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In a time when both our business models and personal relationships are being tested to their limits, it is important to understand how the breakdown of a relationship can affect your business.

This webinar is essential viewing for all entrepreneurs who are:

  • Married or considering marriage in the future
  • With a business partner who is married or might get married in the future
  • In business with their romantic partner
  • Employing their romantic partner
  • With business loans secured against a jointly owned residence

Because…

Your spouse could “own” 50% of your business, even if they have never been involved with it.

What does this mean?

If you separate you might need to “buy them out” or give them shares in the business.  There are also tax implications.

In this webinar we will consider:

  • Real-life separation case studies from business owners who started their businesses before and during marriage, including horror stories that you will want to avoid.
  • Cost-effective legal steps to help you protect your business whilst ensuring you can provide fairly for your spouse, including pre-nups, post-nups, cohabitation agreements and trusts.
  • Practical tips for anyone considering divorce who does not have protections in place.
  • Legal strategies to negotiate a fair outcome for everyone.

Why can we talk to you about this?  As law firm specialising in Family and Private Wealth firm, we help entrepreneurs, directors and investors to protect their professional interests from personal life events, so they can achieve their lifetime ambitions and leave the legacy they intend.  We also deal with the legal fall-out for those who do not take these steps.

Other Allard Bailey webinars for Fresh Business Thinking:

  1. How to use the law to align your personal and professional goals so that you can maximise growth in all areas: View here.
  2. How to protect your business from events in your personal life that can have a significant impact, such as your unexpected incapacity, death or personal debt: View here.
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Louise Allard, Joint Managing Partner of Allard Bailey:

“Despite the progress that has been made for the LGBT community in recent years, many people still view same-sex parenting with suspicion.  Sadly, children face bullying because of their same-sex parents and their parents often face stigma. We believe this stigma is unjustified and hope our video is a contribution to ending this.  It is intended to promote social inclusion, encouraging all children and those who influence them to accept differences in our society with toleration.”

The video has been released free on Stephen Fry’s YouTube Channel, Pindex, as an aid for schools that are introducing LGBT inclusive relationship education for the first time.

The government’s new relationships and sex education curriculum came into effect from September, requiring LGBT-inclusive lessons in secondary schools.  It stopped short of making LGBT+ inclusion lessons compulsory for primary schools. Instead, they are only “strongly encouraged” when teaching about families to include families with same sex parents.

Louise Allard said:

“We need to challenge the misconception that somehow being raised by same-sex parents is second best. The research clearly shows that children of same-sex couples are often happier and healthier, even when social and economic advantages were taken into account. Of course, nobody is suggesting one kind of gender combination is better than another, just that what matters for a child’s outcome at school is a loving and supporting home life.

It is disappointing that the government didn’t make teaching about LGBT+ families mandatory in primary schools as so many primary schools now have students with same-sex parents.  We hope those schools will choose to educate their population.”

It is hoped that many primary schools will still use the ‘No Outsiders’ programme developed by Andrew Moffat, the deputy headmaster of Parkfield Community School in Birmingham, which focuses on educating primary school children about the characteristics protected by the Equality Act, which includes sexual orientation.

The number of same-sex couple families in the UK increased from 152,000 in 2015 to 232,000 in 2018, a rise of 53.2 per cent.

Research suggests that an estimated two-thirds of children with same-sex parents experience some form of stigma due to their parents’ sexual orientation.**

Click to watch video on YouTube

*https://www.theguardian.com/australia-news/2017/oct/23/children-raised-by-same-sex-parents-do-as-well-as-their-peers-study-shows

** https://theconversation.com/kids-from-same-sex-families-fare-as-well-as-peers-or-better-28803%20

For further information contact Evette Pottinger.

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When you run a business there is always an interaction between your professional and personal life, so it is important to understand how the decisions you make in your private life can impact your business.

This is the second in a three-part webinar series in which we look at how to legally align your professional and personal interests so that:

  • the value of your wealth is maximised
  • your business is protected from significant life events
  • you can achieve your ultimate life goals.

In this webinar we will focus on how to shield your business from unexpected life events that can have a significant and sometimes catastrophic impact.

You will learn about the Four Ds and how they can affect your business. In all scenarios we will discuss cost-effective legal tools to protect your business, when and how to use them.

  • Death:
    • What can happen to your business if you die without a will?
    • How to ensure your business can continue to operate without you
    • The difference between a Business Will and a regular Will
  • Disappearance:
    • Can anyone fill management functions if sudden incapacity from an accident or illness causes you or a business partner to temporarily disappear from the business?
    • How to minimise the operational impact of temporary incapacity using a Business Lasting Power of Attorney
    • How to keep the business running, or allow it to be sold, if you experience long-term incapacity
  • Divorce:
    • Is your spouse entitled to 50% of your business?
    • How to ring fence pre-existing assets including your business
    • Ways to shield your business from the financial and emotional impact of relationship breakdown
  • Debt:
    • When your personal finances will affect your business
    • How company structures and Trusts can shield your business from personal creditors

In the final webinar of this series, we will look further at how your family and personal relationships can affect your business and how effective planning can minimise this.

A replay of the first webinar which explained how you can use the law to align your personal and professional interests and maximise growth in all areas can be viewed here.

Why can we talk to you about this? We specialise in helping entrepreneurs, directors and investors to protect their professional interests from personal life events, so they can achieve their lifetime ambitions and leave the legacy they intend. We also deal with the legal fall-out for those who do not take these steps.

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When you run a business there is always an overlap between your professional and personal life. To ensure you can realise your goals, it is important to understand how the decisions you make in your private life can impact your business interests and vice versa.

We specialise in helping entrepreneurs, directors and investors to protect their professional interests from personal life events, so they can achieve their lifetime ambitions and leave the legacy they intend. We also deal with the legal fall-out for those who do not take these steps.

This is the first in a three-part webinar series in which we look at how to legally align your professional and personal interests so that:

  • the value of your wealth is maximised
  • your business is protected from significant life events
  • you can achieve your ultimate life goals.

In the first webinar we will focus on how to grow efficiently and you will learn:

  • Whether the company structure you have in place will help or hinder your personal goals including enjoying life now or in retirement, creating a family business, leaving a personal legacy and charitable aims.
  • How to grow your business in a way that allows you to meet both your professional and personal ambitions.
  • How to structure your personal wealth to achieve your short, medium and long-term goals.
  • How to protect your long-term interests and those of your family, including vulnerable persons, using different legal tools.

In part 2, we will discuss the legal tools you can use to shield your business from the impact of personal life events such as unexpected incapacity, death, marriage and divorce.

In part 3, we will consider how your personal relationships can affect your business and how effective planning can minimise this.

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Through independent research, it has gathered the following feedback about the firm:

‘Allard Bailey was very efficient, transparent and supportive and clearly knew the ins and outs of the legal procedure. I felt that I was in very capable hands and was very pleased I had employed the team’

‘A specialist and boutique family law firm. The lawyers are extremely organised and attract high-quality work not through showy advertising or marketing strategies, but simply by being efficient and good at what they do’

‘Louise Allard dealt with my case. At all times she was very clear on my position and my options, explained things in everyday language, and was sympathetic and supportive’

For further information about The Legal 500 and its Family rankings please click here.

