What Do I Need To Know About Divorce?

Making the very difficult decision to get a divorce from your spouse is one which will take time.

It is crucial therefore that you know where you stand and what your rights are before you make any firm decisions and to learn as much about the process as possible.

1. On what grounds can I get divorced?

There are five different grounds for divorce in England and Wales (the law is different in Scotland and Northern Ireland). These are:

  • Adultery
  • Unreasonable behaviour
  • Desertion
  • You’ve been separated and lived apart for 2 years and you both agree to the divorce
  • You’ve been separated and lived apart for 5 years, even if your spouse will not consent to the divorce

You must also have been married for a year before you can commence divorce proceedings

2. How do I deal with custody of our children?

You will ideally agree on the details of the custody of your children amicably with your spouse before the divorce petition is sent to the court because the Statement of Arrangements for the Children needs to be sent along with the divorce petition. The court needs to be persuaded that the arrangements you put in place are in the best interests of your children. If you are struggling to be amicable, there is the opportunity for you to and your spouse to get a mediator involved to resolve these issues, but not being able to agree does not mean that you cannot divorce. It simply means that you may need to address the custody issues separately.

3. How is the financial settlement worked out?

Each divorce is different and as it is really important to achieve the best settlement possible for you and your children, speaking with a specialist family solicitor will help you to ensure you get sound legal advice on this important area of divorce. There are a number of factors that will be considered before the most common settlement of a monthly maintenance figure will probably be agreed. You should try to work through any contentious issues with a mediator if necessary and try to agree the financial settlement before court.

4. Will I have to go to court?

If your divorce is contested (your spouse does not agree with the divorce) then you will have to go to court and possibly attend a court hearing alongside your spouse. However, if neither of you contest the divorce you will not have to attend court. All paperwork, including your divorce petition and your applications for a decree nisi and decree absolute will go through the court.

If you decide that a divorce is the route you want to take, you should seek advice from a family law solicitor to ensure that you are fully aware about what your divorce will mean for you and your family.

This information provided in this article is not intended to constitute legal advice and each relationship breakdown requires careful consideration in our view by a fully qualified Solicitor before decisions are made and before you embark on a certain course of action.

Shak Inayat
Solicitor
0207 183 2898

How Should I Look After My Will?

Making a Last Will and Testament is one of the most important things you will ever do. It will give you control over what happens to your estate once you die and in addition, it provides legal protection for your loved ones.

However it is not as simple as making your Will, putting it in the cupboard and forgetting all about it. If you do take this approach, you may find that by the time you die your Will is completely out of date and could exclude loved ones you wanted to inherit from your estate and perhaps worse still include those you didn’t.

Therefore, it is hugely important to understand how to take care of your Will, so that by the time you die it still reflects your wishes.

The first common mistake once a Will has been made is that it gets put into a cupboard and forgotten about. If you have not told anyone that you have made a Will this can cause serious problems in the future.

If your Will isn’t found, you will be deemed to have died intestate, which means that your estate is divided up by the law of intestacy, with no reference to your own wishes. Therefore, when you make a Will, it is important to tell people close to you that you have made a Will and also where it is stored.

You should also consider where to store your Will so that it is safe. A solicitor could store a copy of your Will at their offices, often in a safe able to withstand any fire or flood risks. You could also retain a copy of the Will at home, but bearing in mind the complications mentioned above, it is not advisable to store the original copy at your home.

Once your Will has been made, it is important to keep it up to date, particularly if you get married, divorced or have children. In all of these circumstances, there are real implications to not updating your Will, such as an ex-spouse inheriting all of your estate when she has already remarried. This can and does happen, so keeping your Will up to date is critical. This can be done quickly and simply with a codicil for small updates, or for some of the larger life events it may be necessary to make a new Will. Your solicitor will usually gladly discuss any changes to your circumstances over the telephone and advise you whether your Will needs updating.

What is crucial with updates and new Wills is that they remain valid in the eyes of the law. Any invalid changes may make the Will void, meaning again that you will be classed as dying intestate.

One thing is certain, you should treat your Will with care and respect and not just forget about it, as this could cause significant repercussions after your death.

This information provided in this article is not intended to constitute legal advice and each relationship breakdown requires careful consideration in our view by a fully qualified Solicitor before decisions are made and before you embark on a certain course of action.

Shak Inayat
Solicitor
0207 183 2898

Should Divorce Cases Be Removed From Court Altogether?

Marriage is said to be the oldest institution and getting married is a serious contract to enter into with someone. The consequences of the marriage not working are to navigate a divorce, which often can be adversarial, long and complex. However, plans are moving forward to allow divorce to be carried out in a national processing centre, which will pave the way for divorce to become much easier and could be similar to applying for a new passport.

