Home improvements, plan for your next move

The pandemic has seen record numbers of us undertaking DIY projects or getting tradesmen in to improve our homes. Our enthusiasm shows no sign of abating either, with the waiting list for builders stretching into next year.

Neil Shearer, a Conveyancing Executive, in the conveyancing team with Kidd and Spoor agrees this trend is likely to continue and adds some words of caution, ‘Always make sure you get any necessary approvals, or you could run into problems when you come to sell your property.’

Here he looks at some of the issues, and how to ensure your home improvements do not cause problems when you later put your home on the market.


Planning permission, do you need it? 

Not all alterations require planning permission. Generally, you will only need it if your proposed works constitute development. This has a special meaning under planning rules. It includes structural alterations and the sort of work a builder would ordinarily do. Non-structural work to the interior, like repainting the walls or replacing window frames, does not normally need permission, although special rules apply for listed buildings and conservation areas.

If your proposed works fall within the scope of permitted development rights, you will not require permission either. This exception covers some of the most common types of home improvement, such as small extensions and loft conversions. However, permitted rights are subject to conditions and limitations and may not apply in all locations.

Working out whether you need planning permission can sometimes be complicated. However, your solicitor, architect or local authority can help. If there is still doubt, we may suggest applying for a certificate of lawful development. This would give you peace of mind that your improvements are lawful from a planning perspective.

Not obtaining the appropriate planning permission can have serious consequences. The local planning authority could require you to restore your home to its original condition. Buyers will also want to see evidence of compliance as the planning authority could proceed against them, as owner, in the future.


Building regulations

Alterations may need building regulations approval, even if they do not need planning permission. Building regulations cover a wide range of work, for example, the structural integrity of foundations, adequate ventilation, and the safety of any electrical installations. They ensure minimum standards for the design and construction of buildings. Failure to comply could result in the local authority taking enforcement action, including requiring you to remedy any defects.

There are two ways to apply for building regulations approval: a full plans submission and a building notice submission. The former has the advantage of certainty: you know at the outset that, if you follow the approved plans and correct procedure, you will get a certificate of compliance on completion of the works. The building notice route is more ad hoc and involves staged inspections.

In either case, it is important to ensure the building inspector signs the work off when finished and you get a certificate of completion. Keep this safe, as your buyer is likely to want to see it.


Restrictions in your title deeds or lease

Your title deeds or lease may contain restrictions, which limit what you can do. For example, they may stop you building on your land without first getting consent from a third party.

Complying with these types of restriction can be problematical. For example, you may not know who to approach for consent in the case of a title restriction, particularly where the restriction was created a long time ago. Applying for your landlord’s consent is usually more straightforward, but you will need to factor in the time it will take and the additional cost.

Failure to comply with a restriction risks legal action. For example, if you fail to obtain the required consent from a neighbouring landowner for an extension, the neighbour could seek compensation or its removal. If you breach the terms of your lease, your landlord could seek to end your lease early.

When you come to sell, your buyers will want to be sure there have been no breaches of title restrictions which could affect them when they become owners of the property. So, it is important to obtain any necessary consents and keep them safe.


What to do when it comes to selling your home

Give copies of any documents relating to the alterations to your solicitor. This includes any consents, guarantees, or warranties. This will help answer the buyer’s pre-contact enquiries promptly and get your sale off to a good start. If necessary, we can usually obtain copies of planning permissions or building regulations notices from the local authority. However, this may slow things down a little, especially if they reveal issues which need further investigation.

Sometimes if you have not obtained consent when you should have, you can apply for planning permission or building regulations approval retrospectively. In any case, if the works are more than four years old, the council cannot usually take enforcement action over a planning breach. For building regulations, the period is one year. So, your buyer may agree to overlook a technical breach.

Unfortunately, there remains a small residual risk of enforcement action, for example if the council believes there is a serious safety risk. If necessary, a specialist report or suitable insurance cover may provide additional reassurance for the buyer and allow your sale to proceed.

You can also apply retrospectively for consent required under title and lease restrictions, or title insurance could provide a quicker, pragmatic solution. Approaching someone for retrospective consent could make the risk uninsurable, so it is important to discuss your situation with us early on. We can then help you make informed decisions and avoid any unintentional consequences.


We can help

For further information, please contact Neil Shearer in the conveyancing team on 01912970011 or email wb@kiddspoorlaw.co.uk.

How going digital can help with your next home move

Covid-19 has encouraged us to do more online, and this is especially true of the property sector. From estate agents offering virtual viewings to solicitors working remotely, the accelerated use of technology has helped us move home safely despite the pandemic.

‘This trend is unlikely to end with the pandemic,’ says Neil Shearer a Conveyancer in the conveyancing team with Kidd and Spoor who provides a round-up of recent digital developments in residential property sector and how they could help your next home move.

Choice of communications

Once you have chosen your next home, you will want to get things moving quickly. So, it is important your solicitor can discuss your needs and send out the initial documents promptly.

The best form of communication will depend upon the individual circumstances, and we will always consider your personal preferences, but there are clear benefits in going digital where appropriate. For example, email is generally quicker than post, and SMS or text messaging can give you instant updates.