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The reality is that anyone can become incapacitated at any time through illness or accident, so it makes sense to prepare for that possibility.  Depending on the length of time you are out of action, the consequences for your life may be minimal, but the consequences for your business could be more significant.  For example:

  • If you are the only signatory for payroll, what will happen if you are unable to sign for the foreseeable future?
  • How will the business operate if a Co-Director is unable to co-sign contracts or guarantees?

What is a Business LPA? 
A Business Lasting Power of Attorney (LPA) is an effective way of protecting your business from the operational impact of sudden and unforeseen absence.

As with  all LPAs, it is a legally binding document, which assigns one or more trusted people to help you make decisions or to make decisions on your behalf.  These trusted people are called Attorneys.  For more details on Lasting Power of Attorneys please see Lasting Powers of Attorney.

A Business LPA deals with business assets only and should appoint an Attorney with the requisite qualifications and abilities to manage your business for you for a sustained period if necessary. For example, if you are a dentist running a dental practice, then appointing your spouse who has expertise in say, retail, is not going to be suitable.  Rather, partners of your dental practice or other such professionals would be better suited to managing your practice.  It is important to note that some industries impose regulatory restrictions on who can manage a business within that profession.

Business LPA’s can be as detailed as you like and can appoint multiple Attorneys to handle different areas of the business.  They provide a platform for you to explain to your Attorney(s) exactly how you would like your business to be run and what they should do with it in certain sets of circumstances.  This may include the way in which they continue to keep it going whilst you are unable to, or the steps you would like them to take to close the business by way of sale, transfer or otherwise.

Your Business LPA should also give permission to your Attorney(s) to employ the services of other professionals, generally or specifically, to assist them.  As, for example, if you have a financial advisor who usually helps you with certain investments, they will require your express permission to liaise with your Attorney or they would be unable to continue managing your investments without a court order.

Are There Other options?
Another way in which this can be addressed is by putting in place a Property and Financial Affairs Lasting Power of Attorney in which you appoint an Attorney who would be responsible for looking after your interests in your business.

However, a Business LPA ensures an appropriate separation between your business and personal affairs so that you have the right person looking after each aspect of your life.  Putting in place a detailed business LPA will ensure that your business interests continue to operate smoothly in the event that you are unable to manage them yourself.  You might consider making it a prerequisite for all company stakeholders.

In addition to a Business LPA we also recommend that business owners consider succession planning and prepare a detailed Business Will to preserve their business and personal interests should the worst happen, you can read more about succession planning and Business Wills here.

LEGAL ADVICE

For more information on preparing a detailed and effective Business Lasting Power of Attorney to protect your company contact Sangeeta Rabadia.

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Key Considerations for Business Owners
The most common business types are sole traders, partnerships and incorporated companies.  Depending on the businesses structure, documents such as shareholder agreements, partnership agreements and articles of association usually set out the basis for how it is owned and managed.  It is also possible for these documents to dictate what happens to each owners’ share in the business should they die.

In our experience, these terms are often draconian, leading to forced buy outs, depreciation of value and occasionally even dissolution of an owners share with no benefit to their heirs.  It is therefore important to ensure there are adequate business documents with appropriate options for your heirs and surviving business associates to consider on your passing.

It is also important that you deal with your business properly within your Will to ensure that it is administered effectively and passed to your intended heirs.  The contents of your Will should reflect the options contained within the business documents and provide heirs with the appropriate legal route to maximise the value of their inheritance.

Below are examples of some of the things you should consider:

  • Should you appoint executors who are solely responsible for the administration of your business? While you may prefer for family members to deal with your personal assets, it is often more appropriate for business partners or other professionals such as solicitors to deal with business assets. This can be particularly important if you would like the business to continue operating.
  • Do you need to assign trustees to manage business interests for minors? If your beneficiaries are minor children they are not going to be able to manage the business themselves or make decisions as to whether they should retain or sell their share.  You could consider setting up trusts or other structures to ensure their interest in the business is looked after by competent people until they can take over themselves.  This ensures that the business can continue to operate smoothly and that practical day to day matters can be addressed with ease.
  • Are any of your beneficiaries vulnerable? For vulnerable beneficiaries who may never be able to manage the assets themselves, it is important to ensure that a long-term structure is put in place to protect their interests.  You could consider whether to set up a trust or appoint an appropriate deputy to act on their behalf.  You might decide it is more appropriate for the business, or your share, to be sold and proceeds then held for the beneficiary.  Whatever you choose, it is important that your Will provides for the mechanism in which your wishes can be carried out.
  • Would you like your employees to receive a share of the business? It is not uncommon for small business owners who have grown their company with a loyal team to want some or all of their employees to receive some value from the business.  In this situation you might consider an employee share scheme or a more general share in the profits.
  • What are the tax implications? As with other assets, the value of your business may be subject to inheritance tax.  A qualified professional can help you consider what reliefs may be available to your beneficiaries, what you can do during your lifetime and what you can do within the terms of your Will to maximise these tax reliefs.  For example, we worked with a client who sold his marketing company for a large sum, which had obvious benefits to him in life, but negated the availability of business property relief on death.  We subsequently advised and assisted him in the investment of the sale proceeds into vehicles which would qualify for tax reliefs when he died.  We can also assist you in managing your personal taxes, such as Income tax and Capital Gains Tax, which are linked to your profit share from your business interests.

Other Business Interests
The above considerations are not just important for people who own a business.  They are also necessary if you have business interests such as rental properties, investment portfolios and other stocks and shares.

The way in which these assets are owned will have just as much impact on how they are inherited and how much inheritance tax is paid on your death.  For example, rental properties will not necessarily qualify for special inheritance tax reliefs.  An effective solicitor can help you structure your portfolio to not only maximise the use of tax reliefs during your life time, but also ensure a smooth transition to your beneficiaries so that they do not pay more inheritance tax than they need to.  At Allard Bailey Family Law, we achieve this with a combination of lifetime planning and implementation as well as succession planning through effective Wills.

A Special Note on Investment Portfolios
Investment portfolios are often held in a variety of structures, depending on what your financial advisor believes to be most effective for each investment.  If your advisor does not have an overview of your entire estate, it may mean that you minimise your liability for one tax, whilst inadvertently increasing the liability for another tax.  It is therefore advisable for your entire estate and holdings to be reviewed periodically.

You should also be aware that if your investments are held in trust they will fall out of your estate so you cannot dictate how these assets are dealt with in your Will.

LEGAL ADVICE

To ensure that your wishes can be carried out in the best way for you and your beneficiaries, it is advisable to seek professional advice when considering how to plan the succession of your business and other investments.  It is also advisable to prepare a detailed Business Lasting Power of Attorney to protect your business in the event of unforeseen absence caused by sudden incapacity.  For more information on how we can assist you please contact Sangeeta Rabadia.

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When you run your own business, there will always be an overlap between your professional and personal life.  To ensure you can achieve both your business and personal aspirations, it is important that your solicitors fully understand how the decisions you make in your private life can impact your business interests.

Our team advises entrepreneurs, company directors and investors on matters in which their business and personal lives converge.  From succession and inheritance tax planning to divorce and separation, we help business owners maximise the effectiveness of their investments and protect their interests from adverse third parties.

