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Probate Applications during Covid-19
 
Covid-19 has had a significant impact on the process of obtaining a Grant of Probate in the estate of a person who has died in order to administer their estate.

A Grant of Probate is a document issued by the Probate Registry giving the executors named in the Will of a person who has died, the legal authority to administer their estate.  If a person left no Will, then the people entitled to the estate are the next in line to apply for what is called a Grant of Letters of Administration.

Regardless of which type of Grant is needed, the process is largely similar requiring completion of an Inland Revenue account – an inventory of the estate assets and liabilities in effect.  This will enable the executors and HMRC to calculate whether any inheritance tax is due as a result of the death and if so, part of that tax must be paid ‘up front’ when the application for the Grant is made.  Once that tax bill has been, HMRC issue a receipt, which in turn allows the executors to apply to the Probate Registry for whichever Grant they require.   Incidentally, the remainder of the tax is usually payable around 6 months later and can be postponed to be paid by ten annual instalments if the executors and beneficiaries prefer this.  This means that it isn’t always necessary to have to sell property in order to pay the tax bill, which is helpful to families wanting to keep the family home, for example.

Once the Grant has been issued, the executors can then sell property, close accounts, and pay debts before making distributions to the people entitled to receive the estate.

As a probate practitioner, I can report it has been a painful journey, navigating through a new and improved online probate application process at a time when tragically, deaths as a result of the pandemic have increased significantly.  This has put a lot of pressure on the Probate Registry.

The days of advising clients of a wait of 7-10 working days to receive the Grant seem like a distant memory and we are now waiting anything from 1-3 months, more so in an estate where inheritance tax is payable.

The good news is that the Probate Registry and HMRC have taken steps to make the process a little easier in the light of the practical difficulties arising from the pandemic restrictions. 
 
  • Both will now accept electronic signatures on the probate application forms and the Inland Revenue accounts, which makes a lot of sense given electronic capabilities and avoids the need to circulate a document between several executors at different addresses, which could take weeks.
 
  • Applications for Grants are now made online through the Probate Registry’s portal and updates can be found by checking the portal after submission.  Enquiries are sent by email so can be responded to the same day meaning much quicker turnaround times where additional information might be needed to process an application.  It is still necessary to send paperwork after the online submission has been made – including the original Will, if there is one – but it is reassuring to know that the account has been opened already, so to speak.
 
The Stamp Duty Land Tax (SDLT) incentives offered by the Government through the pandemic has boosted the property market without question, but the knock-on effect is that there are horrendous delays in processing by the Land Registry.  The reason is that social distancing measures has meant a reduced workforce and so there simply aren’t enough people to keep up with the demand at the moment.  Hopefully, this will improve, and the backlog can be reduced but beneficiaries waiting for properties to be transferred to them are looking at 4-6 months, possibly more.   If property is to be sold, the pressure on conveyancers trying to cope with the demands of buyers frantically trying to complete before the SDLT incentive deadlines, has also created a log jam.

Introducing the above changes is a positive step, but at a time when many are struggling to cope with the impact of social distancing restrictions in the workplace caused by Covid-19, the pressures on the court system and other Government agencies is very apparent. 

If you have any questions about matters covered in this article, please contact Clare Young on 07802 618 132 or at clare.young@legalstudio.co.uk
 
2021 12 01
Clare Young
Probate Fees Hike
 
A Grant of Probate is a document issued by the Probate Registry giving executors named in a Will the legal authority to administer the estate of a deceased person.

Probate professionals and bereaved families alike suffered a collective and significant fright back in 2019 awaiting the introduction of drastic increases to the cost of obtaining a Grant of Probate – set to be as much as £20,000 based on a sliding scale.  We all then breathed a collective sigh of relief as that proposal was shelved, although many were frantically submitting applications just in case the measures were pushed through.

Another round of increases has been announced, but fortunately these are nowhere near as swingeing.

At the moment, the cost of applying for a Grant of Probate depends on whether a professional is applying - £155 - or an individual (known as a ‘personal application’) - £215. 

