Category Archives: Property & Financial Matters

Can’t afford your divorce proceedings? You could make your partner pay!

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As the legal community and the general public come to terms with the recent changes to Legal Aid 

and the shift towards mediation for matters involving children and finance matters on divorce and separation, a new provision has been introduced that offers a ray hope.

This new provision offers powers for the court to order one party to make a payment to fund the other party’s lawyers.

The court will have the power to order one party to a marriage to pay to the other (the applicant) an amount for the purposes of enabling that party to pay for legal advice and assistance.

These orders – which have been dubbed ‘legal services payment orders – can be made:

  1. in divorce, nullity or judicial separation proceedings to enable the applicant to pay for legal advice or
  2. for proceedings for financial relief in connection with divorce, nullity or judicial separation.

How does it work?

The new order may be for a single amount to be paid by the respondent to the applicant or in instalments that will need to be secured. The order can be obtained to cover legal services for all or part of the proceedings or to provide advice as to how law applies to the particular circumstances. The payment can also be sought to cover all or part of the costs in relation to the settlement or other resolution of the dispute. This would include processes such as family mediation, arbitration or collaborative law.

The order can also be sought in relation to legal advice regarding the enforcement of decisions within the proceedings or as part of the settlement or resolution of the dispute.

How does the court make its decision?

There a checklist of factors that need to be considered when applying for this type of order including income, earning capacity, property, assets, financial needs and obligations, the subject matter of the proceedings and whether the applicant has taken steps to avoid all or part of the proceedings by proposing or considering mediation etc.

An applicant will also be required to demonstrate that they have explored all other means of funding, without success, before the order is sought.

For more information about this type of order or any other family law matter, give us a call on 01392 421777 and arrange a free ½ hour appointment with one of our family law specialists.

Legal aid shake-up – What are your options?

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A series of dramatic changes to the legal aid provision in England and Wales, came into play on the 1st of April. These changes have left tens of thousands of people in the dark about their eligibility for funding, and baffled about their ability to seek affordable legal advice.

Within the scope of family law these changes see a shift away from the previous model where you got the funding if you couldn’t afford advice, to a system that offers support and assistance to individuals at greatest risk. In general terms, funding is still going to be made available for people with cases where there are instances of domestic violence and abuse, child abduction, care proceedings and where there is a need for the representation of children.

The new structure will see the vast majority of people that need assistance with divorce and finance matters as well as those with parental responsibility and contact issues, heading for mediation rather than a traditional solicitor. Mediation is process that allows the conflicting parties to meet, together with a mediator, and try to forge an amicable resolution to their issue. Mediation has become increasingly popular in recent years as an alternative to court because of the economical and non-litigation based benefits. By taking part in constructive negotiations and discussions there is a greater chance that you will be able to maintain a healthy relationship with your former partner and make life easier for any children involved in the case.

The Ministry of Justice are investing an additional £10 million to fund mediation services to help separating couples who would previously have been eligible for Legal Aid.

Despite its many benefits, mediation is not going to be suitable for everyone, where the damage to the relationship has already been done it may be impossible to come to an agreement in which case a more traditional solicitor approach may be required.

These changes have necessitated a change in the way that many law firms deal with family law matters. Firms have had to explore alternative methods of providing their services to individuals who no longer have access to publicly funded legal services. Family law firms such as Hartnell Chanot & Partners, with our offices in Exeter and Plymouth, have been busy developing packages that will ensure that everybody still has access to quality legal advice when they need it.

Norman Hartnell, Director, Hartnell Chanot & Partners:- “In addition to mediation, collaborative law and family arbitration, a process where a trained arbitrator can issue a ruling recognised by the court, without having to go through the lengthy court process, we have developed a number of affordable ways for our clients to obtain the advice and support they still need when facing these emotionally challenging times.”

He went on to say:- ‘The most important thing to remember is that firms are adapting and that anyone who has a family law issue should still contact a firm or a mediation service to find out about the options available.”

Not the destination you had in mind for your Louis Vuitton luggage

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Earlier this week Scott Young, 51, was sent to prison after being held in “flagrant,” contempt of court for failing to provide information about his financial circumstances.

Mrs Young had applied for maintenance, both for herself and for their two teenage children, who live with her. After many, many hearings, the court decided that Mr Young should be required to pay an astonishing £27,500 per month! At this point many of you may be aghast at this figure but consider this- Mr Young is said to be worth somewhere in the region of £400,000,000! Arguably he is not the sort of man who needs to be counting the pennies.

Rather than pay up, Mr Young continued to deny his astonishing wealth, claiming to be bankrupt. Understandably, rather than simply taking his word for it, the court said “prove it” and ordered Mr Young to provide evidence of his poverty. Mr Young declined to do so.

