The Courts view on conduct of the parties for the purpose of Financial Proceedings

March 29, 2017By BPS Family LawBlog

Generally speaking, a parties’ conduct is not usually taken into account when the Court’s are considering how the matrimonial assets should be distributed between the parties.

The Courts are aware of the fact that matrimonial finance proceedings can be extremely stressful for both parties. There are worries for both parties as to where they will now live, how they will be rehoused, and whether there will be enough money awarded to them for them to be able to begin again. The Courts therefore expect an ‘ordinary run of fighting and quarrelling which occurs in an unhappy marriage’ and therefore they do not take this conduct into account as this would undermine any contribution that a party has made towards the marriage.

However, there have been occasions within certain matrimonial finance cases where the Court has deemed it ‘inequitable to disregard’ a parties behavior, and thus the offending party has received less than they were entitled to than if the conduct had not been carried out. The conduct in question need not have taken place during the marriage.

In S v S 1982 12 Fam Law 14 The Husband has committed incestuous offence with the parties daughters. As his behavior contributed towards the breakdown of the marriage, the Former Matrimonial Home was transferred into the Wife’s sole name.

In another case, H v H (Financial Relief: Attempted Murder as conduct) 2005, a Husband had subjected the Wife to a horrifying ordeal whereby he attempted to kill her. This attack was witnessed by the parties two children. Given the fact that the Husband was going to serve time in prison and therefore be unable to contribute financially whilst incarcerated, and that Wife’s earning capacity was completely destroyed as a result of her suffering both mentally and physically as a result of the attack, the Court thought it reasonable to award the wife three times more of the matrimonial assets.

In Al Khahib v Masry 2002 The Husband abducted the children to Saudi Arabia and refused to reveal the true value of his assets. The Court deemed his behavior in relation to the children to amount to conduct which was ‘inequitable to disregard’.

In S v S (Non Matrimonial Property: Conduct) 2006 the court did not award a settlement in favour of the Wife who had been assaulted by Husband. The Courts were reluctant to offer any guidance as to when it is deemed appropriate to reduce a parties award. Conduct of the parties is merely one aspect of Section 25 principles when determining how matrimonial assets should be divided, and for conduct to be taken into account, it appears from the above case law that it must be of severe magnitude in order for the Courts to intervene. Sir George Baker P suggested a test of ‘the gasp factor’ in W v W 1976.

If you need advice in relation to matrimonial finance proceedings, please contact us.

Lasting Power of Attorney – What is it and how is it obtained?

March 27, 2017By BPS Family Law123, Blog, Case Studies

A lasting power of attorney ( LPA ) is a legal document that lets you (the ‘donor’) appoint one or more people (known as ‘attorneys’) to help you make decisions or to make decisions on your behalf.

This guidance applies to the donor instructing an attorney in their professional or business capacity rather than a family member or friend.

There are a number of reasons why you may need to appoint someone to make decisions on your behalf. You may need to make long term plans if, for example, you have been diagnosed with dementia and you may lose the mental capacity to make your own decisions in the future.

Individual or trust corporation appointment?

We will ensure the donor understands whether they are choosing to appoint an individual or a trust corporation. If an individual, then the professional’s responsibility will still apply even if the professional leave their post or profession until they disclaim their appointment.

Appointments made jointly or jointly and severally

You must decide whether to appoint the professional jointly, or jointly and severally. An agreement must be made with any co-attorneys so that the donor’s affairs are managed properly. This will be dealt with in advanced by the our firm.

 Certificate 

A certificate will confirms when the donor creates the LPA, that donor fully understands what they are doing and have not been coerced into making the LPA.

 

Acting in the donor’s best interests

Our firm will ensure under the Mental Capacity Act 2005 that any actions taken or decisions made on behalf of the donor lacking mental capacity is in that person’s best interest.