Sir James Munby, one of the country’s most senior judges is looking to take 120,000 divorces out of the court system each year and put them into a number of regional centres across the country in order to complete the paperwork instead of in a court. He says that the process of divorce should be removed from the issues connected to ending a marriage, like the division of assets or the custody of children.

Any divorce which is not contested and where there are no financial claims nor any claims over children will be included in these new plans, which will help to reduce the burden on the court and to make divorce cheaper and easier.

As non-contested divorces are largely administrative, Sir James says that this is a process which could lend itself to being completed in a central processing centre.

Whilst there is general support for the move from elsewhere in the judiciary, with Sir Paul Coleridge who founded the Marriage Foundation which champions stable relationships in marriage, saying that this simplified divorce process is already happening, albeit by a judge in the court system. He also commented that, whilst he supported the changes, there was a real risk that the general public may perceive that divorce was easier as a result.

Of course whilst there are many supporters of making the process of divorce less adversarial and easier for everyone involved, there are people who do not support these ideas. Ex Tory MP Ann Widdecombe has commented that the idea makes a mockery of marriage by making divorce too easy and that the decision to get divorced should be taken with plenty of thought.

We shall wait to see the outcome of these proposals, however any steps which can be taken to make uncontested divorce less acrimonious must be a positive step forward.

This information provided in this article is not intended to constitute legal advice and each relationship breakdown requires careful consideration in our view by a fully qualified Solicitor before decisions are made and before you embark on a certain course of action.

Shak Inayat
Solicitor
0207 183 2898

Intestacy Laws Are Changing

Intestacy is the law which governs anyone’s estate who dies without a valid Last Will and Testament in place and the intestacy laws distribute the deceased person’s estate between any surviving spouse, children or relatives.

These laws are quite outdated and have meant that spouses were often only given half of their partner’s estate, however changes to the law means that this will no longer apply.

So what does this mean for the family of someone who dies without a valid Will and does it mean that making a Last Will and Testament is now pointless?

In a word, no. It is very important to make a Will to ensure that your wishes are honoured, but also to protect your spouse and your children. A Will is particularly important if you are not married or in a civil partnership as the law of intestacy makes no provision for ‘common law’ partners.

In addition to making a Will, you should also ensure that your Will is regularly updated with any births, deaths, divorces or changes in family circumstances. Often, it is these small changes which are missed which can cause serious family disagreements after death and mean that your wishes are not accounted for.

So what do these changes to the intestacy law incorporate? The reforms to the law, which are being made by the Inheritance and Trustees’ Powers Act 2014, include the passing of the whole estate to the surviving spouse if there are no children. The legislation also seeks to simplify the distribution of assets between children and their parent and any remaining relatives who inherit under the law.

These reforms include changes to inheritance by children who lose a parent and are subsequently adopted and are also intended to assist unmarried fathers who lose out under current laws if their child dies intestate.

These changes are to be introduced on 1st October 2014, and whilst they go some way to making the process of intestacy less painful, this is no replacement for the provision of a Will which can be used to ensure your wishes are carried out, but can also be a powerful tool to reducing the inheritance tax burden on your loved ones.

This information provided in this article is not intended to constitute legal advice and each relationship breakdown requires careful consideration in our view by a fully qualified Solicitor before decisions are made and before you embark on a certain course of action.

Shak Inayat
Solicitor
0207 183 2898

What Can I Do If I Have Been Excluded From A Will?

Dealing with the emotions and grief of losing a loved one can be difficult to come to terms with, but this may be magnified if you feel that you have been unfairly excluded from your loved one’s Will.

Many people do not discuss their Will with their family before they die, which can lead to misunderstandings when the Will is read. Yet, is there anything you can do if you have been excluded from a Will?

You will need to establish if you have a valid claim against the Will and this will depend on a number of things. First of all, if your loved one had a financial responsibility for you and leaving you out of the Will means that you are no longer taken care of, you may be able to make a claim. You may have a claim if you are a spouse, child or even an elderly parent.

In addition, there are circumstances where the validity of the Will itself may be called in to question. If the Will was changed shortly before your family member died and resulted in everything being left to only one person or if the Will does not comply with the legal requirements of a Will it may be invalid. A Will must be witnessed and signed correctly and any witness cannot be a person who stands to financially benefit from the Will. If any of these parts of the Will are not correct, there may be a valid legal challenge.

If your loved one was ill and lacked capacity when their Will was drawn up, there may be a case for the Will to be challenged on these grounds.

When making the decision to challenge a Will, you should carefully consider the impact on you and the rest of your family. Any legal challenge is likely to cause a rift in your family which may not be reconcilable.

By speaking to a specialist Wills and Probate solicitor, you will be able to determine the likelihood of a successful claim and you can decide if you want to make a legal challenge to the Will.

