Short Marriages – More Clarity?

Most experienced family law practitioners know that White v White introduced the ‘sharing principle’ where as a general guide, an equal division of assets between husband and wife should be departed from only if there is good reason for doing so.

Often there is an argument used by the asset holding party that they have made a “special contribution” or such like and the courts in the main have been unimpressed by those arguments save where those contributions have been “exceptional”.

It would seem therefore that we are doomed to just lay down and accept the sharing principle in all but the most exceptional of cases. However recently in Sharp v Sharp [2017] EWCA Civ 408  the court did depart from the principle of sharing and the wife was successful in reducing the capital sum awarded to the husband in a short marriage with no children.

The basic facts are that the parties earned similar incomes of circa £100,000 per annum but they the wife went on to earn substantial bonuses of over £10 million during the marriage whilst the husband earned very trivial bonuses.

At first instance, applying the sharing principle Sir Peter Singer found that there was no sufficient reason identified for departing from equality of the division of the assets and awarded the husband £2.7 million. Broadly speaking half the matrimonial pot.

The wife appealed.

 

Decision of the Court of Appeal
McFarlane LJ held:

1. The notion that the sharing principle applied unless the parties had entered into a prenuptial agreement was “unsustainable and not supported by any authority”.

2. The opinion of the majority in Miller was that the law should entertain the possibility for departure from equal sharing where there are unilateral assets in a short marriage and it was dual-income case.

3. The obiter comments in Charman, preferring the approach of Lord Nicholls, was not a determinative statement of the law.

4. The manner in which the parties arranged their finances was more than sufficient to establish that the wife maintained her capital separately, in a manner compatible with that described by Baroness Hale in Miller.

The wife’s appeal was allowed.

The husband’s claim was therefore limited to £2 million calculated as follows:

(a) £1.3m being a 50% share of the aggregate value of the parties’ two properties, which were held in joint names; and

(b) £700,000 to reflect three factors: (i) the standard of living enjoyed during the marriage; (ii) the need for a modest capital fund to live in the property the husband was to retain; and (iii) some share in the assets held by the wife.

The main crux therefore seems to me that the income and approach to spending was to delineate expenditure but equally importantly, that the marriage was short.

One question that remains unanswered is: how is a ‘short’ marriage defined?

We shall have to wait and see.

 

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

Penn Chambers Solicitors
0207 183 2898

 

Nursing Homes & Fees

If you, or your relative, have reached the point where it becomes preferable or necessary to move to a setting where support can be provided in a care home, it’s critical to know all your options, as well as the likely level of care home fees, before making any major decisions.

 

What level of support is needed?

A home registered simply as a “care home” will provide personal care that covers help with washing, dressing and giving medication. Should you require medical or nursing care you will need to be in an establishment registered as a “care home with nursing”, also known as a “nursing home”.
How far should you plan ahead?

Obviously, it is essential to choose a home where the level of care required is readily available, and where you will not be spending money on services you will not need. Equally, if your health is declining rapidly, that approach may need to be balanced with looking ahead and anticipating a higher level of care in the near future in order to avoid having to move from one home to another.

Your GP will be able to advise on whether nursing care is appropriate (short or long term); but it will certainly be needed if, for instance, you require:

  • Dressing of an open or closed wound
  • Artificial feeding
  • Medicine through injections
  • Intensive rehabilitation resulting from a debilitating disease or surgery

Planning your nursing home care

Often the choice of a care home or nursing home has to be made in a hurry – in the aftermath of an illness, hospital stay or fall – giving you limited time to make a decision on where to go, or to plan how you meet the fees. Choices may also be limited because some homes can have waiting lists. But the more time you can spend choosing the right home, the better.

 

Choosing the right nursing home

The first important consideration is location – ideally it should be convenient for friends and relatives to visit. And while it might seem natural for someone to move to a home close to where they have always lived, the support network for that person may have changed, making it advisable to move close to immediate family or those in the best position to make regular visits.

