Finding your way through the divorce maze

Helen Saggers is a solicitor in the matrimonial and family team at Barr Ellison Solicitors. Here, she considers the first steps in and common initial perceptions of the divorce process.

“Many new clients are often understandably very anxious about their first appointment with a solicitor. When making an appointment they often ask if it is alright to bring a friend or family member for moral support and of course it is. I am often not quite sure what clients expect when they come to see a solicitor, I suppose like with many things the fear of the unknown is the overriding factor. I had a client who told me after our first meeting ‘that I was not as awful as she thought’, I’m not sure what she had heard but I think I was more relieved than her.

Clients at a first meeting have a whole string of questions and what they need is information. Clients often say that their other half has told them all sorts of things. Well meaning friends will give the client advice often based on their own experiences. A lot of the information the client has been given from various sources is wrong and leads them into a state of panic and confusion which hopefully subsides after they have had some proper legal advice.

I can narrow down the most frequently asked questions that people have as follows (I will use the wife as the divorcing party simply for ease of reference, the same questions however can apply to both parties):

1.     Will I be able to stay in the house?

2.     What will happen to the children? He says that he wants shared care what does that mean?

3.     Does he have to pay me maintenance? Does he have to support the children?

4.     Can I ask him to leave? What if he will not leave, what do I do then?

5.     I want a divorce, can I do that just because I don’t like him anymore?

6.     What happens if he does not provide his financial details, how will I know if he is telling the truth as I don’t trust him anymore?

7.     Will we have to go to Court?

8.     Will he have to support me whilst this is being sorted out?

9.     What if I meet someone else before we get divorced, does that matter?

10.   How much is all of this going to cost me?

Each case is different however there are similar threads that run through each situation. Please have a look at my FACT SHEET which gives an overview of how the divorce process works.

Getting the right information and advice at the early stages of a divorce/separation is crucial. Don’t be afraid to ask as many questions as you want. This is about you and your future.”

For more information on divorce or family matters please contact Marion Tucker on 01223 417200

Solicitors warn about storing passwords in Wills

A growing trend widely reported in the media of people leaving usernames and passwords in their Wills is causing more problems than it solves, warns Francis Durrant, a solicitor and Partner specialising in Wills at Barr Ellison Solicitors.

“I would recommend not putting sensitive information in a Will but rather in a separate note stored with it or, more usefully, along with a Lasting Power of Attorney (LPA),” says Francis. “Passwords may change and a note can be updated more easily. There is also an issue from a security point of view of having the information too widely available: Wills become documents of public record when they go to probate and may be accessed by fraudsters.”

Francis recommends that people provide a list of assets (particularly where numerous or complicated) and also details that are necessary for registration of death.

If stored with an LPA or EPA (Enduring Power of Attorney) this information would be readily available for the attorney acting for the deceased person. “Before people start worrying about their Facebook or Twitter accounts they really need to think about the usefulness of a Lasting Power of Attorney. If they get to a stage where they are incapable of looking after their affairs – welfare, finances or property – no one will be able to use online bank accounts or social networking sites even if they know the passwords unless they have legally appointed someone to act for them in this way.”

According to a study of online activity by Goldsmiths College and web hosting company Rackspace, 11% of British adults have left, or are considering leaving, usernames and passwords in their Wills. It’s also estimated that 1.78 m Facebook users will die this year (200,000 over the age of 55) worldwide.

“The very nature of the fast moving world of social media and other online activity means that people are likely to open and close many different accounts during their lifetime, so they should regularly revisit these details”, says Francis. “Even if people keep this information in a separate note from the Will it’s still worth regularly reviewing the Will particularly if circumstances change,” Francis cautions.

Francis Durrant and the Wills, Probate, Gifts, Trusts & Inheritance Tax team at Barr Ellison Solicitors can be contacted on 01223 417200

Grandparents may be left powerless in divorce proceedings

With one in three working mothers relying on grandparents for child care and grandmothers getting their own social networking site Gransnet it would appear that grandparents are now all powerful. But that’s not the case if the grandchild’s parents divorce says Helen Saggers, a family law expert with Barr Ellison Solicitors.