This information provided in this article is not intended to constitute legal advice and each relationship breakdown requires careful consideration in our view by a fully qualified Solicitor before decisions are made and before you embark on a certain course of action.

Shak Inayat
Solicitor
0207 183 2898

Courts Split Over Assisted Death

Assisted death is a controversial subject which brings rise to many differing opinions in society. There have been a number of high profile cases going through the courts asking for a ruling on the right to an assisted death, such as Tony Nicklinson who, following a stroke, was completely paralysed. He was denied his request by the courts, after which he refused food and died in August 2012, a week after his High Court appearance.

Tony Nicklinson’s widow Jane decided to appeal the decision by the High Court along with Paul Lamb, who has taken over Tony Nicklinson’s case. Mr Lamb was paralysed in a car accident in 1990 and has been in constant pain, needing 24 hour care since his accident.

His statement to the court said “I feel worn out and am genuinely fed up with my life. I feel I cannot and do not want to keep living. I feel trapped by the situation and have no way out. I am fed up of going through the motions of life rather than living it. I feel enough is enough.

Currently a doctor cannot help anyone to die without facing a murder charge because the current law says it is an offence to encourage or assist a suicide.

However, the Supreme Court now has to decide if the law, which says it is an offence to assist suicide, is actually in breach of the European Convention on Human Rights. Mrs Nicklinson and Mr Lamb are asserting that the current law denies the right to end your life when and how you choose with the help of a medic, if you are unable to do so yourself.

There is a split between the Supreme Court panel currently and although they heard the case from Mrs Nicklinson and Mr Lamb in December 2013, there has still been no ruling. The Supreme Court’s current legal term finished at the end of May, without any judgment in the case in sight.

It is clear that the decision which the Supreme Court is facing, to allow a ‘dignified and humane death’ for people who wish to end their life but cannot do so themselves, is an important one which will take time to reach.

This information provided in this article is not intended to constitute legal advice and each relationship breakdown requires careful consideration in our view by a fully qualified Solicitor before decisions are made and before you embark on a certain course of action.

Shak Inayat
Solicitor
0207 183 2898

Are DIY Wills A False Economy?

Writing your own Will has become quite a popular idea, especially since the economic downturn, with many people looking to cut costs in all areas of their lives. Most people consider the use of a ‘Do It Yourself’ Will kit to be completely safe, but is this really true?

Whilst writing a Will with a DIY kit may seem like an easy thing to do, the reality is not so straight forward. The consequences of your cost savings may not come to light until after you die, when the results could be devastating for your family members.

There are many simple mistakes which can be made using a DIY Will kit and whilst they may seem relatively minor, in reality, they can render your Will null and void and mean that you die intestate, leaving the Government to determine how to divide your estate.

The effects of dying intestate can mean that your spouse will only inherit a percentage of your total estate, which could result in financial issues which were completely unintentional on your part.

In addition, if both you and your partner die and your children need a legal guardian, if your Will is not valid due to a mistake you made when writing it, your children may be placed into care and a court will decide where they will live without any of your wishes being considered.

Some of the more common mistakes made when drafting a DIY Will are:

  • Signing a Will and using witnesses who stand to inherit from the estate (meaning that they will be unable to do so);
  • Not updating a Will properly following births, marriage or divorce; and
  • Not having a tax efficient Will, meaning more inheritance tax is payable than might otherwise be necessary.

So you can see that making a Will yourself exposes you and your family to a certain amount of risk of your Will being invalidated as a result of any mistakes or omissions you’ve made. Therefore, using a specialist solicitor to draft your Will for you will protect your loved ones and ensure that their future is safeguarded once you die. In most cases this will be a small price to pay in comparison to the risks of a DIY Will.

 

This information provided in this article is not intended to constitute legal advice and each relationship breakdown requires careful consideration in our view by a fully qualified Solicitor before decisions are made and before you embark on a certain course of action.

Shak Inayat
Solicitor
0207 183 2898

Same Sex Marriage And The Law

At the end of March, the first same sex weddings took place in England and Wales with David Cameron confirming his support saying that it demonstrated Britain’s ‘proud traditions of respect, tolerance and equal worth’.

Whilst equality in marriage may divide opinion, in addition to this there are implications for the laws around marriage in England and Wales with the introduction of same sex marriage.

The Marriage (Same Sex Couples) Act 2013 allows same sex couples in England and Wales to:

  • Marry in a civil ceremony
  • Be married by a religious organisation which agrees to undertake the ceremony
  • Convert any civil partnership into a marriage if they wish to
  • Allow an individual to change their gender without needing to end their marriage

The Act also protects any religious organisation from having to carry out same sex marriages if they do not wish to.

So these amendments all seem relatively straight forward and they are, but there are some exceptions that do not apply to same sex marriages.