 

Paying for care

  1. Transferring your home to family

Often families believe that by gifting their property to loved ones it will protect their home. This is not the case and can leave you open to big risks for example, the people you gift the property to may:

  • Get divorced
  • Become bankrupt
  • Die before you decide to sell the property
  • Have their own care issues

In any of these cases by giving your property to one or more people, they become the owners and that may cause a whole host of other problems.

It could be tempting to give away or sell your house to relatives to avoid the fees to avoid paying the full cost of care. There have even been cases of people ‘selling’ houses to a relative for a nominal fee in order to transfer legal ownership.

The local authority will ask about any previously owned assets, and take into account any reasons you had to hand over assets or property to other people together with the timing of the transfer, motive and the sums paid.

In the worst case scenario, the transfer could however be seen as ‘deliberate deprivation’ and the sale reversed, with the power to claim care costs from the person the assets were transferred to.

 

  1. Creating a trust

Many financial advisors will tell you that it possible to avoid paying care home fees, as long as the necessary protection plan has been implemented prior to care being required.  The argument is that putting your property into a Trust means that it will become a protected asset and therefore cannot be used to cover care home costs.

They also argue that the major advantage of transferring property into Trust as opposed to transferring it to say, a family member, is that the Settlor (person placing property into Trust i.e. you) is able to retain control as to how that asset is used. As the property is placed into Trust instead of transferred to an individual, it means that there is no Capital Gains Tax (CGT) liability for the beneficiaries. A long term benefit is that Trustees will not need to go through the expensive and time consuming process of Probate in order to sell the property or transfer it.

Be wary of any company or scheme that claims to protect your home or assets from being sold if you go into care by placing them in trust. Local authorities are increasingly wise to these type of schemes, with teams in place to ensure residents are not using them to get out of paying rising care costs.

Crucially, seek expert advice and make sure you know the rules around care costs to avoid falling into any traps and losing more than necessary.

 

  1. Assistance from the local authority

You may hope for help with these from your local authority, but this is means-tested and thresholds are very low.

If you have more than £23,250, you will have to pay for care. Below this, you will contribute with the amount based on means-testing.

This includes savings, income, and your property may be counted as capital after 12 weeks if you move into a care home on a long-term basis. However, it will not be counted if, for example, your spouse or civil partner still lives there. Once savings fall below £14,250, only income is considered for a means assessment.

According to healthcare analysts LaingBuisson, the average cost of nursing care is £750 a week.

Reforms are underway to reduce the likelihood of anyone with ongoing care needs losing their home and all savings. The government is introducing a £72,000 cap on costs in April 2016 before the state will step in, but this doesn’t cover accommodation or food bills. A flat rate of £230 is currently proposed for these, which for many won’t meet the cost.

So what can you do to reduce or extinguish costs?

Unfortunately, there is no safe easy obvious way to circumvent paying for nursing home fees apart from financial planning many years ahead which most of our elderly parents never considered and we have not planned for as their older offspring.

 

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

Shak Inayat
Solicitor
0207 183 2898

Why Do I Need An Advance Decision?

“Living Will” or Advance Directive

An Advance Decision to Refuse Treatment allows you to refuse treatment in advance of a time when you do not have the capacity to make a decision for yourself. It’s commonly shortened to Advance Decision,

When you are ill, you can usually discuss treatment options with your doctor and then jointly reach a decision about your future care. However, you may be admitted to hospital when unconscious or unable to make your own decisions about your treatment or communicate your wishes. For example, this may happen if you have a car accident or a stroke or develop dementia. To use the legal term, you would ‘lack capacity’ to make or communicate your decision(s).

In these situations, doctors must act in your best interests. The exception is if you have made an Advance Decision. An Advance Decision lets you indicate that you want to refuse certain types of medical treatment in certain situations.

It must be respected by medical professionals providing your care, whether or not they think it is in your best interests.

Terminology

The term Advance Decision (increasingly replacing the term advance directive) is a statement explaining what medical treatment you would not want in the future, should you lack capacity’ as defined by the Mental Capacity Act 2005.

Some people also refer to Advance Decisions as a living will.

Whilst the term ‘living will’ helps people to understand the concept, is somewhat misleading in that, unlike a will, it does not deal with money or property. In addition, an Advance directive can relate to all future treatment, not just that which may be immediately life-saving.

