Cohabiting? Thinking of Cohabiting? Then read on…

During February the national press was awash with articles highlighting the case of 69 year old Joy Williams and fresh calls for the reform of Cohabitation laws. It coincided with the House of Commons Library publishing a briefing paper “Common law marriage and cohabitation” setting out the current position of the law and fact that the Law Commissions recommendations in 2007 had remained “shelved”.

Ms Williams had lived with her partner Norman Martin for 18 years and jointly owned a three bedroom property in Dorchester which was valued at about £325,000. They had purchased the property jointly in 2009 as tenants in common, which meant that upon death the individual’s share would not automatically pass to the survivor.

Sadly Mr Martin died of a heart attack in 2012. At the time of death Mr Martin was still legally married to Mrs Maureen Martin. The former dentist had not instigated divorce proceedings nor had he updated his will following his decision to leave the marriage and live with Ms Williams. Therefore in accordance with the law, his estate, which included his share of the house, was to pass to Mrs Martin.

Ms Williams brought a claim against the estate under the Inheritance (Provision for Family and Dependants) Act 1975 saying that Mr Martin’s half share in the house should be transferred to her and not form part of the estate. She was to demonstrate that they had lived together for a period in excess of two years and that she was either wholly or partly dependent upon him. In contrast, Mrs Martin, aged 73, argued that she was not estranged from her husband and he was not maintaining Ms Williams.

In a judgment which lasted four hours, Judge Nigel Gerald at the Central County Court in London found that Ms Williams and Mr Martin had lived together as though husband and wife in a loving and committed relationship and provided for Ms Williams to retain the half interest. He also ordered that Mrs Martin pay £100,000 on account of costs within 42 days. Mrs Martin’s advisors said this was a staggering amount which she could not afford and would be considering an appeal.

Analysis

There were many ways in which this case could have been avoided. Perhaps the cheapest and most simple option would have been to register the property in joint names as beneficial joint tenants so that upon Mr Martin’s death his share of the property would have automatically passed to Ms Williams, as it would have fallen outside of his estate. This would have been included in the original cost of the conveyancing at the time of purchase.

The next option would have been for Mr Martin to have updated his will. This could have provided for Ms Williams, either by leaving his share in the property to her or specifying his wishes as to his estate in light of his separation from Mrs Martin.

Had Mr Martin commenced divorce proceedings, then a final financial order would have been made which would (upon Decree Absolute) been a final settlement between himself and Mrs Martin. The Decree Absolute would have revoked provision for his wife in his will. However, this may have meant that his estate would have been left to his twin daughters and same the problem may have still arisen in relation to Ms Williams on the basis that he had not updated his will.

Advice

When deciding to live together couples need to have frank conversations regarding financial issues and document their intentions. There is no such thing as a common law husband or wife! Do not rely upon a myth to protect you.

Ask about your partner’s status – are they married? Consider the implications of that. If moving into a property owned by a partner, how is it owned by them? Consider what will happen upon separation or, even worse, their death.

If you are making a financial contribution into a property owned by your partner, ensure that you spend some of that money getting proper legal advice and documentation to prove the investment and your respective intentions, in order to protect you in the future in the event of a separation or death.

There will always be excuses as to why a cohabitation agreement is not drawn up (usually financial constraints) or perhaps with a married partner not being able to divorce due to costs, but in a committed and loving relationship it would be hoped that a sensible “what if?” conversation could be had and appropriate provision made.

Comment

I have found in the past year an increasing number of married clients who have instructed me where they have been separated for many years but have done nothing about it formally. Whilst many will have separated their financial positions in terms of capital assets, many others have not. Many of these clients have formed new relationships and are living unaware of the problems that may be caused by a sudden death and not having made up to date provision for current partners. A pension can be a hugely valuable asset within a divorce case and, unless specific nominations have been made, will be payable to a spouse upon death as opposed to a new partner. I have recently been asked to try and rush through a divorce where the parties separated over 15 years ago and resolved their capital issues at the time, but agreed to leave pension claims open (to see how the pension sharing legislation worked out) but then moved in with new partners and forgot about it. The husband has just been diagnosed with a terminal illness and having spoken to the pension trustees has found that he cannot leave his pension to his new (younger) partner, due to their rules on paying funds out to a spouse only.

