FAQs

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Do I need a new will to update addresses

In short, no. The addresses in wills are only used for identification purposes and a simple note to sit alongside your will noting any changes will suffice.


How much is my personal injury claim worth?

We will be able to value your claim once we have the medical evidence to prove the extent of your injury and the length of time it will take for you to recover. We will arrange for you to see a Medical Consultant in the appropriate specialism who will provide a detailed report.


How much will it cost me to take someone to Court?

There are fixed Court fees however solicitors' fees vary depending on factors such as complexity of the matter, value in dispute and the volume of documents. If your claim is over £10,000 and you are successful at Court, the usual rule is “the loser pays the winner’s costs”, however the amount of the costs payable to the successful party is purely at the Court’s discretion. If your claim is for less than £10,000 each party is usually responsible for its own costs save for Court Fees and out of pocket expenses.


Do I need an EPC before I can sell or rent my property?

If you are selling or renting a dwelling, generally you must have an EPC prepared for you as a preliminary part of that process. The same applies for many commercial premises. However, there are numerous exemptions, exceptions and regulations governing this issue. The Agent who markets or rents the property for you will be better able to answer this question, when they know all the specific characteristics of your property. If an EPC is not available when it should be, breaches are enforced by a financial penalty.


I am a Landlord and my tenants haven’t paid the rent. What can I do?

As a landlord you have the right to recover possession of your property if the tenants have fallen into rent arrears. The procedure varies dependant on whether the property is commercial or residential and whether it is let on a lease or on a tenancy agreement. You will need a Court Order to recover possession of a residential property.


I’VE MET SOMEONE ELSE. I WANT A DIVORCE. CAN I PETITION A DIVORCE RELYING ON MY OWN ADULTERY?

Your husband / wife could petition a divorce relying on your adultery, you cannot petition on the fact of your own adultery.


My Wife and I separated 7 months ago. She has met someone else and is in an intimate relationship with him. Is it true that that means I can petition a divorce relying on her adultery?

Yes. Whilst you are married, even if you are separated, sexual relations with a third party of the opposite sex is adultery.


If I seek to rely on my wife’s unreasonable behaviour to start divorce proceedings, will I be able to get a bigger share of the assets to compensate me?

Generally, who divorces whom and what grounds makes no difference to how the matrimonial assets are divided.


What would be considered Unreasonable Behaviour for a divorce Petition?

Unreasonable behaviour is what a Petitioner in a divorce considers to be the reasons why they cannot contemplate a reconciliation of the marriage, specifically how the other party/the Respondent has behaved. These may be specific incidents and /or habitual behaviour/actions. Examples would be lack of emotional support or physical intimacy, poor communication and derogatory remarks.


I’ve heard that if we wait till we’ve been separated for two years, it’s cheaper and quicker to get a divorce – is this right?

A divorce relying on two years separation by consent will follow the same procedure as starting divorce relying on one of the other five available facts. If you are able to agree how to manage the divorce (i.e.: on what fact you will rely in order to prove to the Court that the marriage is irretrievable) this helps to keep the costs down and aid efficient progress of the divorce. A straightforward divorce usually takes 5 to 7 months.


What is the Completion Date?

The Completion Date is the date when you buy the property. It is the day on which you are entitled to move into it, once the entire purchase price has been paid. If you are selling your home, too, this is the day you must have moved out by. We agree this date with you shortly before Contracts are exchanged. This is an area which frequently causes difficulty in the event of a “chain”, as all parties must agree the date of completion in that chain. You should not make any arrangements that you cannot easily alter regarding your completion date, until Contracts have been exchanged. This includes serving notice if you are in rented accommodation or final removal bookings.


When I receive my Decree Nisi, does this mean I’m divorced and free to get married?

Decree Nisi means that the District Judge is satisfied that you have proved that the marriage is capable of being dissolved. However you must wait a minimum of 6 weeks plus one day before the Petitioner can apply for the Nisi to be made Absolute. You are free to marry when the Certificate of Decree Absolute is granted.


Why do I need a survey done before I buy?

Sellers of property are not obliged to answer any questions from us in the conveyancing process about the physical condition of the property. Anything the seller tells you cannot be relied upon by you either. The general law is “the buyer beware”. This means that you, the buyer, should make all necessary inspections and surveys to check the condition of the property for yourself. This includes the electrical and gas fittings, for example. You can only rely upon your own inspection and survey and this must be carried out before you become legally bound to your purchase. You will not be able to complain of – or (generally) take court action about any defects which come to light after exchange of Contracts.