You can join this year’s regional finals from the comfort of your own home or office.  Join us as we raise a glass and celebrate all things entrepreneurial on Wednesday 23rd September 2020.

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Lack of Mental Capacity
When you give instructions and then execute your Will, you will need to know what you are doing and understand the full implications of your actions.

In legal terms this broadly means you, the Testator (person making the Will), will need to:

  • Understand that you are making a Will and how a Will works
  • Understand what assets and liabilities you have and what you are gifting in your Will
  • Appreciate how others will be affected by the contents of your Will and that you will be expected to make provisions for certain people
  • Not have a disorder that affects your mind causing you to dispose of your assets in a manner that you would not otherwise do so

Mental Capacity is a complex area as it is possible for you to have capacity for certain matters and not for others, for example if you have periods of lucidity making it difficult to know when it is the right time to take instructions or execute your Will. Sometimes, the issue of capacity may not be obvious and that can make the job of the Will writer very difficult.

It is these complexities that often lead to questions being raised after the Testator dies. If a serious question of capacity is raised, it will be for those beneficiaries wanting to rely on the Will to prove that you did not lack mental capacity when you executed your Will.

How can I Protect my Will from Challenges for Lack of Mental Capacity?
An important step is to use a professional Will writer.  A good practitioner will always ask appropriate questions during the initial meeting to establish whether there may be any concerns about your mental capacity.

If there are concerns, they will follow the ‘Golden Rule’ and an appropriate medical practitioner will be asked to assess you and determine whether you are able to execute a Will.  The medical practitioner will be encouraged to act as a witness when the Will is signed, but this is not always possible.

If you anticipate a dispute then it is a good idea to speak to a medical practitioner anyway and have the discussion recorded in medical logs or reports, which can be used as evidence by your intended beneficiaries if necessary. It is worth noting that records detailing your health at the time the Will is executed will always be useful evidence, even if mental capacity is not considered to be an issue at that time.

We recommend that you regularly review your Will with your practitioner to demonstrate that you have not changed your mind during the passage of time.  If there are significant changes to a Will, then there should be a detailed discussion as to why those changes are being made and this discussion should be noted on the practitioner’s file.

If you feel comfortable in doing so, you should also have open and frank discussions about your wishes and the contents of your Will with beneficiaries, friends and family.  If they are aware that your wishes have been consistent or understand the reasons for any changes it can reduce the likelihood of challenges.

Undue Influence
A Will is a record of your, the Testator’s, wishes of how you want your estate distributed after your death. It is for you to make those choices and no one else. If anyone else makes or influences those choices the Will cannot be valid. The most obvious example of undue influence is when someone forces you to leave assets in a specified manner for fear for repercussions, such as being told you will not be looked after properly, threats of abuse, threats of being disowned and so on.  This can be especially terrifying for the elderly and vulnerable.

The examples above are transparent but undue Influence is not always this obvious, another example would be causing you to have untrue beliefs about a proposed beneficiary.  A recent matter that we assisted on involved of a father who was made to believe that one of his sons was not taking care of him properly, which led him to exclude the son from his Will.  This kind of undue influence is known as fraudulent calumny.

How can I Protect my Will from Challenges of Undue Influence?
A good practitioner will always ask to see you on your own so that you are free to speak openly without reprisal.

They will also have discussions with you to ensure that any changes to your Will are rational and properly considered and that you fully understand the implications. If there are any concerns a practitioner will refuse to act and may even report their suspicions to the appropriate authorities.

Unfortunately, undue influence can be hard to notice so you should be open and frank with your practitioner, who will note the conversation in their records.  If it is feasible, a discussion with any family about your wishes is also encouraged.  Not only will this show there is no undue influence, it may also prevent any disputes or animosity after your Will is read.

Challenging Wills made during the Pandemic
The COVID-19 pandemic has caused many people to think about the importance of Wills.  At the start of lockdown there was a 70% surge in Will instructions. However, the need for social distancing has meant that taking instructions and executing Wills has been problematic for some.  Video or telephone calls with a practitioner may get the job done, but it does make it harder to identify issues and this could lead to problems when your Will has to be used.

If you have executed your Will during this pandemic period and have any concerns about future challenges, we recommend that you get your will reviewed once you are able to meet with a practitioner in person.

LEGAL ADVICE

At Allard Bailey Family Law we regularly assist in drafting Wills where there are complex or sensitive wishes and can help you to protect your intended beneficiaries from unwarranted challenges, as well as defending them should disputes occur.

To book a consultation or telephone appointment, please contact Sangeeta Rabadia on 020 7993 2936.

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Two of the most common reasons for challenging a Will are for want of mental capacity and/or undue influence, so we will discuss specific steps you can take to protect your estate from challenges of this nature.

Challenges for Undue Influence
Your Will is a record of your wishes as to how you want your estate to be distributed after your death and who you would like to be responsible for making it happen. It is for you to make those choices and no one else.  If anyone else makes or influences these decisions, your Will cannot be valid.  Family members who are not aware of, do not like or do not understand a person’s relationship, have been known to challenge a Will because they believe there was undue influence from their partner.

The most obvious example of undue influence is when someone forces you to leave assets in a specified manner for fear of repercussions.  These may include, threats of abuse, being disowned or neglected, being told you will not be looked after properly and so on.

Undue Influence is not always that obvious, it also includes actions causing you to have untrue beliefs about a person or group of people.  Misguided family members may wrongly believe that that they are justified in making such allegations if they believe your partner has turned you against them, your culture or faith.

There are some simple steps you can take minimise the chances of challenges of this nature being successful:

  1. Instruct an independent practitioner to advise on your Will. A good practitioner will always ask to see you on your own to ensure you can speak openly without reprisal and will be able to confirm that this was the case.  They will also have discussions with you to ensure that any changes to your Will are rational and properly considered and that you fully understand the implications.
  2. Make your wishes known. If it is feasible, a discussion with family members about your wishes is encouraged.  Not only will this show there is no undue influence, it may also prevent disputes or animosity if there is someone who can inform others about your relationship and intentions on your death, so there are no unexpected surprises when your Will is read.
  3. Prepare a Statement of Intent. If you foresee issues, it can be wise to provide a more detailed statement of your wishes to accompany your Will, explaining the reasons you wish to distribute your assets in this way and providing any additional instructions for your executors about how to respond to challenges.
  4. Write personal letters. Depending on the reasons you foresee issues, you might also choose to write letters to be given to certain people in the event of your death requesting that they respect your wishes, even if they are unable to understand them.

Challenges for Lack of Mental Capacity

When you give instructions and execute your Will, you must know what you are doing and understand the implications of your actions.

In legal terms this broadly means you, will need to:

  • Understand that you are making a Will and how a Will works
  • Understand what assets and liabilities you have and what you are gifting in your Will
  • Appreciate how others will be affected by the contents of your Will and that you will be expected to make provisions for certain people
  • Have no disorder that affects your mind thus causing you to dispose of your assets in a manner that you would not otherwise do so

Mental Capacity is a complex consideration as it is possible for you to have capacity for certain matters and not for others, for example if you have periods of lucidity making it difficult to know when it is the right time to take instructions or execute a Will.  Sometimes, the issue of capacity may not be obvious and that can make things difficult.

