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Mediation – What Is It All About? by Tanya Bloomfield, Solicitor

What is Mediation?
Mediation is one of the processes available to try and help people who are in dispute. This could be about separation, divorce, finances and/or children. People can come to mediation whether they have just separated or been apart for a number of years.

In a nutshell, it involves having a third party present to help you have constructive discussions and work towards reaching a joint agreement. Legal Aid is still available for mediation, but even if you do not qualify it is intended to be a quicker, cheaper and more amicable process than, say, court proceedings. The parties are in control of the process and the outcome, as the mediator is impartial, and although is there to help, will not make the decisions for you.

Do I Have To Do It?
The Government wants people to try and sort things out outside of the court area so they have introduced a requirement that, before you can make an application to court about finances or children, you have to attend a MIAM appointment, unless you fall into one of the limited exceptions. This is an information and assessment meeting with a mediator where you learn about the mediation process and an assessment about whether your case is appropriate for mediation is made by you and the mediator. You attend this meeting on your own and it is not mediation in itself, as only if both parties attend a MIAM, wish to proceed and it is assessed as suitable will mediation then be organised.

Should I do it?
Ultimately it is your decision whether to enter into mediation as the process is voluntary. You are only required to attend a MIAM. However it is hoped that if both parties want to sort things out then mediation can provide a great opportunity to do so in a more amicable and cost effective way. You can talk about a lot of things at mediation that go beyond what a court would go into. It is hoped that at the end of the process you can move forward with your lives and avoid a very messy and acrimonious break up, particularly if you have children together.

More information about mediation can be found at our website www.familymediationsolutions.co.uk and the Family Mediation Council website www.familymediationcouncil.org.uk.

Should you wish to consider mediation please contact our mediation line on 01325 289856.

Our Miss Bloomfield is a Solicitor in Family Law, an accredited Family Mediator and trained collaborative practitioner.

Personal Injury Claims – How Not to Be Left Out of Pocket by Victoria Machin, Solicitor

The impact of being involved in an accident can go far beyond the physical and mental injuries sustained, affecting not only the injured party but also those around them. An injured person may not be able to return to work immediately, or at all, causing significant financial worry.

It is therefore important to be aware that a claim for personal injury encompasses many elements beyond the injuries themselves. Did you know that you could also make a claim for any out of pocket expenses incurred as a direct result of the accident? These are known as ‘special damages’ and can include the following:

LOSS OF EARNINGS – If you are unable to return to work whilst you recover from your injuries, you may be able to recover loss of earnings suffered during this time and, if you are unable to return to work at all, you may be able to claim for your loss of earnings up until your projected retirement age. This can be calculated to reflect a number of factors, including loss of pension benefits.

CARE AND ASSISTANCE – You may require assistance from your friends and family, for example, with household tasks and personal care. If your injuries are more severe, you may require assistance from professional carers both now and in the future.

ACCOMMODATION AND ADAPTATIONS – If you have been seriously injured, you may find that your current home does not meet your needs and you need to adapt your property. The cost of such adaptations can be included in your claim, and may include things such as ramps and widened doorways for wheelchair access, bathroom adaptations such as walk-in showers, or stair lifts and lowered work surfaces.

REHABILITATION – You may require rehabilitative treatment to help you recover, including physiotherapy, counselling, speech and language therapy, occupational therapy or pain management courses. It may be appropriate to put in place an in-depth and intensive rehabilitation programme which may include an inpatient stay at a specialist rehabilitation hospital.

MEDICAL AIDS AND EQUIPMENT – Following an injury, you may require certain medical aids, medication and/or equipment to assist you.

TRAVEL EXPENSES – You may incur significant travel expenses attending medical appointments. You may also require adaptations to your vehicle or a new vehicle altogether.

As it is essential to consider all of the above elements when submitting a claim for personal injury, you must ensure that you seek legal advice at the earliest opportunity to ensure that you secure enough compensation to protect, safeguard and address your future needs.