Online ID checks

Before your solicitor can start work, we must verify your identity and carry out regulatory checks to comply with money laundering laws. Fortunately, there are online identity checking systems which can speed this process up, often removing the need for a physical meeting. As these systems follow best practice and the recommendations set by HM Land Registry, they also ensure consistency and reduce the need to supply additional identity information later.

Integrated case management

The right software lets your conveyancer manage your move effectively and efficiently, as updating and sharing information becomes much easier. There is no need to search for information in a paper file, or to speak to colleagues; it can be accessed with a single click. Your solicitor can access your transaction details, even if working from home, and provide you with the latest information.


Better partnerships

Often there is no substitute for picking up the phone and talking to someone directly.

However, conveyancing involves a lot of written information which is important, and sometimes it is better to share this digitally. This way your solicitor can resolve issues and agree any changes to documents without having to pass paper copies around. It can also result in a more collaborative way of working and better communication, helping to keep your transaction on track.

Conveyancing also relies upon many different stakeholders, including mortgage lenders and government departments. Many of these are adopting new ways of working digitally. Our conveyancing team understand these systems and are experienced in working with them effectively. For example, at the end of your purchase, stamp duty land tax will be accounted to HMRC online.

Digital mortgages

Banks and building societies have also moved many of their services online, including mortgages. It is now possible to create a digital mortgage, without physically signing a deed, and the use of these looks set to increase.

One of the big advantages of a digital mortgage is speed. In the case of a straightforward remortgage, the process takes on average 18 days less than for a similar paper-based transaction.

Electronic sale contracts

The need to work innovatively and remotely during the pandemic has encouraged the wider use of other electronic documents, for example, sale contracts. Instead of signing the contract physically, each party enters their electronic signature (a type of code) when they have agreed all the terms and are ready to become bound legally. This can save time because it is no longer necessary to send the contract out and wait for its return by post.

Transfer of title

As well as the sale contract, the seller will need to sign a deed to transfer their title to the buyer. There are complex legal rules surrounding transfers of land, which unfortunately have not kept pace with modern developments. However, it is still important to get these right to avoid problems proving ownership later.

For example, the transfer must be executed as a deed; the buyer must sign it in front of a witness, who must also add their signature. There has been a lot of debate over whether this can happen electronically, mainly because the witness must physically watch the person signing the deed.

HM Land Registry, the government department responsible for maintaining the register of title ownership, now accepts you can execute a deed electronically. However, it has set out strict requirements which all the parties to an electronic transfer must follow. Electronic deeds can save time and overcome some logistical problems, but they can also bring their own set of issues. So, it is essential to choose a solicitor who has expertise in this area.

Online searches

The use of online platforms to carry out conveyancing searches is more established. Your solicitor needs these to check a seller’s ownership of a property and whether other matters, like planning restrictions, could affect its use. Historically, searches have been one of the main reasons for delay in conveyancing transactions. Carrying them out electronically can significantly reduce turnaround times. Just as importantly, using an online platform means we can quickly check progress, and anticipate any bottlenecks.


Sadly, fraudulent activity has increased during the pandemic with conveyancing transactions targeted because of the sums of money involved. Hackers may attack emails and insecure wi-fi systems. So, it is more important than ever to ensure your transaction is secure.

The good news is digital services can often be safer than traditional channels, provided the necessary steps are followed. For example, an online portal can provide 24/7 access and high levels of security by using a similar authentication procedure to banks.

How we can help

Moving home is a very personal matter, and while we invest in state-of-the-art technology to support you when you move home, nothing can replace the close personal attention of your own solicitor.

The smart use of technology can complement this, letting us keep you updated in the way which works best for you. It can also give you more control over your transaction, allowing you to access information when you need it.

For further information about how we can help with selling or buying a property, please contact Neil Shearer or Christine Blenkinsop in the conveyancing team on 01912970011 or email wb@kiddspoorlaw.co.uk

Valuing a private company or family business in a divorce settlement

Running your own business can be the fulfilment of a lifelong dream, but it also brings stresses and strains which sometimes contribute to relationship breakdown. It certainly adds complexity when trying to agree a financial settlement after divorce.

‘The key challenge is to achieve a fair settlement without jeopardising the long-term financial health of the business upon which both people may still need to rely,’ says Jo Scott, a solicitor in the family team with Kidd and Spoor ‘Determining a valuation for any business takes skill and tends to be a more complex exercise than valuing other matrimonial assets such as the house or a pension.’

Obtaining a business valuation

Like all other matrimonial assets, it will be necessary to obtain a valuation of the family business or private company. In order to achieve a fair settlement, it will be necessary to understand what the company or business is worth and what income is generated from it.

It is usual for an independent valuer, normally an accountant, to be appointed in order that a true and fair assessment of the business can be made. They will need access to information and business accounts, and this is normally provided by way of ‘discovery’ when information is provided from the spouse(s) involved in the business.

If any gaps in this information are suspected, then the valuer may request that further information is provided in order that they can provide an accurate valuation.

Reviewing a prenuptial agreement

Aware of the risks to a family business, founders sometimes encourage or even insist that younger members enter a prenuptial agreement when they get married to protect established business assets.

If you have such a prenup, then the first step will be to look at this and see what was agreed. It is not uncommon for the capital value of a spouse’s interest in the business to be protected entirely in a prenup, meaning it is ring fenced from the assets to be divided. Sometimes the interest in the business is limited in a certain way, for example, only taking into account certain business assets or ventures.