The new proposals set to take effect in early 2022, will mean a flat fee of £273 for all applications, regardless of the value of the estate.

The reason for the increase?  The Ministry of Justice claim that the increase is needed to cover the administrative cost of running the service, currently operating at a loss it claims.  Interestingly, the 2019 proposals were intended to generate extra revenue to help subsidise increasing costs across the court service as a whole.  At that time, the probate service wasn’t loss-making as it now appears to be!

A consultation period on the proposed increased has recently ended and so we await the outcome with interest.

If you have any questions about matters covered in this article, please contact Clare Young on 07802 618 132 or at clare.young@legalstudio.co.uk
2021 09 01
Clare Young
                                           Should you disclaim or vary an inheritance?

Introduction

Receiving an inheritance from a loved one can be a very emotional experience and may also give rise to tax issues.  It may be that your personal circumstances are such that receiving an inheritance increases the value of your estate to a level where you become concerned about inheritance tax (IHT).

Redirecting an Inheritance

It is possible for changes to be made to the distribution of an individual’s estate after they have died to mitigate capital gains tax (CGT) and IHT.  The changes can be made in one of two ways:
  1. A Variation; and/or
  2. A Disclaimer.
What is a Variation?

A Variation allows you to redirect the inheritance you receive under a Will or the Rules of Intestacy so that the person you are gifting your inheritance to is deemed to have received it under the terms of the deceased’s Will for IHT and/or CGT purposes.

For a Variation to be valid the following conditions must be satisfied:
  • The Variation must be evidenced in writing and signed by the beneficiary who is redirecting their inheritance. The executors of the deceased’s estate will also need to sign the Variation if it results in a larger IHT bill;
  • The Variation must be executed within two years of the deceased’s death;
  •  The Variation must not be made for any consideration in money or money’s worth. In other words, the person who is receiving the benefit of the gift should not pay anything to the individual who is making the gift.
  • The Variation must contain a statement to the effect that certain tax provisions under the IHT and CGT tax codes should be included.
What is a Disclaimer?

A Disclaimer operates differently from a Variation.  It is where a beneficiary under the Will chooses not to accept the gift made to them by the deceased.  It is important that the beneficiary has not accepted the gift as it is not then possible to disclaim it.

The following should be noted to ensure a disclaimer is valid:
  • A beneficiary is unable to disclaim only part of a gift; and
  • It is advisable for a disclaimer to be made in writing to the executors of the deceased’s estate although it may be made orally.
The main differences between a Variation and a Disclaimer is:
  • The individual who is disclaiming their inheritance may seek some form of monetary consideration from the person who benefits under the Disclaimer.  This is prohibited under the rules applying to Variations; and
  • Under a Variation the beneficiary who is making the gift can decide who should receive the benefit of the gift whereas the beneficiary cannot do this with a Disclaimer because the terms of the Will to determine who will inherit it.
This can often produce some unexpected results.

Example

Mr Lucky sadly dies and leaves his estate equally between his two children, Soo and Not-Soo and if either child dies before him then the deceased child’s share passes to his or her children in equal shares on reaching the age of 25.

Soo has done very well financially and decides that she would like her brother, Not-Soo to receive her share of their late father’s estate.  Soo does some research on the internet and decides to disclaim her interest in her late father’s estate thinking that it will pass to her brother under the terms of their late father’s Will.

By entering into the Disclaimer Soo is treated as having died immediately before her father for the purposes of the Wills Act 1837. Under s33 of this Act Soo’s children will inherit her share of her late father’s estate. The Disclaimer is therefore, ineffective.

If Soo had taken legal advice she would have been advised to enter into a Variation where she could have nominated her brother, Not Soo to receive her share of their late father’s estate. 

For more information call Malcolm Emery on 07708 613 789 or email him at malcolm.emery@legalstudio.co.uk
2021 10 30
Malcolm Emery
                                                Generating Tax Free Income!
 
