Can I get a divorce in England or Wales?

You may have read in the news of many wealthy international divorces occurring in England, such as the divorce of the Dubai ruler, Sheikh Mohammed bin Rashid Al Maktoum, believed to be one of the largest in the history of UK divorces.  The popularity of England and Wales for international divorce is due to the many benefits it can afford in comparison to other countries.  Judges tend to have much greater discretion in England and Wales, and our starting point of equality is not always matched in other jurisdictions.

If you did not marry in England or Wales, or if you or your spouse do not currently live in England or Wales, you may be wondering if you would be able to obtain a divorce here.

‘To be allowed to divorce in England or Wales, you must meet certain criteria and the courts must have what is known as ‘jurisdiction’ to act.  This simply means that the courts have the power to determine your divorce,’ says Kirsty Tighe, Head of the Family team.  ‘If you meet the legal requirements then you can proceed to apply for a divorce in England or Wales, even if you do not presently reside here or did not marry here.’

It is important to note that some people may have an option of divorcing in more than one country.  If so, then taking early legal advice can help you determine which will be the best option for your circumstances.

What are the legal requirements?

There are a number of criteria that you must meet to be permitted a divorce in England and Wales, namely:

1. You have been married for at least one year. If you try to divorce before one year of marriage, the courts will refuse your application.
2. Your marriage has broken down irretrievably. This means that you are satisfied there are no prospects of a reconciliation. You may wish to attempt   couples counselling before coming to this decision.  Most people will be required to have at least attempted mediation before they are allowed to obtain their divorce.  There are some exceptions to this rule, and one of our lawyers can advise you in relation to same.
3. Your marriage is legally recognised in England and Wales. It does not matter where in the world you married, provided your marriage is recognised as legitimate in England and Wales.  This can sometimes be a complex question and if you are in doubt, it is crucial that you obtain expert legal advice, as the implications can be wide reaching if your marriage is deemed to be unrecognised in the UK.  Generally speaking, to be recognised the marriage must have been legal in the country in which it took place, both spouses must have had capacity to enter the marriage, and any previous marriages must have been terminated properly prior to the marriage.  This can impact some religious ceremonies that occur, typically within the UK.  For example, if you are Muslim and get married under Sharia Law within the UK, it will not be legally recognised in England and Wales.

It is worth noting that if your marriage certificate is not in English, a certified translation will be needed for the courts.

4. Jurisdiction is established. There are five ways in which this can be proven, namely:

• both spouses are habitually resident in England or Wales;
• your spouse is habitually resident in England or Wales;
• both spouses are domiciled in England or Wales;
• you are habitually resident in England or Wales and have lived here for at least a year; or
• you are domiciled and habitually resident in England or Wales and have lived here for at least six months.

What if I have lived abroad?

If you have lived abroad, or are currently living abroad, then you will need to be able to establish jurisdiction in England or Wales to apply for a divorce here.  If your spouse resides in England or Wales then the jurisdiction test will be met.  If neither you or your spouse reside in England or Wales then you must establish that you are both domiciled there.

‘Domicile’ is not legally defined in statute but it is taken to mean the country where you have your closest ties, such as where your permanent home is, your legal affairs and tax affairs.  If you are unsure, then it is important to seek legal advice.

What if my spouse wishes to apply for divorce in another country?

For couples with an international lifestyle, you may be entitled to issue divorce proceedings in more than one country.

If your spouse beats you to it and applies for a divorce first in another country, then you will lose your opportunity to issue in England or Wales.

This could be costly for you, so it is important not to delay.

If you have a choice of countries within which you can issue your divorce then it is critical to obtain early advice from an experienced family lawyer.

How we can help

One of our family law experts will be able to advise you on the options available to you and what type of court orders you could seek.  We can weigh up the routes available to you, considering not only the financial impact but also the court orders available in relation to where any children of the family will live, and how orders could be enforced in other countries.

If you are contemplating divorce, or just want some preliminary advice on your options and if you are entitled to issue proceedings in England or Wales, please contact Kirsty in the Family law team on 0191 297 0011 or email wb@kiddspoorlaw.co.uk.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.

‘Trusts are typically used to preserve assets for loved ones in private client estate planning, and many trusts are fairly inactive a lot of the time,’ says Nigel Miller, Head of the Wills and Probate team. ‘Often action is only required when the trust is first set up, when assets are distributed, or when the trust needs to be wound up. These events involve strict legal requirements, and you must fulfil your obligations as a trustee, so obtaining advice from a solicitor at key times will help you to ensure full compliance with these duties.’

Requirements during the trust period

When a trust is set up, or if changes are made to it during its term, you must register the trust or update the trust registration. The Trust Registration Service is a legal requirement and it is the trustees’ duty to register the trust, failing which you may have to pay a fine for which you would be personally liable. If you have been appointed as a trustee for a new trust, or if you are a trustee of an existing trust which has not yet been registered, you should contact a solicitor to help you navigate the Trust Registration Service.