If you or someone you care about has been injured in an accident which was not their fault, please do not hesitate to contact Clark Willis Law Firm LLP at enquiries@clarkwillis.co.uk or on 01325 281111.

Divorce in England – Time for a Change? by Bethany Grimwood, Paralegal

Current Divorce System

When you apply for a divorce in this country you must prove that your marriage has irretrievably broken down and rely on one of the following five grounds:

  • Adultery
  • Unreasonable behaviour
  • Desertion
  • You have lived apart for more than two years and both agree to the divorce
  • You have lived apart for at least five years, even if your husband or wife disagrees

 

However, it is problematic that under the current system if a divorce is sought before there has been two years of separation then blame must be placed on the other party. This problem has been highlighted in the current case of Owens v Owens [2018] UKSC 41.

In this case, the Judge accepted that the marriage had irretrievably broken down, but he felt unable to grant Mrs Owens a divorce as Mr Owen’s behaviour had not been sufficiently unreasonable. In the recent unsuccessful final appeal to the Supreme Court, Lord Wilson expressed that Justices had ruled against Mrs Owens “with reluctance” but it was a case for Parliament to review the current law on divorce.

Time for Reform?

The case of “Owens” has sparked a nation-wide debate on whether the law surrounding divorce is in need of reform. Nigel Shepherd, the chair of Resolution (a national organisation of family lawyers), said: “We are today repeating our call on the Government to change the law and introduce no-fault divorce. The reasons for marriages breaking down are often complex and rarely will both spouses agree on them.”

Following the ruling, the Ministry of Justice said: “The current system of divorce creates unnecessary antagonism in an already difficult situation. We are already looking closely at possible reforms to the system”

Nevertheless, unless reforms are implemented, the current system will remain in place.

How can we help?

We understand that divorce can be a lengthy and emotional process. If you would like advice on your circumstances, call our excellent specialist family team on 01325 281111 or email enquiries@clarkwillis.co.uk.

How to Protect Your Property From Fraud by Jane Mafham-Jackson, Solicitor

Your property is probably the most valuable asset you will own. You will have read in the papers of many cases of property fraud, which can be very worrying for home owners and investors. Fraudsters can, and do, target properties for fraud, the most common involving the theft of the owner’s identity. The fraudster will then try to sell or mortgage your property, pretending to be you, leaving you to deal with the consequences.

You are more at risk if:

  • Your property is left empty for long periods;
  • Your property is rented out;
  • Your property is not subject to a mortgage or charge;
  • Your property is not currently registered at H M Land Registry;
  • You live overseas;
  • Your identity has been stolen;

 

How can you reduce this risk?

Property Alert Service

Property owners should sign up to the Land Registry’s free Property Alert Service (www.gov.uk/property-alert). This alerts property owners to certain applications such as a new mortgage or change of ownership for up to ten registered properties in England and Wales. You don’t have to own the property, so you could monitor the property for an elderly relative. If you receive an alert about suspicious activity, you should take immediate action. Alerts are sent by email but you can still use the service if you are not online by telephoning the Land Registry Property Alert team on 0300 0060478.

Updating Your Contact Details

Ensure your contact details are up to date with the Land Registry. You can provide up to three addresses, one of which must be a postal address, but can also include an email and overseas address.

Apply for a Restriction on Your Title Deeds

A restriction can be placed on your title deeds to stop the Land Registry registering a sale or mortgage on your property, unless a conveyancer or solicitor certifies that the application was made by you. The Land Registry will charge a fee for this restriction, currently £40.00, and require a completed RX1 Form. For an additional fee, we would be able to assist with this and complete your application at the Land Registry.

Register Your Property

The vast majority of properties in England and Wales are now registered. The most unlikely to be registered are properties that have not changed ownership or been mortgaged since 1980. The cost of registering your property will vary depending on the value of your property. If your property is not currently registered at the Land Registry, there are a number of advantages in doing so:

  • To obtain greater protection against the possibility of fraud and against the possibility of losing title by adverse possession;
  • To reduce conveyancing costs in the future as it will simplify the title;
  • To obtain clarity, as you will receive a copy of your title and plan showing the extent of your property and land;
  • To obtain peace of mind that deeds can no longer be lost as your property will be registered at the Land Registry.