“When a couple divorces, grandparents, who may have played a significant role in a child or children’s life, could find themselves cut out completely. And while they can turn to the law it’s a difficult route. They are not automatically entitled to apply to a court for an order under Section 8 of the Children Act 1989, which covers contact orders, residence, prohibited steps orders (which can stop a step being taken by a person with parental responsibility without the court’s permission e.g. taking the child out of the country) and specific issue orders, which give direction to determine specific questions, such as which school the child should attend.

So in most cases the grandparents are required to seek the permission of the court to be entitled to proceed with an application and it will be for the court to decide whether or not the request should be granted. The court may grant permission on the basis of the written application alone or may direct that there should be a hearing in which case all the parties involved would be required to be notified of the court date and attend on the date set.

The court when considering whether leave should be given look at the nature of the proposed application, the grandparents’ connection with the child e.g. how involved have they been in the child’s life and the risk of any harmful disruption to the child’s life if leave were granted.

The good news is that in most cases I have dealt with leave has always been granted, but of course that is just the beginning. The tricky issue then is to try and sort out whether their application for contact will succeed. In the majority of cases I have dealt with grandparents have played a significant role in the child’s life, not just in providing child care but also often offering stability to the child/children while the parents’ relationship is in melt down.

In some cases the grandparents are the makers of their own misfortune by taking sides and alienating the mother if she is the primary carer and their son the father. It is understandable that following a breakdown of a marriage they would want to support their child’s side but this can lead to them being ostracised and losing contact with the children especially if the mother is holding all the cards and announces that the children are not coming to stay with their grandparents anymore.

So while grandparents might have a greater voice online and a huge role in their grandchildren’s lives while the going is good they are a long way from having power when a marriage fails.”

Helen Saggers’ blog can be found at http://www.barrellison.com/wordpress/category/family-law-blog/

For more information on divorce or family matters please contact Marion Tucker on 01223 417200

Home buyers urged to use new powers

Anyone looking to buy a new-build property should make sure they are aware of the protection they are entitled to by the Consumer Code for Home Builders urges Helen Murphy, a legal executive specialising in residential conveyancing at Barr Ellison Solicitors.

According to Helen, this code has made positive changes to the way in which developers sell new build properties but buyers are not always aware of its existence. “As the economy battles its way out of recession, new-build development sites are once again starting to sprout up around the county”, says Helen. “In times past, purchasers have often been faced with a waiting game for their property to be finished by a developer, with no control over when the property is completed. The Code is a voluntary code for house builders to sign up to but for those builders and developers who are members of the National House Building Council (NHBC) and similar home warranty schemes, adoption of the Code is a condition of their membership to the warranty scheme.”

The main thrust of the Code is to ensure that buyers are treated fairly and to improve the information provided to buyers both at the time of reservation of a new property and throughout the purchase process, as Helen explains: “Where the Code is most useful is in terms of completion. Previously, when a buyer had exchanged contracts with a developer for the purchase of a property that had yet to be fully constructed the developer had been in control when it came to completion of that transaction and there was little a buyer could do about this without risking loss of their deposit. I have known buyers wait for several months to complete their purchase, but with the Code if when contracts are exchanged the property is watertight, legal completion must take place within two months if the property is a house, or within four months if it is a flat. If the property is not watertight at the time of exchange the deadlines are six months and 12 months respectively. If the property is not complete by the deadline a buyer has the right to withdraw from their contract. This at least gives buyers a more certain indication as to timescales for completion.”

The Code also includes the right for a buyer to reclaim their reservation fee if they choose not to proceed with the purchase (although the developer is entitled to deduct reasonable administration costs from the reservation fee) and the provision for any proposed changes following exchange that would significantly affect the value of the property to be agreed in writing.

Helen can be contacted on 01223 417200

Using a Living Will to avoid a living nightmare

With the media full of stories of hospitals being accused of putting do not resuscitate orders in patients’ notes without permission and a woman resorting to tattooing ‘do not resuscitate’ on her chest, preparing a Living Will can be the best option.  But they need to be carefully thought through, says Luck Luck Ooi from Barr Ellison Solicitors.

“A Living Will is a catch-all for two distinct arrangements:  an Advance Decision to Refuse Treatment and an Advance Statement,” says Luck. “While both are to do with making your wishes known should you lose the capacity or ability to communicate them yourself, an Advance Decision to Refuse Treatment is legally binding and specifies the treatments not wanted and under what circumstance this will apply. An Advance Statement is simply a document setting out your wishes as to the type of care you would like to receive and is not legally binding.”  Which you prefer to use will depend on your particular circumstances, however, a properly drafted Advance Decision is certainly a powerful means of gaining control over a very important stage in your life should this be needed.