Introduction

You may be thinking of ways to mange your exposure to inheritance tax by making provision for your children and/or grandchildren.

One way is to gifts assets directly to family members but there is always a risk of it being spent immediately or it could be swallowed up in divorce proceedings if they are in the process of a marital break-up.

What is the Solution?

Rather than make an outright gift direct to the child or grandchild a trust could be created which would offer greater protection against the issues mentioned above.

You could appoint yourself as a trustee so that you can continue to be involved in investment decisions and decide when money should be released from the trust to a beneficiary in terms or income and/or capital.

How to generate tax-free income using a Trust

Another benefit of making gifts via a trust is that, in certain circumstances, you can generate tax-free income in the hands of the beneficiary who has received income from the trust.

The trustees of a discretionary trust pay income tax at 20% on the first £1,000 of their income (7.5% on dividend income) and 45% on the balance (38.1% on dividends).  Whilst this may be higher than your current rate of income tax do not worry as help is at hand.

If the trustees make income distributions to a beneficiary, the income tax that they have paid is credited to the beneficiary who is receiving the income. Therefore, if the beneficiary pays tax at a lower rate than 45% then they can recover the excess from HM Revenue & Customs through their self-assessment tax return.

Example

The trustees of the ABC Trust receive gross rental income of £10,000. Ignoring the £1,000 basic rate band the trustees will pay income tax of £4,500 on this income leaving a sum of £5,500 available for distribution to one or more of the beneficiaries of the trust.

The trustees decide to make an income distribution to John of £5,500. John is studying at university and has no other income.

For tax purposes John is deemed to receive gross income of £10,000 with a tax credit of £4,500. As John has no other income sources the gross trust income he has received is covered by his personal allowance which for the current tax year, 6 April 2021 to 5 April 2022, is £12,570.  John can submit a tax repayment to HM Revenue & Customs to recover the income tax of £4,500 paid by the trustees, thereby generating tax free income in his hands.

A Word of Warning!

The above planning will not work if the beneficiaries of the trust are your children and are under the age of 18. If you have created the trust and trust income is distributed to your minor children, it is treated as your income for tax purposes.  

This type of planning works very well if the beneficiaries are your children and are aged 18 or over or your grandchildren (any age). This is because the income will be treated as their own for income tax purposes.

For more information call Malcolm Emery on 07708 613 789 or email him at malcolm.emery@legalstudio.co.uk
 
 
2021 42 30
Malcolm Emery
Introduction

We all hope that throughout our life we will be able to make decisions about our affairs including those which impact on our health and wellbeing. However, recent statistics have shown that 25% of the UK population will experience issues with their mental health which may mean they are unable to do this.

How can a Lasting Power of Attorney help?

A lasting power of attorney (LPA) is a legal document in which you authorise a chosen person (an attorney) to make certain decisions on your behalf if you lose mental capacity and are unable to do this yourself.
The decisions that you authorise your attorneys to make can be either in relation to your finances, for which an LPA for property and affairs will be created, or in relation to your personal life, where an LPA for personal welfare will be created.

Perhaps you feel that an LPA is not necessary as family members can automatically step in to make these decisions for you. Unfortunately, this is not the case as family members do not have an automatic right to make decisions on your behalf.

What to do if you run a business

If you run a business as a sole trader, through a partnership or through a company you should consider putting a business LPA in place so that your business can continue to trade in the event of you losing capacity. The remainder of this article will focus on the issues facing businesses which are trading through a corporate structure.

The importance of the articles of association

The articles of association set out the rules on how your company is run and so it is important to check these first to ensure you have authority to appoint an attorney. Most companies are covered by what are known as “Table A” articles which are a default set of provisions.

For companies incorporated on or after 28th of April 2013 under Table A articles, the Mental Health Discrimination Act 2013 provides that directors who have lost capacity must be supported in their role rather than removed from it. The only exception to this rule is if a medical practitioner confirms that the director will be unable to fulfil his or her role as a director for at least three months due to losing mental capacity.
If your company was set up under an earlier version of the “Table A” articles they will contain different provisions relating to the termination of a director's role due to mental incapacity and you may wish to consider updating these.
  