 

For a no obligation quotation, please contact the office on 01325 281111.

Eight reasons why you should make a Will by Miranda Richardson, Solicitor

It is estimated that approximately 60% of UK adults do not have a Will and therefore run the risk of dying intestate. As death is sadly inevitable for all of us, we highlight eight reasons why you should make a Will sooner rather than later.

1. If you die intestate i.e. without a Will, your assets will be distributed in accordance with the laws of intestacy which frequently causes unnecessary expense, delay, worry and inconvenience for the deceased’s family. The intestacy rules will decide who inherits your estate and this may not be who you want it to be.

2. Writing a Will puts you in control of how your assets are distributed following your death. You choose your own Executors whereas if you die intestate the law will determine who will have the task of sorting out your affairs after your death.

3. Leaving a Will helps to minimise the risk of family disputes and is vital if you wish, for example, to leave a larger share of your estate to one of your children or your partner if you are unmarried.

4. You may think that you do not have a sufficiently large estate to justify making a Will but some assets need have to be sorted out formally to be able to be transferred.

5. A Will enables you to preserve assets for beneficiaries so that you can choose how you want your estate to be divided.

6. If there are any disabled or vulnerable children or adults you would like to provide for after your death, it is vital that you make a Will because even though those individuals may be entitled to receive a share of your estate under the intestacy rules, they may not have the mental capacity to accept that share.

7. If your estate is likely to exceed the Inheritance Tax threshold it is important to seek legal advice about the possibilities of minimising the impact of Inheritance Tax on your estate. A Will would be vital in those circumstances.

8. If you have children under 18 a Will can include the appointment of testamentary guardians to care for your children following your death so your wishes are clear.

If you require advice about making a Will please contact Miranda Richardson in our Wills and Probate department who can be contacted on 01325 281111.

What can I do if my relative has been sectioned under the Mental Health Act? Blog by Emma Coward- Trainee Solicitor

Am I a Nearest Relative?

If your relative is detained under the Mental Health Act, you may be considered as their nearest relative. It is important to be aware that this person can be different to the next of kin.

The general rule is that the nearest relative will be the person who comes highest on the following list:

  • Husband, wife or civil partner
  • Son or daughter
  • Father or mother
  • Brother or sister
  • Grandparent
  • Grandchild
  • Uncle or aunt
  • Niece or nephew

What Rights Do I Have As A Nearest Relative?

As a Nearest Relative if you have concerns about a relatives Mental Health you can request an assessment to ascertain whether they should be detained under the Mental Health Act. This can be done by contacting Social Services and speaking with an Approved Mental Health Practitioner. They do have the right to refuse your request but must give you reasons for doing so in writing.

You have the right to be informed that your relative is going to be detained under Section 2 (for assessment) or Section 3 (for treatment). However there are exceptions to this, for example if informing you would have a negative impact on your relative emotionally or physically or would cause unnecessary delay.

If you were to disagree with your relative being detained under Section 3 then the detention cannot go ahead, however an application could be made to the County Court to remove your powers if it is felt you are objecting on unreasonable grounds.

Please be aware that the nearest relative does not have the right to be told everything. Confidentiality is still maintained and it will ultimately depend on whether your relative is happy for information to be shared with you.

Can I Discharge My Relative?

If you wish for your relative to be discharged from their section then you must provide 72 hours’ written notice to the hospital managers. If their responsible clinician feels that your relative should remain in hospital they can issue a barring report within 72 hours. This will prevent the discharge from going ahead. A discharge should only be prevented if the person is likely to be considered as dangerous to themselves or others.