It is also possible for couples to have entered a postnuptial agreement after marriage, which may impact the business division in the same fashion as a prenuptial agreement can.

Appointing a joint valuer

If you are both involved and can agree, you may wish to consider jointly appointing an expert to value the business. This means that the valuer will be instructed by you and your spouse together; they tend to be paid by you both equally and will provide a single expert opinion for you both. This can save time and costs in arguing over valuations. We can advise you if this is appropriate in your individual circumstances.

Factors affecting the valuation

The valuation will depend on a number of factors, including the following:

  • Business structure – it is essential for the accurate valuation of the business to understand its ownership structure – whether sole trader, a partnership or LLP, a limited company with one or more shareholders. The presence of and implications for partners or shareholders will be taken into account.
  • Employment – if one spouse is an employee of the business, rather than an owner, then it may also be necessary to obtain employment law advice depending on the intended settlement of the business asset and whether they are likely to remain involved with the business.
  • Business assets – a service may have few fixed assets compared to an investment business with a portfolio of bricks and mortar or a manufacturing business with plant and machinery. Invisible assets also need to be considered – such as goodwill and intellectual property (patents, trade marks, designs or copyright).
  • Trading pattern – an analysis of historic trading profits and predicted future income will be essential. Subscription businesses such as software-as-a-service may benefit from a predictable income stream, while other businesses may be seasonal or subject to fashion or significant market fluctuations.

It is important to appoint a valuer who has extensive experience in your type of business in order to obtain an accurate valuation.

Disputing a valuation

It is not uncommon for a business valuation to be disputed during a divorce. For example, the spouse not involved in the business may be skeptical of a low business valuation if the couple previously enjoyed a high standard of living. The owner of a business may seek to downplay its value, this can be done in a number of ways, such as delaying progress on trade deals or applying for patents to increase business value. On occasion owners have even sought to hide business assets in offshore accounts or under complex trusts to give the impression the business is not doing as well as it is.

If you dispute the business valuation of your spouse or you do not feel they have been upfront about the true nature of the assets or income of the business, then it may be necessary to obtain an order from the court for discovery on specific information.

We have extensive experience in scrutinising business accounts and company structures and can advise you if an application to the court will be necessary.

What happens next

It may be that the business interest can be set off against other assets such as a pension in order that one spouse can still continue with the business unaffected. If that is not possible then looking at maintenance payments linked to profits may be an alternative option.

The courts tend to be very keen to allow a business to continue as a going concern, and this sometimes means that creative options will be looked at to enable a fair settlement to still be achieved.

If the business is a family run home-based business where children of the family are involved, then they may also have rights.

How we can help

Obtaining early expert advice is important in order that an accurate valuation can be obtained, and a fair settlement agreed for both spouses.

For further information, please contact Jo Scott in the family law team on 01912970011 or email js@kiddspoorlaw.co.uk

Kidd and Spoor Sign Shearer!!

Kidd and Spoor Solicitors

welcome a major new signing, Neil Shearer,

to their expanding property department
in Whitley Bay.

“Neil arrives with many years of conveyancing experience, a solid reputation and following, and is a fantastic addition to our property department and to Kidd and Spoor as a company” said Nigel Miller, director at Kidd and Spoor. “I am delighted that Neil has joined us.”

Nigel’s co-director, Philip Walker, worked closely with Neil for a number of years at a law firm in Newcastle city centre. “I am so pleased to welcome Neil as a colleague. His reliability and experience are guaranteed, and our clients will be well looked after” added Philip.

For generations over more than 150 years, Kidd and Spoor have led the way as the premier solicitors in North Tyneside. The conveyancing team, managed by Christine Blenkinsop, continues to thrive and attract repeat business, founded upon unrivalled levels of client care.

Neil will be working with Christine and Kidd and Spoor’s team of colleagues, to maintain and build upon their productive conveyancing department. He can be contacted by telephone on 0191 2970011 or by email at ns@kiddspoorlaw.co.uk.



Relying on the concept of ‘next of kin’ – when is this enough?

Next of kin is a commonly used term in everyday language, yet despite its frequent use ‘next of kin’ only provides legal rights where children are concerned and, even then, only in certain circumstances. The general rule is that the parent or guardian of a child under the age of 18 has authority to make decisions on their behalf, but some laws allow children to make their own decisions prior to reaching 18, for example consenting to sexual activity.

‘Whilst you may anticipate that your spouse, or another close relative, would have automatic access to your finances or medical records should the need arise, this simply is not the case,’ says Nigel Miller a Solicitor in the wills and probate team with Kidd and Spoor in Whitley Bay. ‘It is important to understand the legal rights and responsibilities that a next of kin has in respect of your affairs and how you can grant them the powers they might need.’

Why name a next of kin?

Many services, particularly those involving healthcare, ask for details of your next of kin. You can name whoever you feel is most appropriate, however naming that person does not grant them any legal rights or responsibilities. Rather, organisations simply ask for details so that they know who you wish to be kept informed about your care and any decisions that the organisation needs to make on your behalf.