The first exception is that same sex couples will not be able to divorce on the grounds of adultery, because the law defines adultery as a sexual relationship outside of marriage with someone of the opposite sex. The second exception is that a same sex marriage cannot be annulled on the grounds of non-consummation.

In addition to these exceptions, pension rights are currently not equal, but this will need to be reviewed and reported on by the Secretary of State by 1st July this year.

This also brings into question the place of civil partnerships in England and Wales and whether couples of opposite sex should be allowed to have a civil partnership rather than just the option to marry. Again, the Secretary of State will need to review this and consult on the options.

As the law only applies to England and Wales, same sex marriage is currently treated as a civil partnership in Northern Ireland. Scotland is currently debating this issue in the hope that it also becomes law there.

 

This information provided in this article is not intended to constitute legal advice and each relationship breakdown requires careful consideration in our view by a fully qualified Solicitor before decisions are made and before you embark on a certain course of action.

Shak Inayat
Solicitor
0207 183 2898

Seven Good Reasons To Make A Will Now

Making a Will is not normally high on a list of priorities, nor is it a particularly engaging activity, but there are a number of excellent reasons why you should make a Will, and do it soon.

Your wishes will be fulfilled – whatever you decide should happen after your death, both to your estate but also regarding your funeral, can be stipulated in your Will. Therefore, if you want specific music played at your funeral or you want a portion of your estate to be given to a favourite charity, this can be made a certainty by using a Will.

Intestacy won’t apply – the laws of intestacy, which are applied to an estate if no Will is made can be very strict and depending on the size of your estate, there may be a limit as to how much your spouse will be given. In the event of you dying with no blood relatives, your estate will be given over in total to the Crown.

Your children will be provided for – if you have children, you will be able to stipulate who you wish to be their legal guardian. You will also be able to make financial provisions for them, for example, to remain in the family home until they reach adulthood. Without a Will, they could be taken into care until a decision over who will look after them can be made by the court, and even then, they could be placed with someone you would not have chosen.

Protect your partner if you are not married – common law partners have no legal rights at all so if you and your partner have never married and you die leaving no Will, there is the very real possibility that your partner will be in financial difficulty. Your Will should be used to protect your partner from such an event.

Inheritance Tax Issues – any estate worth over £325,000 is subject to inheritance tax and a Will can help you plan more tax efficiently, as many properties are worth more than this alone.

Divorced but not remarried – many people do not realise that if you are divorced and not remarried and you leave no Will, your ex-spouse will inherit your estate.

To help out your family – when you die intestate the whole process of probate takes much longer and is much more complicated. This will leave your loved ones with a complicated legal process and all of the funeral costs to find, whilst also grieving for you. This has to be one of the best reasons to act now and make your Will.

Whilst some of these points raised may not apply to you and your circumstances, some of them will and those should be enough for you to recognise the value of making a Will soon.

This information provided in this article is not intended to constitute legal advice and each relationship breakdown requires careful consideration in our view by a fully qualified Solicitor before decisions are made and before you embark on a certain course of action.

Shak Inayat
Solicitor
0207 183 2898

Are Legal Aid Cuts Having An Effect On Family Courts?

Government cuts across all sectors have been biting for a number of years now, but the cuts in the legal budget have taken time to be fully realised and the impact on the family courts are hitting some of the most vulnerable people in our society.

The knock on effect of the changes in legal aid mean that in 42 per cent of cases now coming to the family court neither party have a solicitor, compared with just 12 per cent before the legal aid cuts. People without legal representation are known as Litigants in Person, or LIPs and a lack of legal advice can have a negative effect both on the court system and on the people involved.

A lack of representation brings a number of issues. The first is on the parents who are struggling to manage the access arrangements for their children. Without legal advice and representation, they will certainly find it difficult to know what processes need to be followed and they will also not have the experience to be able to argue their case effectively in court.

When taking a custody case to court, there are a number of tests which could be utilised if there are allegations of alcohol or drug abuse, such as hair follicle sampling, but tests like these are proving too expensive for the normal person on the street and this is affecting the outcome of some cases.

Victims of domestic abuse are sometimes having to face their abuser in court now because in order to qualify for legal aid – thus to be represented and supported, they have to have a doctor’s letter, which can cost up to £75 and some cannot afford this cost.

The knock on effect of litigants in person in the courts are that judges are having to guide them and use lots of discretion during the case, which would not be necessary with a  lawyer present. Therefore cases are taking longer to resolve in an already backed up court system and some private custody hearings are now taking 6 months or longer to be resolved.

Whilst no one can deny that savings need to be made, should these cuts really have to affect the most vulnerable in our society?

This information provided in this article is not intended to constitute legal advice and each relationship breakdown requires careful consideration in our view by a fully qualified Solicitor before decisions are made and before you embark on a certain course of action.

Shak Inayat
Solicitor
0207 183 2898