer looking for advice please contact us as soon as possible for details.  Please note that most employment claims have very short time limits so it is essential that you contact us straightaway.

Please therefore contact the office on 01623 655111 for further information.

Nick Aspley

Industrial disease

A number of workers and former workers have unfortunately been subjected to either substances or working practices that have put them at risk of developing an industrial disease. 

If you have been affected by deafness, vibration white finger, been exposed to asbestos or any other recognised industrial disease then please do not hesitate to contact Debra Higgins on 01623 655111 or email dhiggins@marchantsolicitors.co.uk who will be happy to provide a free preliminary assessment.

Please note that many workers who have been exposed to asbestos may have had that exposure as far as 40 or 50 years ago but you may still be able to claim.  Similarly if you are the relative of a former worker who has tragically died through an industrial disease you may still be entitled to claim on behalf of their estate namely if it is within three years of the date of their death.

Nick Aspley

Professional negligence

Although often we receive well founded advice sometimes professionals get it wrong.  If you believe that you have received negligent advice from a professional, including other solicitors, please contact us.  We can then review the advice given and confirm whether we agree or provide an alternative solution.  We can also give you an opinion on any claims you may have especially if a firm of solicitors have refused to take on your action or claim on a no win no fee basis.

Please contact Debra Higgins on 01623 655111 or email dhggins@marchants.co.uk who will be happy to assist.

Nick Aspley

Have you been involved in a road traffic accident?

In the unfortunate event that you are involved in a road traffic accident it is important that you stop at the scene, contact the Police and ambulance service if anyone has sustained injury and obtain, if you are able, the third party’s details and details of any witnesses.

You should also be aware that if you submit a claim for damage to your vehicle to your own insurance that your personal details will be passed on to claims handlers who will contact you to persuade you to pursue a claim for any injuries you have sustained through them.  Please note that the claims handlers are unlikely to be local or specialist solicitors.  Therefore in the event that you do sustain injury in a road traffic accident please contact Debra Higgins on 01623 655111 or email dhiggins@marchantsolicitors.co.uk who is a local specialist personal injury solicitor to handle your case.

Nick Aspley

Debt Recovery

From time to time you may find yourself in a position where either you or your company are owed some money by an individual or another company.

You may find yourself in the unfortunate position where you may need the services of a specialist solicitor in order to recover the debt that you are owed.  At Marchants we offer an effective debt recovery scheme for a fixed fee pay structure which is agreed with you from the outset.  This starts from as little as £100 plus VAT.  If you are having problems recovering debts then please do not hesitate to contact Debra Higgins on 01623 655111 or email dhiggins@marchantsolicitors.co.uk

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