Naming someone as your next of kin in such circumstances does, therefore, have advantages. It ensures that person can liaise with the service provider and that they are kept up to date with your progress and treatment. In many circumstances, care providers will also take into account your next of kin’s views when they are making any decisions about your care. This could include important details about you which would otherwise be unknown to your care giver. For example, they may have knowledge of specific dietary requirements or preferences which they can pass on for you.

The advantages are, however, limited and it is not enough to presume that your spouse or children will be able to take over your affairs if needed without you having taken steps to put proper legal authority in place.

Legal position

All of your affairs, financial and medical, must be kept confidential during your lifetime and may only be released to certain persons, in certain circumstances, after your death.

If a solicitor holds your will, they cannot release this to your children simply because you have said they are your next of kin. Likewise, your GP cannot disclose your medical records to your spouse, even if you named your spouse as your next of kin when you joined the practice. In fact, both these examples would ring alarm bells with a professional, as if your next of kin requested these documents this might be a sign of possible coercion.

The law is designed to help everyone retain their independence for as long as possible. All the time a person has sufficient mental capacity, their decisions are their choice and theirs alone. Even if that person makes an unwise decision, no one else may step in and take that choice away from them. For example, a doctor cannot take someone’s driving licence away if that person has capacity and wishes to continue to drive.

Because of the way the law works, there is often a grey area during a period of time when somebody might need additional help, but they still understand and can make their own choices. For example, this could be during the early stages of dementia when the decline of mental capacity may happen very gradually.

How to ensure your next of kin does have legal rights

The only way to give your next of kin legal rights and empower them to deal with your affairs on your behalf is by appointing them under a lasting power of attorney.

You can make arrangements for this at any time so long as you have sufficient mental capacity. It is, therefore, advisable to plan this well in advance rather than leaving it until your health deteriorates.

Your attorneys may be appointed under:

  • a health and welfare lasting power of attorney, which grants your attorneys the authority to make decisions about your medical treatment and other health care needs; or
  • a property and financial affairs lasting power of attorney, which authorises your attorneys to access your finances and make decisions about your financial circumstances; or
  • under both types.

Without valid documents in place no other person, including your next of kin, may make these decisions for you.

Financial problems without a lasting power of attorney

Without a property and financial affairs lasting power of attorney, no one will be able to access your finances and your bank accounts would be frozen until appropriate authority is granted by the court. In the meantime, important bills could end up going unpaid.

For those who end up in this situation the court may appoint a deputy, however this is a time-consuming and lengthy process.

Health problems without a lasting power of attorney

If you were to become vulnerable without having made a health and welfare lasting power of attorney, and you no longer had capacity to make your own decisions, it would fall to your medical providers to make decisions about your healthcare. Many people, understandably, would rather have loved ones make their decisions so that they can discuss these in advance and make their own wishes clear. For example, if it is your wish to stay living in your own home for as long as possible, you can make this wish known to your attorneys. If a doctor is in charge of this decision, they may decide that you should be kept in hospital for longer or discharged only into the care of a nursing home and, without your legal authority, no one will be able to override this on your behalf.

The court is extremely reluctant to appoint a health and welfare deputy, so for most of those who have not appointed an attorney for health and welfare, only their medical providers will be in a position to make decisions for them.

How we can help

If you want to make sure that your next of kin will be able to deal with your affairs on your behalf, the only way to do so is to prepare lasting powers of attorney.

Our solicitors can advise you on the implications and process and we can help draft the documents for you to ensure that all your wishes are clear and legally binding.

Is now the right time to extend the lease on your home?

If your home is leasehold, you could soon find it cheaper and easier to extend the term of your lease.  This will usually make your property more valuable and, depending on how many years your lease has left, it can also make it easier to remortgage and more marketable when you come to sell.

As part of its reform of the leasehold property regime, the Government plans to improve the statutory mechanism for lease extensions. Here Christine Blenkinsop a Conveyancer in the residential property team with Kidd and Spoor looks at the latest proposals and considers your options if you are a leaseholder.

If you purchased a house or an apartment on a leasehold basis then, unlike with a freehold property, you do not own it outright. Instead, you have the right to occupy for a specific number of years (the term) and over time the term will decrease.  Effectively the property is a wasting asset as, discounting the impact of house price inflation, your home’s value will also go down.

How many years left on your lease?

When there are many years left on your lease, this may not make much difference in practice.

However, many mortgage lenders require a minimum term of 75 years, and the cost of extending a lease term can increase substantially when it dips below 80 years.

Buyers want to be confident they will be able to remortgage or sell on without any problems. So, issues can start to arise when a lease has fewer than 90 years left.

Your right to extend

As a leaseholder, you probably already have a legal right to extend your lease.

  • If you own a flat – this will be for an additional term of 90 years, and you will only have to pay a nominal ground rent.
  • If you own a leasehold house, then different rules apply. Any extension would only be for 50 years, and you will have to pay what is called a ‘modern ground rent’ which will often be higher than the existing one.

If you own a flat, you will have to pay a premium to your landlord, and the law sets out the basis for its calculation. This payment reflects the value transferred from your landlord to you. Your landlord will lose the right to ground rent and will have to wait longer to get the property back. You will not have the ongoing cost of ground rent and will have a longer more marketable lease.