If the trust is subject to income or capital gains tax, you will need to submit an annual tax return to report the tax due to HMRC. Tax returns should be completed carefully, and you should seek advice as to any tax mitigation that might apply to the specific trust for which you are acting as trustee. It may be that the type of trust or the assets held within it have special tax benefits, and you could find yourself personally liable to beneficiaries if tax is overpaid as a result of failing to obtain legal advice.

Inheritance tax should also be considered when setting up a trust, paying in further monies, or paying money out. Our solicitors can help to ensure that inheritance tax is fully considered and reported.

Whenever you make a decision as a trustee, for example deciding to distribute assets, to add discretionary beneficiaries, or to change the trustees, that decision must be recorded. This might take the format of straightforward trustees’ minutes, or it may require a formal legal document.

Once a decision has been reached, and recorded, the implementation of that decision will usually require a deed. A deed is a specific formal legal document, and it needs approval from and signature by all relevant parties. The trustees will need to sign, and in certain circumstances so will beneficiaries and/or the person who originally set up the trust, as well as any new parties who are being added. A solicitor can help to draft the deed and ensure that it is legally compliant.

Requirements when the trust ends

When a trust ends, the Trust Registration Service needs to be notified and any final tax return submitted to HMRC. This will probably be the time when further inheritance tax is triggered, which again must be separately reported to HMRC.

Much like when a key decision is made during the trust period, a deed is required to formally wind up the trust and bring it to an end, so it is advisable to consult a solicitor on this final step.

How can we help?

It is relatively straightforward to be a trustee while the trust is simply accumulating income, but when action is required matters become far more complex. As a trustee, you are obligated to adhere to certain rules and requirements, and your decisions should be recorded and actioned appropriately.

Our solicitors can help you to ensure compliance in your role, to accurately draft relevant documentation, and to liaise with relevant organisations. For further information, please contact Nigel in the Wills and Probate team on 0191 297 0011 or email wb@kiddspoorlaw.co.uk.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.

Rising interest rates have dominated the headlines recently, with the Bank of England estimating a million households could see their monthly mortgage repayments increase by £500 over the next three years. If you are affected, you may even be thinking about giving up your property so you will no longer have the burden of a mortgage.

‘Becoming mortgage-free would certainly help ease any immediate financial pressures,’ agrees Philip Walker, Head of the Conveyancing team. ‘Unfortunately, that process is rarely easy or straightforward and, whether you are already at risk of losing your home or just want to reduce your outgoings, it is important to get the right advice first.’

Your liability may not end with your ownership

Some borrowers believe they can get out of a mortgage by simply handing the keys back to their lender. However, this is a misunderstanding. You can still be liable for the debt even after you no longer have any interest in the property.

To understand this, it can help to think of your mortgage in two parts. First, there is the money your lender advances you to buy your home. The mortgage, or loan, agreement deals with this. This is a type of contract, setting out your obligations as borrower, such as the payments you must make. In addition, your lender will take a charge over your home as security for their advance, and any other sums which you may owe them, such as interest.

Ultimately, the charge gives the lender the right to sell your home if you default under the loan agreement. This process is often loosely referred to as ‘repossession’. When the lender sells your home, their charge will usually be released. However, your liability under the loan agreement will continue until all the money you owe is repaid. Property prices have been falling, and if the net sale proceeds are less than you owe the lender then they can pursue you for the shortfall.

What happens when a lender sells my property?

If your lender repossesses your property, they should sell it for the best price reasonably obtainable. Often, this will be through an estate agent, but they may choose to auction the property instead. However, their duty is only to take reasonable care. This means they may agree a price lower than you think the property is worth. In general, an unoccupied property in what is known as a ‘distress sale’ is likely to achieve less than a sale by an owner-occupier.

Your lender must send you the net proceeds of sale, if there is any surplus after repayment of your mortgage and their expenses. If there is a shortfall, you will need to discuss with them how you will repay it.

Selling your property before your lender repossesses

It is usually better to sell your home yourself, and repay your mortgage directly, than to wait for your lender to repossess it. Selling voluntarily gives you more control over the process. You should know at the outset how much money you will have after paying off your mortgage. This should also limit the impact on your credit rating, which could affect your future ability to get a loan. Everybody’s circumstances are different, so it is important to take independent advice.

If the sale proceeds will be insufficient to repay your mortgage, you will need your lender’s agreement to the sale. Most lenders will look upon requests sympathetically if you involve them early on. If your lender unreasonably refuses your request, you may be able to apply to court for an order for sale.