How long will it take to sort out my dispute

This is dependent on the approach taken by the other side. Sometimes it is possible to reach a resolution through correspondence and negotiation and the matter can be dealt with relatively quickly. However if the parties are not willing to engage in sensible discussions and the matter goes to Court and an eventual trial it could be 12 – 18 months before your dispute is concluded.


What responsibilities do i have as a company director?

As a director of a limited company, the law says you must:

1. Try to make the company a success, using your skills, experience and judgment

2. Follow the company’s rules, shown in its articles of association

3. Make decisions for the benefit of the company, not yourself 4.tell other shareholders if you might personally benefit from a transaction the company makes

5. Keep company records and report changes to Companies House and HM Revenue & Customs

6. Make sure the company’s accounts are a ‘true and fair view’ of the business’ finances

7. Register for Self Assessment and send a personal Self Assessment tax return every year. You can ask other people to manage some of these things day-to-day. For example, an accountant can manage your accounts for you - but you’re still legally responsible for them.


We have separated and I continue to live in the family home which we own together. I want to sell the house and move on and then deal with the divorce. Can I do this?

Where the property is in joint names, you will need your partner to co-operate in the sale process; this includes the instruction of estate agents and engagement of solicitors to deal with the conveyancing of the sale as you will both need to sign paperwork and documentation. You will need to consider how the net proceeds of sale will be divided - you should therefore seek legal advice from a family lawyer beforehand.


One of my creditors is threatening to make me bankrupt, what should I do?

You should seek advice immediately. Being declared bankrupt effects different people in different ways. You should seek legal advice where you will be asked questions to include: 1) information on your total debts/creditors, 2) Are you a homeowner and 3) What is your job. You will then get advice that is personal to you.


Our family home and the mortgage is in my husband’s sole name. Our marriage has broken down and I have moved out. Can I make a claim against the house?

All property and assets, whether in your joint names or your sole names, can give rise to a matrimonial claim. The family home may therefore be included within your matrimonial claims upon divorce.


How much does a divorce cost?

A simple divorce costs in the region of £1,100 including the fees that need to be paid to the court. If there are issues to sort out relating to children and your finances it can be more time consuming and more costly.


How do I prove I have a claim for personal injuries?

There is a three stage test that must be satisfied. First you must demonstrate that the person or organisation responsible for the incident owes you a duty of care. You must then prove that they have breached that duty of care by committing an act of negligence. You must then prove that the negligent act has caused an injury.


I rent a flat. How much notice does my Landlord have to give me? How much notice do I have to give him? How long must we wait before either of us can give that notice to each other?

A Landlord must give their Tenant 2 months’ notice to quit, whereas Tenants need only give their Landlord 1 month’s notice of their intention to vacate a property. If the tenancy is still within its fixed term, which is usually (but not always) 6 months, then no less than 2 months’ notice must be given to bring the tenancy to an end on the date specified within the notice, which must be no sooner than the last day of the fixed term. If the fixed term of the tenancy has expired at the point notice is to be served, and the tenancy is continuing on a rolling monthly basis, then again 2 months' notice to quit must be given but in this case the date of expiry of the notice must be the last day of a “period” of the tenancy. The period of a tenancy is calculated by reference to the date upon which rent is payable. For instance, if rent is payable monthly, on the 5th day of each month, the period of that tenancy runs from the 5th of the month to the 4th day of the following month. In that case, no less than 2 months' notice must be given to expire on the 4th of the month, 2 months hence. In each case, a formal written notice must be used, containing certain core information in order to give the tenants valid notice to quit. A different form of notice is used depending on whether the tenancy is within or outside its initial fixed term. Proof of service of the notice upon the Tenants must be retained in all cases in case it becomes necessary to commence court proceedings for possession of the property.


Why should I have a shareholders agreement in a family business?

When advising family businesses on the benefits of an agreement between the Stakeholders, the cry is often heard “we’re too busy” to embark on drawing up such an agreement. Whether that frenetic activity is caused by the runaway success of the business or by its fighting to survive, an important part of the business plan nevertheless should be the consideration and agreement of a “stakeholders’ agreement” being one of either a partnership agreement or a shareholders’ agreement or an LLP members’ agreement, all as appropriate. Not to have a clear agreement in writing can result in friction at best or, at worst, stalemate on a range of fundamental issues.

1. It is wise to have the aims and ambitions of the business agreed and clearly stated so as to keep all the family members pulling in the same direction.