Significantly, if your lease has less than 80 years left, the premium valuation will also include an element of ‘marriage value’. This represents the difference between the value of your leasehold property before and after the extension. Generally, its inclusion will increase the price you have to pay. The shorter the term is, the greater the marriage value will be, and the more your lease extension will cost.

Valuation is a complex area, as is the procedure for agreeing the price with your landlord. You will need to factor in your lawyer’s and surveyor’s fees and pay some of your landlord’s costs.

It is important to be clear about what is involved and what you want to achieve. Your solicitor can explain the process and help you to decide whether it would be a good move for you.


Changes in the pipeline

Recently the Government has said it plans to make leasehold ownership ‘easier, faster, fairer and cheaper’. This includes legislation to help owners extend their leases via several measures:

  • a simplified single process will apply to owners of both leasehold flats and houses, reducing the costs and time involved;
  • a right to extend leases more than once;
  • rights to extend for a much longer term, up to 990 years;
  • a change in the basis of valuing any premium, including capping ground rent and abolishing marriage value; and
  • introduction of an online calculator to simplify calculating the premium.

The current proposals lack detail, but the potential savings for those seeking to extend their lease could be significant under the new regime. Removing marriage value from the calculation of the premium alone could make it much cheaper to extend a short lease.


The timetable for change

If you are considering extending your lease, you may be tempted to wait for the promised reforms. However, there remains a lot of uncertainty over their extent and timing. The Government has indicated it hopes to bring forward the necessary legislation before the next general election in 2024, but even that date could slip if priorities change. The proposals will also be subject to parliamentary debate and detailed scrutiny, which means they could end up being less far-reaching than some would hope.


What is right for you?

When, and whether, to extend your lease is a very personal decision.

For example, if you own a flat and the term will shortly reduce to 80 years, you may not want to delay. Once the term dips below 80 years, the premium must include an element of marriage value, so you will have to pay your landlord more.

On the other hand, if you have a shorter lease, and no immediate plans to remortgage or sell, you may decide to wait and see how any potential reforms could benefit you.

How we can help

Our residential property solicitors are experienced in leasehold extensions and can explain what is involved and help you assess all the pros and cons. By understanding your individual circumstances and goals, we identify the best course of action and may even suggest creative alternatives. For example, negotiating a lease extension directly with your landlord rather than relying on your statutory rights is one alternative, while another would be purchasing the freehold.

Whatever stage your plans are at, however many years are left on your lease, talking things through with your solicitor will help you reach the decision which is right for you.

The implications of alcohol misuse and family arrangements

While many adults drink alcohol responsibly, unfortunately there is a significant percentage of the adult population in England that misuse alcohol.  Government statistics for 2020 show that over half a million adults in England were admitted to hospital, primarily due to excessive alcohol consumption.

When misuse of alcohol is a factor in family breakdown, it can be a particular concern when there are children and arrangements need to be agreed for residence and contact. It is not uncommon that someone with an alcohol problem denies any problem exists, especially if they fear they may not get to see their children.  Meanwhile the other parent will be concerned and fret over the safety of their children in their former partner’s care.

‘The issue of concern for any court looking at arrangements for children is not so much if a parent misuses alcohol, but rather what risk that may present to the children in their care,’ explains Joanne Scott a Solicitor in the family law team with Kidd and Spoor Solicitors in Whitley Bay. ‘If your former partner has issues with alcohol misuse, then ideally they should address those issues by getting professional help.  The courts will support this and recognise they are acting appropriately and in the best interest of their children in addressing their problems.  Being open to obtaining help and looking at what safeguards need to be in place are key considerations.’

Recognising genuine risks

When alcohol misuse is denied, it also tends to increase the acrimony between parents.  Often the concerned parent wants the other parent to have a good relationship with their child but is distressed about the potential risks.

Commonly the biggest risk arises from a parent driving under the influence of alcohol with the child.  However, if a parent misuses alcohol while caring for a child, there can be several other negative impacts on children including potential neglect and normalisation of excessive alcohol use. On many occasions, seeing a parent under the influence of alcohol leaves a child feeling frightened.

It is important that any concern raised is genuine.  A false accusation, made in the hope of preventing one parent seeing their children, will usually backfire.  It could even result in a court finding the accuser as ‘implacably hostile’ which can have an impact on who the children live with.

The use of alcohol testing

If your former partner does not accept that they have a problem, then you can request that they undergo alcohol testing.  You can try and agree this privately between yourselves, or you can ask a court to order an alcohol test as part of an application for the court to look at your children’s living arrangements.  The court cannot force your former partner to undergo testing.  However, if they refuse the court may think they have something to hide, and the judge can draw a negative inference from their refusal which may impact their case and options to see their children.

The testing for alcohol misuse can be carried out in several ways:

  • a urine test shows up recent alcohol consumption only and may not tell you a lot if your former partner is a weekend binge drinker or has abstained from alcohol knowing their testing is coming up, but it can be used in combination with other testing; or
  • a blood test can show up if there has been damage caused to the liver because of excessive alcohol consumption, and it shows up certain markers in the blood that will be elevated if there has been excessive alcohol consumption – phosphatidylethanol (PEth) is the most accurate blood marker as it can only be produced if alcohol has been consumed.