Review your finances carefully

If you are struggling to pay your mortgage it is important to get the right advice. Lenders will want to avoid repossession where possible, so contact yours early on. They may be able to offer ways to help, such as switching to an interest-only mortgage or extending your term. You can also find sources of free debt advice at https://www.gov.uk/debt-advice.

Alternatively, you may just want to reduce the cost of borrowing by downsizing or selling a second home or investment property. However, you should still ensure your figures stack up and take advice from the relevant experts. To start with, you will need a realistic estimate of the price your property is likely to sell for, together with the sum required to clear your outstanding mortgage and all the associated sale costs. Your lender should be able to give you a redemption statement. This will tell you how much you need to pay off your mortgage, while our solicitors can give you an indication of the sale costs. If you are planning to save money by downsizing or moving to a cheaper area, you will also need to work out your acquisition costs.

Only when you have this information can you assess whether your plans are viable.

Selling to a cash home buyer

You may have seen advertisements from companies offering to buy properties for cash. The offer of ready money can be very tempting. However, these companies are unregulated, and it is important to ensure any you deal with are reputable. Even if they are genuine, the price they offer is likely to be below market value.

If you are considering such an offer, speak to our solicitors first. We know the local market and can check out the paperwork to ensure the offer is genuine and that there are no hidden pitfalls.

Making sure your property is ready to sell quickly

A quick sale is especially important if you are under pressure to reduce your financial commitments, as each day you will be paying interest on your outstanding mortgage.

Fortunately, there are several things you can do to progress your sale. Making sure your property is presentable and competitively priced should help attract buyers. Before accepting an offer, consider how quickly the buyer can complete. You may prefer a cash buyer for this reason, but your estate agent should always check their credentials by asking for proof of funding.

Speak to our solicitors as soon as possible, so that they can review your position and alert you to any concerns before problems arise. They will help ensure your property is ready for sale legally. This can involve remedying any defects in advance, for example, by taking out a title insurance policy for a breach of planning permission or another restriction.

As part of the conveyancing process, your buyer will also require a lot of information about your property. So, it is a good idea to collate as much of this as possible in advance. Your solicitor can tell you what is required and give you an idea of the likely timescales.

How we can help you

Being under financial pressure is tough enough without the additional stress of having to sell your home. While we may not be able to solve all your problems, our experienced conveyancers understand the need to move quickly and to ensure your sale proceeds smoothly. The process may, at times, feel emotionally draining, but we will always make it our priority to keep you informed and to address your concerns.

For further information, please contact Philip in the Conveyancing team on 0191 297 0011 or email wb@kiddspoorlaw.co.uk.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.

A home with outside space appeals to many of us, but it may be hard to find somewhere affordable with a garden and, even then, you may not want the responsibility of its upkeep. A balcony or roof terrace could give you that much coveted al fresco space without the maintenance headache.

‘It is certainly an attractive proposition,’ agrees Philip Walker, Head of Conveyancing at Kidd & Spoor.  ‘As a result, many developers are now incorporating balconies and roof terraces into their new builds, or owners are adding their own. However, there can be legal pitfalls for the unwary.’

Here he looks at some of the things to consider.

Is the balcony or roof terrace included?

If the property has a roof terrace or balcony, it may seem natural to assume it is included in the sale. After all, it physically appears to be part of the property; the agent may even have used it as a selling point.

Sadly though, things are not always that straightforward. Sometimes, the seller’s title does not extend to a particular feature. Perhaps the documentation was not correct in the first place, or maybe the seller or their predecessor added the feature without properly checking they owned the space.

This can be a particular issue with flats, where the title relates to a space carved out of a larger building. For example, someone may own the top floor flat, but not the roof. Indeed, the building’s owner will often retain ownership of the roof, or it will form part of the common areas. If the title does not include the balcony or terrace, or give adequate rights over it, you may have problems getting a mortgage or selling your home in the future. In a worst-case scenario, you may even have to restore the apartment to its original condition.

It is important to mention any feature like this to your conveyancer early on, and they can quickly check the seller’s title at the Land Registry.

Does the property have a flying freehold?

If part of the house extends over land or property the seller does not own, it may be a ‘flying freehold’. This could be a balcony jutting out over a neighbour’s drive or a roof terrace over another apartment, (or a cellar in an older house which runs under another property).

Flying freeholds have a bad press, with some banks refusing to lend on them. This is because it can be difficult to establish a right of physical support, or the necessary rights of repair. However, this is not always so, as many flying freeholds are long established and do not cause any problems in practice.

Our conveyancing solicitor will be able to explain the potential impact, and help you assess any risk. If the area affected is small, then even if it is not correctly documented, your lender may still be prepared to accept it.

Who is responsible for the balcony or roof terrace?

Sometimes, it is not ideal to own a feature outright. For example, in an apartment block with a balcony running along its length where each flat has the benefit of an individual section. In this scenario, you would usually have a lease of the inner shell of your flat, including the surface of the balcony.

