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Entries in Family Law (35)

Wednesday
Nov212018

Farming Divorces and how not to lose the Farm

Farmers often do not get the credit they deserve. They grow the crops and raise the livestock that feed us all. Most of the farmers we meet work long hours, are exposed to the elements, and have reducing margins. Added to which, many farmers are custodians of land passed to them through the generations. They carry a heavy burden of responsibility.

Recent cases have highlighted the risk that a Divorce presents to family wealth for dynastic farming families. Although courts can take account of the source of the wealth, it is able to make awards that invade non-matrimonial assets. Divorces involving family farms are often complex and it is important that you seek advice from professionals experienced in this area.  

Decisions made concerning the farm’s succession plan, development or structure, during or before marriage, can have significant (and often unforeseen at the time) negative consequences in a Divorce. We regularly provide farming families with advice that draws upon our specialist Private Client and Family Law teams to ensure that families fully appreciate and understand the wider effects of any decisions made by them concerning the family farm structure. 

Here are six points to consider:

  1. Transferring land into joint names: often for perfectly sound estate planning reasons farmers are encouraged by professional advisers to transfer land or property assets to their adult children or to extended family. Please note however that these assets (once transferred) are then arguably ‘matrimonial’ in nature and therefore subject to the sharing principle in Divorce.
  2. Pre-nuptial agreements: pre-nuptial agreements can seek to protect the dynastic farm from claims in Divorce. The current custodians are often best placed to insist that their child or family member enter into a nuptial agreement to protect family assets.
  3. Making your spouse a Shareholder of a Limited Company or a Partner within a Partnership: for tax reasons you may be advised to appoint a spouse as a Shareholder or Partner in the family farm. Once that party has been given an interest in the business this may mean buying back their share or interest in any Divorce negotiations.  
  4. Wills: it is essential that you make a Will, and review this throughout your lifetime, in order to ensure that your estate passes to your chosen beneficiaries in the event of death.  Failure to have a Will means that your estate will pass in accordance with the rules on Intestacy and can lead to additional costs and delay in administering the estate.  Within your Will you can name your executor and trustee.  You can also consider succession planning for tax purposes and make reasonable financial provision for your dependents.
  5. Keep Records: having a record of how you acquired an asset and the contributions you have made prior to, and during, the marriage can assist with supporting or resisting any financial claims in a Divorce.
  6. Get Advice:  in the event of an impending Divorce or separation, it is imperative that early professional advice is sought before any assets are distributed as part of a financial settlement.  In these circumstances, we commonly liaise with other trusted advisors including accountants, land agents and financial advisors.

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.

If you require any further advice regarding a Divorce or separation involving farming assets then please contact Emily Woodhouse (emilywoodhouse@greene-greene.com or 01284 717459).

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

This article was first published in the EADT Rural Review - 29th September.

Thursday
Nov082018

Blended family (What you do for love)

Alicia Keys’ 2016 song Blended Family (What you do for love) includes the line “It may not be easy this blended family…but that’s what you do for love”.

Blended families are increasingly common. With approximately 42% of marriages ending in divorce there are now many families that feature step-parents. Statistics suggest that 1 in 2 divorced parents go on to re-marry or re-partner. They may then have further children with that partner.

Modern families may be evolving, but the law is not always as responsive.

One of the key considerations for family lawyers when dealing with children issues is whether a person has parental responsibility for a child. It is important to remember that not all parents have parental responsibility and it is also possible for step-parents or other family members or, in some cases friends, to acquire it.

What is parental responsibility and why is it important?

The Children Act 1989 describes parental responsibility as all rights, duties, powers and responsibilities and authority that a parent has in relation to a child and that child’s property.

Essentially parental responsibility gives the holder the right to a say in major decisions in a child’s life such as consenting to medical treatment on their behalf and making decisions about schooling.

