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Divorce law Darlington

Pensions and Divorce by Tanya Bloomfield, Family Solicitor and Mediator

Getting divorced can be an emotional, worrying and difficult time, however, for most couples sorting out the finances can be the most daunting part. In particular, pensions are not always straightforward and the options for dealing with them can be tricky depending on the circumstances of you and your family.

Do you need to consider pensions as part of a divorce?

The short answer is generally yes. When considering the resolution of finances on divorce the assets of the marriage are all considered. The starting point is to ask both parties to provide voluntary disclosure. This really means obtaining evidence to show how much all the assets are worth. Pensions form part of this process and we will generally request that you try and obtain a ‘transfer value’.

What is a transfer value and how is it used?

A transfer value is a calculation of how much the pension pot is worth on the date it is valued. You might get an annual statement every year which will give you an indication of how much the pension will pay out when you start drawing on it, but for divorce purposes we need to know how much the pension is worth as a whole. Most people will now have a pension in light of the auto-enrolment provisions, even though these new pensions tend to have quite a low value at the moment.

Will I lose my pension as part of a divorce?

Not always, but it will depend on a number of different factors. We will look at pensions with you as part of the divorce process and discuss all the different options available when looking at all the assets involved in your case.

We offer specialist legal advice on pensions and all of your other assets on separation and divorce. If you would like to discuss your case with us, please contact a member of our family team on 01325 281111.

Cash Is King – Debt Recovery for Business following Bathstore Going Down The Drain by Karl Medd

Why Keeping Your Debtors in Check is Vital for Your Business

 

When the specialist retailer Bathstore collapsed last month, 500 shopfloor and head office jobs were put at risk together with up to 300 bathroom fitters, suppliers and small businesses  paying a price. An article in the Guardian on The collapse of Bathstore makes a clear point, as do the case studies set out within it, that these are challenging times for businesses in all sectors. It does feel like there have been so many stories within the media regarding the precarious finances of some of the UK’s biggest businesses including Debenhams and Arcadia Group to name but two.

The difficulties of big business and the wider economy can also have a significant trickle down effect upon small and medium sized businesses, which are referred to in business jargon as “SMEs”. The article lays bare the effect that the failure of large business can have upon SMEs. One large contract or transaction can make, or break, an SME.

For the sake of impartiality, we have so far not mentioned Brexit, but this is clearly a matter of ongoing financial concern for business.

It is not just the financial fortunes of Big Business which can impact upon SMEs, as small and medium sized businesses very often work and trade with each other and therefore the livelihoods of all of employees are likely dependent upon receipt of payment, or contractual provision of goods and services, promptly.

Cash flow is extremely important for SMEs. In fact even law firms are not immune to the financial pressures of cash flow and bad debt. There is a well rehearsed adage in business and accounting circles which sums up the position neatly: “Turnover is vanity, Profit is sanity, but Cash is king.”

Reality can be extremely harsh if your business is struggling to recover bad debts which are impacting upon the financial health of your business.

At Clark Willis Law Firm, our Civil Litigation team are experienced in pursuing recovery of trade or commercial debts on behalf of individuals and SMEs and we act for some well-known business in the town to assist with their debt recovery. We can also provide practical advice and information as to your legal position should your debtor become insolvent, be it liquidation, Administration or a Voluntary Arrangement. So before outstanding invoices start having a detrimental impact on your business call our team on 01325 281111 to discuss ways we can help you.

First Time Buyer’s Guide to the Conveyancing Process by Jane Mafham-Jackson, Solicitor

We know how daunting it can be to buy your first home, but it is important that you understand the process involved so you can stay in control.

Step 1 – Offer Accepted

Once you have had your offer on a property accepted, you will be required to provide your solicitor’s details to the selling agents. For a no obligation quotation, please contact the Darlington office on 01325 281111 or the Catterick office on 01748 830000 or use our online quotation tool at www.clarkwillis.co.uk.

Step 2 – Instruct Your Solicitor

Once you have decided on your chosen firm of solicitors, they will send you some initial client care paperwork for you to complete and return. This will normally include a questionnaire, firm’s terms, information in respect of stamp duty, proof of funds and ID. You will need to complete and return all documents in order to instruct the firm. An upfront payment will also be required which will be around £250.00 for disbursements such as your searches and ID checks.

Step 3 – Contracts Received

Once the contracts and protocol documents are received from the seller’s solicitors, your searches can be requested. It will be a condition of your mortgage offer that searches are carried out on the property before funds can be requested. The searches include a local authority search (which we request direct from the relevant local authority) a water and drainage search, an environmental search and, in some circumstances, a coal search. At this stage the contract documents will be checked and any enquires will be raised with the seller’s solicitors. You will receive a report on title of the property which you are purchasing.

