While a request for a divorce may come as a shock, most people come to the realisation that if their spouse considers that the marriage is over then, perhaps after attending marriage counselling, there is no point fighting the inevitable.
The law in England and Wales requires a marriage to have irretrievably broken down and one of five statutory facts to be proved. The third, fourth and fifth factors require spouses to have been separated for between two and five years, so the majority of divorce petitions are presented on one of the first two grounds: adultery or ‘unreasonable behaviour’. This is not only because people want to move on with their lives, but also because a financial claim cannot be progressed (other than on a voluntary basis) except within divorce proceedings. Unless there is a new relationship, a divorce petition will be presented on the basis of ‘unreasonable behaviour’.
The statutory test is “that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent”. The wording of the statute suggests an objective test, but in considering what is reasonable, the court will have regard to the history of the marriage and to the spouses before it, so the test becomes rather more subjective.
To lessen acrimony, the practice among family lawyers is to submit a divorce petition to the other side for approval before it is issued. Any disputed allegations can then be removed or watered down so long as the grounds that remain are sufficient to satisfy a judge to grant a divorce. As a result many divorces will be granted on what on the face of a divorce petition would seem to be very trivial reasons.
It is extremely rare in England for any divorce to be defended, but in early 2017 the defended divorce of Tini and Hugh Owens reached the Court of Appeal.
Hugh Owens did not want to be divorced from his wife even though she had had an affair in 2012 and had moved out of the family home. He said that he had forgiven her. He defended her divorce petition and the case went to a hearing in which they both gave evidence in the witness box. The judge was unimpressed by the wife’s evidence describing it as “hopeless”, “anodyne”, and “scraping the barrel”. He said it “lacked beef because there was none”.
The judge would not grant Tini Owens her divorce, although if Mr Owens had not defended the divorce a judge would undoubtedly have allowed the petition to go through. Tini Owens was left with two options: either wait another few years until they had been separated for five years or appeal to the Court of Appeal. She chose to appeal.
All three of the appeal judges conceded that on any view the marriage was over, but they had to apply the law. They had to deny Tini Owens her divorce which they did with regret acknowledging that it would leave her in a very unhappy situation. They went so far as to urge Mr Owens to grant his wife the divorce and called for a change in the law which would require a change in legislation to replace the Matrimonial Causes Act 1973.
So where does that leave us today? The likelihood is that the we will continue to issue ‘unreasonable behaviour’ divorce petitions based on compromise statements or ‘fudges’ to reduce conflict, although some family lawyers are worried that judges may now not allow these divorce petitions to go through.
Family lawyers have been calling for many years for no fault divorce legislation which is the law many countries. The Family Law Act 1996 was to introduce no fault divorce in this country, but the relevant part of the Act never received Royal assent, in no small part due to political fears that it would undermine marriage.
Marriage is a matter of choice and there is no test that has to be passed, so why should the ending of a marriage have to pass a judicial test.
For more information, please contact Philip Rutter, Partner in our Family Team.Passing on your estate – Inheritance Act 1975
You might think that the freedom of a person to dispose of his or her assets by Will is, or ought to be, sacrosanct. In England and Wales, as opposed to many European jurisdictions and jurisdictions further afar, this is largely the case.
That freedom exists in England and Wales, save that certain parties (primarily the spouse) but also children and those who have been maintained by the deceased (see below) may apply to the Court under the Inheritance (Provision for Family and Dependants) Act 1975 (“the 1975 Act”) to be awarded a part of the deceased’s estate in the absence of their having been so provided under his/her Will. Essentially, under the 1975 Act, the Court may award a spouse (or someone in similar circumstances) an amount which it considers to be reasonable provision for their maintenance or otherwise and in respect of other qualifying applicants (see below) the Court may make an award in their favour so far as is necessary with regard to reasonable provision for their maintenance alone. As appears from the judgment that follows, the Court finds the determination of ‘maintenance’ and ‘reasonable provision’ for such ‘maintenance’ to be difficult to determine and there are conflicting views.
In Ilott v The Blue Cross & Others  UKSC 17, the application of the 1975 Act came before the Supreme Court, the highest Court in England and Wales, for the first time. The claim was brought by the daughter of the deceased Mrs Jackson, namely Mrs Ilott, who had been estranged from her mother for 26 years. Her mother had determined as early as 1984 that she was not going to leave anything to her daughter who had chosen her own way of life.