It is these complexities that often lead to questions being raised after a person dies.  If a serious question of mental capacity is raised, it will be for your partner and any other beneficiaries who want to rely on the Will to prove that you did not lack capacity when you executed your Will.  There are some steps you can take to help them:

  1. Instruct an independent practitioner who will follow the Golden Rule. If there are concerns, a good practitioner will follow the ‘Golden Rule’ and instruct an appropriate medical practitioner to assess you and determine whether you are able to execute a Will or not.  The medical practitioner will be encouraged to act as a witness when the Will is signed, but this is not always possible.
  2. Ensure everything is recorded. If a dispute is expected it may be a good idea to speak to a medical practitioner anyway and have the discussion recorded in medical logs or reports, which will be useful evidence.  Any records detailing your health at the time the Will is executed will always be helpful, even if mental capacity is not considered to be an issue at that time.
  3. Make your wishes known. If you feel comfortable in doing so, you should have open and frank discussions about your wishes and the contents of your Will with beneficiaries, friends and family.
  4. Prepare a letter of wishes. You could also write a letter of wishes to explain the rationale behind the contents of a will where mental capacity could be an issue. This helps the court understand the trail of thought and see if it has been influenced by a mental disorder.
  5. Review Your Will Regularly. If you review your Will with your practitioner, it will demonstrate that you have not changed your mind during the passage of time.   If you wish to make significant changes to your Will, there should be a detailed discussion as to why those changes are being made and this discussion should be noted in the practitioner’s records.

 

LEGAL ADVICE

At Allard Bailey Family Law we regularly assist in drafting Wills where there are complex or sensitive wishes and can help you to protect your intended beneficiaries from unwarranted challenges, as well as defending them should disputes occur.

To book a consultation or telephone appointment, please contact Sangeeta Rabadia.

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Income Tax
Marriage Allowance allows married and civil partnered couples to transfer part of their tax allowance to their spouse, which can reduce their tax bill by up to £250 each year.  To benefit as a couple, one spouse would need to earn less than the other and have an income of £12,500 or less.  This is not available to cohabiting couples.

Capital Gains Tax
Capital Gains Tax is usually paid on the net gain arising from a disposal of assets.  Assets gifted or sold to a spouse do not attract Capital Gains Tax.  However, if the assets are sold at a later stage then the base value used for the calculation will be the value at which the disposing spouse acquired the asset.

Again, this spousal exemption does not apply to cohabiting couples.  This could mean that adding your partner’s name to a property that does not qualify for principal private residence relief will attract a Capital Gains tax charge of 18% or 28%.

Pensions
Generally, pensions make provisions for a surviving spouse to receive payments when the pension contributor dies.  There are no automatic rights for cohabiting couples.  Instead, the partner would have to be specifically nominated as a beneficiary in order to access the funds in the pension.  Whilst companies and employers are making changes to their pension schemes to take cohabitation into account, not everyone has, and it is always advisable to ensure that you understand exactly how your pension would work in relation to your partner.

Married and civil partnered couples may also receive part of their spouses Additional State Pension (also known as State Second Pension or SERPs).  This benefit is not extended to a cohabiting couple.

Inheritance Tax
Inheritance tax is the area where cohabiting couples pay significantly more than a married or civil partnership couple.

Spouses are able to transfer everything they own to their spouses on death with no inheritance tax implications.  If this happens then any unused nil rate allowance and residential nil rate allowance (subject to linear decedents inheriting) can be used on the death of the second spouse.

In contrast, if a cohabiting partner inherits any assets, they will have to pay 40% tax on any inheritance above the nil rate allowance (currently £325,000).  The residential nil rate allowance will not be available and unused allowances cannot be transferred.

If a spouse dies without leaving a Will, the intestacy rules enable the surviving spouse to inherit some, if not all, of the deceased spouse’s estate.  In contrast, there is no automatic provision for cohabiting couples under intestacy rules.  The impact can be enormous if assets are not jointly owned.

What can you do?
Couples who are simply opposed to the institution of marriage have the option to enter into a civil partnership to take advantage of the tax reliefs.  Those who prefer to continue living as a cohabiting couple are advised to ensure that their estate is managed in a tax efficient manner and they have a valid Will to protect their partner and any children.

You can learn more about the importance of Wills for safeguarding your children’s future here.

LEGAL ADVICE

If you require legal advice or assistance to on tax, trusts, wills or estate planning please contact Sangeeta Rabadia or call 020 7993 2936 to request a consultation.

*according to the latest information released by The National Office of Statistics, which reports a 25.8% increase in the decade 2008 – 2018.

 

 

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It seems like a win-win situation and it can be, if you are realistic about your expectations and choose your co-parents wisely.  You should bear in mind that, however well you know each other, co-parenting will change your relationship irreversibly and you need to be able to work together for the next 18+ years to provide the loving and supportive family environment you envisage for your child.

We would always advise that you discuss your hopes and expectations about your involvement with the child in detail and put the key commitments in writing before you conceive.  Not only will this minimise the chance of misunderstandings once your child is here, it is a good test of your compatibility as parents and will help you decide whether you should take the next step together.

Questions you could consider include, but are not limited to:

  • Who should have parental responsibility?
  • What type of parenting arrangement will you have? Will time be spent together as one big family or separately?
  • Do your parenting values match?
  • Will the child have one main home or two homes?
  • How will you agree on a name? What surname will the child have?
  • What level of financial responsibility will you all have?
  • What happens if one of you wants to move away?
  • What happens if one set of parents separates?
  • Do you want to appoint the other parent and/or your partners as guardians in case something happens to you?  You should talk to a solicitor about guardianship appointments.

If you decide to go ahead and have a child, it can be sensible to formalise the arrangement with a more detailed Pre-conception Agreement.

If you have already conceived or have a child, it is both possible and sensible to formalise your shared care and financial arrangements to provide everyone with certainty, especially your child.

If you are in the unfortunate position that your co-parenting relationship is breaking down, you could benefit from the advice of a solicitor with a child-first approach to help you resolve the situation in the best way possible for your child.

LEGAL ADVICE

For further information on any LGBT family law, child law, shared care arrangements or guardianship matters please call 020 7993 2936 to schedule a consultation with a specialist solicitor, or if you prefer you can get started online.

 

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What can I do if there is not a Lasting Power of Attorney?

If someone you know loses the ability to make decisions for themselves, and there is no Lasting Power of Attorney in place, it is advisable to make an application for Deputyship to give you the authority to look after their affairs on their behalf.

This process can be quite lengthy, sometimes taking over 6 months to complete. With the ongoing pandemic, this time-frame has been extended further.

What can I do if I need to make urgent decisions?

You may be able to make some decisions yourself, without having to revert to a court for assistance. When making such decisions, the key is that it must be in the best interest of the individual concerned. We recommend that you always seek advice to ensure you are acting within the remit of any relevant legislation and are not vulnerable to prosecution.

There are some decisions for which you will need to make an application to the Court of Protection.  The application you make will depend on what you are asking the court to make a decision about.

Finances – If the decision relates to someone’s finances, you will always need to make a Deputyship application. The application would need to state that there are urgent matters that need to be considered. Urgent matters may include accessing a bank account to pay bills or authority to complete a property transaction which has stalled.