2. Family members can contribute to the family business in a number of different ways. To agree these differing contributions in writing gives a framework for the business to operate in.

3. Whether the business is to be financed by external financiers or by the family, and in what proportions, should be agreed and the basis and extent of such finance clearly set out and signed up to by all participants.

4. Who should be responsible for the day to day management of the operations of the business and who for the financial or administrative side is also best settled at the outset and written down and endorsed by an appropriate agreement to avoid confusion or omission or later dispute.

5. Where there are an equal number of partners or shareholders or board members with equal numbers of votes on an issue, a deadlock may ensue, leaving the business unable to move forward by taking a decision one way or the other. A stakeholders’ agreement can provide for this in a number of ways to avoid such a ruinous deadlock.


Why should my flat have a leasehold rather than a freehold title?

Most titles contain promises given by people to do certain things. Legally, these promises are dealt with differently for freehold and leasehold titles, however. A landlord in a lease will give a number of promises to do things – to maintain the building and grounds which the flat is part of, insure those areas, replace the roof or fix the foundations. The leasehold flat owner can force the landlord to keep those promises, even if they did not originally give them. This would not apply for a freehold flat unless complicated procedures were followed every time ownership changed hands. As a result there are practical problems in keeping freehold flats insured and maintained. Freehold flats are therefore difficult to mortgage and sell. This can limit the value of the flat.


Should I incorporate my small business?

One of the most frequently asked questions by sole trader or partnership businesses is as to whether they should incorporate their business to that of a limited company. Each individual will have to assess their own needs and seek their own advice with regards to the benefits of incorporating however in summary some of the advantages and disadvantages are as follows: Advantages 1. Limited liability (subject to personal guarantees provided) 2. Small business tax savings 3. Credibility 4. Raising money 5. Income control / distribution Disadvantages 1. Additional compliance 2. Costs of incorporation 3. Directors legal responsibilities 4. Information on public record. Clearly each business owner will have their own beneficial reasons to incorporate and the above lists are not necessarily exhaustive, however they do highlight some of the more frequent questions.


Why should I make a will?

A will is a legal document under which you can choose who to leave your belongings and money to after you die. You can choose who is to have what and in what shares and decide who is to have that family heirloom after you die. They can also help saving Inheritance tax and avoid family feuds after death. If you wish to benefit a charity or anyone who is not an immediate member of your family it is also vital to have a will as they would receive nothing if you do not have one. If you do not have a will then your estate will be distributed under an old set of laws called the Intestacy Rules which govern who receives the estate of someone who does not have a will. They are an ineffective answer to most people’s needs.


What’s the right business structure for my new business?

A Sole Trader is the simplest form of company, you are responsible for all aspects of the company and have unlimited liability to all debts and legal actions. A private limited company offers a level of protection as it’s a separate legal entity, separate from those who own it as your possession remain separate (unless they are secured against the business for borrowing). It also has potential tax advantages. A public limited company is able to sell its shares to the public. A public company must satisfy Companies House that at least £50,000 worth of shares has been issued before it is entitled to begin business or borrow money, and two directors must be appointed. This can be reduced to £12,500 by having the shares issued partly paid only as to one quarter as permitted by S586(1) CA 2006. The authorised share capital required is still £50,000 but this can be issued paid up as to one quarter only to reduce the effective initial cost to £12,500. Prior to commencing trading and to any quotation on The London Stock Exchange, the partly paid shares would need to be paid up by the outstanding amount of £37,500. A limited liability partnership (LLP) allows business partners to enjoy the benefit of limited liability, avoiding the problems of joint and several liability that apply to ordinary partnerships. A partnership deed will need to be drawn up to specify, among other things, how profit is split and what happens in the event the partnership is wound up A guarantee company is a not-for-profit company, and is the type most often formed by charitable organisations. A guarantee company does not have share capital, and the members do not own the company – they are decision-makers for the company, but do not receive any profits, and have no claim on the company's assets. All income generated is used to cover operating costs and to achieve the objectives of the company.


How much does a divorce cost?

A simple divorce costs in the region of £1,100 including the fees that need to be paid to the court. If there are issues to sort out relating to children and your finances it can be more time consuming and more costly.


How long will it take to buy or sell my home?

Generally it takes around 6-8 weeks for all steps to be completed, parties ready and money in place. However, in complex transactions, or where money or information is not readily available, it can take longer. This is particularly the case in a chain of transactions. Equally, where all parties are committed to move swiftly and cooperate with each other, provided the money and all information is to hand promptly, transactions can move far more swiftly.