At a hearing earlier this week Mr Justice Moor decided that Mr Young’s excuses for not complying with orders to disclose his financial circumstances were “absurd” and that one reply he had provided was “next to useless”. The Judge had clearly had enough and in true Monopoly fashion, sent Mr Young directly to jail.

Although many of us can only dream of having access to the incredible wealth that Mr Young is said to have, this case is a cautionary reminder that anyone involved in financial claims, before the family courts, must disclose their financial circumstances when asked to do so. It is a brave (or foolish) husband or wife who says “no”. There is a good chance that they too may find themselves packing their couture overnight bag in anticipation of spending a little time at Her Majesty’s pleasure.

An amicable and affordable divorce?

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For many couples the start of the New Year marked the end of an old relationship.

Divorce and separation lawyers across the country returned to their offices after the festive season to greet an influx of fresh clients enquiring about divorce and separation.  This surge, commencing on the first working day back after the New Year, is a phenomenon commonly referred to as ‘Divorce Day’ or ‘D: Day’.  In reality this peak in enquiries typically lasts for the duration of the first fortnight in January.

A Christmas marred by rows and disagreement, rather than a period of joy and the promise of things to come, will have led to many couples re-evaluating their relationships and in many cases making the decision to separate.

The commencement of this busy period of 2013 brought with it the announcement that Ministers have pledged £10million to speed up and ease the tension that can be caused during divorce and separation.

The cash will be used to subsidise mediation services that are designed to help couples negotiate how to divide their property and care for their children.  Family justice minister Lord McNally pledged the extra £10million for the services, stating that they offer a “quicker and simpler approach which brings better outcomes” for the families involved.

The Ministry of Justice has said that on average a contested divorce, argued in court, can cost approximately £4,000 while a mediated split funded by the state costs £500.  The time implications of mediated solution – 110 days – compared to contested divorces often taking 400+ days are staggering.  By steering more of the public funded couples towards mediation an enormous amount of unnecessary time and money could be saved.

The mediation process is set to become an increasingly common practice during 2013, with changes to the Legal Aid system directing all but the most at risk cases towards mediation. What this means, quite simply, is that from the 1st of April 2013 people requiring family law services will not be eligible for Legal Aid unless they are applying for and injunction, already in mediation or they are in possession of evidence of domestic violence.

Mediation and collaborative law practices, where couples agree to resolve their issues without using the court process, have also seen a significant increase among privately paying clients. Couples are choosing to take part in these alternative forms of dispute resolution in an effort to find a less stressful solution to their dispute that can be handled in a more expedient fashion.

Rachel Buckley, Director of Hartnell Chanot & Partners, commented-“Our firm has been utilising mediation solutions for our clients for 21 years and there is a noticeable difference between the atmosphere in these cases and that of our contested cases.” He went on to highlight that- “Not only are mediated splits typically resolved faster and more affordably but by engaging in productive and amicable negotiations the stress and anxiety often associated with divorce is greatly reduced. This is particularly important when there are children involved.”

Don’t get caught out of pocket following a divorce!

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It is a common misconception that once you have divorced and obtained your decree absolute, then all matters between you and your formal spouse come to an end. Unfortunately this is not the case. A Decree Absolute, which dissolves marriage, does exactly that, it just ends the marriage. The financial aspect of a divorce is a completely separate issue, not covered by the Decree Absolute, and therefore unless you take the necessary action to protect your finances you could be leaving yourself open to a whole variety of claims in the future from your ex spouse.

Often people who have very few or no assets at the time of their divorce fall into this trap, believing that they do not need to take any action in relation to their finances, because there isn’t anything available at the time.

What many people do not realise is that your Decree Absolute does not dismiss the financial claims which your former spouse could bring against you! This means that, in the future, your ex-spouse could at any time issue a financial claim for a share of any money, or assets which you have, including anything which you have subsequently inherited, or if your lucky enough won, such as a lottery winning!!

Is this unfair? Well perhaps, but unfortunately that is the position of the law.

So how do you get around this? Naturally nobody’s circumstances will ever be the same and the advice you are given will obviously depend on the assets which are involved in your specific case. However upon a divorce you may be advised to obtain a Clean Break Order. This Order effectively draws a line under your finances with your ex spouse, meaning that all future financial claims that your ex spouse could bring against you are dismissed.

Whether a clean break is suitable for your case will depend on a number of factors, and that is why it is essential that you obtain legal advice to ensure that you take the most appropriate action to protect you and your finances upon your divorce.

It could prove to be money well spent!

Pre-Nuptial Agreements – A Tricky Subject?

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Wedding cake - pre-nuptial agreementsAs 29th February approaches, the traditional date every four years where the tables are turned and many ladies consider proposing to their intended, should they be thinking about entering into a Pre-nuptial Agreement?