Step 4 – Mortgage & Survey

Once the solicitor’s offer of mortgage arrives, this will need to be checked to ensure the same is in line with the contract, we will also need to check whether there are any specific mortgage conditions within the offer. A mortgage report will be provided. The mortgage valuation is not a survey and can only be relied upon by your lender. You may wish to instruct an independent surveyor who will advise you on the different types of reports available.

Step 5 – Providing the Information

Once we have replies to the enquires raised at Step 3 and your search results, we will be in a position to provide you with all the necessary information about the property.

Step 6 – Signing Documents & Deposit

Once all enquires are satisfactorily responded to and search results are clear, the contracts will be issued to you for signature. You may attend the office or the documents can be posted or collected by you. You will be asked to sign a contract, transfer, mortgage deed, confirmation form, file plan and stamp duty form. You will also be provided with a completion statement which details all receipts and payments that need to be made on your transaction. We would require the deposit/balance funds from you in a cleared format together with confirmation of the source of the funds and up to date bank statements.

Step 7 – Exchange of Contracts

At this point you must be sure that you are happy to purchase the property. Once contracts are exchanged the completion date will become legally binding. There are penalties if you change your mind and wish to withdraw. Upon exchange of contracts a fixed date is inserted into the contract. There is no set time frame between exchange and completion. Some people wish to book removals or hand in a notice on a rental property so will require a period of time between exchange and completion.

Step 8 – Completion Day

This is the day in which the funds are sent to the seller’s solicitor and upon receipt, subject to the agreement of time, keys will be released to you. These are normally collected from the selling agents.

 

If you are ready to take the first step, contact us for a no obligation quotation on 01325 281111 (Darlington office) or 01748 830000 (Catterick office) or use our online quotation tool at www.clarkwillis.co.uk.

 

 

 

 

 

Enforcement of a Judgment by Beth Grimwood, Paralegal

If you are owed money by an individual, the law provides that you can take action in trying to recover that debt by firstly issuing a claim and thereafter obtaining Judgment. The Judgment allows the Court to order that the debtor must repay all monies owed and if no response is received from the debtor, the Judgment can then be ‘enforced’ by a number of enforcement procedures that are available. These include:

Order for Debtor to Attend Court for Questioning

Whilst this enforcement method does not require the debtor to make a payment, an order is given that the debtor must attend court to answer formal questions focusing on their current income and expenditure and also whether a repayment plan can be proposed.

If a payment plan is proposed and accepted, the court can create a variation order detailing the agreement. If a plan is not put forth then the information obtained may allow you to enforce the debt through a different method.

Attachment of Earnings

If you have knowledge of the debtor’s employer then it is possible to do an application for an attachment of earnings. Here, a proportion of the debtor’s salary will be deducted by their employer each month until the Judgment debt is repaid. However, it must be noted that an Attachment of Earnings Order cannot be made against a debtor who is self-employed.

Charging Order

When enforcing a Judgment, a Charging Order can be secured against any property a debtor owns. If a property is jointly owned by the debtor, then a charge will be made on their share of the property, rather than the property as a whole. Unfortunately, however, a Charging Order does not guarantee immediate payment of the debt as payment is usually only received if the debtor re-mortgages or the property is sold.

If you are uncertain whether a debtor owns their property then it is possible to run a search of the land registry documents to see who the legal owner is.

High Court Enforcement

Here, an application is made for a High Court Writ which allows an enforcement officer to seize goods belonging to the debtor to the monetary value of the Judgment. Once goods have been seized, they can then be sold so that the debt is repaid. The High Court enforcement officers will also recover their fees from the debtor and so have the incentive to make sure their attendance at the debtor’s residence is successful. This method of enforcement is for debts of a higher monetary value.

County Court Bailiff

Much like the High Court Writ, an application can be made to the County Court to request that a bailiff attend a debtor’s property. Here a bailiff will also recover items to the value of the Judgment obtained. This service is for debts of a lower monetary value.

 

At Clark Willis we recognise that the prospect of any civil enforcement action may be daunting. We are here to support and represent you in your journey to recover what is rightfully yours. If you require advice or assistance in relation to a bad debt or enforcement matter then please contact our dedicated civil team to discuss your options on 01325 281111.

Road Traffic Accidents – The Importance of Identifying the “Unknown Driver” by Karl Medd, Chartered Legal Executive

The recent Supreme Court decision in Cameron v Liverpool Victoria Insurance Co Ltd provides a clear reminder of the need to obtain from the third party as much information as they are legally obliged to provide at the scene of the incident when involved in a road traffic accident.