Parental responsibility can be acquired in a number of ways:

  1. A child’s biological mother will always have parental responsibility;
  2. A child’s biological father will obtain parental responsibility if he is:
    • Married to the mother at the time of the child’s birth or they later marry;
    • They enter into a parental responsibility agreement or the court makes a parental responsibility order or a child arrangements order providing for the child to live with the father;
    • The father is registered on the child’s birth certificate as being the child’s father (for all births registered on or after 1st December 2003)
  3. Another family member or friend can obtain parental responsibility by:
    • The court making a child arrangements order in their favour that the child live with them;
    • By being appointed as guardian for the child in a biological parent’s Will (provided there is no other surviving person with parental responsibility)
  4. A step parent can obtain parental responsibility by:
    • Entering into a step-parent parental responsibility agreement with all parents that hold parental responsibility;
    • In the ways outlined above for other family members and friends.

In many blended families step-parents may look after step-children day to day perhaps alongside their biological children of the relationship. They may well consider and treat their step-children no differently from their biological children, but from a legal perspective there are important differences.

Unless a step-parent has acquired parental responsibility they will not have the right to have a say in major decisions such as medical treatment and schooling. Doctors and schools may be unable to share information with a step-parent. This can also lead to significant issues if a step-parent wishes to travel abroad with their step-child without a biological parent being present.

In some families one of the biological parents may not have played an active role in their child’s life for a number of years.

The situation can be complicated and it is important to take specialist advice to understand your own situation.

At Greene and Greene, Melanie Pilmer, solicitor in our family department can provide you with specialist advice when you make your Will with us or at any stage can talk through the various options available to you if this is an area that is causing you concerning. Please contact Melanie on 01284 717418 or melaniepilmer@greene-greene.com.

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

Part 1 of 2.

Wednesday
May162018

Stand by your man?

  1. The Respondent prioritised his work over home life and was often inflexible in making time available for the family, regularly missing family holidays and events.
  2. The Respondent did not provide the Petitioner with love, attention or affection and was not supporting of her role as a homemaker and mother.
  3. The Respondent suffered from mood swings, which caused frequent arguments.
  4. The Respondent was unpleasant and disparaging about the Petitioner, both to her and their family and friends.

Are these examples of one person behaving in such a way that the other cannot reasonably be expected to continue living with them?

Until the case of Owens v Owens, first heard in 2016, most divorce lawyers would have said this was sufficient.

English law does not recognise so called “no fault divorce” until parties have been separated for 2 years and only then if they both consent. Otherwise, it is necessary to wait for 5 years to divorce without blaming the other party.

Often one party has to rely upon the other party’s unreasonable behaviour in order to begin divorce proceedings straightaway.

English family lawyers have for many years advised their clients to draft allegations of unreasonable behaviour as mildly as possible so as to avoid creating further animosity, especially where there are children involved.

Mr Owens objected to his wife’s divorce petition based upon his unreasonable behaviour and maintained that the marriage had not irretrievably broken down. At the initial hearing the Judge agreed with Mr Owens. He held that the allegations made by the wife were “at best flimsy” and they were “all at most minor altercations of a kind to be expected in a marriage”.

Mrs Owens appealed arguing, amongst other reasons, that the Judge’s decision was wrong as he had failed to assess her subjective view of the husband’s behaviour and the cumulative effect upon her of that behaviour.

The case came before the Court of Appeal in 2017. The appeal was unsuccessful. The Judges, however, made clear their dissatisfaction with the current legal position. In the words of Lady Justice Hallett: “try as I might, I cannot find a legitimate basis for challenging the judge’s conclusions”.  She continued: “I very much regret that our decision will leave the wife in a very unhappy situation…On any view, the marriage is over”.

Mrs Owens’ appeal from this decision will be heard by the Supreme Court on 17th May 2018. 

Resolution, an organisation representing 6,500 solicitors and other professionals involved with family law issues, has been given permission to intervene in the appeal before the Supreme Court to raise further support for making no fault divorce available to divorcing couples.

The results of a study by Professor Liz Trinder at the University of Exeter, which was funded by The Nuffield Foundation, found that divorce petitions are often not accurate descriptions of why a marriage breaks down. In addition, the use of fault may trigger, or exacerbate, parental conflict, which has a negative impact upon children. The study also found no support for the common argument that allocating fault may help to protect marriages because having to give a reason makes people think twice about separating.