Health and Welfare – If the decision relates to someone’s health and welfare, it may be necessary to make an emergency application to the court. Such applications usually relate to medical treatment (including whether to switch off a life support machine or not), removing someone from their home or the deprivation of their liberty (having to confine them in an institution). For such applications, forms still need to be completed but it is recommended that you speak to the court prior to lodging any application. In practice, this application will be much quicker than a normal Deputyship application.

An urgent application to the Court of Protection is not necessary if you are simply trying to assist someone who is vulnerable and has their movement restricted because of the pandemic. If you find yourself wanting to help someone in this position then a General Power of Attorney may be a more suitable option for you. Please click here for more information.

Do I still need to apply for Deputyship if I only need a decision on one matter?

If the decision relates to finances, then the answer is likely to be yes. If someone cannot manage their affairs now, then it may be that they will not be able to do so going forward or at least for some time. As such it would be advisable to obtain a Deputyship. This can be revoked if and when the individual can make their own decisions again.

If the decision relates to health and welfare, then a general Deputyship order may not be appropriate. The Court of Protection will only grant such a Deputyship in very limited circumstances.

Are the courts still open?

Courts continue to operate a best as they can. Urgent applications continue to be heard and are given priority. Such hearings take place by telephone or video conference and it is likely that this will continue for some time.

It may be the case that a hearing is not even necessary and the court can make a decision based on the evidence that has been submitted. In our experience the courts are acting as swiftly as they can to ensure that applications are dealt with efficiently.

The pandemic has caused standard Court of Protection applications to be processed more slowly. This may mean that you need to submit an urgent application in the meantime so as to allow you quicker access to an individual’s affairs.

Urgent applications have to be drafted and submitted in a short frame of time and are often complex. As such we would always recommend that you seek professional advice prior to making any such application.

LEGAL ADVICE

If you require legal advice or assistance to make an application to the Court of Protection, request a Deputyship or execute a Lasting Power of Attorney please contact Sangeeta Rabadia to arrange a Consultation.

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Where does that leave people who want to reach a swift conclusion?

It is not surprising that our clients are increasingly looking for alternative methods to resolve issues that are already before the court or about to commence.  Whether the dispute relates to financial matters, property or arrangements concerning children, arbitration is an option that we are increasingly suggesting.

What is family arbitration all about?

Arbitration is a formal process that involves an impartial adjudicator who resolves the dispute in a private tribunal.  It is a process that can be used to resolve single issues as well as fully contested matters.

How does it work?

Arbitration is a voluntary process and both parties must agree to use arbitration to settle the issue(s) between them.

You can choose which arbitrator you wish to use based on their areas of expertise.  If you are unable to agree, there is a process available which will enable an arbitrator to be appointed for you.

During arbitration you present your case to the arbitrator who will make a decision that is final and legally binding.  A solicitor can advise about the process of arbitration and whether your dispute is suitable.

Is Arbitration suitable for child related issues?

Yes, providing there are no safeguarding issues. Since July 2016, arbitration has been available for children issues such as:

  • where a child should live;
  • contact arrangements;
  • educational or religious issues;
  • disagreements over a child’s routine or non life threatening treatment;
  • disagreement over a holiday abroad;
  • relocation within England and Wales and some international relocation (depending on the destination country in question)

There are some issues that cannot be determined by an arbitrator such as:

  • child abduction;
  • where the disagreement relates to an application to return a child to England and Wales from another country;
  • where there is a dispute over the administration of or management of life changing or life threatening treatment;
  • where a party lacks mental capacity or is a minor.

What about financial disputes?

Yes, these too can be resolved through arbitration with the added benefit of being completely confidential.  The process can be used whether you are/were married or living together.

What are the benefits of arbitration?

Arbitration is well suited to the ‘new norm’ of remote hearings via Zoom or Skype.  Many arbitrators will be experienced solicitors or barristers who are all currently using remote platforms to attend hearings and represent their clients.  Arbitration offers a wealth of benefits including:

  1. You choose the arbitrator
  2. Your arbitrator will hear the case from start to finish, ensuring consistency, which is often not possible in the court system
  3. You will not have to attend a congested court, where time is at a premium, and you will not be competing with other cases on your arbitration day. You can be assured that you will have the arbitrator’s whole attention
  4. It is private and the award (for financial issues) or determination (children issues) is never published, therefore confidentiality is guaranteed
  5. The decision of the arbitrator is binding (just like a court order) which gives both parties certainty
  6. The process is flexible and the parties can effectively decide upon the speed at which their case progresses
  7. You can choose where the arbitration will be heard. This can be at the arbitrator’s office or at a solicitor’s office. It offers a more relaxed experience for all parties
  8. In the long term, an early decision to arbitrate will enable both parties to avoid protracted and expensive court-based litigation
  9. If you both decide that an issue can be decided purely on paper, an arbitrator can consider the issue in hand and provide the award or determination in writing without seeing either of you in person
  10. You will receive the written award or determination from the arbitrator within 28 days, but often sooner. It is not uncommon to wait several weeks or sometimes months for a court to hand down judgment if it is not given on the day of the hearing itself.

It is also worth noting that you can apply to the court for an order to be made in the same or similar terms to the adjudicator’s award or determination, although this is not necessary.

What are the disadvantages?

As with all processes, what is considered an advantage by one person, may be a disadvantage to another.  A key point to note is that because the decision is binding, there are limited grounds to appeal an award or determination if you are unhappy.

What about the costs of the process?

Arbitration is usually less costly than court litigation, but this does depend on certain variables such as the fees of the arbitrator, or arbitrators, and whether you represent yourself or attend with legal counsel.

It is normal to share the fees of the arbitrator equally, although the arbitrator does have some discretion to order one party to pay more if their conduct during the process has been extremely unreasonable.

Is it for you?

In uncertain times, it is well worth exploring the benefits that arbitration has to offer, particularly when a court-based approach can be littered with delay.  Delay can increase legal costs and personal anxiety, which is unhealthy for anyone coping with family breakdown or trauma.

Legal Advice

We have highlighted arbitration as an effective alternative for those who would otherwise go to Court, but there are other Alternative Dispute Resolution (ADR) options available.  If you wish to explore whether arbitration, or another method of ADR, may be helpful in your case please get in touch with us at Allard Bailey Family Law.

To book a virtual consultation or telephone appointment with one of our team, please call 020 7993 2936 or complete the Contact Form on this page.

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Despite initial reports of a rebound in potential purchasers since lockdown measures were eased, the property market remains uncertain. Many people are still concerned about their job security which could affect their desire and ability to move. Lenders may also become more stringent in their requirements for lending which could affect mortgage capacities. These factors could bring volatility to the property market and prices.

Even those with substantial assets, who do not need to sell any property to reach a fair settlement, may struggle to agree how property should be distributed if estimated values fluctuate.

For many divorcing couples, the family home will be their main asset.  Where sale of the family home is required for you both to be able to rehouse appropriately, a stall in sales could result in you being left in limbo.  During this time, try to take a realistic and pragmatic approach to address the situation. One of you may be able to rent alternative accommodation for a period of time.  If you do not have the income to do this, it may be possible to release equity from the family home.  Whatever arrangements are made, it will be helpful if you are understanding and work together to try to find an interim solution that is fair to everyone.