The firm will ensure that they take into account the donors past and present wishes and feelings, and any beliefs or values. A record of any discussions will be held on the donor’s behalf so that the donor is reassured that the firm will act as they want if the donor does not have capacity. If the donor loses capacity and is no longer able to express their preferences it will be crucial for the professional to talk to relatives and carers to ensure there wishes and feelings are met.

After the LPA is created

Once the donor is created the donor must discuss what they would like to happen once they have created the LPA. It is recommended by the Public Guardian that the donor must register the LPA as soon as it has been created while they still have capacity.

If you’d like to find out more about the lasting power or attorney and how to set one up then you can get in touch with Caroline at [email protected] or by telephone 01619261430

FAQs after an accident at work

February 22, 2017By BPS Family LawBlog

Sefton Kwasnik, Partner, Serious Injury/Medical Profession, Defence and Inquests, delivers a guide on FAQs regarding workplace accidents.

Have you had an accident whilst at work? If you have, it’s important to know what your legal rights are regarding compensation and retaining your employment.

Here’s a helpful guide about what you need to know if you’ve been in a work-related accident.

What to do if you’ve been in an accident at work

You should immediately:

  • Make sure you seek medical advice from your GP or hospital at the earliest opportunity, explain to them exactly how you were injured and ensure that the required amount of medical care needed is provided e.g. a trip to the hospital.
  • Try to make sure that the accident has been properly recorded, both by the employer and by you. Make sure the ‘accident book’ or your work’s equivalent recording source is filled in – this should be held by all employers, and will be proof of your accident.
  • For your own purposes, make a note of any witnesses in the area and any equipment or machinery being used at the time.
  • If you are absent from the workplace, ring in and confirm the position by letter or email at the earliest opportunity.

Can you claim for loss of earnings?

All businesses are required to have employee liability insurance in case of an accident, meaning any claim will go through the company’s insurance policy. If a mistake by your employer has happened and you have been injured as a result, you are entitled to receive compensation.

How long do I have to make a claim?

There is a standard limit within the UK of three years when making a work-place accident claim.  If after three years you decide you want to take action, your case may be considered time-barred and you won’t be able to carry through with your claim.

If the accident has happened to a young person (18 or under), you have until the day before their 21st birthday to make a claim.

We would advise making the claim as soon as you are aware that your workplace is the reason behind your accident, as it’s easier to prove the link between the accident and the injury.

At BPS Family Law, we work closely with people who have been in workplace accidents. We offer practical advice along with a compassionate approach. Our aim is to achieve the best possible outcome for our clients.

If you’re looking for a lawyer to help you with any of the issues mentioned above, then you can get in touch with Sefton at [email protected] or by telephone on 0161 834 2623 or 078 3663 0889.

How to protect your financial assets is you are going through a divorce

February 22, 2017By BPS Family LawBlog

Caroline Swain, Partner, Matrimonial and Family Law provides a guide on how to protect your assets if you are facing a divorce.

If you are getting a divorce or ending a civil partnership, particularly an acrimonious one, you will need to act fast to ensure your assets are protected. Here’s a helpful guide to ensure you know how to protect your assets when you’re going through a divorce.

Property

If your home is owned in your spouse’s sole name, you can register your interest in the home to make sure it can’t be remortgaged or sold without your knowledge.

If your spouse owns property which is not the family home, you may be able to register a ‘restriction’ at the Land Registry. This is particularly useful if you’re going through a hostile divorce, in which you think your partner may try to sell the property or secure debt against it.

If the property is held in joint names with your spouse as “joint tenants”, you may want to change the way it’s owned. By changing how it is owned you can prevent ownership transferring to your spouse in full should you die before the divorce, or before the dissolution has been finalised.

Businesses

If you feel like your marriage may be breaking down, make sure you do not transfer assets out of the business, as this will be seen as a strategic move and be detrimental to you. In family court, you’re required by law to make full financial disclosure prior to your divorce settlement. If you’re caught out trying to transfer assets, it could be considered as an attempt to avoid your spouse’s financial claims. The Family Court will not look kindly on this, and you could be held accountable of litigation misconduct. By going through the divorce process legally and fairly, you are in with a much greater chance of achieving a fair and sensible settlement.