All members of the family team at Greene & Greene are Resolution members and support the introduction of no fault divorce.

It remains to be seen whether Mrs Owens will be successful in her appeal, but either way the case will create further publicity and put pressure on the Government to consider the introduction of “no fault divorce”.

For further advice following a relationship breakdown please contact Melanie Pilmer, solicitor in the Family Team at Greene & Greene on 01284 717418 or melaniepilmer@greene-greene.com.

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

Friday
Jan192018

Introducing Stuart Hughes as our new Managing Partner

We are pleased to announced the appointment of Stuart Hughes as our new Managing Partner, in the 125th year of the firm.

Stuart joined Greene & Greene in July 2012 and is a specialist family lawyer and Head of the Family & Matrimonial Department. Stuart has over 20 years of experience specialising in Family Law and is well regarded for his ability to handle all aspects of relationship breakdown, divorce, separation, finances and disputes concerning children. He is an accredited Family Law specialist, member of Resolution, Mediator and Collaborative Lawyer.

“I am very much looking forward to my additional role at Greene & Greene and would like to thank Simon Ratcliffe, who has done an excellent job as Managing Partner for the past three years. Thanks also to my fellow partners for their support and their vote of confidence.  We have just begun our 125th anniversary celebrations, having originally been established in Bury St Edmunds in 1893, and the team of 80 lawyers and support staff have big plans for the year ahead.  This is an exciting time for the whole firm.”

Simon Ratcliffe, will continue in his role as the Head of Greene & Greene’s leading Company Commercial team, specialising in the acquisition, disposal and reorganisation of businesses.  The team advised upon transactions with a total aggregate value of circa £1bn during 2017.

For further information please telephone Jools Windermere on 01284 717430, visit www.greene-greene.com and follow @greenegreenelaw.

Thursday
Jul272017

Marriage: A Partnership of Equals?

 

In 2006, the House of Lords introduced the equal sharing principle in the joint appeal of Miller -v- Miller and MacFarlane -v- MacFarlane.  The Court described marriage as being a “partnership of equals”

Earlier this year, the Court of Appeal decision in  Work -v- Gray referred to the sharing principle as being “firmly embedded” and confirmed that the “ordinary consequence of its application will be the equal division of matrimonial property”.

However, in the recent case of Sharp -v- Sharp, the Court of Appeal decided that perhaps this was taking the sharing principle too far.  Mr and Mrs Sharp were in their early 40s and had no children.  Their relationship, including 18 months of living together before their marriage, lasted 6 years.

Mrs Sharp argued that the sharing principle should be relaxed in respect of their matrimonial assets. This was because  of their short, childless, dual career marriage and the way in which they had organised their financial affairs.

Throughout their relationship and marriage, Mr and Mrs Sharp shared household utility bills and divided restaurant bills equally. Mr Sharp had not been aware of bonuses received by Mrs Sharp and she had gifted him three cars.

The Court of Appeal agreed with Mrs Sharp that this situation fell within the realms of a very small amount of cases where it was appropriate for the equal sharing principle to be disregarded for their matrimonial assets.

The Court has always had the ability to exclude or depart from equal sharing of non-matrimonial assets, such as those owned by one party before the marriage or received by inheritance or gift, the general approach has been that matrimonial assets would be shared, and where they were sufficient to meet each parties’ needs, those matrimonial assets would be shared equally.

It appears that following the outcome of this case,  Courts will look more closely at how couples have organised their financial affairs in short to medium term marriages.  In a limited number of cases,  the way in which couples organise  their finances may influence the outcome of financial aspects of their divorce.

To misquote George Orwell, this may lead to an assumption that all marriages are equal, but some marriages are more equal than others.

For further advice following a relationship breakdown please contact Melanie Pilmer, solicitor in the Family Team at Greene & Greene on 01284 717 418 or melaniepilmer@greene-greene.com.

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

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.