Can I have more than one LPA?

You can put any number of LPAs in place providing none of them conflict with each other. You could, for example, consider making an LPA for certain attorneys to manage your personal assets (i.e. your home and personal bank accounts) and another one to cover your role as a director.

If you are considering making personal and business LPAs, they should both contain specific instructions limiting the scope of the attorneys’ powers. For example, a personal LPA should specify that your attorneys will have general powers in relation to your personal affairs except for your role as a director which is covered under a separate business LPA. Your business LPA should contain specific instructions in this respect too. Your attorneys will then be clear about their powers and will not encroach on the others attorneys’ responsibilities and decisions. You may also wish to put a separate letter of wishes in place which gives your attorneys more guidance and direction on your vision for the business and the markets in which it operates.

You could, for example, appoint your spouse to make decisions about your personal property and affairs whilst someone with suitable experience as your attorney in relation to your role as a director. If you also own shares in the company these will be dealt with under your personal LPA rather than your business LPA. Therefore, you should consider carefully who should make decisions in relation to your shareholding in the company. If appropriate you may decide to create a separate LPA relating to your shareholding in the company.

In this example you would have three LPAs. The first one would relate to your personal assets whilst the second would relate to your role as a director and the final one would relate to your shareholding in the company.

Putting separate LPAs in place for your directorship and your shareholding avoids potential conflicts of interest arising.

Who should I appoint as a suitable attorney?

An attorney should be trustworthy, competent, and reliable. They should have the skills and ability to carry out the role.

When choosing a business attorney, you should consider:
  • Does the individual have the necessary skill, ability, and experience to carry out the role? How have they demonstrated this?
  • Do any regulations prevent their appointment?
  • Are there conflicts of interest between the personal attorney and the business attorney?
What happens if I do not make a business LPA?

If you are unable to make a business decision in the future and have not made a business LPA, it may become necessary to make an application to the Court of Protection for the appointment of a deputy to act on your behalf. The process can be expensive and there are no guarantees that the Court of Protection will choose someone he would have chosen yourself. It could also take more than six months before a deputy is appointed, during which time your business may be vulnerable and at risk.

Summary

Whilst no one wants to think that they may not be able to make decisions for themselves or run their business due to a lack of capacity, it is important that the risk is considered as part of your risk management strategy. Putting a business LPA in place will certainly help minimise the risks of the company ceasing to trade due to a lack of management and decision making.

For further information on LPAs please contact Malcolm Emery.
 
2021 01 23
Malcolm Emery

FINANCIAL AFFAIRS OF THE HEART!
 

With hits such as “toxic” and “criminal” we probably should not be surprised by the recent court case that has developed between Britney Spears and her father.

What is a Conservatorship?

Due to Britney’s troubled past and her vulnerability, her father was appointed to look after his daughter’s financial affairs and wellbeing by the Court under an arrangement known as Conservatorship. This arrangement has been in place now for some 13 years and whilst Britney may not have had the mental stability to make decisions for herself when the Conservatorship was put in place, it appears that her mental state has clearly improved and she now wants to take control back for all aspects of her life. This is the decision that the courts must consider and decide on.

Can you put a Conservatorship in Place in the UK?

The UK does not have an equivalent of a Conservatorship although a trust is sometimes used to manage the affairs of an individual who is vulnerable or perhaps does not have capacity to look after their own affairs. 
A trust can be a very flexible arrangement to manage an individual’s financial affairs, offer protection against undue influence and potential tax savings.  The individuals who manage the trust are known as the trustees although their powers can only be used to manage the financial assets held subject to a trust.  The trustees’ powers do not extend to making decisions about the beneficiary’s health and welfare.