The Court of Appeal had previously ruled that it was legitimate for a Claimant to issue proceedings against an unnamed/unknown driver and the motor insurer for the vehicle at the time of the incident. However, the insurance industry has successfully appealed the decision of the Court of Appeal and the Supreme Court held that an unknown motorist could not be sued by description only. The liability of the motor insurer is contingent upon a judgment being obtained against their policy holder. If the driver is unknown, the insurer for the vehicle cannot be held directly liable.

A degree of shock or inexperience can be common in the immediate aftermath of an accident and you may not have the presence of mind to ask for the necessary information. It is not uncommon for RTA claimants to be provided with scant information at the scene of the accident by the third party, perhaps a scrap of paper bearing only: “Name. NO00 REG”. 

Section 170 of the Road Traffic Act 1988 states that:

“The driver…must stop and, if required to do so by any person having reasonable grounds for so requiring, give his name and address and also the name and address of the owner and the identification marks of the vehicle

Some people are naturally apprehensive in giving their name and address to a perfect stranger, however, if you have suffered damage to your vehicle and/or personal injuries, you have reasonable grounds for requesting the information specified within the Act.

If the third party refuses to provide the information set out above and within the Road Traffic Act 1988, I would recommend that you report the incident to the Police immediately; take a note of the registration number and a description of the driver, if possible, in the event that the Police are unable to attend the scene or the third party should leave the scene without providing any information.  I would not recommend attempting to take photographs or video footage of the third party in the event that the situation does begin to turn ugly!

If it is not possible to trace the third party and the insurer for the vehicle will not consider the claim, it is possible that you could be compensated for your injuries by the Motor Insurers Bureau (MIB) pursuant to the Untraced Drivers Agreement. In order to pursue this avenue, however, it is essential that you demonstrate that reasonable efforts have been made to trace the unknown driver.

If you have been involved in a road traffic accident, that was not your fault, and need advice, contact our dedicated team on 01325 281111.

The Mental Health Tribunal. A blog by Peter Furness, Solicitor

 

To whom does this apply?

Patients who are detained in hospital under the Mental Health Act or subject to a Community Treatment Order (CTO) are entitled from time to time to apply to The Mental Health Tribunal to be discharged. This applies whether or not the patient is being assessed for a short period of time in hospital or indeed is being detained for treatment for a longer period of time. Patients who are on a CTO are liable to be recalled to hospital, if for example there is non-compliance with medication. In all of these cases, patients have the right to be discharged from the Section even if they wish to voluntarily remain in hospital, or indeed voluntarily take medication.

When are patients allowed to apply to The Mental Health Tribunal?

This all depends on the type of Section. Detention for assessment can only last 28 days and therefore any application to the Tribunal has to be made within that time limit. Detention in a hospital for treatment generally means that within the first six months of the detention the patient has the right to apply to a Mental Health Tribunal and thereafter once in the next six months, followed by once every twelve months. If the patient is subject to a CTO they basically have the same rights to apply to a Tribunal, as those detained in hospital for treatment.

What is The Mental Health Tribunal?

The Tribunal is not connected to the hospital and consists of a Judge, an independent Tribunal doctor and a specialist member who often has a social worker or mental health background. The Tribunal is a very informal setting and every patient who appears before the Tribunal is entitled to legal representation covered by Legal Aid regardless of financial circumstances.

During the Tribunal, evidence is heard from the hospital psychiatrist, the hospital nursing staff and the patient’s social worker and of course the patient is allowed to give evidence himself/herself. The patient is allowed to ask questions of the various experts either by himself/herself or through his/her legal representative. Members of the Tribunal may also ask questions. At the end of all of the evidence being heard, the Tribunal will decide in general terms, whether the Section should remain in place, or whether the patient should be discharged.

How can we help you?

Only specialist accredited lawyers are entitled to appear on behalf of patients at a tribunal. This firm has a mental health department headed by Peter Furness who is an accredited mental health specialist and as such, we are able to assist in Tribunal applications and representations at the Tribunal itself. For more information please contact our dedicated team on 01325 281111.

Does Divorce Bring to an End All Financial Claims of a Marriage? By Katie-lee Pearson, Solicitor

 

Going through a divorce can be one of the most difficult and stressful times of someone’s life. We have found in our work that there are a lot of common misconceptions about the divorce process, including whether or not the divorce brings to an end both spouses’ financial claims.

 

What is a Decree Absolute?