The building owner, or management company, would then be responsible for the structure, the apartment owners sharing the cost of any repairs through the service charge. In contrast, if your lease includes all the balcony, you may be liable for all the cost of repair. This could be so even if you do not have the necessary rights over other properties to carry out those repairs.

When buying an apartment, your solicitor should also check what rights the landlord retains. For example, if you share a roof terrace with other residents, the landlord may have the right to take this space back if they want to redevelop the building. Occasionally, the landlord may have this right even if you own or have exclusive use of that space.

Are all the necessary consents in place?

Any addition to a property should comply with planning and building regulations, otherwise you risk the local authority requiring its removal. If the feature is well established, you may take a view on the likelihood of enforcement action or insure against this risk. In some cases, you may be able to apply for a certificate of lawfulness which would regularise the situation.

Your solicitor can advise you of your options. Bear in mind, non-compliance may indicate issues which are not purely legal. For example, the lack of building regulations consent for a roof terrace may indicate wider issues; you may want to ask your surveyor to confirm it is safe and can bear the additional weight.

Your solicitor should also check the seller’s title to see if the work required any other consents. For example, there may be a restriction in favour of a neighbouring property, or a leasehold property may require the landlord’s consent. Failure to comply with these restrictions could result in legal action or the landlord trying to terminate the lease.

How we can help

Our solicitors will identify any potential problems and can propose constructive solutions. For example, if the roof terrace or balcony is not included in the seller’s title when it should be, this could be:

• asking the Land Registry to remap the extent if there is an error in the register;
• taking out title insurance cover; or
• getting a deed of variation, in which the landlord corrects the omission of the balcony or terrace from the original lease.

The most appropriate approach will depend upon the property, and the transaction, including your desired timescale. For example, a deed of variation may be the best technical solution but could take several months and require the agreement of third parties. So, title insurance may be an acceptable compromise. This is the type of issue we would always explore with you, appreciating both your individual circumstances and the need to sometimes be pragmatic.

For further information, please contact Philip in the conveyancing team on 0191 297 0011 or email wb@kiddspoorlaw.co.uk

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.

If you have been asked to be an attorney for someone under their power of attorney, whether for finances or health and welfare, then they have placed their trust in you to act in their best interests at all times. This will also be the case if they did not have a power of attorney and the Court of Protection has appointed you as a deputy.

‘In practice, this can be easier said than done with difficult decisions such as whether the person should be cared for at home or in a nursing home setting, whether they should receive specific medication, or whether their house should be sold,’ says Nigel Miller, Head of Wills and Probate at Kidd & Spoor.

Fortunately the Mental Capacity Act provides guidance and sets out various factors that you must consider when deciding what is in another person’s best interest. It is important to follow what the Act says, and a solicitor can help you to understand your obligations under the law.

Mental Capacity Act factors

The key things to consider when making a best interests decision are:

• whether the person is likely to regain capacity to make the decision at some point in the future;
• the person’s general beliefs and values;
• the person’s past and present wishes and feelings;
• whether the person has made any written statement about their wishes;
• as far as is possible, you must also permit and encourage the person to participate in their own decision making; and
• you must also take into account the views of anyone who is involved in the person’s care.

If the person is likely to regain capacity, then you should factor this into any decisions you make, ensuring that they are as temporary as is suitable for the circumstances. Depending on the decision to be made, and the surrounding circumstances, it may also be appropriate to delay the decision if the decision cannot be temporary, or would be significantly life-changing, and it is not urgent.

If they have some capacity to participate, you should make sure that they are given the opportunity to do so as far as possible. For example, somebody may have capacity to decide what they want to eat for their dinner but not what medication they should take.

How to gauge a person’s wishes and feelings

Ideally, if you are appointed as someone’s attorney, you should discuss with them in advance what they would like to happen in various situations. However, this is not always possible (for example, if you are appointed as a deputy, the person will have already lost capacity and you may no longer be able to have certain conversations). Circumstances can change over time, and questions may arise which you have not considered.

Whilst any previously discussed wishes and feelings (or any that the person has recorded in writing) would be the most important factor, some useful guidance from previous cases in this area of law is that the following should be considered:

• what was the person like before they lost capacity?
• what was their job or their hobbies?
• what was important to them?
• what were their likes or dislikes?
• did they have any specific religious, spiritual, or ethical beliefs?

Involving others in a best interests decision

If you have co-attorneys, you should ideally all come to a best interests decision unanimously. Even if you are acting alone, it is useful to consider the thoughts of the person’s family and friends.

Where the decision to be made is one of a medical nature, you should also bear in mind the views of medical staff involved in the person’s care. Key questions to ask the medical professionals are what the risks and benefits of each possible option are, the likelihood of those risks or benefits occurring, and the seriousness of each risk and benefit.

