As Family Lawyers we frequently hear the same thing from divorcing clients in that they have agreed the financial aspects of the marriage so do not need advice or the expense of additional legal or court fees.

With the ever-increasing desire for a ‘quickie’ divorce most separating couples do not consider the consequences of not dealing with their financial situation properly and the importance of obtaining a Financial Order from the Court. Most are not aware that when going through divorce proceedings there is no automatic protection against future financial claims against them from the other party.

At Franklins Solicitors LLP we would always advise any divorcing party to consider their financial position carefully. Even if they believe they do not have any financial worth it is still very important to consider a Financial Order so as to protect them both from either party making any future financial claim against the other’s assets.  We would also encourage negotiations to lead to an agreement by Consent, and for a Clean Break where appropriate, so as to avoid the need to go to Court.

There is a real risk of ex-spouses making a claim on the other ex-spouse’s assets or income after the divorce has been finalised and there is no time bar in making a claim meaning it could be as long as 20 years or more after the marriage has ended! The bottom line is that after divorce the financial claims between ex-spouses remain open until a Financial Order is made by the Court.

Negotiating and drafting a Financial Consent Order for the Court is a detailed and complex process. They need to be carefully considered so as to cover all aspects so as to ensure divorcing parties are properly protected from future claims and that any settlements are fair and properly documented. We would always recommend this is drafted by a Specialist Family Lawyer. Even if a person is already divorced they can still obtain a Financial Order in most situations and we would recommend legal advice is sought to discuss any individual aspects.

For an initial consultation or guidance on taking the next step in your separation or divorce please contact our family team to discuss your options on 01908 660966 or 01604 828282 for a confidential conversation on how we can help.

Brenda Grant made an Advance Directive, commonly known as a Living Will, stating she feared degradation and indignity more than death after seeing her own mother lose her independence through dementia.  She did not tell her family about it but correctly told her GP and the hospital.

But the George Eliot hospital, in Nuneaton, Warwickshire, misplaced the document and she was artificially fed by peg for 22 months and discharged into a care home, both things she did not want.  Eventually, her GP alerted her family to the existence of an Advance Directive on a later hospital admission.  The document was finally found buried in a bundle of her medical notes and her wishes were at last acted on.

The Trust has apologised for its failure and has been ordered to pay £45,000 compensation to the family.

However, money cannot undo the 22 months of suffering that Mrs Grant had to endure.  She went to the trouble of putting in place a legally binding document setting out her wishes regarding health care and how she wanted to be treated in the event she was unable to make her own choices.  She made it clear that she wished to refuse potentially life-sustaining treatment.

So what can you do, if like Mrs Grant the right to make your own decisions about your health care and treatment is important to you and you have put an Advance Directive into place?

Firstly, notify your GP, hospital and other health care professionals involved with you.

Then, difficult though it might be, discuss with your family and let them know the existence and whereabouts of the Advance Directive.  Remember that it is only going to be used when you do not have the capacity to have your say at the time!

Review the Advance Directive on a regular basis, we suggest at least annually, and let your GP and other healthcare professionals know you have done so.  It might be worth adding a statement to it to say you have reviewed it and the date.

Lastly, make sure you get specialist advice, Advance Directives are legal documents that have to be worded and signed properly to be valid and legally binding.  Specialist Solicitors, like members of Solicitors for the Elderly, have undertaken additional training and have lots of experience in such matters.  There are also many charities which can help.

If you would like to obtain advice or guidance regarding Advance Directives (Living Wills), please contact Helen Taylor TEP, who is a member of Solicitors for the Elderly on 01604 828282 or email helen.taylor@franklins-sols.co.uk

Under existing English marriage laws, minority faith marriages should be registered.   This would mean that couples who have a religious ceremony have to follow it up with a civil wedding in order that it is recognised as legally binding.   However, many Muslim couples are not performing the civil ceremony resulting in their union not being legally recognised.

The present laws say that for the marriage to be legally binding, it can be celebrated only in approved buildings and cannot be “religious”.   Therefore, those who belong to a faith (other than Jewish, Christian or Quaker) need to marry the same person twice.

A legal academic and lawyer has called for an update to the current marriage laws and has proposed a “celebrant based marriage system”.   This would remove the need for the marriage to be held in a prescribed building and will allow couples to marry according to their own wishes.    This would also do away with the need to marry the same person twice in two separate ceremonies.

