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Entries in Divorce and Separation (24)

Wednesday
Apr192017

The hidden cost of Divorce

If you are separating, issues about tax may not be high on your list of concerns.  Your priority may be whether you can keep your home or, if your home is to be sold, whether you will have enough money to buy somewhere else. However, tax issues could have a significant effect upon your assets and should not be ignored.

Capital Gains Tax

This can be an issue, particularly if you have a number of properties.  We frequently see couples who wish to wait until they have been separated for two years before divorcing.  That can of course be an amicable way of dissolving the marriage, but you need to be aware of potential tax pitfalls.

Transfers between husbands and wives in the tax year of separation can happen on a “no gain no loss” basis, meaning there will be no Capital Gains Tax payable.  This may be difficult to achieve if your separation occurs close to the end of the tax year. 

If transfers of properties, other than the former matrimonial home, do not take place within the tax year of separation then Capital Gains Tax may be payable by the person disposing of their interest to their spouse.  This could lead to a considerable reduction in the assets available to be divided between you.

In relation to the matrimonial home, Main Residence Relief may be available if one party transfers their share to the other, but the disposal must take place within 18 months of the property ceasing to be the other party’s main residence. After that time there are further restrictions if the transfer is to avoid a charge to Capital Gains Tax.

Stamp Duty Land Tax

Once again, there can be issues that you may not have considered, particularly if you intend to wait for a period of time before divorcing.

For example, a couple may separate and the wife may remain living in the matrimonial home, perhaps with the children.  The husband may be in a position to buy his own property and want to do so, rather than paying rent until the time that financial matters are finally resolved.

The husband needs to be aware that he would be acquiring a second property and the purchase of that property is likely to be subject to an additional 3% Stamp Duty Land Tax charge.  On the purchase of a property for £500,000 this would result in Stamp Duty Land Tax of £30,000 rather than £15,000 that would have been payable if the additional charge had not arisen.

It may be possible to reclaim that additional tax payment if that property then becomes the buyer’s main residence within a 3 year period.  However, as can be seen, it will cause a significant increase to the up-front costs involved.

You also need to be aware that a Stamp Duty Land Tax charge applies to owning more than one property whether those properties are located in the UK or worldwide.  Any holiday home owned by you may also cause difficulties.

If you require any further advice regarding divorce or separation please contact Stuart Hughes (stuarthughes@greene-greene.com or call direct on 01284-717493)

The Family Law Department has considerable experience in dealing with cases involving tax issues and are assisted by specialist tax Solicitor Natalie Stoter (nataliestoter@greene-greene.com 01284- 717462)

For more information on the services offered by Greene & Greene Solicitors please visit www.greene-greene.com and follow on Twitter @GreeneGreeneLaw.

Monday
Jan162017

Top Tips on Separation

The breakdown of a relationship is never easy, especially from a legal point of view. If you are thinking about separating from your partner, our “top tips” can help make the process a little less stressful…

Sort out your finances

Money can cause all sorts of problems during a relationship, let alone after separation. Get your finances in order early on to avoid unnecessary angst.  

If you have joint bank accounts or credit cards consider whether these should be closed or cancelled. If you intend to keep using them you will need to agree how much money can be spent and who will be responsible for paying any debt. You should also consider restricting any overdraft facilities.

If you have a more complicated financial situation it may be sensible to seek advice from an accountant. They can provide advice on tax consequences following the transfer of property or company assets.

Consider the needs of the children

Arrangements for child care including when and where the children will spend time with each parent should be discussed and agreed particularly if you are about to separate..

You will need to consider how joint decisions about children will be made in the future. A parenting plan could be drawn up (see www.splittingup-putkidsfirst.org.uk).   This can be as detailed as required and can also include issues such as how and when the children would be introduced to any new partners. 

Ideally the amount and frequency of Child Support payments should be agreed as in default an application to the CMS for a Child Maintenance Service assessment may be necessary.  If there are no children or if Child Support payments are insufficient to cover one party’s financial needs then thought should be given to any additional support that may be needed by way of Interim Spousal Maintenance. 

Think about getting help

A lot of people are reluctant to consider getting help, but counselling can often be very helpful in coping with the stress of relationship breakdown.