The daughter, Mrs Ilott, lived in straightened financial circumstances. She applied under the 1975 Act for reasonable financial provision to be provided for her out of her mother’s estate, notwithstanding that her mother had made it clear since 1984 that she was not to receive anything and that her mother was to leave her estate to charities. A District Judge determined that Mrs Ilott should receive £50,000 as a reasonable provision for her maintenance. The Court of Appeal increased that award to £143,000, with an option to receive a further £20,000 in one or more instalments.
The Supreme Court unanimously overturned the Court of Appeal’s Judgment. They said that the Court of Appeal had been wrong in determining that the District Judge had erred in law. There is no objective standard of reasonable provision for maintenance – the parties’ behaviour and other considerations set out in the 1975 Act needed to be weighed in the balance; maintenance implies provision to meet everyday expenses of living and nothing more; the testator’s wishes in making the Will are relevant. Yet, the Supreme Court was left with no option other than to allow the District Judge’s award to stand (i.e. £50,000 to Mrs Jackson) because they could not interfere with a judgment decided upon evidence which was clearly within his discretion.
In the Supreme Court Lady Hale criticised the 1975 Act and we concur with her criticisms. Lady Hale said that there was no guidance as to how the Court should approach an application by an adult child for reasonable provision for his/her maintenance. One wonders why a person estranged from her mother for twenty six years might be able to benefit from her estate solely on the basis that she was a daughter, when her mother had made clear for over twenty years that she was not going to benefit.
The 1975 Act permits claims to be brought against the estate of a deceased by: a spouse or civil partner; a former spouse or civil partner; a child of the deceased; a person treated as the child of the deceased; or a person ‘maintained’ by the deceased.
As mentioned above, a spouse or former spouse is entitled to reasonable financial provision whether for their maintenance or otherwise. The other potential applicants are entitled to reasonable financial provision for their maintenance, as determined by the Court.
Our advice is that if you consider that there may be a risk that someone may apply under the 1975 Act in relation to your Will on the basis that they have not been reasonably provided for, you must explain the circumstances and set out the history of the relationship before executing your Will or perhaps even divest of part of your estate in advance.
For more information, please contact Will Twidale, Partner in our Dispute Resolution Team.Inheritance tax and the family home – 5 things you should know
The Residence Nil Rate Band (RNRB) came into effect on 6 April 2017. This is an Inheritance Tax allowance which will be available in addition to the standard Nil Rate Band, currently £325,000, where the family home is left to children or grandchildren. Whilst the legislation itself is rather complex, here are five things you should know about the RNRB.
Although the RNRB came into force on 6 April 2017, it will be phased in over the next four years. The RNRB will start at a maximum allowance of £100,000 per person and will increase by up to £25,000 each tax year until 2020. After 2020, the maximum RNRB will increase in line with inflation (based on the Consumer Prices Index).
|Tax Year||Maximum RNRB available|
An individual’s estate will only be entitled to benefit from the RNRB where:
Where the value of an estate is more than £2 million, after deducting liabilities but before reliefs and exemptions are applied, the RNRB will be tapered away or withdrawn completely. The RNRB will be reduced by £1 for every £2 that the estate exceeds the £2 million threshold and so, on the introduction of the RNRB, there will be no RNRB available if the deceased had assets of more than £2.2 million. This will rise to an estate of £2.35 million in 2021-2021.
Similar to the standard Nil Rate Band, any unused RNRB will be transferrable to a surviving spouse or civil partner. This rule applies even when the first spouse or civil partner died before the RNRB came into force (6 April 2017) and it does not matter whether or not the first spouse to die owned a residence, or a share of residence, at the time of their death. Therefore, there will always be an additional 100% RNRB unless the estate of the first spouse exceeded the £2 million threshold.
Where an estate does not qualify for the full RNRB, it may benefit from an additional amount known as the ‘downsizing addition’. This is to help those individuals who have downsized or sold their property. The downsizing addition will be available if:
For more information on the detail of this new inheritance tax or to discuss private client related issues more widely, please email firstname.lastname@example.org, or call 020 7631 4141 and ask to speak to Helen Langworthy or Shelina Vaiya from the Private Client team.What is the future for Three-Person IVF?
The recent milestone event of a baby being born with the genes of three different parents was an amazing medical development for those suffering from hereditary diseases but the wider consequences of three-person IVF treatments have caused controversy worldwide.