If you are concerned that the correct decision may not be made, you should request a best interests meeting with medical staff. This can greatly assist with the decision making process and help to reduce the pressure you may feel around having to make such a decision on someone else’s behalf.

What if there is a disagreement?

Best interest decisions should be taken carefully and with consideration of all the relevant circumstances. One person’s best interest may not mirror another’s, even if they are a couple or they are closely related or otherwise heavily involved in one another’s lives.

If there is more than one attorney and you cannot agree on something; whether one can make a decision without the other(s) will depend on the way the Power of Attorney was set up. If attorneys are appointed jointly and severally, one may make decisions and authorise actions without the others necessarily agreeing. Practically, this is likely to cause upset, and you should always seek to agree in the first instance or opt for some third-party input or mediation if agreement cannot be reached.

If you are appointed under a Health and Welfare Lasting Power of Attorney, the final decision lies with the attorney(s). This does not, however, prevent any person from contesting your decision if they believe it is not in the best interests of the person you are acting for.

In the case of continuing disagreement, an application can be made to the Court of Protection to intervene and make a ruling.

How can we help?

If you are struggling with making a best interest decision or you wish to understand the law in this area a little more clearly, our solicitors can help. If you have concerns about the actions of another attorney, or any decision they have made, our litigation team can assist.

For further information, please contact Nigel in the wills and probate team on 0191 297 0011 or email wb@kiddspoorlaw.co.uk

Role: Receptionist & Admin Assistant

Overview

We are looking for a professional and welcoming receptionist to join our team.

Role & Responsibilities

The successful candidate will be required to:

• Operate the firms switchboard effectively including voicemails
• Monitor the reception mailbox/emails and incoming faxes and distribute accordingly
• Greet the firm’s clients and visitors in a friendly and helpful manner and assist with photocopying, witnessing documents
• Deal with incoming and outgoing mail
• Assist with the scheduling of appointments/meetings
• Take card machine payments, issue receipts and provide daily payment records to the Cashier
• Ensure stationary cupboards are fully stocked
• Maintaining the Wills/Deeds storage database and the filing of record cards
• To ensure the reception area and meeting room are kept clean and tidy

When not engaged in the main duties above you will support other departments/teams by undertaking tasks including but not limited to the following:

• Making and receiving phone calls
• Liaising with solicitors, estate agents, courts and other agencies
• Maintaining client files/database
• Dealing with routine post and telephone calls
• Dealing promptly with telephone enquiries from clients and third parties
• Assisting other team members as instructed
• Opening and closing files
• To carry out such other duties as directed by the Practice Manager

Requirements

• Experience of working in a Solicitors office would be advantageous but not essential.
• A minimum of 3 years receptionist experience

Salary

A competitive salary will be offered.

Hours

Monday to Friday 9am until 5pm with 1 hour 15 minute unpaid lunch.

To apply, email your CV and covering letter: jc@kiddspoorlaw.co.uk

Closing date: 20 October 2023

Being separated from your child can be heart-wrenching, and yet some parents have to overcome some significant hurdles to be able to spend time with their children in a way that many families take for granted.

Direct access is the ultimate goal, and in this article we will focus on the different types of direct access, and what steps can be taken to finalise any agreement or seek a way forward if agreement cannot be reached.

This follows on from our articles which looked at the welfare considerations when thinking how to meet your child’s needs in agreeing access arrangements, and the reasons why indirect access may occur and the different forms it can take.

‘Direct access means any contact a parent has with a child that is face to face.  It can be in many different formats and can include restrictions if necessary to meet the child’s welfare needs,’ says Kirsty Tighe, Family Law Consultant at Kidd & Spoor.

Why have direct access?

Before we consider the different types of direct access arrangements, we will take a quick look at the reasons to have direct access.

Direct access is often what parents prefer to have with their children, and is normally what will be in the best interests of a child.  It is the basis of a natural relationship where a parent and child see each other face to face and spend time together.  If the access is of a good quality, it allows attachment to build between a child and parent and will promote the child’s wellbeing.

The quality of contact is not about what activities are undertaken, but more about the bond and connection between the parent and child.  For example, if there is a young toddler, a higher quality contact may involve the parent engaging with the child by interacting at their level and getting onto the floor to play games.  A lower quality contact may involve the parent being present in the same room as a child, but not engaging with a child for example by being on their phone.

If the time together is not high quality, it is still likely to be beneficial to a child provided there are no safeguarding concerns that would place the child at risk.

What type of direct access?