The Decree Absolute is the final Decree within divorce proceedings, which actually dissolves the marriage. Once this is granted, spouses are divorced.

Since April 2018, spouses have been able to obtain a divorce online.  The Ministry of Justice do not intend that the online service will replace the existing paper-based application at present, but suggest that the online service provides a quicker, easier service.

However, in attempting to simplify the divorce process, without legal advice from a solicitor, many applicants may be unaware that their spouses may be able to make a financial claim at any time in the future.

There is no time limit on when a spouse can issue a financial claim. Spouses are able to bring financial claims years after separation or divorce. It is a common misconception that Decree Absolute of divorce brings all matters to an end.

There are various ways for financial issues of the marriage to be resolved:

  • Agreement between spouses;
  • Agreement reached through solicitors correspondence;
  • Agreement reached through mediation;
  • Agreement reached using collaborative law;
  • Issuing court proceedings.

 

How can a spouse protect their financial position in the future?

Even if spouses have agreed on the division of finances, unless the agreement has been approved by the Courts, either spouse could make a claim for resolution of financial matters in the future.

The only way to avoid a claim in the future, is to obtain a court order. If spouses have reached a financial agreement, the agreement should be recorded in a Consent Order which will need to be approved by the court. If parties do not have any current assets to divide, it is recommended that a Clean Break Order is submitted to the court for approval. A Clean Break Order would ensure that neither spouse can make a financial claim in the future, which is particularly important if one spouse’s wealth increases significantly post divorce.

 

What is the remarriage trap?

If a person re-marries, they cannot make an application to the court for financial relief. This means a person may lose all their financial claims of the marriage. It will depend on what you have put in your divorce petition and whether you were the petitioner or respondent as to whether you fall into this trap.

 

If you would like to discuss any aspect of divorce or financial matters and need advice from a solicitor, please contact our dedicated family team on 01325 281111.

Leasehold Property – Soaring Ground Rents by Diane Hall, Solicitor

In England and Wales properties are mainly split into freehold and leasehold. A freehold property is owned outright and not limited to a set number of years. A leasehold property is subject to a lease and managed by a freeholder or a management company appointed on the freeholder’s behalf. The key features being the length of ownership set for a number of years and the leaseholder being obligated to comply with the terms of the lease which frequently includes payment of ground rent and insurance rent to the freeholder and payment of a service charge for the provision of communal facilities.

Whilst only 20% of all properties in England and Wales are leasehold, this is a growing sector as 46% of properties in new build developments are likely to be sold as leasehold. This is not only in relation to flats but houses are often sold as leasehold with the freehold title being retained by the developer and sometimes sold to an investment company in order to obtain additional profit. This issue has been in the news over the last year with coverage featuring in the political manifestos of the main parties and even in the Queen’s speech.

Historically ground rent has been a nominal figure (often called a “peppercorn” rent) or a fairly low sum paid to the freeholder on an annual basis. However, the amount of ground rent has now escalated to an average of between £300 and £1500 per year and can include lease clauses requiring the ground rent to be periodically increased so whilst the ground rent can start off in the hundreds, after 20 or 30 years it will most likely be in the thousands.

Mortgage lenders’ guidance is that lease terms should only be accepted if the increase is fixed or can be readily established and the amount is reasonable. Some lenders impose a requirement that the ground rent will not be increased any sooner than every 25 years. The effect of this is that not all lenders are willing to lend on leasehold property.

The government published a paper in December 2017 entitled Tackling Unfair Practices in the Leasehold Market which describes the system as feudal and unjustified. The Secretary of State for Communities, James Brokenshire stated “unfair ground rents can turn a homeowners dream into a nightmare by hitting them in the back pocket and making their property harder to sell”.

A government consultation into leasehold reform has been underway and we expect to see a report published in Spring 2019 followed by new legislation as early as 2020. The consensus is that legislation will be introduced to significantly reduce the number of new build houses being sold as freehold and new leaseholds will only be created where essential, such as with shared ownership schemes. In addition the government propose to cap ground rent to a nominal sum of £10 per year for all new leasehold property. Although the tide is turning on the leasehold property market, these proposals will not have any impact on existing leasehold property.

We recommend that you instruct an expert conveyancing solicitor to advise you thoroughly with your leasehold property purchase. As part of our service we will:

  • Provide you with a full copy of the lease.
  • Obtain the seller’s replies to a Leasehold Information Form including copies of ground rent receipts, service charge accounts and insurance details.
  • Obtain contact details for the landlord and management company.
  • Advise you on what further information is needed from the landlord or management company.

 

If you need advice from a solicitor, contact our conveyancing team on 01325 281111 (Darlington) or 01748 830000 (Catterick).