If you think it could help to try and get the relationship back on track thought should be given seeing a marriage counsellor. If the relationship is at an end then a family therapist, family consultant or counsellor could help work through issues surrounding the separation and communication.

Work out sensible living arrangements

Will both parties still be living in the house together?  Sometimes this will be a necessity.  Consider any practical steps that can be taken to make this easier.  Alternatively, if one person intends to leave then who will that be and where will they go?  Importantly, consider how two households would be funded.

Update your Wills

Consider whether the terms of your will are still applicable post-separation. You may want to remove certain beneficiaries. You should also consider whether any death in service benefits under any pension provision need to be amended.

Seek legal advice early on

We deal with things like this every day and have considerable experience in these matters. We are committed to providing constructive dispute resolution options and sensible advice. Seeking legal advice early on can help avoid problems down the line.

If you require any advice about separation contact Melanie Pilmer (melaniepilmer@greene-greene.com, telephone 01284 717418) or another member of the Family Team at Greene & Greene for an initial discussion.   For more information on the services offered by Greene & Greene please visit www.greene-greene.com and follow Twitter @GreeneGreeneLaw.

Friday
Nov042016

Divorce and the Farming Family

 

 The damaging effects of divorce are often felt more acutely in cases involving farming families: especially so where the farm has been held within one family for generations.

Often farming businesses will involve Partnership or Corporate Structures, land may be co-owned with extended family, land ownership may be within or outside of business structures and various land or property assets may also be held in Trust.  These can all complicate matters.

Typical questions that arise are:

  • How can the assets be divided fairly where a farm has been passed dynastically to one spouse through the generations?
  • What weight will the court apply to the financial and non-financial contributions of the non-owning spouse?
  • Will the court force a sale or transfer of land and property?  

The court’s approach can be unlike other cases and present unique challenges.

The court is tasked with arriving at a fair outcome and must meet the parties’ (and any dependent children’s) reasonable needs. In doing so the court will consider whether the farming family intended that the farm should be passed down through the generations. The court will have to consider whether the farming family can and should retain the farm (in so as far as that is possible) even if that means an overall unequal division of assets. Numerous other factors including the standard of living enjoyed by the parties during the marriage can also be taken into account. 

Funding a settlement may require finance to be raised against the retained farm. Land may need to be sold in order to retain the majority of the farm to pass on to future generations.  Many farming businesses experience cash flow and liquidity issues which can make it difficult (or impossible) for income generated from the farm to satisfactorily meet the needs of two separate households following separation.  

The Family team at Greene & Greene has a wealth of experience and a proven track record of success in farming cases. The team is also able to call upon specialists in the Agricultural Property and Estate Planning teams to deliver creative and bespoke solutions.

Divorces involving family farms are often complex and it is important that if you find yourself in this position you seek the assistance of a lawyer experienced in this area. 

If you require any further advice regarding a divorce involving farm assets then please contact Stuart Hughes (stuarthughes@greene-greene.com or 01284-717493) or Melanie Pilmer (melaniepilmer@greene-greene.com or 01284-717418) who will be pleased to assist you.  For more information on Greene & Greene please visit www.greene-greene.com or follow @greenegreenelaw on Twitter.

 

(Editorial first published in East Anglian Daily Times Rural Review, September 2016)

 

Thursday
Apr212016

2016: Year of the Prenup

The Wedding season is almost upon us and we are told the average wedding now costs £20,500. 

The Family Team at Greene & Greene has seen a significant increase in couples seeking Prenuptial Agreements.  There are often practical reasons why having a Nuptial Agreement in place make sense, such as:

  1. if one or both of the couple already have property or other material assets; 
  2. if one or both of the couple have received or will receive inheritance;
  3. if one or both of the couple have been previously married and divorced and want to ensure wealth is passed to their children; and
  4. if younger couples are being encouraged to enter into a Nuptial Agreement by their parents to protect wealth within the family. 

As the law currently stands the court should follow a Prenuptial Agreement that is freely entered into by the couple with a full appreciation of its implications provided it is fundamentally fair.  Accordingly, anyone signing a Prenuptial Agreement should expect the court to hold them to its terms. 