Pensions

Do your homework –  Find out exactly what type of pension(s) you have, and what the laws pertaining to these are. You should make enquiries as to the CETV for each of your pensions at an early stage as it can take many weeks for pension providers to provide this information. It might be useful to get some professional help from a pension advisor if you have one.

What to do if a spouse tries to hide assets

Courts have great powers available to ensure that there is full financial disclosure in every case. If one or both of the parties to a divorce are found to be hiding assets, they can penalised by being ordered to pay the other side’s legal costs.

If it comes to light that all assets were not disclosed, the case can be reopened and a different order can be made. Equally, courts have the power to get assets back after they have been transferred, should the need arise.

If you’d like to find out more about how to protect your assets during a divorce and the options available to you then you can get in touch with Caroline at [email protected] or by telephone on 0161 926 1430.

Co-Habitation and its Pitfalls

February 10, 2017By BPS Family LawBlog

Living together with your partner is often seen as an alternative to marriage or as a temporary arrangement.

Many couples believe that moving in with your partner creates a common law marriage, giving you the same rights as if you were married- It does not.

It is crucial to understand your legal rights and responsibilities. You may see this as being committed to each other as a married couple however the law doesn’t view it in that way.

Under martial law the courts have to take all the circumstances and history of the relationship into account and decide on a fair division. Cohabiting couples do not have an automatic right to benefit from each other’s retirement plans, or to inherit from each others property regardless of the number of years they have been together. If you both decide to have a child together there are no automatic parental rights. The property that you buy together isn’t automatically divided equally if you decide the relationship isn’t for you.

Perhaps it’s easier to walk away from an unmarried partnership however you don’t have the protections that are built into the divorce process. By the time people realise this, it is often too late- the relationship has broken down or a partner has passed and it is only then they realise they do not have any legal protection.

When cohabiting relationships break down there is very little protection. As a result, some cohabiting families can find themselves facing real difficulties should they split up, particularly when children are involved.

If you’d like to find out more information about the legal issues for cohabiting couples and the options available to you then you can get in touch with Caroline at [email protected] or by telephone 0161 926 1430.

A guide to handling an inquest after the death of a loved one

February 9, 2017By BPS Family LawBlog

Sefton Kwasnik, Partner, Serious Injury/ Medical Profession, Defence and Inquests, delivers a guide on dealing with an inquest after the death of a loved one.

Death is a difficult situation to deal with and come to terms with, particularly when it’s the death of a very close friend or relative. The loss can affect your emotional and physical well-being, and the occurrence of an inquest could lead to an added feeling of grief, uncertainty, fear or a delayed feeling of grief.

An inquest is opened in roughly 10% of deaths when a coroner has reason to believe that a death has not happened from natural causes.

With this guide we hope to help you through this process.

If you’re reading this because you’re currently dealing with this, then we’re truly sorry to hear of your loss.

What exactly is an inquest?

An inquest is held to find the answers to four main questions:

  • Who the deceased was
  • When and where they died
  • The medical cause of their death
  • How they came by their death

The inquest is not there to place blame on anyone, it is solely used to find out how a person died. The coroner cannot legally deal with any other matter.

What happens at an inquest?

The family of the deceased will need to give a statement to a police coroner officer – the officer will speak to someone who is able to give the necessary information and who feels able to cope with the questions.

Along with the family statement, there may be reports from doctors, police officers or eye witnesses, depending on the nature of the death.

Once these reports are compiled, there will be a hearing. Inquests are held in an open court, so any friends and family that wish to attend can do so – bring as much support as you need.

Also, note that because it’s an open court, you may find journalists and press at the hearing. They may try and ask you questions as you walk to and from the court, however you don’t have to answer them if you don’t want to.

The hearing

The coroner will begin by explaining what an inquest is and what issues they’ll be covering. Witnesses will then be brought forward and go through their statement, normally starting with family members.