If a barring report is issued, you will then have the right to apply to the tribunal for discharge if your relative is detained under Section 3 or on a CTO. You must be aware that you will not be allowed to discharge your relative at any time in the 6 months’ that follow the date of the barring report.

What is a Tribunal?

The tribunal panel consists of a judge, a doctor and a layperson who often has experience of working within mental health. Also present at the hearing will be members from your relative’s clinical team, which will be their care coordinator, who is often a social worker or Community Psychiatric Nurse, their responsible clinician and a member of the nursing team. Each professional will have prepared a report prior to the hearing and will be asked questions in relation to the content.

Your relative is entitled to have a solicitor present at the tribunal who can then ask questions on their behalf. You will also be entitled to share your views. After hearing the evidence the panel will then make a decision as to whether they believe detention continues to be justified or not. They will provide a brief explanation for their decision.

 

We have a specialist mental health team who can help you and your relatives. For assistance please contact us on  01325 281111.

Court Martial Representation- an article by Peter Furness, Court Martial Defence Advocate

The term Court Martial is widely known, but little understood. I hope to briefly explain what a Court Martial actually is, how it differs from a ‘civilian’ Court, and how Clark Willis Law Firm LLP might be able to help anybody who requires representation before the Court Martial.

What is a court martial?

A Court Martial deals with members of the Armed Forces who are subject to military law.  Military law covers specific military offences, such as going absent without leave and desertion etc, but also the type of criminal allegations that occur in civilian life, such as assault, theft and criminal damage etc.  If any allegation of any nature is made against a member of the Armed Forces, the Court Martial will generally deal with their case, as opposed to it being dealt with by a civilian Court.  This is especially so, if the alleged offence takes place on a military base, and/or involving other military personnel.

What happens at a Court Martial?

The Court Martial comprises of a Judge Advocate and a Board of Officers, the number of which depends upon the seriousness of the allegation.  If there is to be a Trial, then the Board of Officers determine guilt or innocence like a Jury.  The Judge Advocate oversees the proceedings, to make sure that they are procedurally and legally fair.  If the Defendant is to be subsequently sentenced, whether following a trial or a guilty plea, then the Judge Advocate and the Board of Officers, will decide that sentence, in accordance with guidelines which are similar, but not the same, as a civilian Court.

Very occasionally, a civilian, who is subject to military law, may be dealt with by a Court Martial, but in the vast majority of cases, the Defendants are service personnel.

The procedure followed in both Courts is similar and the law of course is exactly the same. By definition, the terminology is often of a military nature, and this requires a basic understanding of military procedure to effectively represent a client before the Court Martial.

A bit about me…..

I am a partner with Clark Willis Law Firm LLP and have been conducting Court Martial defence work for over 20 years. Whilst my ‘local’ Court Martial is at Catterick Garrison, I often travel to other Court Martial sites in England, or even abroad, where the British military are based.

I have dealt with all manner of cases, from relatively minor breaches of military law, to the most serious types of assaults / sexual assault.  I either deal with the case from start to finish throughout, or in the case of particularly serious matters, I would instruct expert/specialist barristers to represent the client before the Court Martial.

If you have a court martial you wish to discuss call me today for a free no obligation chat on 01325 281111.

Stamp duty first time buyers relief – an overview by Diane Hall, Conveyancing Solicitor

 What is the new relief

As of 22 November 2017, first-time buyers in England and Wales of residential property have benefitted from welcome relief from Stamp Duty for purchases under £300,000 and relief on the first £300,000 if buying property up to £500,000.

The Stamp Duty threshold is currently £125,000 whereas the threshold for first-time buyers is £300,000 thus allowing a further £175,000 before Stamp Duty becomes payable.
How much would I need to pay?

You can use HM Revenue and Customs Stamp Duty calculator to work out how much tax you will need to pay- https://www.tax.service.gov.uk/calculate-stamp-duty-land-tax/#/intro


What are the eligibility requirements?