The different types of direct access provide different levels of safeguarding for the child:

• Supervised contact – if you have been having indirect access, then sometimes the first step to direct access will be supervised contact. This is usually only if there remains some concerns that the child will be at risk.  This can be supervised by a friend or family, or sometimes it may need to be supervised by social services.  This is typically only a temporary measure to monitor contact before it can move to a more natural arrangement.
• Contact centre – this is a centre staffed by volunteers or paid staff with childcare experience that is open for a few hours each week and can accommodate a number of different children and parents at the same time. It is not supervised contact, but does occur in a safe environment.  It can also be used as a neutral venue for contact handover if there have been past issues between parents.  Contact centres are not usually a long-term solution, and typically one is only used as a step towards a more natural contact.
• Contact in the community – this can be at a soft play, park, swimming pool or cinema, for example. It is deemed to be a neutral venue for contact, and allows a relationship to build between a parent and child while the child participates in a fun activity.  This often occurs where one parent has raised issues about the home environment of the other parent, for example, concerns about other people that live in the home, or that the child may be exposed to inappropriate material in the home such as drugs.
• Contact in the home – this is typically the most natural type of direct access and occurs in the parent’s own home. A neutral handover location can be agreed, or the parents can agree to transport the child between their homes directly.  This type of contact can be for a number of hours, or it can be for an overnight stay.  If it is to include overnight stays then it is important that the child has an appropriate place to sleep.
• Holidays – direct contact can also include taking the child away on holiday, which (subject to any court orders) could be abroad or within the UK. It is wise to provide the other parents with details of where you will be staying and how you will be travelling.  It is also sensible if the child is away for a longer period of time than usual, that both parents agree how and when the absent parent will be contacted and if they will, for example, be able to have video calls during the holiday.

Restrictions

If there are particular concerns, restrictions can be put in place – such as restricting the venue direct access can occur in, or restricting other people who can be present.

How we can help

If you need advice on direct access arrangements for your children please contact Kirsty in the family law team on 0191 297 0011 or email wb@kiddspoorlaw.co.uk

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.

 

 

‘Being an executor is an important role and a serious responsibility,’ says Nigel Miller, a Head of wills and probate with Kidd & Spoor in. ‘Even a simple estate can be more difficult than many people realise and you should ensure that you understand the role and are willing to take on the responsibility before starting to act.’

Seeking advice at the outset from an experienced solicitor is the best way to understand exactly what being an executor entails and to help you reduce the chances of anything going wrong along the way.

How to ensure a smooth estate administration process

Good organisation helps things to run smoothly from the outset. You should think about the steps that will be required and ensure that you are prepared for each part of the process. Professionals can help to guide you.

Solicitors know how to run an estate and instructing a solicitor to deal with the day to day administration can relieve a lot of pressure. Involving a solicitor can also be useful for facilitating introductions to other reputable professionals that you may need along the way, such as estate agents, valuers, auctioneers, or tradespeople.

It is important to make sure that you have the correct will and any other relevant legal documents. You should undertake a thorough search of all the person’s paperwork to ensure you are working from the most recent legal documents. In addition, a solicitor can help you to search the records of local solicitors or other companies that may hold original testamentary documents.

Once you have established that you have the correct will, you need to be clear as to its terms and the relevant laws for dealing with the will. Ignorance is not a defence to mistakes made by an executor if they could have sought advice. As such, you could be personally liable if the law is misinterpreted or misapplied.

Communication is key and you should talk openly to others involved in the estate from the outset. This may include co-executors, beneficiaries, or other family members. Being open and honest can help to prevent, or at least minimise, disputes. However, if any dispute does arise it is important that you remain impartial whilst still communicating clearly with all parties. A solicitor can help you to navigate the legal and practical difficulties of an estate dispute.

Keeping a list of all the assets and liabilities from the beginning of the estate administration (and adding to that list as and when you become aware of any additional financial details) will not only mean that you have a clear record of the assets that exist and their values, but it will also allow you to report to the beneficiaries with ease.

You should obtain a professional valuation for any personal items (such as jewellery) as soon as you can. For probate and inheritance tax, it is important that valuations are accurate for the date of death. The sooner a valuation is obtained, the easier it will be for the valuer to accurately assess this. A solicitor can recommend a reputable valuer. Once valued, personal items should be insured and stored safely until they can be passed to the beneficiaries. Again, keeping a list is a useful tool. Once you are ready to pass items on to the beneficiaries, you should do so in person wherever possible. If it is not possible to personally hand over items, you should send them via secure postage or courier. If items are lost and you have not done your utmost to keep them secure, you could find yourself personally liable for the beneficiary’s loss.

As well as small personal items of value, you should also make sure that any property or vehicles are insured and secure so that if any damage occurs you will not be personally liable for this. Property should also be checked regularly by you to ensure that no damage or loss has occurred. It is likely to be a strict term of the insurance policy that the property is checked at regular intervals.