Once all the witnesses have given their sworn statements, the coroner will give their conclusion. Depending on the nature and seriousness of the death, there may be a jury who will have the concluding decision.

Inquest hearings last anything from 30 minutes to several days, depending on what issues need to be explored – most inquests last about half a day.

Will I find out if someone is responsible for my loved one’s death?

An inquest is not the same as a trial. You will not find out about guilt, blame or compensation – it’s solely focused on finding out the cause of the death. Any other issues will be dealt with separately in civil or criminal court. There will be no sentencing or penalties given to anyone by the coroner.

How do I prepare for the inquest?

Be ready to find out information that you might not want to hear

Get ready to hear some potentially unpleasant things. An inquest may discover findings that could shock or upset you, so be prepared and make sure you have a good support system around you to help you deal with this. You are entitled to receive advanced notice of the evidence that will be presented, so you should ask for it as soon as possible to enable you to prepare.

Be prepared to feel like your feelings aren’t being taken into consideration

Because an inquest is a fact-finding process, the coroner will be to find out all the information they need to close the case and ascertain the cause of death. You are entitled to ask questions of all the witnesses who attend, and object to statements being read. A coroner’s court can be quite daunting and families may well benefit from taking early professional advice upon all aspects of the matter.

Here at BPS Family Law we work closely with families at inquests. We offer practical advice along with a compassionate approach. We’re not about cashing in on people’s upset, we’re about achieving the best possible outcome for families.

If you’re looking for a lawyer to help you with any of the issues mentioned above, then you can get in touch with Sefton at [email protected] or by telephone on 0161 834 2623 or 078 3663 0889.

What happens if a spouse hides matrimonial assets?

January 27, 2017By BPS Family LawBlog

Within matrimonial finance proceedings, it is standard procedure for both parties to disclose their assets before an informed agreement can be reached as to how the ‘matrimonial pot’ should be divided.

If one party attempts to mislead the Court as to the true value of their assets this can lead to an unfair outcome for their spouse and, if appropriate, their children.

In 2015, Judge Mark Rogers awarded an ex wife a further 2.7 million after it was found that the ex husband had misled the court when disclosing his wealth in relation to a business which was in fact worth millions. The wife had previously agreed to receive £ 150,000 to discharge the mortgage on the family home which was valued at £700,000 in addition to £10,000 a year salary and child maintenance payments.

The Judge stated that the husband had been so dishonest in relation to the disclosure of his assets that the wife was therefore unable to give informed consent in relation to the previous deal ten years earlier.

If you believe your ex-spouse concealed assets during your divorce then we can help you.   Contact us on 0161 926 1430.

Child Contact for Violent Fathers

January 26, 2017By BPS Family LawBlog

What is domestic abuse?

Domestic violence is the abuse of one partner within an intimate or family relationship. It is the repeated, random and habitual use of intimidation to control a partner. The abuse can be physical, emotional, psychological, financial or sexual.

The Court’s approach to child contact for violent fathers.

 The Charity Women’s Aid campaigned due to statistics which identified that ’19 children have been killed in the last 10 years by their violent fathers after being given contact with them by judges.’

Reforms are being introduced into the Family Courts.

The Reforms aim to end the belief that a father has the right to engage in contact with a child when there is evidence of domestic abuse.

It is taken very seriously by Senior Judges to take steps in order to avoid contact with violent fathers that would ultimately put the child or mother at a high risk of harm.

The changes contain a demand for all the judiciary to have further training on domestic violence and to act to safeguard women and children.

Mr Justice Cobb announced the changes and stated ‘It is indeed most disturbing to note that for at least 12 children [in seven families]; of the 19 children killed … contact with the perpetrator [the father] was arranged through the family courts’.

Judges need to be more alert to perpetrators of domestic violence using the courts as a way to continue their abuse.

At BPS Family Law we work closely with families who have suffered domestic violence. We offer practical advice along with a compassionate approach. We achieve the best possible outcome for families.

