A family law blog from your Kent Based Family Law Solicitor

How to know whether a solicitor is qualified to practice

January 1, 2013 By Justin Forster

Sometimes I get asked about my qualifications. I don’t mind, I understand that my clients want to make sure they are getting the best legal advice from someone that fully understands their situation – as well as how to apply to the law. No solicitor should ever mind being asked details about their background.

When evaluating your future solicitor here are some important things to check:

1) Is the solicitor qualified to practice law in the UK. All solicitors are registered with the Law Society of England and Wales. If your solicitor is not listed on this website, they are not qualified to practice. You will notice that some solicitors are marked as having accreditation from The Law Society. This means that in addition to passing their standard legal qualifications (which all solicitors must have by law) they have also been examined by The Law Society and their work has been found to be of high quality. Use this simple tool to check http://www.lawsociety.org.uk/find-a-solicitor. You should also be able to ask your solicitor for their registration number.

2) Find out if your solicitor has signed up to any other professional bodies relating to their area of law. For Family Law Solicitors it is possible to register with an organisation called Resolution. Members of this organisation have signed up to a code of practice which promotes a non-confrontational approach to resolving family law problems and encourages solutions that are in the best interest of the whole family – and in particular the children. You can check if your solicitor is a member of Resolution here: http://www.resolution.org.uk/findamember/. You may also see the Resolution logo proudly displayed on your solicitors website or office windows.

3) Family Law Solicitors can also do further qualifications to increase their services on offer. For example your solicitor may have trained to offer collaborative law or mediation. Both of these approaches can be offered by a family law solicitor in addition to traditional divorce and separation. You can find collaborative lawyers here: http://www.resolution.org.uk/find_a_collaborative_lawyer/ and mediators here: http://www.resolution.org.uk/find_a_mediator/

4) Speak to your solicitor. Find out when they qualified and how long they have been practicing family law. Ask them about the types of cases they normally deal with – you want to make sure they have experience dealing with your circumstances. Ask them about their approach to resolving family law problems. Make sure you feel comfortable talking to them and that they understand your situation – after all, you will probably spend a long time discussing sensitive issues with your solicitor, it is important that you have a good relationship.

5) Speak to friends and family – and check online about what people think of the solicitor. Most solicitors will be listed on LinkedIN. This is a good way of seeing their CV – and for reading recommendations and endorsements from clients and professional connections.

Filed Under: Other

The two ways to own a property with your partner – and why they matter

September 24, 2012 By Justin Forster

Buying a new home with your partner is an exciting time, and with so much to think about it’s easy to overlook some of the important differences in how you legally own the property, but it’s important to understand your options and arrange the necessary paperwork before you complete your purchase.

There are two ways to own a property with your partner:

Joint tenants
Tenants in common

If you don’t enter into any specific agreement at the time of purchase the assumption is that you are joint tenants. As joint tenants you own the property in equal shares both in the legal title (you both have your name on the title deed) and in the beneficial title (you both own 50% of the equity). In addition if one of you were to die, the surviving partner automatically receives the remaining 50% of the property.

If you don’t own the property equally – or you don’t want your partner to automatically receive the remaining equity on your death, then you need to enter into a declaration that you own the property as tenants in common. Under this ownership structure you are both on the title deeds, but you are able to vary the amount of equity that one partner owns. For example, 60% to you, 40% to your partner – or 70% to your partner, 30% to you. The other important difference is that you make provisions in your will as to who will receive your share of the equity if you were to die – and your share will not automatically pass to your partner.

In addition to these two legal ownership structures you may find that you have an interest in a property despite not being on the title deeds. You can find more information about this in my other posts

Filed Under: Divorce & Separation, Finances

Lottery winners’ Court decision encourages windfalls to be ring-fenced

January 15, 2012 By Justin Forster

A recent High Court decision to ring-fence a substantial portion of a lottery win received during the course of a marriage raises questions over when an asset can be ring-fenced.

In this particular case the wife won £500,000 on the lottery. She used some of this money to purchase the family home, but invested the balance. The Court decided that the money which she invested was a non-matrimonial property and so the husband should not be entitled to a share of it, whilst because the balance was used to purchase the family home, this should be treated as matrimonial property.