Although usually more expensive, it is also possible to obtain nail clipping analysis or hair strand testing:

  • hair analysis shows the results of alcohol consumption for up to 12 months, although there can be issues which impact the accuracy of hair strand testing such as hair dye, hairspray, wax and gels used, and it is not uncommon for people to completely shave their hair in the hope of avoiding this test; and
  • nail analysis is usually only used if someone does not have sufficient body hair for a hair analysis, as this can provide an analysis for just six months.


Ensuring a child’s best interests

If significant concerns are raised about a parent’s alcohol consumption, then the court may order a CAFCASS report, or another expert report such as a physiologist.  CAFCASS represent children’s interests and independently advise the court about what is safe and what is in a child’s best interests.

If alcohol is an issue of concern, then the judge may decide to allow that parent to see their children but put certain safeguards in place.  These safeguards could include, amongst other things:

  • another responsible adult being present to ensure the children are safe;
  • the amount of time spent together being limited to times of the week where alcohol is less likely to be a risk factor, such as avoiding weekend contact if that is the parents drinking pattern;
  • allowing time to be spent via phone or video calls;
  • allowing time to be spent in a public venue where alcohol is less likely to be consumed;
  • have a responsible adult visually assess at the start of contact that the parent is sober; or
  • arranging for a responsible adult to transport children to and from contact to minimise the risk of the parent driving the children while under the influence of alcohol.

How we can help

If you are concerned that alcohol misuse is a problem for your former partner, and that this may impact on their relationship with their children, or you have been accused or have issues with alcohol misuse yourself, then it is important that legal advice is obtained.

Does bad behaviour affect the financial settlement in a divorce?

Within a marriage or civil partnership, the concept of bad behaviour can cover a multitude of activities, from leaving the top off the toothpaste to serious or criminal activities.

One option when applying for a divorce is to claim that your relationship has broken down irretrievably. One way of proving this is to show that your partner has behaved ‘unreasonably’. Following the case of Owens v Owens, unreasonable behaviour must be more than the run-of-the-mill type of annoyances to be expected in a long marriage. You must show that the behaviour was such that it would be unreasonable to expect you to stay with your spouse.

If you succeed with an unreasonable behaviour divorce it is normal that the courts will order your spouse to pay for the legal costs. For many, allocation of the legal costs is not enough. They think that if their spouse has behaved badly during the marriage, then this should also be reflected in the apportionment of the financial settlement on divorce.

Joanne Scott, a solicitor in the family law team with Kidd and Spoor in Whitley Bay says ‘Many expect that if their spouse has had an affair or in some other way behaved badly in causing the marriage to end, they will be financially penalised when it comes to dividing the marital assets. That is not normally the case, so it is important to talk to your solicitor about your specific circumstances.’

If your spouse’s behaviour or conduct can be taken into account then it may mean that you receive a larger division of the marital assets. The court can deviate from its usual starting point of equalisation and it has the power to financially penalise your spouse for their conduct.

What misconduct is taken into account?

In certain circumstances the courts can consider the misconduct or behaviour of a spouse, provided it would be ‘inequitable to disregard’. What is inequitable to disregard is a question for the courts based on the individual facts of a case. Such conduct must be ‘gross and obvious’ or what one judge described as conduct that has the ‘gasp’ factor. This is a high threshold to reach.

Conduct that will be taken into account by a court can be split into two categories; personal or financial.

Personal misconduct.

Cases where personal conduct has crossed the threshold include illegal activities such as incest, marital rape, paedophilia, bigamy, and significant domestic violence such as stabbing or shooting a spouse. Most of the personal conduct cases that fulfilled the criteria involved attempted murder or grievous bodily harm upon a spouse, or in one case hiring a contract killer to murder their spouse. They are very much at the extreme of bad behaviour.

The type of behaviour which is usually cited as grounds for an unreasonable behaviour divorce petition, such as committing adultery, drug abuse, drinking to excess, or failing to engage in normal family life will rarely be a sufficient basis for the court to take into account in splitting the financial assets.

Financial misconduct

The court can consider financial mismanagement by a spouse that has caused significant detriment to the marriage. There are several types of financial conduct that the court has considered relevant which include gambling, failing to pay tax bills, fraud and transferring assets for little or no consideration in an attempt to prevent their spouse from gaining any benefit.

If your spouse has gambled your life savings, borrowed unreasonably and excessively against the family home or has been dissipating the marital assets then the court may well reduce their claim over what assets are left.

Financial conduct is more likely to be taken into account by the court when splitting the assets. Although this is still not common, when it is permitted the court tends to calculate a financial allowance for what it believes the offending spouse has wasted or mismanaged financially. This is a much easier assessment for the courts than trying to come up with a figure for someone’s personal conduct.

The recent case of Finch v Baker

The recent case of Finch v Baker looked at whether a spouse’s financial conduct should impact their financial settlement. The case involved Mrs Finch who was an executive in the BBC earning £160,000 per annum and her former husband Mr Baker who was at the time of the court case, an unemployed journalist. Mrs Finch was the significantly higher earner, and at the time of their divorce in 2016 the couple had amassed assets worth £2.2 million.