What Should You Do If You Receive a Letter Before Proceedings From The Local Authority In Relation To Your Children? by Philip Duffy, Solicitor

 

I am told that the local authority want to arrange a legal meeting in relation to my children as part of the Public Law outline and are to send a letter before proceedings. What does this mean?

The local authority have legal responsibilities to ensure that children are not at risk of significant harm. Attempts will be made to work with parents and the family to avoid the local authority having to make an application to the court for orders that could determine where the children live and the future plans for the children. In many cases the local authority will try to avoid decisions being made by a judge and instead by parents or those with parental responsibility working together with the children’s social worker. The local authority will provide a formal letter identifying their concerns and also what steps need to be taken to avoid the local authority feeling compelled to make an application to court for a care or supervision order.

What should I do?

You should contact a solicitor preferably a solicitor who has experience in these sort of cases. Many solicitors have an accreditation from the Law Society. If you have a copy of the letter before proceedings bring it with you to your appointment. There is a type of legal aid known as Public Law legal help that is regarded as a non-means non-merits legal aid i.e. as long as you are the parent named in the letter then you would get legal aid regardless of your financial circumstances.

Strictly speaking there is a merits consideration as the solicitor would need to be able to justify that the client requires advice and assistance with a view to avoiding proceedings or narrowing and resolving any issues with the local authority.

What happens next?

You will need to explain your views in response to the local authority concerns and hopefully acknowledge any valid concerns. It is likely that there will be a meeting attended by you, your solicitor, the social worker and the local authority legal representative to see whether there is an acknowledgement of the concerns, whether matters can be put right and the position to be maintained. If so court proceedings can be avoided and hopefully the best outcome reached in relation to the children.

This does not stop the local authority from issuing care proceedings.

Please note that this sort of legal meeting is different to other types of meetings such as a case conference or looked after review and so the type of involvement from the local authority needs to be clearly identified beforehand.

If you receive a letter like this or have involvement with social services and need advice from a solicitor, contact our family team on 01325 281111.

 

Are You Entitled to a Refund of Fees? by Miranda Richardson, Solicitor

Are You Entitled to a Refund of Fees?

It is not often that a Government department offers a refund of fees but anyone who has been charged more than was necessary to apply to register Lasting Powers of Attorney (LPAs) or Enduring Powers of Attorney (EPAs) in England and Wales between 1st April 2013 and 31st March 2017 is able to apply for a refund of the overpaid amount.

The refund scheme is run by the Office of the Public Guardian and the claim can be made by either the donor (the person who made the power of attorney) or the attorney, but must be made by 31st January 2021. Full details can be found at https://www.gov.uk/power-of-attorney-refund

The refund is paid to the donor’s bank account and depends on when the fees were paid. The following table shows the amount which will be refunded. Interest at 0.5% will also be added.

Date fee paid Refund for each Power of Attorney

April to September 2013 £54

October 2013 to March 2014 £34

April 2014 to March 2015 £37

April 2015 to March 2016 £38

April 2016 to March 2017 £45

If the donor made both types of LPA (Financial Decisions and Health and Welfare Issues) then two refunds can be claimed (although you only need to make one claim). It takes up to 12 weeks for the claim to be processed and, if approved, the refund will be paid to the donor’s bank account.

If the donor was eligible for a fee remission when the power of attorney was registered (for example, because the donor was on a low income) one half of the figure shown above will be refunded.

The claim is made online unless:

(a) the donor (the person who made the LPA or EPA) does not have a UK bank account, or
(b) you are a court appointed Deputy for someone who previously had a registered LPA or EPA or
(c) you have a trust organisation as the attorney (eg a Bank)

If any of the above applies, the claim must be made by phone. The Refunds Helpline is 0300 456 0300 (choose option 6).

What if the donor has died?

The Executor or Administrator of the estate of the donor can claim a refund of overpaid fees on behalf of the deceased donor but it will be necessary to send in photocopies of the Death Certificate and the Will or Grant of Letters of Administration. These documents can be emailed to poarefunds@justice.gsi.gov.uk or posted to POA Refunds Team, 7th Floor, Office of the Public Guardian, P O Box 16185 Birmingham B2 2WH. You should also supply your name, contact phone number, address, email address, the donor’s name and case reference number (this can be found on the LPA). When the Refunds Team has received all the required information, they will phone the Executor or Administrator to complete the refund.

If you would like to discuss a possible claim for a refund or need advice about making an LPA for Financial Decisions or Health and Welfare Issues please contact Miranda Richardson on 01325 281111.