Where an order for sale is required, you may wish to consider including provision for each of you to receive a percentage of the net proceeds of sale rather than a fixed amount.  This would help to ensure that any risks or benefits of housing market fluctuations are shared.

LEGAL ADVICE

At Allard Bailey Family Law we can help you to lead negotiations with your former partner and reach a temporary or permanent financial settlement out of Court, if possible.

To book a virtual consultation or telephone appointment with one of our team, please call 020 7993 2936 or complete the Contact Form on this page.

 

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The safety and wellbeing of their children is of paramount importance to most parents, whatever their age.  However, few parents will realise that having an appropriate and valid Will is an essential tool in securing an underage child’s future.

Without a Will, your child may be set on a path that you would not want or have even envisaged.

By making a Will, you can be sure that your child or children are protected as best as possible.  This blog sets out some of the key facts all parents should consider.

Guardianship: Who Will Look After Your Child?
When both parents pass-away whilst a child is still underage, there is no one with parental responsibility who can take over the role of a parent.

Parental responsibility is a term used to describe the legal rights and responsibilities of a parent, which include housing, protecting and maintaining their child.  All mothers and most fathers gain parental responsibility when a child is born.  In some situations, such as adoption, parental responsibility will later be transferred to other responsible adults.

If there is no-one with parental responsibility to take care of a child, it will fall on the authorities to choose an appropriate caretaker. You may be surprised to hear that family members are not necessarily the people who end up caring for a child and, although they will try, it is not always possible for the authorities to house siblings together.

By making a valid Will, you can name those that you most trust to take care of your child as legal Guardians in the event of your untimely death. Furthermore, you can specify your wishes in terms of their upbringing to ensure they are cared for in the way you intended. c

Nominating guardians can be particularly important in complicated family situations where parents are separated and it may not be appropriate for the other parent to assume care of a child.

It is of course important to discuss your wishes with your preferred Guardians to ensure that they are both willing and able to fulfill this important role.

Your Child’s Inheritance
If you do not have a valid Will in place, the distribution of your assets will be governed by intestacy laws, which may be contrary to your intentions.  A valid Will ensures that your assets are distributed in accordance with your wishes.

If you are married or in a civil partnership, the majority of your estate would usually be inherited by your legal partner (this is the case if there are children from the relationship).

If you do not have a legally recognised spouse, your estate would usually be divided equally between your children.  However, English law does not allow for assets to be directly inherited by children until they reach the age of 18.  A ‘trust’ is therefore imposed when assets are left to minors in your Will.  You appoint executors or trustees who are responsible for looking after those assets until each child reaches a nominated age. In the absence of a Will, the law decides who becomes responsible, and again, it may not be the person whom you would personally entrust with such a responsibility.

If you are in the process of separation, you should be aware that your former spouse remains one of your heirs until your relationship has legally ended and could inherit your estate instead of your children.  Click here for further information on the importance of updating your will as soon as you decide to separate.

Even after you are divorced, if your ex-partner has parental responsibility, they could be appointed to look after your assets on behalf of the children. Some people will be comfortable with this, others will not.

Wills are not only for those with significant assets, they are a key tool in ensuring your children and their inheritance are protected.  It is advisable to use a solicitor to draft or at least check your Will to ensure that it will have the effect that you want.  Mistakes can mean that your wishes are not followed.

Legal Advice

For further information on preparing or contesting a Will please contact Sangeeta Rabadia or call 020 7993 2936 to schedule a virtual appointment.

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Parents with care are bearing the hidden costs of children being home all day. Such as additional utilities, food, entertainment activities and supplies for home schooling. Some have needed to reduce work hours or stop work completely during this period to provide round the clock care for the children. The financial impact means many parents with care are more reliant on child maintenance payments than before.

What if the paying parent’s income has reduced?
While the legal obligation for child maintenance is solely income based, it is advisable to consider the needs of the children as well as the situation of the resident parent before making changes. This is a difficult time for many children who are adjusting to staying at home. An unnecessary change in finance can prove detrimental to their wellbeing, so it is important to remain as child focused as possible. Because of this, some parents will choose to keep up payments.

If you pay child maintenance but cannot keep up payments whilst meeting your own basic needs, we recommend that you have an initial conversation with your former partner.  If you understand each other’s situation you may find a compromise such as reducing payments for a short period, or deferring payments while waiting for any applicable government finance schemes to come through.

It is important to note that if you are paying child maintenance through the Child Maintenance Service (CMS) they will only consider a formal adjustment if your salary has changed by at least 25%.

How long should any adjustments continue?
Whilst lockdown feels long, please remember that it is only a temporary measure and many income reductions will also be temporary. Any changes to child maintenance should reflect this.

Where safe to do so, we encourage parents to communicate and resolve financial issues together so that animosity is not created and does not continue when lockdown lifts. In all cases, changes should be recorded in writing so that evidence can be provided if either of you raises issues with the variation at a later date.

What if the paying parent has lost their job?
In this situation child maintenance payments could stop. Parents with capital may choose to continue supporting their children, others will be unable to do so.  In some circumstances, the non-resident parent may be able to provide valuable practical help instead. This could mean increasing their time with the children so the resident parent can continue working, or assisting with home schooling older children. Other practical assistance like providing a food shop, home school supplies or entertainment activities may contribute towards meeting the children’s overall needs during this difficult time.

What if our arrangement is more complicated?
Child maintenance is not always straight forward. In addition to family-based arrangements, there are more complicated arrangements through the Court or CMS.

Below we answer two specific questions about child maintenance payments.  The answers will provide some guidance on steps that you can take to remedy your own situation or when to seek help from a legal professional.

Question 1: My ex-partner has been furloughed and says child maintenance will stop

My ex-partner pays child maintenance through the Child Maintenance Service (CMS). His company has furloughed him and he sent me a message saying that child maintenance will stop immediately. I didn’t receive the payment for this month. When he has missed payments before I spoke to the CMS and they chased him, but I can’t get through to speak to them about this on the phone.

Answer: Many employees have been furloughed using the government Coronavirus Job Retention Scheme. Under the scheme the government pays 80% of the employee’s wages and the company can optionally chose to pay the remaining 20%.

If the paying parent has been placed on a furlough then it should not trigger any change in their weekly child maintenance liability. This is because the CMS only consider changes of income when they have increased or decreased by 25%.

The CMS is open, but experiencing a shortage in staff as many have been redeployed to work on speeding up Universal Credit claims. A reduced phone service is operating between 9am – 3:30pm Monday to Friday only. To ensure that the service is not overloaded they have notified all users that the service will only take calls in certain circumstances and will not deal with missed payments over the phone. If a payment has been missed or is less than expected, this must be reported through CMS online portal.

The advantage of notifying CMS through the portal is that evidence of non-payment can also be uploaded. This can include any messages from the paying parent stating that maintenance will be unilaterally decreased to nil, and bank statements to show incorrect funds have been received.

Unfortunately, due to delays caused by the global pandemic, CMS estimates it will take 6 – 12 weeks to process enquiries. However, rest assured that when CMS can deal with your case, they will be applying those arrears.