If you’re looking for a lawyer to help you with any of the issues mentioned above, then you can get in touch with Caroline Swain by email [email protected] or by telephone on 0161 926 1430

How to achieve an amicable separation

January 24, 2017By BPS Family LawBlog

Caroline Swain, Partner, Matrimonial and Family Law provides a guide to achieving an amicable separation.

Separation is a difficult situation to go through. There may be several reasons for your break up, and as such you could be harbouring some unresolved hurt or anger. If you successfully manage to achieve an amicable split however, your separation will be much easier for both you and your family.
There are no laws to follow on having an easy separation, however there are some methods you can utilise to ensure your separation is peaceful and stress-free.

Avoid open criticism

For your sake:
By talking negatively about your ex-partner, it will not only cause upset and unnecessary stress, but it will manifest your bad feelings towards them and heighten the chances of a tumultuous separation.
If you feel like you have nothing positive to say to them, it’s best to have as little communication as possible, outside of the potential legal proceedings you’re going through.
This helps to ease the load you may feel like you’re carrying, and will make the process a lot easier for you to deal with.

For your children’s sake:
It’s also important to remember that if you have children, openly criticising their mother or father in front of them can make them feel guilty for spending time with the other parent. It will be easier for you and your child if you aren’t negative in front of them – a separation for children may only as bad as their parents make it out to be.

Establish boundaries
Now that you’re no longer together, it is a good idea to lay down some ground rules regarding personal space and communication.
3 steps which you can follow to make this process easy for you are:

Discover WHY you need to set your boundaries:
You and your partner have separated for a reason, be it big or small, so you will need to focus on what the reasons were to work out what type of boundary you need. Did this person’s presence have a negative impact on your life? Did they make comments that were untrue or hurtful?
Working out why exactly you need to set your boundaries is the first step in achieving a peaceful life.

Discover HOW you need to set your boundaries:
Now that you know why you need to set boundaries, you can begin to set them in motion. If you’ve realised that your ex-partner was a negative influence on your life, the boundary you set could be to limit the amount of time you have to see them. If they were always borrowing money from you, you can tell them you’re no longer going to fund them.
Establishing and setting boundaries is a big step, so take the time to congratulate yourself for your strength.

Get grounded and take care of yourself:
Setting boundaries sometimes has two initial results: you may receive some backlash from your ex-partner, and you also might feel some guilt. Both things are totally normal, and it’s important for you to stand by your decisions and keep yourself grounded.
You’re not alone in this situation, so remind yourself that you’re making the right choice and to not be hard on yourself. Deciding to separate was a difficult decision and you probably put a lot of thought into it, so trust your own judgement. Focus on making your life as easy as possible.

You may still need to contact each other:
If you need to speak to each other, choose a way of establishing conversation that you both agree on, whether it’s sending a text message, calling or meeting face to face.

Mediate
In divorce mediation, you and your ex-partner – or in some cases the two of you and your respective solicitors, hire a neutral third party called a mediator to meet with you in an effort to discuss and resolve the issues in your divorce.
Mediation is less expensive than a court trial or a series of hearings, however if spouses are unable to resolve issues amicably, additional legal costs can occur.

If you’d like to find out more about how to achieve an amicable separation and the options available to you then you can get in touch with Caroline at [email protected] or by telephone on 0161 926 1430.

BPS Family Law annual ladies’ clay pigeon shoot

January 23, 2017By BPS Family LawBlog

Here is a selection of photographs from BPS Family Law annual ladies’ clay pigeon shoot, which was kindly hosted by Dominic Baldwin.

The shoot was held in Dominic’s beautiful home Moss Wood, which was the perfect setting for our guests.

In total 30 ladies attended the event. A morning of tuition culminated in a team competition, which was won by The Partridges! Congratulations!

The clay pigeon shoot provided a great opportunity to get clients and friends together to network and make new friends.

Check out the video below!