The Mental Capacity Act 2005 made Advance Decisions legally binding. This means that as long as an Advance Decision is ‘valid’ and ‘applicable’ then any refusal of treatment within it is legally binding in England and Wales. This means that if a doctor knowingly ignores an Advance Decision they can face criminal prosecution or civil liability.

Except in the case where the individual decides to refuse life-saving treatment, it does not have to be written down, although most are and a written document is less likely to be challenged.

Whilst you have mental capacity, your word overrides anything contained in your Advance Decision. An Advance Decision only comes into effect if you cannot make a decision for yourself, or cannot communicate.

Talking to your loved ones about end-of-life choices

To ensure that your future care wishes are understood and respected by all those who are important to you, it is imperative that you sit down and talk to your family and loved ones about your end-of-life choices. For many of us, the prospect of such a conversation can seem like a daunting task. You or your loved ones may be uncomfortable talking about serious illness or death, or it may seem “too soon” to have a conversation about end-of-life preparations. However, it is better to have the conversation when you and your loved ones are in a calm and relaxed state, rather than in the midst of a medical emergency when everyone is stressed and it is difficult to think clearly.

While you may think that your loved ones already know what you want, the truth is there is often a startling difference between what people say they want and what their family members think they want. The only way to be certain that your loved ones understand your wishes is to sit down and have the conversation.

Preparing an advance directive

The key to preparing an advance directive is to preferably employ a Solicitor who can go through the issues that need to be discussed in a systematic and sensitive way that calls on their experience as fully qualified professionals.

The Solicitor can and should prepare all the necessary documentation clearly and carefully and always discuss the provisions contained in those documents with you carefully and in detail so that you fully understand that implications of your advance directive.

It is never too soon to prepare a advance directive – do not assume that advance directives are only for old people only.

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

Pension Earmarking Order – More Trouble Ahead?

In 1995*(1) a new animal was created in the world of ancillary relief (that is the financial aspects of a divorce) when dealing with the distribution of pension assets – a pension earmarking order. Prior to that, in reality the only effective alternative when trying to fairly share the assets of a divorcing couple was to offset a pension fund against other assets, say a lump sum or a property. That was not always a feasible option.

No lawyer that I came across seemed to like pension earmarking orders.

I know I was concerned about how difficult they were to draft and also ensure that they were future proof. I avoided them like the plague as did many of my professional brethren – and it seems that instinct was right all those years ago.

Clearly with the advent of pension sharing orders, courtesy of the 1999 Act*(2), pension earmarking orders fell out of fashion and we all breathed a collective sigh of relief. There are however, still circumstances (such events are rapidly dwindling I accept) where earmarking orders may need to be made – but that is another story for another day.

The changes implemented by Gideon Osborne in April 2015*(3) allowed for persons over 55 to raid their own pensions (as opposed to the companies raiding them for a change!) rather than buying an annuity and there has been much hype in the media about pensioners buying Lamborghinis and then living in penury for the rest of their lives.

If you have an earmarking order, then there is a risk that the person with the pension can effectively raid the pension, take off with the wads of cash and you as the poor ex spouse left high and dry with a reduced pension in payment.

Time to check the wording of your final (financial remedy) order if you have an pension earmarking order as part of your financial remedy (ancillary relief) proceedings?

Shak

*(1) Introduced under section 166 of the Pensions Act 1995, which inserted sections 25B to 25D of the Matrimonial Causes Act 1973. Earmarking of pensions extended the armoury of the court to allow them to earmark a pensioners (a members) pension rights for the benefit of the former spouse and has applied since 1 July 1996.

*(2) The Welfare Reform and Pensions Act 1999 (WRPA) further amended The Matrimonial Causes Act 1973 by sections 19 and 21 of the WRPA  introducing pension sharing (as well as making some improvements to earmarking). The WRPA received Royal Assent on 11 November 1999 and became a legally enforceable settlement from the 1 December 2000.

*(3) pdf of government document highlighting the changes> warning> very dull reading ! can be found here.

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