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Archive for the ‘Marriage’ Category

What is an Inheritance Act Claim?

Stuart Duncan

Stuart Duncan

Many people are under the misapprehension that the length and commitment of a relationship will grant rights akin to those in marriage. Stuart Duncan, a family lawyer with Charles Lucas & Marshall, explains why this is not actually the case and the options open to family and dependants who want to make an Inheritance Act claim.

Where an individual has died without making proper provision in their Will for their relatives or dependants, judges have a wide discretion to redistribute assets to produce a fair result.

The Inheritance (Provision for Family and Dependants) Act 1975 aims to make further financial provision for those who:

  • have not inherited as a result of intestacy (where there is no Will)
  • have been left out of a Will entirely
  • have not been left as much as they need

Only certain people are entitled to make an Inheritance Act claim. Broadly speaking, these are the immediate family of the deceased or their partner if they were living together as husband and wife (or as civil partners).

A surviving spouse or civil partner can apply for such financial provision as is reasonable in all the circumstances, whether or not that provision is required for his or her maintenance.

Everyone else is limited to such reasonable financial provision as is necessary for their maintenance, insofar as the estate can provide it.

The time limit for making a claim is usually six months from the date on which representation (Grant of Probate or Grant of Letters of Administration) is taken out and so it is very important to act quickly.

There has been an increase in recent years of Inheritance Act claims.

Earlier this year the court awarded Ms Joy Williams, a half share in her deceased partner’s house.  Ms Williams had lived with Mr Norman Martin, for nearly 20 years and they had bought a property together in Dorset in 2009.

The problem was that Mr Martin had never formally divorced from his wife, nor had made a Will leaving his share of the Dorset property to Ms Williams. Mr Martin’s share in the property automatically passed to Mrs Martin on his death.

Ms Williams made an Inheritance Act claim and the Judge found that Ms Williams and Mr Martin had in ‘all material aspects’ lived as husband and wife. He therefore decided that Ms Williams should be entitled to Mr Martin’s share of the property as well as her own share.

Whilst justice was done in the end, it would have been much less risky, expensive and time-consuming to clarify matters before Mr Martin died.

Many people are still under the misapprehension that the length and commitment of a relationship will grant rights akin to those in a marriage but this is not actually the case. If you are in a cohabiting relationship, then the best way to protect your partner is to enter into a living together agreement, hold your property as joint tenants, and/or ensure you make a Will, clearly setting out your wishes on death, in order to avoid the situation that Ms Williams found herself in.

If you are involved in a dispute over a Will or need advice on preparing one, it is important to get advice as soon as possible.

For further advice please contact Stuart Duncan on 01635 521212 or stuart.duncan@clmlaw.co.uk

Written by Stuart Duncan

September 27th, 2016 at 8:45 am

Getting Married? Consider Protecting Your Business With a Pre-Nuptial Agreement

Suzy Hamshaw, a family lawyer with Charles Lucas & Marshall, says that business owners planning to get married should give some thought as to how they may want to protect their business.

Suzy Hamshaw - Divorce Specialist, Family Law Expert and Financial Claims on Divorce

Suzy Hamshaw

As a business person you have worked hard and sacrificed time and money to build up a successful business. No doubt luck has played its part and you have taken some risks but not without managing and minimizing the risks as much as possible.

You may not think it at the time, but getting married is a financial risk to your business. Statistically you are more likely to divorce than to stay married for life.

The principle of the court, in divorce cases, is to divide assets including business assets, fairly between the couple, considering each party’s reasonable needs and the sharing of any wealth above that which fulfils those needs.

When dividing assets, the court will measure the end result against a benchmark 50/50 asset split to assess whether anything other than that is justified.

While the contributions of the parties can be a factor, the court will normally take the view that the role of the ‘homemaker’ is no less valuable than that of the ‘breadwinner.’

If you are considering getting married and have built up a successful business, you should consider a pre-nuptial agreement to protect your business in the unhappy event of a divorce so that no claim can be made on its value and/or a sharing of its income.

A pre-nuptial agreement is an agreement that parties reach before they are married which sets out basic rules in relation to the division of matrimonial property and can protect business assets against a claim in the event of a relationship breaking down.

If the marriage has already taken place you can still enter into an agreement, referred to as post-nuptial agreements and these are just as effective as a pre-nuptial agreement.

While pre-nuptial agreements are not binding on the courts, the recent Supreme Court landmark decision of Radmacher -v- Granatino held that courts should give effect to a nuptial agreement freely entered into by each party – with a full appreciation of its implications – unless in the circumstances prevailing, it would not be fair to hold the parties to their agreement.

This decision has given significant weight to the signing of nuptial agreements, which had previously provided little guarantee after the breakdown of a marriage.

If your marriage does end in a divorce then having a pre-nuptial agreement in place, setting out the distribution and management of assets, should enable the divorce to proceed with minimal disruption to you and your business.

If you have business interests to preserve, then such an agreement is a recommended step to protect your hard earned assets and achievements.

For expert and specialist advice on Pre-Nuptial and Post-Nuptial Agreements please contact Suzy Hamshaw on 01635 521212 or suzy.hamshaw@clmlaw.co.uk

Written by Suzy Hamshaw

December 9th, 2014 at 9:59 am

Husband Tells Court His Wife Must Be Mad To Want To Divorce him

A rejected husband attempted to stop his wife divorcing him by telling a court that she must be mad to want to leave him. This article appeared in the Daily Telegraph and can be accessed here:

http://www.telegraph.co.uk/news/uknews/law-and-order/9252538/Husband-tells-court-his-wife-must-be-mad-to-want-to-divorce-him.html

At first glance one might be inclined to chuckle at the bravado of the husband. However, on closer inspection this is a deeply sad story and an all too common tale of a marriage breakdown.

Peter Savva, said that his wife of 34 years, Niki, must be “ill” or “confused” to want to end their marriage and asked the Court of Appeal to order a psychiatric assessment of her. The judge, Lady Justice Black, did not agree stating that the wife showed no sign of being mentally unstable but that Mr Savva was unable to accept that the marriage was over.

As a family solicitor it is a common occurrence to find that one party believes the marriage to be at an end and the other does not. This creates difficulties for all involved. We family solicitors are often portrayed as ruthless and unprincipled characters – the reality is very different. The majority of us are members of Resolution who are committed to handling family matters in a sensitive, constructive, amicable and cost effective way. I will always discuss with the client the possibility of reconciliation and direct them to marriage guidance where possible.

However, the simple fact of the matter is that if one party is set on obtaining a divorce there is little, if anything, the other party can do to prevent that. It is only right that the person who feels the marriage has irretrievably broken down has the right to bring it to an end.

Mr Savva was also of the view that there be a “cooling off” period before any party could go ahead with the divorce. The parties often reach different stages of emotion at different times. Many can be initially angry or distressed and perhaps not in the best frame of mind to conduct serious proceedings at first. Whereas others may have been thinking of separation for a long time and adjusted to the prospect of a separation. There are a mix of emotions following a separation and each situation needs to be handled sensitively. I actually think this is a sensible suggestion but the technicalities would be difficult. When would the “cooling off” period start (many parties cannot even agree on their date of separation!) and how long should it be?

Mr Savva has stated that he would now seek a judicial review of the laws governing the process of divorce. I wish him luck – but sadly this is an area of the law that many governments have tended to leave alone.

For expert and specialist advice please contact Suzy Hamshaw on 01635 521212 or suzy.hamshaw@clmlaw.co.uk

 

Written by Suzy Hamshaw

December 9th, 2014 at 7:20 am