HM Revenue and Customs specify the following eligibility requirements :

· there is a purchase of a single dwelling for not more that £500,000

  • the purchaser(s) must be an individual who intend to occupy the property as their main dwelling and all must be first time buyers
  • the purchase is not linked to any other land transactions, except for –
    o land that is or forms part of the gardens or grounds of the dwelling, or
    o land that subsists for the benefit of either the dwelling or its garden and
    grounds.

    Further information on eligibility can be found at- https://www.gov.uk/government/publications/stamp-duty-land-tax-relief-for-first-time-buyers-guidance-note

Will this help me as a first time buyer?

It is estimated that the majority of first-time buyers will be exempt from paying any Stamp Duty at all and almost all first-time buyers will at least benefit from reduced rates.
How do I claim the relief?

The relief is claimed in the Stamp Duty Land Transaction Return which we can complete on your behalf as part of our conveyancing work for you. Prior to us submitting these forms on your behalf, we ask that you sign a declaration to confirm that the information contained in the forms is accurate.

If you are looking to purchase a property, please do speak to a member of our Conveyancing Quality Scheme accredited Conveyancing team on 01325 281111 or 01748 830000.
Diane Hall is a Solicitor within our property department specialising in residential and commercial property matters. 

Legal Aid Eligibility Changes for 2018- has it gone far enough for domestic abuse victims? Blog post by Katie-lee Pearson, Family Solicitor Clark Willis

Previous legal aid eligibility

From 1 April 2013, legal aid has only been available in a limited number of family cases including:

  • Care proceedings
  • Children cases where there is evidence of domestic abuse against the parent or the child, in the preceding 24 month period
  • Domestic violence injunctions (also referred to as Non-Molestation Orders)
  • International child abduction cases.

Evidence of domestic abuse

People who were the victims of domestic abuse, as well as qualifying financially, would need to provide evidence of the domestic abuse, by way of documentary evidence. Examples of such evidence include  a relevant unspent conviction or caution for a domestic violence offence; a copy of an injunction; a letter from a domestic violence support organisation confirming that someone had been in a refuge (or refused admission to a refuge); and a copy of a letter from a health professional,such as a GP, confirming injuries or a condition consistent with domestic abuse.

The problem with the previous eligibility?

The number of domestic violence victims who did not have legal representation in the family courts has doubled in the last five years.

Significant concerns were raised that these previous requirements were too restrictive. Interim measures were introduced in an attempt to address the harshest restrictions. For example, in February 2017, the time limit of the preceding 24 month period in which the domestic abuse had to have taken place was extended to cover the preceding 60 months. At the same time, measures were introduced to provide for victims of financial abuse, where one person is financially controlling another.

What changes have been made to legal aid eligibility for 2018?

From 8th January 2018, there have been significant changes to the rules governing legal aid, specifically the evidence that needs to be provided in respect of victims of domestic abuse as follows:

  1. The 60-month time limit has been scrapped completely. The abuse can have taken place at any time in the past.
  2. Victims of domestic abuse will be able to use letters from domestic abuse support organisations, letter from a housing officer or a letter from the Home Office that a victim has been granted leave to remain in the UK due to domestic violence.
  3. The evidence of domestic abuse can relate to another person with whom the perpetrator was in a family relationship. For example, evidence that the perpetrator was convicted for a domestic violence offence on a previous partner will now be accepted.

The likely impact of the new changes to legal aid eligibility?

These changes mean that more victims of domestic abuse should be able to gain access to legal aid. However, only time will tell whether the changes will have the anticipated impact, and reduce the number of cases where victims of domestic abuse are left without legal representation.

However, at Clark Willis, we recognise that not all clients will qualify for Legal Aid, but still require legal advice and representation from an experienced family solicitor. We can offer clients the chance to spread the cost of their legal fees each month.

If you wish to obtain further information as to whether you will qualify for legal aid, or if you wish to discuss options for payment of legal costs, please contact our team of experienced solicitors at Clark Willis on 01325 281111.

Katie-lee Pearson- Family Law Specialist, Clark Willis Law Firm LLP