Will the law be reformed anytime soon? I suggest not, despite the increasing number of people living as cohabitants, changing the law to provide rights of cohabitants is not a vote winner and further there are many ways in which an individual can secure their own position such as ensuring property interests are recorded or ensuring up to date wills are completed.

If any of the above circumstances affect you and you would like advice then please email mark.sage@tltsolicitors.com or call 0333 0060847.

 

 

 

 

Posted in Cohabitation, Family Law, Joint ownership | Tagged , , | Leave a comment

What’s the story?

 

Newspaper Stack - Firm Wide

Some might say, the 8 year marriage of Liam Gallagher and Nicole Appleton may be just another column of gossip in the tabloids.  However, their divorce proceedings do have implications for financial proceedings arising out of divorce for other high profile couples in the future.

News Group Newspapers (on behalf of The Sun) consider that simply being allowed to observe the court proceedings and being in court is not sufficient and argue that they should be allowed to publish certain facts from the hearing.

Mr Gallagher and Ms Appleton on the other hand agree that details of their divorce should not be published and, despite their differences, made a joint application to exclude the press from their financial hearing at the Central Family Court.

The hearing came before Mostyn J, who had imposed a temporary reporting restriction pending his judgment in the finance case.  His judgment on the reporting restriction was subsequently published at Appleton and Gallagher v News Group & Others [2015] EWHC 2689 (Fam).

Mostyn J confirmed that the law was currently unsatisfactory:  “the law about the ability of the press to report ancillary relief proceedings which they are allowed to observe is a mess”.

Historically, family proceedings have always been conducted in private. The parties are under a duty not to disclose to third parties information obtained within those proceedings. This is considered an implied undertaking. Following any hearing a Judge could, if in the interest of the public or legal world, provide a judgment that would be published, but anonomised to avoid the parties’ identification.

However, in an effort to provide transparency in court proceedings, the Family Procedure Rules 2010 changed this and permitted the press (but not public) into proceedings held in private. The rule change meant the press could act as a watchdog on the judiciary and the process. The press were not entitled to documents and had restrictions upon what could be published.

In Re S [2004] UKHL 47, Mostyn J considered the right to privacy and the right to unfettered freedom of expression and said “the press have to justify why the core privacy maintained and endorsed by Parliament should be breached. In ancillary relief proceedings the privacy side of the scales starts with a heavy weight upon it”.

By contrast, Holman J in Luckwell v Limata [2014] EWHC 502 (Fam) was of the opinion that all proceedings are in open court and therefore open to both press and public.

Mostyn J in the Gallagher and Appleton case was satisfied that neither party had played out their divorce through the press, nor had any proceedings been made public by holding the hearing in open court and on that basis the significant reporting restrictions were imposed but the press were not excluded from the hearing.

Comment

The press have been given permission to appeal this matter and clearly there is a difference of opinion within our judiciary. We await clarification from the Court of Appeal in due course.

Whilst the majority of divorcing couples do not have celebrity status, the vast majority do not want significant amounts of detail about their personal and financial lives exposed to third parties. Whilst the reporting restrictions prevent the naming of any child and there are further restrictions in place generally, Mostyn J did say that the names of the parties and their representatives could be published along with such facts as could be ascertained from public records such as Companies House or the Land Registry.

Therefore for those individuals who do not want details of their marriage to appear in the national press or local newspapers, there are many options for resolving family disputes out of court, such as mediation, arbitration or collaborative law. The family lawyers at TLT will help to discuss all options with you before deciding on the best process to suit your circumstances.

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Marriage is here to stay.

Further to my post Could this be the end of marriage  it would appear not after the High Court today rejected the claims of Ms Steinfeld and Mr Keidan to change the law to allow them to enter a civil partnership.