Finally, remember that you may need to be patient. Estate administration often takes longer than you might think, not least of all because you are reliant on other institutions whose timescales are out of your control. It is far more important that you do a thorough and accurate job than it is to have the matter dealt with quickly. Rushing can cause things to be overlooked and, if you have finalised and distributed an estate too soon, you could find yourself facing disappointed creditors or beneficiaries whose money must be paid somehow.

How can we help?

As an executor, it is imperative that you know the rules you must adhere to and that you are able to commit fully to the role. If you are unsure about taking on the role in the first place, or you would like some help dealing with the administration of the estate, our solicitors can help you to ensure that the estate is administered properly and that you are protected from personal liability.

For further information, please contact Nigel Miller in the wills and probate team on 0191 297 0011 or email nm@kiddspoorlaw.co.uk.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.

Can I amend our divorce settlement due to a chronic health condition?

During a divorce or dissolution of a civil partnership, there are a number of factors that must be taken into account when dividing financial assets. These factors include any mental or physical disability of either spouse or civil partner and what their current and future financial needs will be. This provides scope to make a fair and just settlement for anyone that maybe suffering a chronic health condition – a long term illness which is likely to significantly impact a person’s function, earning capacity and future financial needs.

What happens if you had agreed a settlement and have been subsequently diagnosed with a chronic health condition which affects your earning capacity?

‘When it comes to divorce or dissolution settlements, a chronic health condition can have a significant impact on the financial division of assets. If your diagnosis was after a settlement has already been reached, then it may be possible to have your settlement reopened to ensure that your financial needs are met,’ says Kirsty Tighe, a Consultant in the family team with Kidd & Spoor. ‘This is not a simple process and it will require urgent and early legal intervention if it is to have a chance of success.’

Can divorce settlements be reopened?

In most circumstances, divorce settlements are binding as a full and final settlement which cannot be reopened. It requires very exceptional circumstances for the courts to contemplate reopening a settlement, but under certain circumstances it will be possible.

These include:

• If there was significant fraud or misrepresentation by one of the partners, such that the other has been deceived during the settlement process. For example, if one partner has provided fraudulent financial information.
• If there was a material non-disclosure, where one partner failed to share important information which would reasonably have been expected to have impacted the settlement, such as owning significant assets.
• An unforeseen change in circumstance, sometimes known as a ‘Barder’ event. This is the category that could include an unforeseen diagnosis of a chronic health condition which will significantly impact one partner’s financial position.

What is a Barder event?

A Barder event is named after the tragic case of Barder v Barder. A consent order had been made stipulating that the husband would transfer his interest in the family home to his wife, intending that the wife and two children of the family would reside there. Just five weeks later, the wife killed her two children before committing suicide. Her estate was left to her mother in her will. The husband, feeling this was unfair, tried to get the consent order varied by way of an appeal.

The House of Lords agreed to the husband’s appeal, and significantly changed the existing consent order to benefit the husband.

The judge set out the four conditions for when a ‘Barder’ event can occur, allowing a divorce settlement to be reopened:

• that the new event invalidated the basis or fundamental assumptions upon which the original order or settlement was made;
• that the new event had occurred within a short period of time after the settlement was made (while no time is stipulated, this is likely to be a number of weeks or a few months at most);
• the application should be brought back to court promptly; and
  that third parties who have acquired, in good faith for valuable consideration, interests in property which may be impacted should not be prejudiced.

What changes could I obtain?

If your circumstances meet these strict criteria then you can have your settlement reconsidered in light of your new health condition.

It will be necessary for medical reports to be obtained to show when you were diagnosed; the likely future prognosis for you; and how this will impact your functioning and earning capacity. Consideration will also need to be given to any requirements for care assistance both now and in the future, and any adaptations that will be needed to your home.

How we can help

If you are in the unfortunate situation of having had a life changing diagnosis of chronic illness after your divorce or dissolution settlement, while your health and wellbeing are most likely your primary concern, it is vital that you obtain early legal advice on your options. Delay in acting can be reason alone for your claim to fail.

Reopening a settlement is not something that a court will do lightly. One of our family law experts will be able to advise you on the options available to you, and work to collate the strongest case possible to put forward for you.

Please contact Kirsty Tighe in the family law team on 0191 297 0011 or email kt@kiddspoorlaw.co.uk.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.

If you take out a mortgage to buy your home, your lender will almost certainly register a charge against it at the Land Registry. The charge does not transfer ownership. However, it will give the lender important rights, including the ability to sell your home if you default on your loan.

‘When borrowing to buy a property, most of us give little thought to how the lender protects their interest,’ explains Neil Shearer, a Conveyancer in the residential property team with Kidd & Spoor. ‘However, the creation of a legal charge will affect how you, as an owner, can deal with your property. Conversely, if you decide to lend money to someone, for example to get on the housing ladder, it can be a useful tool to protect your loan.’

In this article, Neil answers some of your frequently asked questions about registered charges on property.

What is a registered charge?

