Inspiring separating couples to make their own informed decisions

Archive for the ‘Property and Finance’ Category

Cheats Charter Diminished?

The Old Senate Chamber during the US Supreme C...

This week Lawyers working within the family law sector have waited with bated breath  for the outcome of the Supreme Court’s decision on the land mark case Prest v Petrodel Resources Ltd and Others [2013] UKSC 34.

This relates to an extraordinary case about an oil tycoon, Mr Prest worth about £48 million who attempted to evade his responsibilities to his wife upon Divorce by using legal arguments in relation to commercial law and corporate structures. This is known  by family Solicitors as the ‘cheats charter’.

Effectively, where one spouse has set up a Limited Company, this has a legal entity in its own right unless there is evidence of impropriety by the Director(s) , the Company cannot be Ordered to take any steps or action by the Court.

Whilst the Supreme Court voted unanimously for the Divorce Courts to be at liberty to redistribute assets that were held upon trust for the sole beneficial interest of Mr Prest by the Company (consisting of a multi million pound property portfolio); the Court made it clear that this was not a case whereby the ‘corporate veil‘ could be lifted.The Company was directed to transfer the property portfolio worth £17.5 million to the wife.

So in effect, the decision upon strict interpretation of the case, can be said to have strengthened the cheats charter, allowing those in business to consult further with their advisors to tighten up their corporate structures to make sure that there is no evidence of a link between the owner and the Company to avoid the outcome in this case.

That said, there is no doubt that the decision of the Supreme Court will be of huge benefit to spouses  where there are business structures (whether substantial or modest) that have been set up with the intention of defeating (usually the wife’s ) claims for financial remedies under the Matrimonial Causes Act 1973. The Supreme Court Judges have sent a warning shot to scheming, underhand spouses that where ever possible, Justice will be done within the ambit of the  UK law.

Regardless of the extent of your assets and respective financial positions; if you are contemplating Divorce  or separation from your partner or you have already separated, I would recommend that you consider in the first instance, the services of a family mediator to reach your own informed agreements about property, finance and/or children.

Family Mediation (in suitable cases) will prove to be less  stressful and will allow for on going communication between you and your ex partner. It will also limit both the financial and emotional costs of your break up. Please visit my website for more information.

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Unmarried Couples & Unfair Property Laws

Marriage Day

Breaking up is never easy…but there is a better way…

 

There has been much debate about the unfair property laws that affect separating unmarried couples in the UK.

Not withstanding a call for reform from lead bodies and Judges that work within the family law sector, the Government has resisted implementing proposed changes that would make the system fairer for separating cohabitees.

Cohabitation or Living Together Agreements are becoming increasingly popular in the UK as a result of the injustice  that the current laws are causing. 

It is a well known fact that marriage rates are falling and people are choosing to live together instead. However, as the law stands now, there is very little legal protection for cohabitees who suffer a relationship breakup and need to resolve disputes that may have arisen in respect of property and/or children.

You will often hear the term “common law husband and wife.” It is a mistake to think that if you live with someone for a period of time you acquire the same rights as a husband and wife. This is not true. Cohabitees cannot rely on the Family Court to determine an appropriate financial settlement for them as Divorcees can. The law relating to unmarried couples and property rights is very complex and can lead to harsh outcomes because the Judge’s hands are tied by the existing laws. Please read related article below.

For this reason, more people are turning to Cohabitation Agreements to record the financial arrangements that are to apply in respect of their cohabitation and what should happen in the event that the relationship fails. Living Together Agreements are contracts that can include provisions dealing with income, property, children, wills and legacies, ownership of chattels and many other matters that may be relevant to you and your partner.

It is in your best interest to take legal advice on having a Cohabitation Agreement drawn up.  With out a doubt, this will save you and your partner a lot of heart ache and costs of litigation in the event that your relationship comes to an end.

Also, if you are buying a property together than consider having a declaration of trust drawn up or making it clear on your purchase documents how you both intend to hold the beneficial interest (capital) in the property. The Land Registry has devised a new Form JO to make it simpler for cohabiting couples to declare their intentions. For more information, see the Land Registry’s public guide to joint ownership here.

If you are contemplating separation from your partner or you have already separated, I would suggest that you consider in the first instance, the services of a family mediator to reach your own informed agreements about property, finance and/or children.

Family Mediation (in suitable cases) will prove to be a less  stressful option to resolving your disputes and will limit both the financial and emotional costs of your break up.

New website – Law in 27 EU Countries – Helping European Separating Couples

   

European flag outside the Commission

European flag outside the Commission (Photo credit: Wikipedia)

The Notaries of Europe with the support of the European Commission have launched a very helpful website for separating international/European couples to help them gain access to comprehensive and reliable information on the complex area of law relating to their separation in 21 different languages.

This is a very useful tool to help people to make use of their rights as European Citizens. The website clarifies the different applicable laws on matrimonial property regimes and property consequences of registered partnerships affecting the separating couple in each European Country. Please see the press release on the Notaries for Europe website here for more information.

If you are contemplating separation or Divorce and either or both of you are European Citizens, this website will help you by answering  the following questions for the 27 EU Countries:

• 1 Which law applies?
• 2 Is there a statutory matrimonial property regime and if so, what does it provide?
• 3 How can the spouses arrange their property regime?
• 4 Can or must the matrimonial property regime be registered?
• 5 What are the consequences of Divorce/separation?
• 6 What are the consequences of death?
• 7 Does your national law provide a special matrimonial property regime for multi-national couples?
• 8 What does the law provide for the property of registered and non-registered partners?
• 9 Which is the competent authority to turn to in cases of disputes and other legal issues?

If you are considering separation or Divorce,  please in the first instance, give consideration to the out of Court options to resolving any disagreements that you may have either family mediation or in more complex cases, consideration should be given to the collaborative approach, which allows legal advice during meetings.

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