During the court proceedings, Mrs Finch argued that her husband’s contribution to the marriage was ‘significantly negative’ and that his behaviour needed to be taken into account when looking at the division of their financial assets, which she argued were primarily the results of her efforts. The Court of Appeal rejected this argument citing that Mr Baker’s conduct was not so bad that it would be inequitable to ignore it.

Although not an even split, Mr Baker received a sizeable financial settlement based on his needs and that of Mrs Finch who lived with the children of the family. Mr Baker’s lower financial contribution to the marital assets was not considered to be relevant – as is the case when one spouse works less or not at all.

In conclusion

Bad behaviour, whether of financial or personal conduct does not commonly impact a divorce financial settlement. However, when it does it will have a significant detriment to the offending spouse.

If you believe your spouse’s behaviour is so serious that it needs to be taken into account, then it is important to take early legal advice as it can be difficult to raise this at a later stage.

For further information, please contact Joanne Scott in our family law team on 01912970011 or email cbennett@kiddspoorlaw.co.uk

Parking and access issues when buying a new home


Searching for your next home, car parking may not be top of your list of priorities. A recent survey by Uswitch reveals nearly one in ten of us has knocked on a neighbour’s door to complain about parking.

It is not just neighbours who can cause problems. Commuters, school parents, and other visitors, can easily turn a quiet road into a traffic nightmare.

Here Christine Blenkinsop, a Licensed Conveyancer in the residential property/ conveyancing team with Kidd and Spoor Solicitors offers some advice on how to avoid buying a home with a parking problem.

Decide how important parking is to you

Buying a house, inevitably, involves compromise. However, if parking is important you will need to factor this into your search and decision-making process. For example, do you need parking close by because of a disability, or do you run a business from home which means you may have a lot of visitors or deliveries?

Discuss your requirements and circumstances with your conveyancing solicitor early on so they can advise you about any legal issues. For example, some properties have title restrictions which may make it unlawful to park any vehicle other than a private motorcar on the drive. This could prevent you from parking a trade van outside your home or storing a boat or caravan. Not all restrictions are enforceable, and your solicitor can help you assess the likelihood of this being an issue or suggest ways of reducing the risk.

Garage, parking space or off-street parking

If you want to keep your car secure, close by, and dry, then buying a property with a garage could be the answer. Your solicitor will confirm there are no breaches of planning and building regulations. However, you should still check its measurements and physical layout are suitable. Occasionally a garage in a new-build home can be too small to easily accommodate some cars.

Your next best option could be a dedicated parking space. In theory, this should mean you will always be able to park close to your home. Take care to check the basis of this arrangement and tell your solicitor so they can confirm what the estate agent or seller has told you. Your solicitor will check the space is included in the title to the property or that you will have an exclusive right to its use.

Sometimes a property may appear to have the benefit of a particular parking space, but the legal documentation does not support this. Instead, the arrangement may be informal, temporary, or conditional upon payment of a fee. It is important to be clear about the legal basis for your use of the space, otherwise you could end up getting less than you expected and have problems in the future.

Estate agents often use the term ‘off street parking.’ This could mean the property has a legal right to park in a designated area on a first come, first served basis. Alternatively, it could just mean there are currently places to park off-road locally. However, these spaces could struggle to meet demand or even disappear if the area is redeveloped in the future.

On-street parking

There is no right to park on the public highway outside your property. Street parking is subject to availability and will usually be on a first come, first served basis. So, in busy areas you could end up having to park some distance from your home. You may therefore want to visit any prospective new home at different times and on different days. The presence of a nearby school, health centre or entertainment venue, can result in an otherwise quiet location becoming gridlocked in peak periods.

Legally, other motorists should not park in a way that stops you accessing the highway from your drive. However, enforcing this right where the interference is intermittent can be difficult. If trouble-free access is important to you, avoid buying in an area where there is a known problem.

Permit parking only

Some properties, especially those in urban areas, may be in residents’ parking zones. You may notice road signs when you view the property, but your solicitor’s local authority search will pick this up.

These zones restrict who can park there. Usually, the aim is to prioritise spaces for residents over commuters or visitors. This may sound good and it can help address access issues caused by inconsiderate parking. However, there is no guarantee you will be able to park outside your home, or that a space will be available at all. It is also important to know the terms of the scheme, any charges, and whether you would qualify for a permit. For example, some schemes exclude newly built or converted properties or those which the council consider already have adequate parking.

Shared driveways

Even when buying a home with its own garage or parking space, issues can arise if it shares a driveway or private road with neighbouring properties. Although these arrangements often work well in practice, it is important to ensure the right legal framework is in place. Your solicitor will do this as part of the conveyancing process, checking there are sufficient access rights and a mechanism for dealing with any maintenance issues and sharing the costs fairly.

If the correct framework is in place, then your neighbours must allow you to move freely over the driveway or road to access your home. Conversely, you cannot park in a way that would interfere with their access. Sometimes, neighbours do not follow the rules, or they act inconsiderately. Usually, this is down to misunderstanding and a polite request will quickly resolve matters. Occasionally, the issue becomes entrenched and access is an ongoing problem.

Conveyancing pre-contract enquiries should reveal if this is the case, and if there are any ongoing disputes. However, if you know an accessway is shared, you should discuss your understanding of the arrangements with your solicitor. That way, they can tailor their follow-up questions to the seller and their solicitor, to clarify the situation and ensure there are no nasty surprises when you move in.