The Benefits of putting Lasting Powers of Attorney in Place

If you have capacity to make your own decisions, there may come a time when this is not the case. To safeguard against this, you can put legal documents in place known as lasting powers of attorney.  There are two different types. The first is known as a property and affairs LPA (PAFLPA) and allows the people you appoint (known as your attorneys) to make decisions about your financial affairs such as paying bills or buying/selling property.

The other type of LPA is known as a Health & Welfare LPA (HWLPA) and allows your attorneys to make decisions on your behalf about your health (i.e., medical treatment) or your welfare (i.e., living accommodation, how you live day to day, etc).

Your PAFLPA and your HWLPA cannot be used until they have been registered with the Office of the Public Guardian. Your HWLPA cannot be used by your attorneys unless you have lost capacity.  Whilst your PAFLPA can be used before you lose capacity you can include a restriction in the document itself which specifies that it cannot be used unless you have lost capacity.  This ensures that you retain control over all financial and health and welfare decisions until you are unable to make the decisions for yourself. A crucial difference from the conservatorship that Britney Spears is subject to.
 
A recent survey has identified that at least 25% of the UK population will suffer some form of mental health issue during their lifetime.  Therefore, it is crucial that you consider putting PAFLPA and HWLPAs in place before it is too late.
 
For further information on the use of trust and LPAs to protect you and your family please contact Malcolm Emery.
 

2021 49 29
Malcolm Emery

We just wanted to say a big Legal Studio Thank You! to everyone who applied for our paralegal to trainee role.

We had an exceptionally high standard of applications on paper and everyone performed really well in the interviews. It's going to be a tough choice for us.

We know that it's difficult out there at the moment for aspiring lawyers to get started or to secure a Training Contract and we wish we could offer more opportunities (maybe next year).

In the meantime, we hope that all our applicants get the opportunities they fully deserve. Keep persevering and good luck to you all!

PS. The picture of Wolfgang (Wolfie) as a puppy was entirely gratuitous, as is the picture below now that he's grown up abit.

Wolfgang2.jpg  Wolfie at Long Meg in Penrith, Cumbria
2021 57 16
Matthew Dowell
Can’t wait to go back to the Office? No, thought not. Get in touch with Legal Studio and we’ll explain how you can be happier, wealthier and enjoy work again. We are only a Zoom call away.

P.S. There's a Bonus prize [*] if you can spot Theresa May in the photograph below.

2021 28 12
Matthew Dowell

Following Covid-19, remote working in the legal sector became ubiquitous overnight. How can firms control and manage risk, and ensure that they remain compliant?

Legal Studio's Ian McCann attended April 2021's Law Society Round table event which discussed risk and compliance in the context of remote working. The full article can be viewed here.

Ian featured in the section enitled 'People', parts of which are reproduced below:

People

As a profession, the law has always policed its ‘gateway’, with members assessed most heavily on entry. It is no surprise therefore that careful recruitment is the most important risk safeguard for many.

‘The greatest risk management tool that you’ve got is actually recruitment,’ Ian McCann, chief executive of Leeds litigation firm Legal Studio, says. ‘Start right with culture and character – find the right people to become part of your team.’

Legal Studio operates on a consultant model. McCann advises that when looking at candidates, the way to do it is ‘reckless honesty’. ‘Having those conversations with people and understanding: why do you want to do this? What motivates you? What is it that you want to bring to this? Why do you want to become a consultant? What does your client base look like?’

Keeping the welfare of consultants front of mind is also important in limiting risk, he adds: ‘Make sure you’re looking out for them, because another risk factor is that it’s been a challenging year.’
 

2021 57 12
Matthew Dowell
Clare Young  featured in a great article in the Yorkshire Post by Ismail Mulla about the reasons behind her move to Legal Studio Solicitors and the trend of lawyers becoming Consultant Solicitors during the Pandemic. 

Clare says: “It has brought into focus what you think is important in your life”.