However due to the fact that they were only together for three years after the lottery win, the Judge used his discretion and only awarded £80,000 from the lottery winnings.

This case does raise a number of questions and therefore uncertainty about when a windfall, such as an inheritance or a gambling win, becomes a matrimonial asset.

The basic principle remains that all assets are considered matrimonial assets unless there is evidence to support the argument that they should not be. There however can be no certainty as to whether a certain class of asset will be considered matrimonial property or non-matrimonial property, as each case will turn on its own facts.

Clearly however, whether you are the person who has received the windfall or the person married to that person, you will need to seek legal advice to see whether the facts of your case will lead the Court to decide that the asset should be considered matrimonial property or non-matrimonial property.

Filed Under: Other

Unmarried couples may be entitled to more than first thought

January 13, 2012 By Justin Forster

The Supreme Court, the highest Court in the country, recently made a decision which could affect millions of unmarried couples.

In May 1985, a case’s parties purchased a property in joint names for £30,000. The woman contributed £6,000 and the balance of the purchase price was raised by means of an endowment mortgage.

In 1986 a further loan of £2,000 was taken out for an extension, built and paid for largely by the man. This enhanced the value of the house by abut £15,000. The man and the woman shared the costs of the home.

They separated in 1993, with the woman staying in the property after which time she took over sole responsibility for the outgoings on the property.

In May 1996 the man bought another property for £57,000 which he in part funded by his share of a life policy which they owned and divided equally.

It was initially decided that because the property was bought in joint names, then both parties should have a 50% interest in the property, regardless of what has happened since the property was purchased.

However, the Supreme Court has now decided that this presumption can be rebutted if there is evidence that it was agreed either when the property was purchased or at a later date that this should not be the case.

This means that whereas before if a property was owned jointly then that was the basis on which the property would be divided, the facts of each case need to looked at to see whether either as a result of discussions had or the way they have acted, it would be fair and reasonable to infer that the shares in which the property is now held should be different to when the property was first purchased.

It is believed that this may open the floodgates to further litigation and so if you have separated from your partner and you believe that you should be entitled to more than half of the property, then you should seek legal advice as this recent decision may help support your case.

Filed Under: Divorce & Separation, Finances Tagged With: unmarried couples, unmarried rights

How to annul your marriage

January 11, 2012 By Justin Forster

You can only annul your marriage if the marriage is void or voidable.

A void marriage occurs when at least one party to the marriage was not eligible to marry in the first place. Common examples include where one party to the marriage is under the age of 16 or where one party to the marriage is already married. This means that your marriage is not valid and you are not legally married.

A voidable marriage is where the marriage can be annulled. Common examples include where the marriage has not been consummated, where one party did not consent to the marriage or one party was already pregnant by a third-party. In the press, this is often called an annulment.

In most cases, the only ground on which you could rely is non-consummation but if you have had sexual intercourse since the date of marriage, you cannot rely on this ground.

If the marriage is neither void nor voidable then you will have to wait until you have been married for one year before you can bring your marriage to an end.

If the marriage is void or voidable, then rather than applying to have your marriage dissolved, you apply to have your marriage annulled.

The process which needs to be followed is in many ways similar to that if you were getting divorced and as such you should seek legal advice if you were considering applying to the Court to have the marriage annulled.

If you do apply to have the marriage annulled, you will need to have your partner’s consent, otherwise the Court will only be able to annul the marriage if they are satisfied that the marriage is either void or voidable and so should be annulled.

Filed Under: Divorce & Separation Tagged With: annulling marriage, annulment

Do I have to share my inheritance on divorce?

January 5, 2012 By Justin Forster

Whether you have to share your inheritance depends on your personal circumstances. When you get divorced, the starting point is that all the assets of the marriage should be divided equally.

However an inheritance could be one reason, on divorce, why an equal split of the assets is not appropriate.

There are a number of other factors that have to be considered at the same time and as such each case turns on its own facts.