There is always so much to do in preparation for a wedding or when considering a marriage proposal. A Pre-nuptial Agreement may be the last thing from your mind.

However, although it is not very romantic, a Pre-nuptial Agreement is something which should be considered. It can seem distasteful to some people, however, if one party has assets which they have worked hard to build up, inherited or been awarded through a divorce, they may wish to protect these in the unfortunate event that their impending marriage may fail. The current divorce rate among first marriages is high and on the rise.

Most people don’t enter into long term costly commitments without thinking that something might go wrong. For example, houses are purchased and insurance obtained, holidays are booked and insurance obtained. Why not think of a Pre-nuptial Agreement as insurance?

Many put off the difficult conversation about what they mighht expect should their marriage fail for fear that the other party will be hurt and feel that they are not committed to the marriage.

How then to raise a Pre-nuptial Agreement or respond if it is raised with you? Knowing exactly what it is and what it can provide for can help.

What is a Pre-Nuptial Agreement?

This is an agreement between two parties prior to their marriage which sets out how their property will be divided in the event of their marriage failing. It can provide for the division of capital assets and spousal maintenance.

Many people dismiss Pre-nuptial Agreements on the basis that they are for the rich and famous. However, Pre-nuptial Agreements are becoming more and more popular for those of us with more modest means.

Pre-nuptial Agreements may be appropriate in the following instances:

  • where you or your intended has property or assets that you have acquired prior to your relationship that you would like to protect;
  • where one or both of you have been divorced previously and wish to protect that settlement,
  • where one or both of you have received an inheritance; and
  • where one or both of you is starting or already has a business.

In these circumstances, if the marriage fails, these issues can cause much uncertainty, animosity and of course a large legal bill.

This all seems well and good but how do you go about having that difficult conversation?

Be open and honest with your intended at an early stage. This is how you want your married life to be, so start as you mean to go on. Give your intended all the time he or she needs to come to terms with what you are asking. The key to the most successful Pre-nuptial Agreements are to keep everything very clear and straight forward. Reassure your intended that you do love them and are committed to your forthcoming marriage. Having this insurance can sometimes help to put your relationship on a sensible and stable footing.

How do you get a Pre-nuptial Agreement?

So, you’ve now had that conversation and your intended has agreed. What happens next?

It is important that you each get independent legal advice before entering into a Pre-nuptial Agreement. You will each need to see a different solicitor. It is important that you each enter into the agreement voluntarily. Otherwise if there is any pressure on either side the agreement may not be upheld.

You will both need to make sure you have provided full and frank disclosure of your financial situation to the other before the agreement is entered into. Your solicitor will help you draw up a financial statement. It is important that you are each aware of what the other has, otherwise, the agreement may not be upheld and may be considered unfair.

Do not leave it until the last minute. It should be signed several weeks before the wedding. An agreement signed close to the wedding may not be upheld by the court as the financially weaker person may feel under considerable pressure to go ahead for fear of having the wedding cancelled.

It is a good idea to take independent legal advice at an early stage.

Hartnell Chanot Family Law Legal Executives Receive Chartered Status

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The Institute of Legal Executives (ILEX) has recently been granted the accolade of a Royal Charter, which affirms the quality and integrity of the Legal Executive qualification and the important role its members play in the provision of legal services.

Chartered Legal Executive lawyers have a similar role to that of a solicitor but specialise in a particular area of law. At Hartnell Chanot all our Legal Executives specialise in family law.

The award of Chartered Status is recognition of the Institute’s high standards of ethical conduct, efficiency and training. Members of the Chartered Institute of Legal Executives will continue to be regulated by the respected ILEX Professional Standards (IPS).

Rachel Buckley, Director at Hartnell Chanot & Partners, said: “We are pleased to see the Institute receive this accolade. Our Chartered Legal Executives are extremely skilled and professional lawyers who work hard for our family law clients. It is great to see them receive the recognition they deserve for their qualification and expertise.”

What is an Accredited Family Law Specialist?

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At Hartnell Chanot, we are not only specialists in family law but many of our solicitors and legal advisors have been “accredited” by Resolution, the leading organisation for family lawyers.

What is an Accredited Family Law Specialist?

An accredited family law specialist is someone who has more than five years experience in family law, works predominantly in the area and has passed a tough independent assessment to show their skills, expertise and knowledge. As well as that they will be committed to the principles of Resolution to conduct cases in a non-confrontational conciliatory manner.

Claire Reynolds, one of our senior solicitors, who is a resolution accredited specialist is also a member of the Resolution Accreditation National Committee ensuring that we are always up to date with specialist accreditation and therefore able to pass this knowledge and experience on to our clients.

At Hartnell Chanot we have resolution accredited specialists in the areas of domestic violence, children disputes and financial matters. You are always able to seek advice from someone who will be a specialist in the issues you need advice on.