The Human Fertilisation and Embryology Authority (HFEA) approved ‘mitochondrial donation’ at UK fertility clinics on 15th December 2016. The process entails transferring the nucleus of a fertilised embryo into the shell of another woman’s egg. This technique was used by an American medical team to birth the first 3-Person IVF baby in Mexico and successfully ensured that the baby did not suffer from the same genetic disorder as his mother.
No children have been born out of three-person IVF in the UK as of yet but it is permitted for couples with mitochondrial diseases such as diabetes, Leigh syndrome and epilepsy. On approval of this procedure in 2015, MPs saw the opportunity for ‘real hope’ for families hoping to conceive. Others, however, have noted the complexities arising out of a child with three-person genetic makeup.
Initially three-person IVF seems to provide an opportunity for those in relationships consisting of three people (colloquially named ‘thruples’) would be able to have a child that is genetically of the three parents – providing that a male was party to the relationship.
In England and Wales a three-parent household is possible but not necessarily viable, legally. Whilst more than two people can have parental responsibility for a child, the law only allows a child to have two legal parents.
Canada is home to the only child with three legal parents on its birth certificate. A lesbian couple wanted to ensure that the sperm donor would be an involved father and not just a donor – leading them to request a new form for parental rights with space for four parents. Vancouver lawyer, Barbara Findlay, said that now it is not just biology and genetic connections that determine a child’s parents but the ‘intention of the parents contributing to the creation of the child, and intend to raise the child’.
This is similar to the requirements of obtaining parental orders in surrogacy arrangements and emphasises that the development of what constitutes a parent may develop even further upon three-person IVF practices reaching the mainstream. Canada’s approach to three parent babies may affect the UK’s approach to the same – widening the grounds for what we consider to be a ‘nuclear’ family.
A common reason for people’s desire to give birth, engage in surrogacy arrangements or undertake IVF treatments is the desire to have children with their own genetic makeup. It is important to note that mitochondrial DNA represents less than 0.054 % of the total DNA of the child. As the donated mitochondrial DNA is not part of the nuclear DNA, it will not determine personal characteristics and traits such as personality, hair and eye-colour.
The above is positive in that, if two parents wish to enter into a three-person IVF arrangement, the child will resemble the two intended parents. However for the same reason three parents who wish to have a child with all of their genetic makeup may feel distanced from their relation to the child due to a lack of resemblance.
Pertinent to the above, it seems that the benefits of three-person IVF may be limited to the avoidance of mitochondrial disease as it serves little alternative purpose.
Whilst the legalisation of three-person IVF and mitochondrial donation in the UK is limited to the avoidance of disease, similar practices were used in Ukraine to help a couple struggling with fertility.
A pronuclear transfer was used where the mother’s egg was fertilised with her partner’s sperm and then transferred into an egg take from a donor. As described above, the majority of the child’s genetic makeup is that of her legal parents but a small-percentage of the genetics of the egg-donor are inevitable. Controversially there was no instance of mitochondrial disease in this matter and it was instead used to combat infertility – widening the grounds for three-person IVF.
The last few years have been filled with newspaper headlines, articles in scientific journals and legal commentary pondering the implications of this treatment. With the advance of technology in the fertility field we are constantly encroaching on unmarked territory – forming the majority of arguments for and against three-person IVF on hypothesised situations due to the lack of case-law in this area.
As a three-person child has not been born in England and Wales as of yet the classification for applicants for this procedure is unknown but we can assume that it will be limited to reducing the risk of mitochondrial disease.
Whilst the idea of a three-person baby has sparked interest in the polyamorous community, England and Wales would need to follow Canada in allowing for three person parental status to ensure that parties would not be vulnerable to legal restrictions. Such legal protections will also be absolutely crucial for the child-knowing who their parents are and what rights they have.
This procedure undeniably reflects the future of IVF. The case in Ukraine especially provides hope for those struggling with infertility who desire a child of their own. We can only hope that, if this proves to be the most effective way to battle infertility, England and Wales pushes this procedure to ensure everyone has the right to a child.
We at Forming Families want to support all individuals in realising their dreams of becoming parents. We offer legal advice on surrogacy arrangements, both domestic and international, adoption and fertility law. Our experienced team of immigration and family lawyers know the struggles that many people go through, and offer help in a sensitive and pro active way.