Will I need help with obtaining probate?

Obtaining a grant of probate after someone dies can be a very complex process. Even when dealing with an estate with just a few assets or bank accounts can be difficult and the paperwork can be time consuming and confusing. Investigations need to be undertaken to ensure that you fulfil all of your duties as Executor and if you fail to do so, you can be fined by HM Revenue and Customs and held personally liable for any losses to the estate. We can assist you from the very basic advice and guidance filling in the necessary forms to taking all of the pressure from you completely and dealing with the full administration of the estate. We can also advise on the tax position and ensuring that only the correct amount of tax is settled and advise on the best way to deal with any complications that may, and often do, arise.


What is exchange of contracts?

This is the stage when you are legally bound to your sale or purchase. Before contracts are exchanged, anyone can change they minds and withdraw from the transaction without having to pay their buyer or seller anything. That changes on exchange. Once that has happened, if you do not sell or buy on the completion date - and it is not the other party’s fault (even if it is not yours either) - you will be in breach of contract. It is therefore not a step to take lightly or before all checks have been made and money is in place.


What is the completion date?

On a purchase the “completion date” is the date when you buy your new home. It is the day on which you are entitled to move into it, once the purchase price has been paid in full. If you are selling your home, this is the day you must have moved out by. We agree this date with you immediately before contracts are exchanged. This is an issue which can cause difficulty in a “chain”, as all parties must agree the same date for completion in that chain. Otherwise the chain has to be “broken” by someone having to move into temporary accommodation and store their furniture. You should not make any arrangements that you cannot easily cancel or postpone based on an anticipated completion date, until Contracts have been exchanged. As a result you should not serve notice on your landlord if you are in rented accommodation or make final removal bookings until exchange has happened. Even though people in chains often “fix” their preferred completion date in the early stages of the transaction, this is not binding on anyone until contracts are exchanged. Circumstances change over time and frequently the original dates discussed cannot be kept.


What are the benefits of creating an LPA?

It is not possible to amend EPAs and so if a person wishes to change their attorneys, then this would have be done via the creation of a new LPA. The Health & Welfare LPA can only be used when a person does not have the requisite mental capacity to make a specific decision, such as where they should live, who visits them etc. This LPA also acts like a living will and a person can allow their attorneys to give or refuse consent to life sustaining treatment on their behalf when they can not do this themselves. This power overrides any other and can be vitally important for end of life decisions if for example, a person is in a vegetative state or a coma. By creating LPAs, the donor has the reassurance that they have chosen who should step in at any given time – they retain an element of control in managing their affairs even when they can not control it themselves. LPA creating also avoids the necessity of applying to the court of protection for a deputyship order to manage someone’s affairs, in the absence of an EPA of LPA, which is costly, lengthy and onerous on the deputy once the order is made. Creating an LPA is a bit like insurance, you do it with the hope that it is never needed, but if they are, then they are worth their weight in gold.


What is the difference between an Enduring Power of Attorney and a Lasting Power of Attorney?

The main difference between an EPA & a LPA is that since September 2007 the law changed and new EPAs could not be created. All EPAs that were correctly executed before this date remain legally binding documents and valid. EPAs are simple documents that can be used before or after someone has lost mental capacity and there remains a duty on the attorneys to register the document if the donor looses capacity. Unfortunately, as EPAs were so simple that they were open to abuse and this was part of the reason why the law changed. The main differences between them are: 1) There are two types of LPA, one dealing with you property & finances and one dealing with your health & welfare – EPAs generally deal with property & finances 2) You can appoint substitute attorneys making LPA documents more flexible. 3) In LPAs you can apply restrictions, conditions or add guidance to your attorneys in how they manage your affairs. 4) In LPAs you can notify up to four people of your intention to register the LPAs as an additional safeguard against abuse. 5) LPAs request that a specific person either a professional (Solicitor, GP etc) or a close friend act as your certificate provider, confirming that you understand the nature of the LPA, what the document seeks to achieve and ensures that there is no influence from any undesirable third parties – again providing a safeguard. 6) The health & welfare LPA allows you to say whether your attorneys can make end of life decisions on your behalf.


What is mediation?

Mediation is an alternative to going to court to resolve issues. This is a voluntary process whereby you and your spouse will meet on a number of occasions with a mediator to discuss the issues arising from your separation. Mediators are trained to help people resolve disputes. Mediators are independent and will not take sides in a dispute. They are not advisors so will not give legal advice, but will work with you and your lawyer alongside the mediation process.