Some of the other facts which need to be taken into account include:

i) Length of the marriage

ii) Value of the inheritance

iii) Date you received the inheritance

iv) Whether any other contributions were made during the course of the marriage

v) Your respective ages, your income and whether there are any children

vi) The value of all the other assets

If you received your inheritance after the divorce, then there is a stronger case to argue that you should keep it than if you received it when you first got married 10 years ago. Equally however, if the inheritance is the only asset, then the needs of both of you need to be considered and this sometimes does mean that there is little option but for the inheritance to be divided.

If you have received an inheritance and you are getting divorced, then it is extremely important that you seek legal advice in respect of your rights and obligations.

Filed Under: Divorce & Separation, Finances Tagged With: inheritance and divorce

Transferring a property as part of a divorce settlement

January 1, 2012 By Justin Forster

It is quite common to transfer a property as a part of a divorce settlement. However before this can happen there needs to be an agreement as to the terms on which the property is going to be transferred.

For example, you will need to agree whether the person who is transferring the property is going to receive a cash settlement and/or whether their name is going to be removed from the mortgage.

Any agreement reached should also be set out in writing, and the written agreement should be entered into before the transfer of the property takes place so as to prevent there being any future arguments about what was agreed.

If you are going through Divorce Proceedings, this agreement would be called a Consent Order. If you are not getting divorced, then this agreement would be called a Separation Agreement.

There are always going to be a number of issues which need to be considered when transferring a property. For example, a deadline will need to be agreed by which time the property needs to be transferred. Also the person who is transferring the property will want their name removed from the mortgage.

Therefore consideration needs to be given as to how the monies which need to be paid to the person transferring the property are going to be raised and also how the person keeping the property is going to get a mortgage in their sole name. If these points cannot be agreed, then it may be necessary to sell the property.

In order to complete the transfer, you will need to instruct a solicitor to prepare the necessary documents which are signed by both parties (and sometimes the mortgage lender) and then sent to the Land Registry whose job it is to update the title deeds.

Filed Under: Divorce & Separation, Finances Tagged With: transfer of property

Dissolution of your civil partnership

December 30, 2011 By Justin Forster

If you want to dissolve your civil partnership, you will need to apply to Court for a Dissolution Order.

Before can apply for a dissolution, your civil partnership must have lasted at least one year and you must be able to establish that your civil partnership has irretrievably broken down.

To do this, you must be able to show one of the following:

i) Your civil partner has behaved unreasonably

ii) You and your civil partner have lived separately and apart for more than two years and your partner agrees that your civil partnership should be dissolved

iii) You and your civil partner have lived separately and apart for more than five years

iv) Your civil partner has deserted you

Assuming that you can establish one of the above facts, you can apply to have your civil partnership dissolved. Depending on the reason for the breakdown of the partnership, you also have the right to ask for your civil partner to be responsible for the costs of the dissolution.

Once you have issued your application for your civil partnership to be dissolved then your partner will need to confirm their agreement to the dissolution. Once they have done this you can apply for a conditional order of dissolution and then after a further six weeks and one day has passed you can apply for your dissolution order to be made final.

However, you should not make your dissolution order final until you have reached a financial agreement with your partner about how the assets of the civil partnership should be divided.

Assuming your partner is in agreement, the cost of dissolving your civil partnership will be between £650 to £750 + VAT and Court fees. However if your partner does not agree to the divorce or does not cooperate then your costs could be much higher.

Filed Under: Divorce & Separation Tagged With: dissolution of civil partnership

Protecting your assets when you split up

December 28, 2011 By Justin Forster

The best way to protect your assets is to reach an agreement with your partner and to put that agreement in writing. This sounds obvious but it is true.

You should always have a Separation Agreement. This Agreement will set out the basis on which your assets are going to be divided and therefore you can protect your assets from your partner making a claim against them in the future.

If you do not have a Separation Agreement, then there can be no guarantee that your assets will not end up being divided because rather than your assets being divided by Agreement, they will have to be divided in accordance with what the Court decides and this can be often be very different to what you had hoped or intended.

If you are not married, then it is also advantageous not to have any savings in joint names, as otherwise, the presumption is that you are both entitled to an equal share of the balance.

Filed Under: Divorce & Separation, Finances Tagged With: protecting assets, protecting house, protecting pension