Many British Asians aspire to marriage but many consider the religious ceremony to mean far more than the civil ceremony.   However, it is the civil ceremony that provides the financially weaker spouse with some financial safeguarding.   There are some claims that following the religious ceremony the financially stronger person has got what they wanted from the religious ceremony so why would they follow it up with a civil ceremony?  If it fails the financially stronger party doesn’t have to give the other person anything.  This is causing huge problems when it comes to seeking a financial settlement as some Muslims are having to walk away with nothing due to their union not being considered legally binding under English law.

Statistics show that 80% of Muslim couples under the age of 40 in the UK have not registered their marriages under civil law.   This is causing problems in the event of a separation and campaigners are calling for a change to the English marriage laws.

Our Family Law team at Franklins has a wealth of experience in supporting clients in dealing all areas of Family Law. Should you require any assistance in this regard please do not hesitate to contact us on 01908 660 966 (Milton Keynes) or 01604 828 282 for a confidential conversation on how we can help.

Intestacy

An intestacy does not just occur when a person dies without a Will.  It can also arise even if they have a Will but it is invalid or has been revoked.  It can also arise if a valid Will has not been properly drafted and a common example is where a beneficiary dies, but the Will does not say what is to happen to the gift thereafter.

Revoking a Will can occur intentionally, for example by destroying it or by making a later valid Will.  Sometimes it can be revoked unintentionally, for example if the Will is lost and the Court presumes you have destroyed it. Marriage after the date of a Will will also automatically revoke it, but divorce does not.

When a person dies intestate, the Intestacy Rules apply and their estate is divided and distributed in accordance with them and not the person’s wishes and maybe not to the people they would want to benefit.  Unnecessary Inheritance Tax may become payable and serious consequences can arise where beneficiaries are in receipt of means tested benefits.

Dying intestate can cause all sorts of problems which can be largely avoided when a valid Will is in place.

Preparing a Will

Having a Will and knowing that your affairs are in order will not only provide peace of mind to you but also to your family and friends who will then know how you wanted your estate to be distributed.  What will be a difficult time can be made a bit easier by having a Will in place.

Our experienced solicitors can assist and we have particular expertise in Wills for parents with disabled children, business owners and complex family arrangements.

If you would like to discuss Intestacy in more detail or the preparation of a Will please contact Helen Taylor TEP on 01604 828282 or email helen.taylor@franklins-sols.co.uk or contact Kathryn Thornewill on 01908 660966 or by email on kathryn.thornewill@franklins-sols.co.uk.

When it comes to Lasting Powers of Attorney (LPA), it’s important to appoint the right person to act as your Attorney. So what do you need to consider?

The role of an Attorney

Lasting Powers of Attorney (LPA) allow you to appoint someone to act as your attorney. If you lose capacity, they’ll represent your best interests and carry out your instructions. This isn’t just in property and financial matters – they’ll also make decisions about your health and welfare if you can no longer do so yourself. So it’s really important to appoint someone you Trust implicitly.

Attorney mismanagement

This is highlighted in data recently obtained under the Freedom of Information Act 2000. It showed that in 2013, 68 attorneys and deputies (a deputy is someone appointed by the Court of Protection to manage an incapacitated person’s affairs where an LPA is not in existence) were removed due to financial mismanagement or alleged theft. In 2014, this figure rose to 203. Although this figure fell slightly to 172 in 2015, it still equates to a 153% rise on the figures from 2013.

There has also been a steep rise in investigations into attorneys and deputies over financial wrongdoing, from 487 in 2013, to 885 in 2015.

Choose wisely

It’s important to choose the right attorney. Never feel pressured into appointing someone you don’t want to act on your behalf. These figures highlight the importance of seeking specialist advice to ensure you have all the information you need before making this decision.

On the flip side, if you’re acting as someone’s attorney, you should make sure you’re aware of the rules and regulations you must follow.

The importance of appointing the right attorney is paramount. At Franklins, our team can give you advice and support throughout any stage of the process. If you’d like advice, please feel free to contact me by email or give me a call on 01908 660 966.

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Making a Will is always important, but it is even more important when you are making provisions for those with learning difficulties. On the 25^th April, I spoke at the Mencap ‘Planning for the Future Seminar’ in Northampton on this subject and it is clear that this issue can affect a vast array of people, often parents but not always.