If my child is taken away (by Social Services or the Court) will I get to see him/her?

Almost certainly, as the Court will be most concerned with what is best for your child and unless there are very good reasons why there should be no contact then the rule is that there will be some contact. This is known as the presumption for contact.


Business Law

SHOULD I INCORPORATE MY SMALL BUISNESS?

One of the most frequently asked questions by sole trader or partnership businesses is as to whether they should incorporate their business to that of a limited company. Each individual will have to assess their own needs and seek their own advice with regards to the benefits of incorporating however in summary some of the advantages and disadvantages are as follows: Advantages 1. Limited liability (subject to personal guarantees provided) 2. Small business tax savings 3. Credibility 4. Raising money 5. Income control / distribution Disadvantages 1. Additional compliance 2. Costs of incorporation 3. Directors legal responsibilities 4. Information on public record. Clearly each business owner will have their own beneficial reasons to incorporate and the above lists are not necessarily exhaustive, however they do highlight some of the more frequent questions.


WHY SHOULD I HAVE A SHAREHOLDERS AGREEMENT IN A FAMILY BUSINESS?

When advising family businesses on the benefits of an agreement between the Stakeholders, the cry is often heard “we’re too busy” to embark on drawing up such an agreement. Whether that frenetic activity is caused by the run away success of the business or by it’s fighting to survive, an important part of the business plan nevertheless should be the consideration and agreement of a “stakeholders’ agreement” being one of either a partnership agreement or a shareholders’ agreement or an LLP members’ agreement, all as appropriate. Not to have a clear agreement in writing can result in friction at best or, at worst, stalemate on a range of fundamental issues.

1. It is wise to have the aims and ambitions of the business agreed and clearly stated so as to keep all the family members pulling in the same direction.

2. Family members can contribute to the family business in a number of different ways. To agree these differing contributions in writing gives a framework for the business to operate in.

3. Whether the business is to be financed by external financiers or by the family, and in what proportions, should be agreed and the basis and extent of such finance clearly set out and signed up to by all participants.

4. Who should be responsible for the day to day management of the operations of the business and who for the financial or administrative side is also best settled at the outset and written down and endorsed by an appropriate agreement to avoid confusion or omission or later dispute.

5. Where there are an equal number of partners or shareholders or board members with equal numbers of votes on an issue, a deadlock may ensue, leaving the business unable to move forward by taking a decision one way or the other. A stakeholders’ agreement can provide for this in a number of ways to avoid such a ruinous deadlock.


What responsibilities do i have as a company director?

As a director of a limited company, the law says you must: 1.try to make the company a success, using your skills, experience and judgment 2.follow the company’s rules, shown in its articles of association 3.make decisions for the benefit of the company, not yourself 4.tell other shareholders if you might personally benefit from a transaction the company makes 5.keep company records and report changes to Companies House and HM Revenue & Customs 6.make sure the company’s accounts are a ‘true and fair view’ of the business’ finances 7.register for Self Assessment and send a personal Self Assessment tax return every year. You can ask other people to manage some of these things day-to-day. For example, an accountant can manage your accounts for you - but you’re still legally responsible for them.


What’s the right business structure for my new business?

A Sole Trader is the simplest form of company, you are responsible for all aspects of the company and have unlimited liability to all debts and legal actions. A private limited company offers a level of protection as it’s a separate legal entity, separate from those who own it as your possession remain separate (unless they are secured against the business for borrowing). It also has potential tax advantages. A public limited company is able to sell its shares to the public. A public company must satisfy Companies House that at least £50,000 worth of shares has been issued before it is entitled to begin business or borrow money, and two directors must be appointed. This can be reduced to £12,500 by having the shares issued partly paid only as to one quarter as permitted by S586(1) CA 2006. The authorised share capital required is still £50,000 but this can be issued paid up as to one quarter only to reduce the effective initial cost to £12,500. Prior to commencing trading and to any quotation on The London Stock Exchange, the partly paid shares would need to be paid up by the outstanding amount of £37,500. A limited liability partnership (LLP) allows business partners to enjoy the benefit of limited liability, avoiding the problems of joint and several liability that apply to ordinary partnerships. A partnership deed will need to be drawn up to specify, among other things, how profit is split and what happens in the event the partnership is wound up A guarantee company is a not-for-profit company, and is the type most often formed by charitable organisations. A guarantee company does not have share capital, and the members do not own the company – they are decision-makers for the company, but do not receive any profits, and have no claim on the company's assets. All income generated is used to cover operating costs and to achieve the objectives of the company.