Other parking problems

Parking problems can arise at any time, even after you have been living in your home happily for many years. For example, new neighbours who start parking their second, or third, car across your drive. In most cases, a polite request should resolve matters, and any inconvenience will be short-lived.

If the problem persists, talk to your solicitor. Being clear on your legal position is a good first step. Your neighbour is unlikely to continue if they know they are in the wrong. And, if they do, a carefully worded solicitor’s letter is often all it takes to ensure your rights are respected in the future.


For further information, please contact Christine Blenkinsop in the residential property / conveyancing team on 01912970011 or email cb@kiddspoorlaw.co.uk

Making a will or giving a gift on your deathbed

Living through a global pandemic has meant seeing loved ones taken from us at an alarming rate, and it has been distressing for many to see someone taken into hospital and not know if you might be able to see them again.

‘Whilst planning ahead to document your wishes in a will is the best way to arrange the division of your estate, sometimes plans do need to be put in place suddenly and at the last minute from a hospital, hospice or care home,’ says Nigel Miller a Solicitor in the wills and probate team with Kidd and Spoor in Whitley Bay ‘If you are concerned that you may not be well enough to return home and wish to put your affairs in order then a solicitor can help you to make a will or make arrangements for specific gifts.’

At present, it is important to balance the need to protect one another’s physical health with the urgency of making a new will or a lifetime gift. It is still possible to see your solicitor and obtain legal advice. This can either be via video conferencing software or face-to-face, so long as it is safe to do so and all coronavirus precautions are met.

Testamentary capacity

It is vital for making any will or gift that you have testamentary capacity. This means that you must understand that you are making a will or gift, you must know the extent of your estate, and you must comprehend any claims to which your estate could be subject following your death.

If your mental capacity is in any doubt, a medical report may also be needed. For example, a recent diagnosis of dementia will not necessarily mean that you do not have testamentary capacity, but a medical expert is likely to be needed in order to confirm this.

This may slow things down and complicate the process, but a solicitor will be well versed in these issues and can help to ensure that they do not prevent a valid will from being executed in time.

Precautions against undue influence

Any decision to make or amend a will must be your own. If there is any hint of undue influence, steps will need to be taken to protect you. For example, it may be that you have asked a family member or friend to contact your solicitor for you, if that person is also intended to be a beneficiary your solicitor will need to be satisfied that they have not pushed you to make the will. Unless satisfied that your instructions are yours and yours alone, the solicitor will be unable to draft the will on your behalf.

Finding witnesses

As with any will, a will which is made in a care setting must be signed by you and by two independent witnesses. Given the urgent nature, and as your witnesses and you must see each other sign the will, the most practical arrangement is for all three of you to sign at the same time, in one another’s company.

Your witnesses must also be independent, meaning that they cannot be named as one of your beneficiaries, nor can they be the spouse or civil partner of any of your named beneficiaries.

Finding willing witnesses to a deathbed will can be tricky, as many medical professionals are not happy to witness the wills of those in their care.

Your solicitor can usually bring a colleague and they can both act as your witnesses.

Handwritten wills

Whilst it is a requirement that all wills must be in writing in order to be valid, it is not necessary that they are typed. A handwritten will is often the best option, given that there may be a shortage of time, and our solicitors are best placed to ensure that a handwritten will is effective and appropriate to your circumstances.

Making a deathbed gift

If time is too short to make a will, or if there are relatively small gifts you want to leave to certain people without the formality of a will, you may be able to leave them by way of a gift.

A deathbed gift is one which is made in reasonable contemplation of death occurring in the near future. Appropriate mental capacity is still a necessity for the gift to be valid.

Another factor which is necessary for a deathbed gift to be valid is that you must part with dominion. For example, you must physically hand over car keys or title deeds to the intended recipient. If you are unable to successfully part with dominion, the gift will not be valid. This could occur if the person you intend to give the item to is unable to visit you in time.

If the gift is valid, it is important to note that it will supersede the terms of any prior will. Therefore, if you specifically give an item in your will to one person and later give it to someone else on your deathbed, the first person will not receive that item and they stand to be disappointed when the terms of your will are revealed.

As deathbed gifts have complex rules, it is best to instruct a solicitor to advise on the potential gift so as to prevent a problem arising later for your executors.

What if I recover?

If your health recovers after having made a deathbed gift, then the gift will automatically fail. As the gift would have only passed to the recipient upon your death, this means that they will never receive it and the item remains yours.

It should also be noted that it is possible to expressly revoke the gift once you have made it, whilst you are still alive.

Practical considerations for deathbed wills and gifts

Leaving any will or gift until the last minute means that time will be against you. This can bring with it the risk that time may not be sufficient to give effect to your wishes. If you are in a hospital or a care home, visiting restrictions might also prevent things from proceeding swiftly enough.

When making any decision about gifts or a will, it is important that these are not made in haste. However, if you are certain about the gift or will you wish to make, professional advice and drafting is vital in preventing your decision from being contested after your death, and our solicitors can help you ensure that you adhere to all relevant rules and make your final wishes validly.

For further information, please contact Nigel Miller in the wills and probate team on 01912970011 or email nm@kiddspoorlaw.co.uk