What are the issues?

Typically, you might consider leaving a gift outright to you loved ones, however, if your son or daughter for example has learning difficulties, this can cause problems. They might not be able to give valid receipt for the money, a costly application to the court of protection might need to be made, a large inheritance might make them susceptible to financial abuse from ‘friends’ and it will likely affect any means-tested benefits that they are entitled to.

It is also important to consider that well-meaning family members may try to help and may unwittingly cause the above issues by leaving outright gifts to your children in their Wills and cause the issues mentioned above.

Can I do anything to overcome them?

Yes, there are provisions that can be made in your Will to help overcome these issues and these frequently involve the use of Discretionary Trusts or Disabled Person’s Trusts. The benefit of using these types of Trusts in the right way is that the money you leave can still be used to benefit your loved one, however these methods do this in a way that can help protect the benefits that they are currently entitled to. It also doesn’t expect them to be able to handle large amounts of money themselves, it instead allows you to appoint a Trustee or multiple Trustees, that you Trust to make these decisions on their behalf and for their benefit.

There are many important decisions involved in this process and it is a complex area. Therefore I would strongly recommend using a Solicitor who specializes in this area and has the STEP accreditation which offers this guarantee.

If this is a situation that you are currently in and you are unsure of where to turn for guidance then please do contact me on 01604 828282 to see how I can help. Similarly, the Mencap Trust, a charity who uniquely supports people and families in these situations are always happy to help. For more information about them please visit https://www.mencap.org.uk/.

If a loved one loses capacity and they don’t have a Lasting Power of Attorney or Enduring Power of Attorney in place to manage their affairs, a deputy may need to be appointed. I explain the process…

What is Deputyship?

A Deputyship creates a similar situation and relationship to those of the Donor and the Attorney(s) created by a Lasting Power of Attorney. The fundamental difference is that because the donor no longer has the capacity to choose who to appoint to help them – as is required to create Lasting Powers of Attorneys and their predecessors Enduring Powers of Attorney – the court has to be satisfied that to appoint a deputy is in the individual’s best interests.

It also imposes additional duties on the Deputy in terms of filing accounts and supervision from the Court. There are also ongoing management costs, which are not required under Lasting Powers of Attorney.

For someone who lacks capacity and is without an Attorney or Deputy, the general rule is that no financial transaction can be validly undertaken on their behalf.

When is Deputyship needed?

As is the case with Lasting Powers of Attorney, there are also two types of Deputies. There are those that deal with matters concerning property and finance, and those that concern health and welfare matters.

With regard to the former, anyone who has financial assets, be it a property, money in the bank or shares, will need someone to act on their behalf. So if decisions need to be made or money accessed, someone will need to apply to be a Deputy on their behalf.

When it comes to health and welfare matters, it’s often much more difficult for a Deputy to be appointed, because by necessity, there are safeguards within the law itself, such as in the Mental Capacity Act 2005, as health issues are paramount to all individuals. That said, there are certain scenarios where the court requires cases to be brought before them to be decided by the court.

These include, but are not limited to scenarios where serious medical treatment is required, even if there’s no dispute between any of the parties involved, and cases concerning potentially risky medical and welfare questions.

If you’d like more information about Deputyship or would like to arrange an appointment to see one of our Solicitors, please contact us on 01604 828282.

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‘Enduring Powers of Attorney’, the predecessors to Lasting Powers of Attorney, can no longer be made. However, if you made an Enduring Power of Attorney before the 1st October 2007, provision has been made under the Mental Capacity Act 2005, so they can still be used as they were intended when they were created. I explain more how it works…

The difference between an Enduring Power of Attorney and a Lasting Power of Attorney

There are a few important differences between the two documents. The first, is that Enduring Powers of Attorney only cover property and financial decisions.

Lasting Powers of Attorney by contrast have two types. One covers property and finance, and one covers health and welfare decisions.

Additionally, if you already have an Enduring Power of Attorney in place that deals with property and financial issues, it’s possible to create a Lasting Power of Attorney covering health and welfare decisions.

While a person doesn’t need to create both, it’s advisable to, so all circumstances are covered.

The second major difference is that Enduring Powers of Attorney doesn’t have to be registered while the donor has capacity. They’re only required to be registered to use once the donor has lost capacity.