“Proper advice needs to be taken when making an Advance Decision to ensure that your wishes are met,” advises Luck, “and once made it needs to be reviewed regularly. It is also advisable to lodge a certified copy of the document with your GP (subject to them agreeing to this) and to write to the GP at least once a year to confirm that the Advance Decision created is still valid and current.” Care should also be taken to ensure that the Advance Decision made is not over-ridden by subsequent arrangements such as when health and welfare Lasting Powers of Attorney are made.

If you change your mind, there is no legal requirement for the withdrawal of an Advance Decision to be in writing. “However, should you change your mind after making an Advance Decision, then it is certainly advisable to destroy the document along with all copies of it, inform your GP and contact any party that may have a copy of it so that there can be no confusion,” adds Luck.

Luck Luck Ooi is a member of the Wills, Probate, Gifts, Trusts & Inheritance Tax team at Barr Ellison and can be contacted on 01223 417200.

Could your lake become a village green?

The granting of village green status to a lake in Anglesey could lead to similar applications in this area and not just for lakes says a local property law expert.

“Llyn Maelog, a lake on the Welsh island of Anglesey, near to my own home town, is believed to be the first lake to be given village green status, but now that this precedent has been set it is unlikely to be the last,” says Helen James of Barr Ellison Solicitors.  “In this particular case the local community council saw no legal problem with giving it village green status because it was used for recreational activities including sailing, boating and fishing and is a Site of Special Scientific Interest (SSSI). It is refreshing to see the legislation being used in the way it was intended, to protect areas used by the public rather than to protect undeveloped land as an objection to planning permission, which is very often the case.”

An area of land (or a lake) given village green status is protected from development and preserved for use by local people. According to Section 15 of the Commons Act 2006 anyone can apply to have land registered as a green if it has been used by local people for recreation ‘as of right’ (ie without permission, force or secrecy) for a period of at least 20 years and use did not cease more than two years before the date of the application or more than five years before the date Section 15 came into force in April 2007.

According to the Open Spaces Society website http://www.oss.org.uk/ there are about 3650 registered greens in England and about 220 in Wales, covering about 8150 and 620 acres respectively. Last year the charity says it helped in the successful application for Camping Close in Linton, Cambridgeshire to become a village green.

For further information about the legal issues over village greens or other land or property issues contact Helen James on 01223 417200.

Relatives warned against DIY probate

The mistaken belief that probate work is straightforward is costing those who administer a relative’s estate themselves unnecessary additional time and money, legal group Solicitors for the Elderly has warned.

The group says its members have noticed an increase in ‘DIYers’ returning to them to seek advice when they have made a mistake or find the paperwork too tricky. These include a husband whose wife had included a tax saving trust in her Will, who paid the whole estate to himself and needed a solicitor to sort out the matter to avoid complications at his death.  Another had sold shares that had made a gain during the administration of his late sister’s estate, only to discover that if he had transferred the shares to himself first, before selling them, he could have avoided paying tax.

These are similar to situations experienced by Barr Ellison Solicitors.  “People aren’t always aware of the complexity and assume probate work is straightforward,” says Francis Durrant, a Partner at Barr Ellison Solicitors specialising in tax planning, wills and probate.  “I have had situations where families think they can deal with the information gathering stage but find it takes longer and is not as easy as they thought with the result that the whole administration is delayed. As well as saving time and worry specialist legal advice can also save money, such as by identifying cases where money is owed to the estate for care funding, which should have been met by the NHS.”

Solicitors for the Elderly is an independent, national organisation of lawyers committed to the highest standard of legal advice for older and vulnerable people, their families and carers. More information can be found at www.solicitorsfortheelderly.com.

Francis, Peter Ayling, and Solicitors For the Elderly member Judith Greensitt of the Wills, Probate, Gifts, Trusts & Inheritance Tax team can be contacted on 01223 417200.

Warning to the bank of Mum and Dad

With more and more first time buyers relying on parents to help them onto the property ladder, a local conveyancing expert has warned that this process is often not as straightforward as people think.

“The ‘bank of mum and dad’ is a common feature in house purchases these days but it’s not as simple as just handing over the money and this often comes as a surprise,” says Helen James of Barr Ellison Solicitors. “There are a number of things people need to think about, most importantly the risk of insolvency.