Mrs Justice Andrews dismissed their claim for judicial review on the basis that the different treatment of gay and opposite sex couples did not infringe upon their right to a private and family life enshrined in Article 8 of the European Convention of Human Rights.

She clarified by saying even if it did that the different treatment was justified as opposite sex couples can enter civil marriages, which are egalitarian and encompass the core principles of family life.

The government has indicated at past hearings that the future of civil partnerships has not been decided and that it was waiting to see how extending marriage to same-sex couples impacted upon the number of civil partnerships before making a decision on the future of civil partnerships.  The government did not want to enter into a costly and complex exercise of extending civil partnerships in the interim where there is a possibility they may be abolished or phased out in a few years.

Mrs Justice Andrews said “opposite couples are not disadvantaged by the hiatus, because they can achieve exactly the same recognition of their relationship and the same rights and benefits and protections by getting married”

The couple have indicated that the fight will go on and we will await news of any decision upon whether they intend to appeal.

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Apology from Ministry of Justice over Form E error.

Shortly before Christmas my colleague Sarah Green posted an article Form E frenzy – a storm in a teacup upon LinkedIn regarding the media frenzy over the fact that a software error had been picked up in the Court produced document and so financial settlements within divorce proceedings could be wrong.

We now have the results of the investigation by the Ministry of Justice and an apology contained in a written statement to Parliament.

Should you be one of the individuals affected by the error or have concerns then please do contact me at mark.sage@tltsolicitors.com

Posted in Courts, Family Law | Tagged | Leave a comment

Could this be the end of marriage?

Opportunity ahead sign - Firm WideOver the next two days the High Court in London will consider whether a heterosexual couple can enter into a civil partnership.

So far, civil partnerships have only been available to same-sex couples. Charles Keidan and Rebecca Steinfeld are asking the court to allow them to enter a civil partnership and in practice campaigning for a change in law to make it available to all couples.

The case began in 2014 when Mr Keidan and Ms Steinfeld were refused permission by a registrar to enter into a civil partnership.

As a result of the refusal the couple decided to take the government to court and have sought a review of the law on the basis that it breached the European Convention on Human Rights (Article 14), which states that everyone should be treated equally under the law without discrimination on any ground. They also say that the refusal to allow them to participate in a civil partnership amounts to discrimination, breaching their right to a family life under Article 8 of the European Convention on Human Rights.

The Civil Partnership Act 2004 was introduced in 2005 and gave same-sex couples the right to have their relationships recognised. This fell short of marriage but created legal rights. Following further pressure, the government introduced same-sex marriage in 2013.

The couple are supported by a petition containing 34,000 signatures, and another couple Jimmy Pierce and Laura Cochrane, who also want their relationships to be officially recognised legally without the requirement to marry.

There is clearly support for an extension of civil partnerships to opposite sex couples – the government’s own consultation paper in 2012 saw over 78,000 people confirming their support of the extension of civil partnerships. With increasing numbers of couples co-habiting as opposed to getting married, a change in the law has long been recognised by society. However, unfortunately formal reform has always been shelved by successive governments – clearly it is an unlikely vote winner and so not a priority.

So what is the difference?

Fundamentally there are not significant differences between civil partnerships and marriage but the main two are as follows:

  • Civil partners cannot call themselves “married” for legal purposes.
  • Adultery cannot be used as a reason to dissolve a Civil Partnership. In marriage, if one party is unfaithful this can be a fact to be relied upon to prove that the marriage has irretrievably broken down. The legal definition of adultery mentions opposite sex couples only, meaning that it cannot apply to civil partnerships.

Why it would benefit cohabitants? 

At present cohabitants have no obligations to support each other upon separation, no matter how long they have lived together. Unless provision is made within a will for a cohabitant or by nomination of death benefits, there is no automatic right of provision upon death.

A civil partnership affords individuals certain legal rights akin to a marriage, so they will become their partner’s next of kin and they will have financial claims against the other upon separation and also in the event that provision is not made upon death.