Like an insurance policy, hopefully it is something that you will not need to refer to, but latest figures suggest that 42% of marriages end in divorce. 

It is best to plan a Prenuptial Agreement months in advance of the wedding.  However if you are near to the wedding date or you are already married it is not too late because it is possible to enter into a Postnuptial Agreement (one that is signed after the marriage).

For further advice on Nuptial Agreements please contact Melanie Pilmer a solicitor in the Greene & Greene Family Team on 01284 717 418 or melaniepilmer@greene-greene.com. To find out more about Greene & Greene please view www.greene-greene.com and follow @greenegreenelaw on Twitter.

Thursday
Feb182016

Family Court Error Could Be Costly

There have been reports in the press regarding a calculator error in a Court form that is used where a Financial Order is made in divorce, nullity, dissolution or judicial separation proceedings.  The Court Service has indicated that the error in “Form E” that is obtained online from the Court Service may have affected cases where forms were submitted to the Court between April 2011 and January 2012 and also April 2014 and December 2015.

Greene & Greene use a bespoke forms package so this error will not impact on cases where Greene & Greene have prepared Form E on behalf of a client.  We also check that the form calculates correctly before submitting it to Court.

If you feel that your case may have been impacted by the online Court form error (either because you or the other party used the form provided by the Court Service) you could potentially apply to the Court to vary all or part of the Financial Order or have it set aside and a new Court Order made.

If you require advice on whether or not your case is affected please do not hesitate to contact Juliet Harvey (julietharvey@greene-greene.com, telephone 01284 717448) or a member of the Family Team. For more updates from Greene & Greene please follow us on twitter @greenegreenelaw and LinkedIn at linkedin.com/company/greene-&-greene.

Thursday
Oct152015

Fraud and Non-Disclosure in Divorce: “Back to the Future?”

Marty McFly left 1985 and travelled to 2015 in the film Back to the Future 2.  What does this have to do with fraud and non-disclosure?  Well the Supreme Court also recently “travelled back to 1985”.

Judgment was handed down on 14 October 2015 in the conjoined appeals at the Supreme Court of the cases of Sharland v Sharland and Gohil v Gohil.  In both cases the Court of Appeal had declined to overturn previous decisions despite evidence of fraud and deliberate non-disclosure.

Mr and Mrs Sharland had reached an agreement during the final hearing in their case. Mrs Sharland then later discovered that Mr Sharland had been making arrangements to float his company on the New York Stock Exchange. This was despite Mr Sharland’s evidence to the Court that it was most unlikely a sale or floatation would happen in less than 3 years. Having discovered this information Mrs Sharland appealed. The Court of Appeal said that whilst Mr Sharland’s evidence was seriously misleading and dishonest the non-disclosure was not significant enough for the Court to have arrived at a different outcome.

The Supreme Court has allowed Mrs Sharland’s appeal and the case will return for a further hearing.  As a result of Mr Sharland’s non-disclosure the previous agreement does not stand and Mrs Sharland may yet receive further funds from her husband.

In arriving at its decision the Court repeated the position first established back in 1985 in a case Livesey (formerly Jenkins) v Jenkins that the duty remains with the disclosing party to provide full and frank disclosure to the Court.

Mr and Mrs Gohil settled their case and entered into a consent order. The order included a recital that Mrs Gohil believed her husband had not provided full and frank disclosure of his financial circumstances. Mr Gohil had disclosed he was in debt totaling £311,512, but he was later convicted for money laundering and fraud valued at over $57 million. The Supreme Court allowed Mrs Gohil’s appeal and returned her case for further hearing.

So the message is clear, if you lie about or misrepresent your assets and fail to make “full financial disclosure” then the Court may overturn an agreement reached. Non-disclosers beware!

The Family Team at Greene & Greene have a wealth of experience in advising in relation to the financial aspects of divorce and separation.  All members of the team are trained Collaborative Lawyers.  Greene & Greene also offer a Family Mediation Service and the team has significant experience in drafting Nuptial Agreements.  For further information contact Melanie Pilmer on 01284 717 418 or melaniepilmer@greene-greene.com.  To find out more about Greene & Greene go to www.greene-greene.com and follow @greenegreenelaw.