Question 2: I cannot afford to pay my court ordered child maintenance

I pay child maintenance for my two children which was agreed as part of a court order. I’m in a real financial bind with the pressures of the pandemic and I’m worried I could fall into debt. I just can’t afford to make ends meet and keep up payments on the place that I live if I also need to make these really high payments for the children. Can I vary the payments?

Answer: The options to vary child maintenance payments recorded in a Court Order very much depend on when the Order was sealed by the Court and the clauses contained in the drafting. Factors like the date, special clauses and the possibility of enforcement need to be considered.  We will look at each of these in turn.

Date – Any Court Order made in England and Wales between 5th April 1993 and 6th April 2002 (where the receiving parent is not in receipt of income support) must be varied through the Court as they retain jurisdiction.

If an Order was made after 6th April 2002 and has passed its first anniversary, the child maintenance element can be brought to the Child Maintenance Service for an assessment. The matter will only be considered formally transferred once the CMS have received the appropriate fee and full details of all parties. Once this happens the child maintenance clause in your Order becomes null and void.

It is also important to note, that CMS calculates on the previous tax year (2019-20) meaning that child maintenance liability could be increased or decreased when compared to your original Order. A recalculation is possible if the paying parent’s income has changed by 25% since the last tax year or if you are now in receipt of benefits.

If an Order is less than one year old, the child maintenance clause is binding and cannot be transferred to CMS.  Payments must continue until the first anniversary of the Order unless there is agreement of both parties or an application to vary is granted by the Court.

If you need to make a change, we recommend that you first contact the receiving parent to explain the situation. If that is not possible, or the desired progress is not made, a mediator or family solicitor could aid the negotiation process. We strongly recommend that any negotiation achieved should be recorded in writing, ideally in the form of a Consent Order and lodged with the Court.

In matters where negotiation is unsuccessful, it would be appropriate to ask the Court to review the Order, to decide if child maintenance should be varied.

Special Clauses – Some Orders contain special clauses such as contractual agreements and ‘Christmas Orders’.

Contractual arrangements can be stand alone or in addition to a Court Order. Where a parent has signed a contract to make maintenance payments, then varying payments would be breaching the contract. As changes to payments can result in serious repercussions, including being ordered to pay damages, judgement summons and potentially even bankruptcy, it is essential to seek legal advice.

Some orders contain what is known as a ‘Christmas Order’. This means that the child maintenance element of the Order renews annually and is therefore never over 12 months old. This means you cannot transfer the matter to the CMS. Any change to this Order would need to be by agreement of both parties and recorded in a further Consent Order or by application to the Court.

Risk of Enforcement – We strongly recommend taking take legal advice before making unilateral changes to Court Ordered child maintenance payments. This is because Court Orders made in the jurisdiction of England and Wales (while the paying party resides there) could be subject to an Enforcement Order.

A judge hearing such matters has a wide range of enforcement actions available to them including: ordering that any maintenance owed can be taken directly from earnings; placing a change on property or other assets; sending bailiffs to seize belongings; freezing funds in bank accounts.

As the repercussions are so serious and can have long term effects on your financial situation, it is important to take advice from a specialist at the earliest opportunity.

In summary, where there is a Court Order in place for child maintenance it is essential that you obtain the benefit of early advice.

Legal Advice

At Allard Bailey Family Law we can assist in leading any negotiations with your former partner, our extensive experience with both variations and enforcements allows us to provide guidance on what may be acceptable to Court.

To book a virtual consultation or telephone appointment with one of our team, please call 020 7993 2936.

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The increase in domestic abuse during the pandemic has been alarming. In London alone, more than 4,000 people were arrested for domestic abuse in the first six weeks of lockdown. Charges and cautions for domestic abuse have increased by 24% compared with last year.  The charity, Refuge, reports an increase in calls to their helpline of 49%. Across the board, domestic abuse services report a 22% increase in their services. Disturbingly, the number of people murdered due to domestic abuse doubled in the first 21 days of lockdown.

In this blog, we look at what domestic violence is, what practical steps can be taken, wider support and legal remedies that are available to people facing domestic abuse.

***If you or someone else is in immediate danger please call 999 and ask for the police. If you are unable to talk you can use the Silent Solution of calling 999 and pressing 55 when prompted.***

What is domestic abuse?

Domestic abuse can be physical abuse, sexual abuse, emotional or psychological abuse, financial control, harassment and stalking, online digital abuse, coercive control. It can be one isolated incident or a pattern of incidents.

The most common form of domestic abuse is between people in a romantic relationship, but it can also cover abuse between family members and adolescent to parent violence and abuse.

The SafeLives campaign reports that people often do not recognise that they are being abused and found that people usually endure 35-50 counts of domestic abuse for 2-3 years before seeking help and support.

What Practical Steps can a Victim take during Lockdown?

Leave the Home: The Government renewed lockdown advice on 16th April 2020, permitting people who had an argument at home to leave and seek support, including staying in a refuge, with a friend or relative for a short period. This can often prevent things from escalating and provide necessary perspective on a situation.

Discuss: If it is safe to do so, the person suffering abuse can discuss this with the person perpetrating the abuse. They may not have recognised their behaviour is abusive and may be willing to access specialist support to make immediate changes.

Learn More: There are lots of websites where you can learn more about the abuse that is being endured and find steps to keep safe, such as having an emergency exit plan. If using these websites, please consider if the abuser can view your search history as this could place someone in more danger.

Update your Emergency Plan: If an emergency plan is already in place, please make sure it is Covid-19 suitable, it may need to be altered as pubs, cafes, restaurants and hotels are closed and public transport is not running at full capacity.

Download Hollie Guard: The Hollie Guard App was created by the family of Hollie Gizzard who believe it could have saved her life. It works by turning a smart phone into a personal safety device, alerting nominated contacts or the police that a person is in danger. It can also record video and audio until the police arrive and if necessary, the evidence is admissible in court. It can be downloaded to any smart phone.

Contact a Helpline: There are many helplines available if it is safe for you to talk and the abuser does not have access to your phone call history. There are help lines tailored for men, women, parents, elderly and LGBTQ communities. The National Centre for Domestic Violence deals with abuse from every background, it is a 24-hour confidential service for those affected by domestic abuse. They can help callers understand if abuse is occurring and talk them through steps going forward. This can include finding a refuge or shelter, notifying the police or obtaining an injunction. They can also be contacted online. Further information on support and resources is available here.

Find a Safe Space: There are also schemes being piloted to provide a ‘Safe Space’ in public places, such as supermarkets and pharmacies, which will allow people to ask for help in confidence. Look out for notices about Safe Spaces in your community.  Safe Space Update November 2020:  Safe spaces are now available at Boots UK, Superdrug Pharmacy, Morrisons Pharmacy and many independent pharmacies.  Go to the healthcare counter and ask to use their Safe Space.  There will be specialist domestic abuse support information for you to access, so you can make a call safely.

What Legal Steps can a Victim take?

There are many legal remedies that can benefit those affected by domestic abuse. Mediation could be helpful if you want to explore the possibility of dividing a home to make it safer to continue living in, or to find agreement that a party move out of the property.

Solicitors can provide support with negotiations and assist with agreements to make things safer, such as agreements about behaviour and division of a property.

It may be that the situation could benefit from an injunction order from the Court. There are two main injunctions to protect from domestic abuse a Non-Molestation Order and an Occupation Order.