Opinion

We support equality for all and believe that the same opportunities should be available to all couples regardless of their sexual orientation. This would enable cohabiting same-sex couples to enter a civil partnership creating legal obligations and rights, without the requirement to enter into a marriage, if this is their preference.

We await the High Court’s decision with interest.

Posted in Civil Partnership, Cohabitation, Family, Human Rights | Tagged , , , | Leave a comment

Unbundled services in family cases supported by Court of Appeal

The recent case of Minkin v Landsberg (Practising as Barnet Family Law) [2015] EWCA Civ 1152 recognises the inevitability of family practitioners providing ‘unbundled’ and bespoke services in the wake of legal aid cuts.

The facts
Mr & Mrs Minkin separated in 2007 although remained living under the same roof. Mr Minkin was a financial advisor and his wife was an accountant. During the next year or so they negotiated a financial settlement without solicitor involvement.

In early 2009 an agreement was reached and was recorded in a document headed “Minutes of Agreement to Consent Order”, which was drafted by one of the parties without a solicitor.

It outlined the following:

The house would be sold and after payment of debts, the proceeds would be divided 67% to the wife and 33% to the husband.The husband would retain the Spanish flat.The husband would pay the wife £800 per month child support.The husband would pay the wife £300 per month maintenance.
However shortly after the document was drawn up, the wife had second thoughts and sought advice from Tilley & Co.

Tilley & Co wrote to the wife in February 2009, setting out terms upon which they were willing to act;

“On a preliminary review of the settlement proposals it does not seem to be a satisfactory offer but would need further disclosure to back this advice up. I advised you that if you felt comfortable with the offer and felt that it was a good deal then you could of course accept it. However, the other options available to you are:
dealing with this matter through mediation without the advice of solicitors;negotiations through solicitors without any disclosure; andan application to the court with the requirement for full and frank disclosure before a settlement could be reached.”
The husband was not happy with the wife’s actions. A letter was sent by Tilley & Co to Tynan Solicitors (who were acting for the husband) saying that “the wife had signed the Agreement under duress, [and that] she was withdrawing her consent and requesting the court be notified immediately”.

Despite this, a consent order was lodged with Barnet County Court and at a hearing in March 2009. DDJ Maunder refused to approve the consent order, seeking clarification of the amount of debts to be repaid from the sale proceeds of the family home, and adjourned matters to a hearing on 7 April 2009.

Following the hearing, the wife approached a different solicitor from Barnet Family Law, and requested that they amend the order and put into the correct format for the court to approve. Barnet Family Law confirmed the instructions in writing, which were in turn confirmed by the wife, who said:

“I know the risks for maintenance if Gary is overseas but I don’t think he will agree to capitalise my maintenance and I just want to bring this all to an end as swiftly as possible.”

Barnet Family Law corresponded with Tynan Solicitors and the revised document was submitted to the court. Tilley & Co, who had finished acting for the wife, sent their file to Barnet Family Law. This arrived on 6 April 2009, after the revised document was sent to court.

On 7 April 2009, the husband and wife attended Barnet County Court without solicitors and the court approved the consent order.

Subsequently there were further problems between the husband and wife and litigation ensued. The wife blamed Barnet Family Law and commenced proceedings for damages for professional negligence against Lesley Landsberg, practising as Barnet Family Law.

Professional negligence claim
The main thrust of the wife’s argument was that Ms Landsberg was negligent in the advice provided prior to the order being made. The wife thought that she would have had a better settlement if she had not agreed to the order. She further alleged that Ms Landsberg’s conduct of subsequent litigation was poor, as costs orders were made against the wife.

The central issue to the case was the scope of the retainer. Ms Landsberg’s case was that it was strictly limited to simply redrafting the order.