London Legal Walk 2017
Bishop & Sewell will be entering a team again this year for the London Legal Walk 2017, a 10km walk around Central London in support of The London Legal Support Trust.
Our team will be walking with the Lord Chief Justice and thousands of lawyers, colleagues and friends to raise funds to support Law Centres and pro bono agencies in and around London.
This iconic 10km walk is being held on Monday 22nd May 2017 and is the largest fundraising event in the legal calendar – we hope to see some of you there!
Click here for Bishop & Sewell fundraising page.ALEP 10th Anniversary Conference
The ALEP 10th Anniversary Conference was held on 23rd March 2017 at the Royal Institute of British Architects in Portland Place.
Mark Chick spoke to delegates together with Tom Jefferies of Landmark Chambers on the subject of ‘Getting the Notice Right.’ ALEP is the Association of Leasehold Enfranchisement Practitioners and seeks to promote excellence in leasehold enfranchisement. The conference was attended by over 200 delegates who were representatives of specialist firms working in this area.Advice to flat owners
http://www.bishopandsewell.co.uk/content/wp-admin/post.php?post=2304&action=edit#Leasehold experts Stuart Merrison, Chris Macartney and Mark Chick were in Hackney on Monday meeting leaseholders and answering questions about service charges, lease extension and freehold matters.
They will be back there again on Monday 6th March 2017 to answer questions about buying your freehold.
If you would like to ask a question about a leasehold matter then contact our experts by emailing email@example.com or by calling 020 7631 4141.Bishop & Sewell strengthens Leasehold Enfranchisement Team
New Senior Associate Solicitor, Stephen Charnock, joins the firm in our Landlord & Tenant team.
Stephen specialises in Leasehold Enfranchisement and has more than 20 years’ experience in this complex area of law. Stephen dealt with some of the very first claims when the Leasehold Reform Housing and Urban Development Act was enacted in 1993 introducing new enfranchisement rights for leaseholders of residential flats. He is a recognised expert and has acted in a number of leading cases decided in the appellate courts and tribunals and in hundreds of cases before valuation tribunals.
As a member of Bishop & Sewell’s Landlord & Tenant team, Stephen will continue to act for established landlords and a wide range of tenants, be they owner occupiers, investors or developers in contentious and non-contentious matters. His extensive experience in acting for landlords has given Stephen valuable insight and perspective when acting for tenants.
Stephen’s broader experience includes long residential leases, tenants’ rights of pre-emption, tenants’ right to manage, protected, secure, tied and market tenancies and estate management. He has advised landed London Estates including the Wellcome Trust’s South Kensington Estate, the Portman Estate and the Cadogan Estate.
Mark Chick, Partner, Landlord & Tenant at Bishop & Sewell commented:
“I am delighted that Stephen has joined the Landlord & Tenant team and his significant experience and expertise in Leasehold Enfranchisement complements our existing team and client base.”
Stephen’s recruitment follows on the back of a busy 2016 for Bishop & Sewell with five senior hires made last year: William Twidale (Partner – Litigation, Contentious Trusts), Philip Rutter (Partner – Family), David Little (Partner – Company Commercial), Jeremy Sivyer (Senior Corporate Consultant – Company Commercial) and Stephanie Thomas (Partner – Litigation & Head of International Law).
The firm also recently promoted Levent Chetinkaya (Residential Property) and Michael Kashis (Company Commercial) to Partner and Charlotte Archer (Residential Property) and Senal Patel (Commercial Property) to Associate Solicitor.
These new hires and promotions bring Bishop & Sewell’s team of solicitors to 32, whose full service remit runs across three core areas of Property, Commercial and Private Client.
View Stephen’s profile here.ALEP 10th Anniversary Dinner & Conference – 23 March 2017 – London
Members of Bishop & Sewell will be attending ALEP’s 10th Anniversary Dinner and 20th conference being held at the Royal Institute of British Architects (RIBA) on 23rd March, 2017.
The conference includes an array of speakers renowned for their expertise in this niche sector. The evening will reflect on a decade of key decisions and factors that have influenced the sector – for better or for worse – and where the sector and wider property market might be in years to come, particularly in light of domestic politics and potential legislative review.
From humble beginnings as a networking group, ALEP has grown to an influential organisation of over 200 member firms, representing the very best professionals in the sector.
To book your place, visit ALEP 10th Anniversary Celebration.