Lasting Powers of Attorney, on the other hand, always have to be registered, regardless of the capacity of the donor. Without registration of the Lasting Power of Attorney, no Attorney is entitled to do anything on behalf of the donor. So it’s important to register any Lasting Power of Attorney as soon as possible.

If you’d like more information about Lasting Powers of Attorney or would like to arrange an appointment to see me or one of our Solicitors, please contact us on 01604 828 282.

Businesses and individuals alike can find themselves being served with a Judgment in Default of an Acknowledgement of Court Proceedings being served. When faced with an Application to Set Aside such a Judgment, the Court considers a number of issues when determining whether it is appropriate to grant the application.

As well as having a defence to the action, another issue is the timely manner in which a Defendant responds to receiving the Judgment. In the case of Avanesov v Shymkentpivo [2015] EWHC 394 (Comm) (25 February 2015), the Claimant obtained Judgment in Default following the Defendant’s failure to acknowledge service. The Order included Judgment for damages to be assessed and provision for the Defendant to apply to set aside or vary the Default Judgment within 21 days. The Defendant was served with an Application for Assessment of Damages and notified of the hearing, but did not respond or attend, and consequently the Claimant obtained Judgment. A month after being served with the damages, and some eight months after the Default Judgment, the Defendant applied to the Court to set aside Judgment.

When the case came before the Court, the Judge placed a great deal of emphasis on the delay taken by the Defendant in making the application. The Defendant had been given 21 days from the date of the initial Judgment and, based upon the evidence before the Court, it appeared that the Defendant had made a conscious decision to ignore the Court proceedings for as long as possible until faced with the Judgment for Damages and the risk of a monetary claim being enforced. The Court refused the Defendant’s application identifying that there was a need to ensure that litigation was conducted efficiently and in compliance with Court Orders. Even a realistic defence was not sufficient to justify setting aside the Judgment.

The Courts will continue to assess the seriousness and significance of the failure of one party to take action and will look carefully at the reasons for it. A failure to act diligently will not find favour in the courtroom. It is vital for anyone finding themselves in receipt of a Judgment in Default to act promptly, or face the consequences.

Feel free to contact myself or my team on 01908 660 966 (Milton Keynes) or 01604 828 282 (Northampton) if you have a Judgment you would like to discuss.

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A recent high profile case in which the Supreme Court Justices enabled an ex-wife to make a claim against her wealthy ex-husband some 20 years after the divorce had been finalised, reinforces why solicitors strongly advocate the necessity of a financial consent order within divorce or dissolution of a civil partnership proceedings.

In this case the parties had been married 11 years and had one child together. At the time of the divorce neither party was wealthy and there were no financial matters which required resolution. However, following the divorce the husband went on to become a multi-millionaire wind farm entrepreneur and now has an approximate worth of £157 million. This illustrates that even if there are no finances that require resolution at the time of divorce it is imperative that a clean break consent order is entered into to dismiss and further claims.

Whilst getting a divorce ends the contract of marriage, the financial claims afforded the couple by virtue of their marriage will remain live, unless a clean break order, severing the financial ties is put in place. Whilst some couples are able to amicably agree on the division of their marital assets, the failure to record the agreement into a legally enforceable order however, means the divorced couple could still make a claim on each other’s assets in the future.

A consent order enables the divorcing couple to record any agreement reached regarding the division of the finances and can also deal with the dismissal of any future financial claims they have against each other, meaning the couple will divorce with a clean break with no financial ties to each other.

Without a clean break consent order, as it has been seen in recent news (see article in The Telegraph), an ex-spouse could make a claim for capital and or income if the circumstances of the former spouse have dramatically improved since separation.

Certain circumstances such as the need to provide security for young children until they are grown or the need to provide the other spouse with ongoing support under a maintenance order, means a clean break will not always be appropriate. However the maintained spouse may cohabit or remarry and children will grow up and become independent in their own right. It is therefore still possible to provide for a clean break once certain conditions are met.

A consent order deals with financial matters in an amicable and expeditious manner and protects the parties in the future without the need to have to attend court. Therefore when getting a divorce, it is always sensible to take legal advice on the financial matters that arise from your marriage and how best to reach settlement and ultimately severe these financial ties.

If you need further advice or assistance on a matter of dividing marital property, or how to put a consent order in place like I have described above, please contact any of the the family law team on 01604 828 282.

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