“When an individual makes a deed of gift and is made bankrupt within seven years, there is a risk that his or her trustee in bankruptcy might apply to the courts for an order setting aside the gift under the Insolvency Act 1986. This could result in the creditors forcing a sale of the property so that the gift can be returned to the parents.

“For this reason, lenders are increasingly insisting on indemnity insurance if buyers use a cash gift from their parents as the deposit for their property.”

The insurance, which costs a one-off premium of around £150 – £200 depending on the value of the property, protects the lender against the possibility of the parents becoming bankrupt. Additionally, parents are increasingly required to swear Declarations of Solvency in front of an independent solicitor, and produce their ID as a condition of the insurance, all of which can be inconvenient and can cause delays in the purchase.

“The Council of Mortgage Lenders believes that around 84% of buyers under 30 require assistance from relatives in order to purchase a property. More and more lenders are demanding this insurance as an increasing number of deeds of gifts are being made,” explains Helen.

“The best practical advice where a gift is to be made is to make sure both your solicitor and your mortgage lender are aware of the intended gift as early as possible.”

For further information about this or any other conveyancing issues contact Helen James on 01223 417200

East Anglia’s Children’s Hospices opens new Whittlesey shop

East Anglia’s Children’s Hospices (EACH) opened a new shop on 15 July in Whittlesey, expanding its presence in the East Anglia region.

EACH supports families and cares for children and young people with life-threatening conditions across Cambridgeshire, Essex, Norfolk and Suffolk.

Trevor Bailey, Head of Retail at EACH said: “The new shop has an ideal location in the centre of the town. We are lucky, as always, to have so many volunteers who are happy to help with the running of the shop”.

“Our shops take a wide range of donations – from good quality clothing, books and toys to jewellery, DVDs and small electrical items – and making a donation of your unwanted items is a good opportunity to raise money for a very worthy cause.”

The Whittlesey shop is the latest in a now well-established presence across towns in the East Anglia region.

Barr Ellison Solicitors are delighted to be associated with the opening of this new EACH shop.

Act now if you’ve only 80 years left on your flat lease

Anyone who owns a leasehold flat with approaching 80 years left on the lease should act quickly to renew it if they want to avoid unnecessary additional costs says Michael Denmead, Commercial Property Partner at Barr Ellison Solicitors, who have brought out a free ‘lease extension legal pack’ to help anyone in this position.

“The law states that a qualifying leaseholder can be granted a new lease for an additional 90 years from the expiry of their current lease and reduce the ground rent to zero“ explains Michael. “But what a lot of leaseholders don’t realise is that if they leave it to fall below 80 years the cost jumps because the freeholder is then entitled to a share of the increase in the value of the flat should the lease be extended.”

So who can extend a lease and how do you go about it? Leaseholders have a right to extend their lease if the property is a flat and if they have owned it for at least two years with a lease exceeding 21 years. There is no need to live in the flat. Once your solicitor has established that you qualify a notice can be served on the landlord. Explains Michael: “Once the notice has been served the landlord has two months to respond. Usually, the landlord serves a counter-notice, accepting the right to a lease extension, but disputing the terms. The landlord can also dispute the right to the lease extension but this would be most unusual.”

Where the landlord disputes the terms, this is most frequently focused on the price to be paid by the tenant. Further negotiations are required until an amount is agreed upon, failing which either side can apply to the Leasehold Valuation Tribunal (LVT) to make a ruling on a fair price for the lease extension. “There are fixed time frames for each stage of the process from serving the notice to the right to the new lease being granted, so it’s vital that leaseholders are well prepared,” adds Michael. “They should also be aware that as well as the cost of the lease they will have to pay the valuation and legal fees of the landlord as well as their own.”  A rough idea of how much a lease extension will cost can be found by using the calculator on the Leasehold Advisory Service website www.lease-advice.org.uk.

Adds Michael:  “This might seem like a large expense but a longer lease will enhance a property’s value and make things easier if the leaseholder wants to sell or remortgage. So even if you’ve 82 years left on the lease it’s worth looking into this issue now to allow time to deal with the extension claim.”

Barr Ellison’s free ‘lease extension legal pack’ can be downloaded at http://www.barrellison.com/private/lease_extension_pack.php.  For further details contact Michael on 01223 417200