Clare specialises in Private Client Services and can assist you with:
  • Making a Will;
  • Making a Lasting Power of Attorney;
  • Creating a lifetime trust to protect property and other assets for children;
  • Inheritance Tax and ways in which you might reduce your tax bill;
  • Declarations of Trust to protect unequal contributions when buying property;
  • Probate to sort out the estate of a loved one who has died.
Clare says:

The peace of mind brought about by knowing that have put your affairs in order is immeasurable.  By ensuring that you have a valid Will in place in the event of your death and that you have appointed trusted people to act on your behalf if you become physically or mentally incapacitated, you can rest assured that your loved ones will not be left with any difficulties later on in life.  If you have accumulated some wealth during your lifetime, you are likely to want to preserve that wealth for the benefit of the next generation and our expert advice can assist you to achieve this.

2021 53 22
Clare Young
Are you, looking for a Paralegal position with the genuine prospect of securing a Training Contract? Well, we’re hiring at Legal Studio.
 
There will be admin work. You’ll be expected to help out with a variety of tasks for Ian, Matt, Louise and the wider team. Some of them will be boring. But we can promise you that the job won’t be. As a business focussed on our team enjoying work, you’ll be integral to making sure that they get what they need, when they need it. And they can be pretty demanding. So you’ll need to be organised, methodical and efficient. But by doing so, you’ll get to learn the ropes from experienced, characterful and genuinely nice lawyers. Plus, as you grow into the role, we’d like to think you’ll develop you own case load too, whilst always having access to supervision (be that virtual or physical).
 
You’ll start on a salary of £18,000, with 28 days annual leave (plus Bank Holidays) and genuine flexible working as standard. And, if you progress as we hope and expect you will, once you’ve been in the role for a year we’d expect to offer you a Training Contract to continue your development. Finally, whilst no one truly knows what’s going to be happening this year with offices etc. this role will be a hybrid one, split between the office and working from home.
 
So, if you’re interested, please send your C.V to ian.mccann@legalstudio.co.uk along with the answer to these two questions:
  1. Why do you want to work for Legal Studio; and
  2. Would you rather have sausages for fingers or fishfingers for toes and why? (thank you John James for that one).
 
Closing Date for Applications: 6 April 2021
2021 40 22
Ian Mccann
Legal Studio featured in Legal Futures on 9 March 2021 following the recent study by Arden Partners predicting that in five years’ time, a third of solicitors would be working as consultants.

Whilst that number is high, even half that level of growth would see a massive expansion.

Legal Studio Consultant numbers have grown from 10 to 16 in the past year and the stated aim is to move that to  “a consultant a month” from now on.

Chief executive Ian McCann said the only limit was the firm’s “culture and character”, which he wanted to maintain.

“We treat our consultants as our clients. We are genuinely interested in what their aims and ideas are, and we listen to them.”

Mr McCann said that to celebrate relaxation of the lockdown and the ability to meet a single person outside for a chat, every consultant had been sent a recyclable coffee cup this weekend, with a bag of locally hand-roasted coffee, branded as Legal Studio Catch-up Coffee.

2021 10 10
Matthew Dowell
Name: Glen Salt

Area of Law: Commercial Property
 
Why did you become a Consultant Solicitor?
 
Following the death of my old boss, I realised I needed a change. I was always good at the client work but never really enjoyed all the practice management, training and marketing stuff that came with the responsibilities of partner.
 
Why did you join Legal Studio?
 
I was originally planning on working full time in house for an existing client.  This then turned into a part-time job so the Legal Studio model enabled me to combine both roles and the best of both worlds.  I have been with Legal Studio now for nearly five years and would never consider going back into private practice and have no regrets about the decision I have made.  The last 12 months have been difficult for everyone but I have been fortunate to have a broad spread of clients who have kept me busy.
 
What do you do in your spare time?
 
I have a young family with two daughters still at school so weekends are taken up with the family (including the dog). When I can I like to hack my way around a golf course and I try and watch as much sport as possible; cricket and rugby being the preferred choices but I'm not fussy and will watch most sporting events. I have also just got my motorbike licence and new motorbike so sometime can be seen out and about.
 