Who can apply for an injunction?  A person can apply for an Order if they are a victim of domestic violence and the person they wish to seek protection from is someone that they are having/had a relationship with, a family member or someone that they live or have lived with.

This is known as ‘associated persons’ and extends to married couples, cohabiting partners, girlfriends/boyfriends where the parties have been together for over 6 months, immediate family members that cohabitate and certain relatives in particular circumstances.

If the applicant is not an associated person, they may be able to seek protection under the Protection from Harassment Act 1997.

What is a Non-Molestation Order?  A Non-Molestation Order is often referred to as an injunction order or on TV as a restraining order. The best way to view a non-molestation order is as a legal way of saying ‘STOP!’.

A Non-Molestation Order is intended to prevent the Respondent from perpetuating further abuse to the Applicant, their children and their property. The Order can prohibit the Respondent from being within a set distance of the applicant’s home.

If found in breach of a Non-Molestation Order a person can be arrested without a warrant. They may be either fined, imprisoned for up to 5 years or both.

What is an Occupation Order?  An Occupation Order can protect a person from domestic abuse by excluding the preparator from the property. Like Non-molestation Orders they can be applied for by those affected by abuse by ‘associated person’.

Where it is not possible for the Court to order an abuser to leave the property, the Court can order a Zonal Occupation Order. This essentially divides the home between the parties so that each may continue enjoying the property peacefully.

How long do the Orders Protect?  How long either Order lasts depends on the situation. It can last from a week up to a year. If the issues persist on expiry, the Order can be extended and in some extreme cases the Orders can last indefinitely.

In an emergency situation both Orders can be applied for quickly and without notice, meaning that the abuser is not informed that their victim is applying. Although a Judge will also want to hear their version of events shortly after to decide whether it should remain in place.

At Allard Bailey Family Law we pride ourselves on being a safe pair on hands during a personal crisis. Our specialist knowledge and proven results with both Non-Molestation Orders and Occupation Orders are available to support you through this difficult time.

Legal Advice

If you need advice on domestic abuse issues or any other family law matter during the Coronavirus lockdown, you can book a video or telephone consultation with one of our team by calling +44 (0)20 7993 2936 or completing the enquiry form on this page.

For help with urgent injunctions please contact Sabrina Bailey directly on +44 (0)7507 343443.

***If you or someone else is in immediate danger please call 999 and ask for the police. If you are unable to talk you can use the Silent Solution of calling 999 and pressing 55 when prompted.***

Additional Resources

Further information on support and resources, including specific organisations helping men, women and people from different backgrounds, is available here.

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What if my former spouse stops or reduces spousal maintenance payments as a result of the current Coronavirus situation?

In the first instance, it is important to establish the reason they are failing to make the spousal maintenance payments ordered by the Court. If there has been a genuine reduction in (or loss of) income, then it is possible that a Court would consider this to be a relevant change in circumstances justifying a variation of spousal maintenance payments. If this is the case, try to be understanding and take a practical approach to the situation. You are more likely to find a favourable solution if you can consider each other’s perspectives. We make some suggestions on how to do this below.

If there has been no change in their financial circumstances, they should continue to pay spousal maintenance in line with any Court order that is currently in place.

What if I have lost income and cannot afford to cover my own expenses whilst making full spousal maintenance payments?

The first step is to talk to your former spouse and explain the situation to see if you can reach an agreement to temporarily reduce or stop payments. It is essential to be understanding in this situation as you are both likely to be finding it difficult. Positive communication will help you to minimise anxiety and find a sensible solution.

If talking directly is not an option, you might consider instructing a family solicitor or specialist mediator to assist you from the outset.

You may find it helpful if you both complete a Schedule of Outgoings setting out your essential expenditure during this period. You can then exchange this information to help you to determine what a suitable level of temporary spousal maintenance may be.

As we are currently required to stay at home, some expenses such as utilities may have increased, but other outgoings will have reduced, such as spending relating to travel, socialising and other activities. It would be fair to take this into consideration and make an adjustment so that both of your basic needs for items such as food, utilities and accommodation can be met.

If you have savings, you could consider whether spousal maintenance payments can be met from these. It is also possible to obtain a clean break by making a lump sum payment in lieu of spousal maintenance payments. However, any sum to be paid should not be agreed without the prior advice of a solicitor and such an agreement should be recorded in a Consent Order.

In these unprecedented times, a Court might consider it unfair for you to accumulate debt if your former spouse is able to afford a temporary reduction in maintenance that would allow them to meet their current needs. Your former spouse should also consider whether they have sufficient savings to meet their income needs whilst you are unable to make full payments.

How long should any ceasing or reduction of spousal maintenance payments continue for?

Unfortunately, it is impossible for anyone to know how long the current situation will continue for and how this may evolve as time goes on. If at any point the payer’s income returns to a similar level to what it was, they should at that point increase the spousal maintenance payments to the amount set out in the Court order. If they fail to do so, the Court can order that maintenance payment arrears are paid.

What if we are unable to reach an agreement about how much maintenance should be paid?

If you are unable to reach an agreement between you, there are several options available.

Mediation: It is possible to attend virtual mediation sessions with a trained mediator, who can facilitate and guide discussions between you with the aim of reaching a resolution.

Negotiation: You could instruct specialist family solicitors to negotiate and broker an agreement on your behalf.

Arbitration: This is essentially a private Court process. A qualified arbitrator is appointed by agreement, the arbitrator hears evidence from both sides and then makes a legally binding decision on the outcome.

Court: Although it is possible for either of you to make an application to the Court – either to vary spousal maintenance payments (as the payer) or to enforce spousal maintenance payments (as the payee) – this should be avoided if possible. Such proceedings are costly and can end up being counter-productive if the costs outweigh any potential financial benefit. Court proceedings are uncertain and there is no guarantee of a set outcome. During these unprecedented times, the Courts are under immense pressure to deal with current cases effectively and there are likely to be delays in obtaining an outcome.

How should we record any agreement that we reach?

Where variations to the terms of a Consent Order are agreed, you should have a new Consent Order reflecting the amended terms drawn up by your solicitors. This should then be sent to the Court for approval so that it becomes legally binding and enforceable.

Alternatively, if the arrangements are likely to be temporary, you may wish to consider having a side letter or Deed (to be signed by both parties) drawn up by a solicitor, which sets out the details of the temporary variation so that it is clear.

At the very least, you should record the temporary variation of spousal maintenance payments in writing. This could be carried out by email, with one of you setting out the details and the other responding to confirm agreement. This would ensure that the Court could be provided with evidence if either of you raises issues with the variation at a later date.

We recommend that the benefits and risks associated with each of the above options is discussed with a solicitor in advance.

Is it possible to recover spousal maintenance shortfalls at a later date?

It is possible to agree that a temporary shortfall in spousal maintenance will be paid in full at a later date and within a certain period.  However, there is no guarantee that you would be able to recover the arrears if they are not paid. You could apply to the Court to enforce the terms of a Court order, in which case the Court would analyse the circumstances, including both parties’ financial situations and earning capacities.

If you need advice on spousal maintenance issues or any other family law matter during the Coronavirus lockdown, you can book a video or telephone consultation with one of our team by calling +44 (0)20 7993 2936 or completing the enquiry form on this page.

 

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