Although there are technical differences between a charge and a mortgage, people often use the words interchangeably. A charge is a legal interest in property, which the owner (called the chargor or mortgagor) creates in favour of a third party (the chargee or mortgagee). This is usually to secure debt, typically a mortgage used to buy a house. A charge gives the lender certain rights over the property. For example, they can sell the property and use the proceeds to pay off the outstanding debt if the borrower is unable to.

Most land is now registered at the Land Registry. If this is the case, to be legally effective, the charge must also be registered. It is then known as a registered charge.

If the land is not yet registered, then the creation of a legal charge will usually mean the owner must apply for registration of both the land and the charge.

Registration of a legal charge also provides a state-backed guarantee of its validity, so it is the preferred type of security for many lenders.

How does a registered charge affect me as a property owner?

The existence of a registered charge is unlikely to affect you on a day-to-day basis provided you comply with your mortgage terms; it is important to know what these are. For example, many standard mortgages will prevent you letting your property without your lender’s consent. There are certain statutory safeguards, but failing to comply with your mortgage terms could put your home at risk.

However, when selling your property or remortgaging, you or your solicitor will need to deal with any registered charge. First, you must check carefully the amount needed to pay off your outstanding debt. You will need to repay this to ensure the lender releases their charge on completion. Remember to factor this into your budget. The mechanics are usually quite straightforward, although this will depend on your lender. Having a solicitor who understands your lender’s detailed requirements can help ensure the process runs smoothly.

There is a restriction against my title at the Land Registry. Is this normal?

It is quite common for a lender to restrict a borrower’s ability to transfer or grant another charge over the property. Your property is their security for your debt; they may not want the hassle of having to deal with a third party or to risk their security becoming diluted. The restriction typically prevents the registration of a disposal or another charge without their consent.

During a sale, this is usually not a problem if you are using an experienced conveyancer. Provided the restriction clearly refers to the charge you are paying off, the Land Registry will cancel it automatically. However, your solicitor should check the wording of the restriction carefully. If it does not refer specifically to that charge, they may need to apply for its removal so your transaction can proceed.

Can you have more than one registered charge over a property?

In theory, there is no limit to the number of charges you can register against a property. However, many lenders restrict their borrower’s ability to take out a second mortgage, and you will need to check your mortgage terms and any restriction carefully. If you want to borrow more money, secured by a second charge, you may need your existing lender’s consent. They will want to make sure you can afford both loan repayments. They may also require your new lender to enter a deed of priority. This sets out how the lenders will deal with the property, and apportion the sale proceeds, should one of them realise their security. In practice, some borrowers prefer to remortgage for a larger amount than to negotiate a second charge.

I have finally paid off my mortgage, what happens next?

This depends upon your mortgage lender. Some charge an administration fee for releasing their security, particularly if you are paying your loan off early. Many lenders release their charge automatically once you have paid your debt in full. They should send you details of this with your final redemption statement. If in any doubt, speak to your lender.

Your solicitor can check Land Registry records no longer show the charge registered against your property. You should ask them to do this before putting your property on the market. Having to chase an old lender to formally release their charge could unnecessarily delay your transaction.

If I lend money, can I secure it with a registered charge?

Yes, but speak to your solicitor first. If you are acting commercially, for example, through peer-to-peer lending, you may require authorisation from the Financial Conduct Authority. If your main purpose is to help a family member, and you do not charge interest, it is unlikely you will require authorisation. However, the rules are complex, and the potential penalties for non-compliance significant. So, it is important to take professional advice. Our solicitors have experience in this area and can help guide you through the detailed requirements. If you are lending money to a company, the charge must also be registered at Companies House within the statutory time limit to be valid.

I am lending money to a family member; do I need to register a charge?

Perhaps you are considering lending money to help your child buy their first home. In this case, taking a legal charge over their property may seem a little formal. However, being clear about expectations at the outset, for example, when and how they should repay the loan can prevent ill feeling or disputes arising later. It can also help if you are concerned about treating all your children equally. Putting the arrangement on a formal footing can head off any suggestion of favouritism. There may even be issues which are not immediately apparent, which discussion with a trusted advisor may bring to light. For example, what do you want to happen if your child runs into difficulties repaying? Setting this out in a separate loan agreement, but referred to in the registered charge, would also help to keep those details off the register and private.

Having a registered legal charge means you should be able to recoup your advance even if your child’s circumstances change. For example, if they lose their home because of marriage break-up or insolvency. The loan will also form part of your estate should you die – unless, of course, you agree to write it off in that event.

How we can help

If you have plans that involve a registered charge, then discussing your intentions with your solicitor in advance will mean they can tailor arrangements to suit your individual circumstances.

For further information, please contact Neil Shearer in the residential property team on 0191 297 0011 or email ns@kiddspoorlaw.co.uk.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.