2021 01 22
Glen Salt
It is 16 September 2019, and my email signature has changed… it is official I am a Trainee Solicitor at Legal Studio!

My training at the firm has encompassed Property, Commercial Litigation, Private Client and Personal Injury. Unlike a traditional training contract, I work in these different areas at the same time rather than taking seats. Therefore, I ensure that I organise my week depending on what work is taking priority or if there is a crucial deadline. I do enjoy working this way as it means that my working week is never the same and I am able to see matters through to the very end whereas if I was only working in a specific department for 6 months, it is unlikely I would get to see the end result (especially on more complex litigation cases) which is often highly rewarding for both you and the client.  

Over the year I have attended hearings on behalf of clients, managed my own files, taken over the firm’s social media pages and attended networking events on behalf of the firm. I have been given great responsibility which has enabled me to grow in confidence both as a person and lawyer. One of my trainee highlights is winning my first application hearing that I attended on my own with client which I never have thought would have been achievable by me a year ago.  I am still eager to continue learning and I am very excited to see what the future holds post qualification!

If you are due to start your training contract or are in the process of applying, the best advice I can give is to take every opportunity that comes your way as there is always something to learn from and do not be afraid to ask for help when you need it, it will benefit you in the long run!
 
2020 23 16
The New Divorce Law

From Autumn 2021, the Divorce, Dissolution and Separation Act will finally bring change to divorce law.

As the law currently stands, couples who want to divorce in England and Wales must rely on one or more ‘facts’ to prove that their relationship has irretrievably broken down. These facts are:
  • Unreasonable behaviour
  • Adultery
  • Desertion
  • 2 years separation with the consent of both parties
  • 5 years separation 
As only one party can petition for divorce, this can often lead to an acrimonious situation where the other party is “blamed” for the marriage breakdown, even though it may have been a mutual decision to separate. This can be difficult when the parties remain in each other’s lives because they have children. They could decide to wait and separate on the ground of two years separation with consent, but that can could lead to a delay in finalising financial claims which effectively prevents them from moving on with their lives.

As a result of this unsatisfactory situation, there have been long standing campaigns from family law professionals to change the law, which had been unchanged since 1973.

A recent catalyst for change was the widely reported case of Owens, which reached the highest court in the country in 2018. In that case, Mrs Owens had sought to petition for divorce relying on her husband’s “unreasonable behaviour” as the fact to prove that the marriage had irretrievably broken down. She had initially tried to keep the “allegations” as neutral as possibly, to try and reduce the conflict. However, when Mr Owens stated he would defend the divorce, Mrs Owens sought permission from the court to amend her allegations to include 27 allegations, her position being that whilst each allegation taken alone may seem minor, the cumulative effect was such that she could not be expected to live with her husband. The judge hearing the case described her allegations as “flimsy and exaggerated” and her divorce petition was dismissed. Her appeals to both the Court of Appeal and Supreme Court were unsuccessful, however it was noted by the Supreme Court that the outcome was less than satisfactory. She therefore had to wait to divorce based on 5 years separation (it not being possible to rely on 2 years separation as her husband’s consent would have been required). It was clear that the law needed to change.

Under the new law, separating couples will no longer have to rely on one of the ‘five facts’ to prove the ground for divorce – the irretrievable breakdown of the relationship. Instead, the new law will encourage a more constructive approach to separation.

The new law will introduce the following changes:
  • Introduce joint applications where the couple both agree that the relationship has irretrievably broken down;
  • Applicants will still be able to submit a sole application if their partner does not agree;
  • Remove the ability to defend a divorce, dissolution or separation;
  • Remove the requirement to reply on one of the 5 facts;
  • Introduce a new minimum period of 20 weeks from the start of proceedings to the ‘Conditional Order’ (currently called the decree nisi).
For advice on divorce and financial settlements, please contact specialist family law solicitor Angela Lally for a free initial chat.
 
2020 00 07
Angela Lally