After a four day trial, the District Judge dismissed the wife’s claims on the following points:

Ms Landsberg acted under a limited retainer, namely draw up the matters agreed between the husband and the wife in a consent order which the court would approve;The wife’s instructions to Ms Landsberg required her to finalise the consent order swiftly before the husband departed to America;The wife did not on any occasion before 7 April 2009 tell Ms Landsberg that she had agreed to the terms of the draft consent order under duress from her husband, or that she wanted to resile from what she had agreed;Ms Landsberg received the file from Tilley & Co on 6 April 2009, which contained Tilley & Co’s letter dated 23 February 2009. This was the first intimation sent to Ms Landsberg of the wife’s wish to resile from the agreement. Ms Landsberg did not read through Tilley’s file on the day when it arrived;The wife was an intelligent woman, who knew her own mind and understood the legal issues. She did not appear to be subservient to the husband;Ms Landsberg performed her duties under the retainer. She was not under a duty to advise on the merits of the agreement reached between the husband and the wife;If Ms Landsberg was negligent, the wife’s claim would have failed because the damages claimed were speculative; andMs Landsberg handled the litigation after March 2009 competently. She was not responsible for the costs orders which the court made against the wife.
The wife was not happy with the decision of the District Judge. She appealed to the Court of Appeal on the basis that the retainer was not limited to the extent held and that Ms Landsberg was under a duty to give broader advice, which she did not perform.

Court of Appeal decision
The Court of Appeal examined the evidence and dismissed the wife’s appeal. Lord Justice Jackson confirmed that the defendant had been acting upon the basis of a limited retainer and was under no duty to give broader advice or warnings.

Lady Justice King agreed but emphasised to practitioners that now legal aid has been removed from financial remedy cases, individuals will expect and want solicitors to draw up agreements reflecting their wishes or other bespoke pieces of work. She recognised that this was invaluable for the smooth running of the court system and it would be detrimental to litigants in person and the courts if solicitors were not able to undertake such work for fear of being sued.

But King LJ highlighted that where a solicitor acts upon a limited retainer the supporting client care letter, attendance notes and formal written retainers must be drafted with considerable care in order to reflect the client’s specific instructions.

Comment
At TLT the Family team continue to offer both a full service to clients and where appropriate an unbundled service to suit a client’s requirements. Such requirements are always discussed and agreed in advance. Many clients are able to manage their own cases but prefer to have a legal advisor to hand if needs be.

This article first appeared on TLT website on 16 December 2015

Posted in Courts, Divorce, Legal | Tagged , | Leave a comment

Divorcees must act fast to protect pension earmarking order

The front page of today’s Daily Telegraph warns that those with pension earmarking orders should take urgent advice to ensure that any financial order obtained in divorce or judicial separation proceedings adequately protects their interests.

An unexpected consequence of the recent pension legislation reforms is that those with earmarking orders could potentially be at risk of losing benefits unless their orders are drafted properly.

Earmarking orders typically provide for a percentage of the lump sum to be paid or a percentage of the income at the time of retirement. As the pension remained in the sole name of the individual, the control of when such benefits were taken were out of the hands of the individual with the benefit of the order.

At the time most pensions provided for a cash lump sum to be taken and for the remaining fund to be used to purchase an annuity. But the new reforms mean that individuals can now take out the whole fund subject to a relevant tax charge.

This could mean that an embittered spouse could seek to deprive the other by withdrawing the fund as capital so that no fund remains to purchase an annuity or income stream. This may seem extreme, given the tax consequences that may follow. But unfortunately some spouses will go to considerable lengths to prevent the other getting assets.

Earmarking orders were introduced in 1996 and at the time provided a way for spouses to secure an interest in the other’s pension benefits. These orders were replaced from 1 December 2000 with the introduction of pension sharing.

However, for those who divorced after 1 July 1996 but before 1 December 2000, or for those with a judicial separation after 1 July 1996 who secured an earmarking order, it is worth checking the terms of the order. This is to ensure that the pension benefits to be shared are adequately protected in light of the new pension freedoms, which were clearly not considered possible 20 years ago.

Please contact me on 0333 00 60847 or by email mark.sage@tltsolicitors.com with a copy of your order to ensure that the appropriate safeguards are in place.

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