Dispute Resolution

How do I prove I have a claim for personal injuries?

There is a three stage test that must be satisfied. First you must demonstrate that the person or organisation responsible for the incident owes you a duty of care. You must then prove that they have breached that duty of care by committing an act of negligence. You must then prove that the negligent act has caused an injury.


 

How long will it take to sort out my dispute

This is dependent on the approach taken by the other side. Sometimes it is possible to reach a resolution through correspondence and negotiation and the matter can be dealt with relatively quickly. However if the parties are not willing to engage in sensible discussions and the matter goes to Court and an eventual trial it could be 12 – 18 months before your dispute is concluded


How much is my personal injury claim worth?

We will be able to value your claim once we have the medical evidence to prove the extent of your injury and the length of time it will take for you to recover. We will arrange for you to see a Medical Consultant in the appropriate specialism who will provide a detailed report.


How much will it cost me to take someone to Court?

There are fixed Court fees however solicitors fees vary depending on factors such as complexity of the matter, value in dispute and the volume of documents. If your claim is over £10,000 and you are successful at Court, the usual rule is “the loser pays the winner’s costs”, however the amount of the costs payable to the successful party is purely at the Court’s discretion. If your claim is for less than £10,000 each party is usually responsible for its own costs save for Court Fees and out of pocket expenses.


I am a Landlord and my tenants haven’t paid the rent. What can I do?

As a landlord you have the right to recover possession of your property if the tenants have fallen into rent arrears. The procedure varies dependant on whether the property is commercial or residential and whether it is let on a lease or on a tenancy agreement. You will need a Court Order to recover possession of a residential property.


One of my creditors is threatening to make me bankrupt, what should I do?

You should seek advice immediately. Being declared bankrupt affects different people in difference ways. You should seek legal advice where you will be asked questions to include: 1) information on your total debts/creditors, 2) Are you a homeowner and 3) What is your job. You will then get advice that is personal to you.


Family Divorce & Childcare

I’ve heard that if we wait till we’ve been separated for two years, it’s cheaper and quicker to get a divorce – is this right?

A divorce relying on two years separation by consent will follow the same procedure as starting divorce relying on one of the other five available facts. If you are able to agree how to manage the divorce (i.e.: on what fact you will rely in order to prove to the Court that the marriage is irretrievable) this helps to keep the costs down and aid efficient progress of the divorce. A straightforward divorce usually takes 5 to 7 months.


What would be considered Unreasonable Behaviour for a divorce Petition?

Unreasonable behaviour is what a Petitioner in a divorce considers to be the reasons why they cannot contemplate a reconciliation of the marriage, specifically how the other party/the Respondent has behaved. These may be specific incidents and /or habitual behaviour/actions. Examples would be lack of emotional support or physical intimacy, poor communication and derogatory remarks.


If I seek to rely on my wife’s unreasonable behaviour to start divorce proceedings, will I be able to get a bigger share of the assets to compensate me?

Generally,who divorces whom and what grounds makes no difference to how the matrimonial assets are divided.


My Wife and I separated 7 months ago. She has met someone else and is in an intimate relationship with him. Is it true that that means I can petition a divorce relying on her adultery?

Yes. Whilst you are married, even if you are separated, sexual relations with a third party of the opposite sex is adultery.


I’ve met someone else. I want a divorce. Can I petition a divorce relying on my own adultery?

Your husband / wife could petition a divorce relying on your adultery, you cannot petition on the fact of your own adultery.


When I receive my Decree Nisi, does this mean I’m divorced and free to get married?

Decree Nisi means that the District Judge is satisfied that you have proved that the marriage is capable of being dissolved. However you must wait a minimum of 6 weeks plus one day before the Petitioner can apply for the Nisi to be made Absolute. You are free to marry when the Certificate of Decree Absolute is granted.


 

We have separated and I continue to live in the family home which we own together. I want to sell the house and move on and then deal with the divorce. Can I do this?

Where the property is in joint names, you will need your partner to co-operate in the sale process, this includes the instruction of estate agents and engagement of solicitors to deal with the conveyancing of the sale as you will both need to sign paperwork and documentation. You will need to consider how the net proceeds of sale will be divided - you should therefore seek legal advice from a family lawyer beforehand.


Our family home and the mortgage is in my husband’s sole name. Our marriage has broken down and I have moved out. Can I make a claim against the house?

All property and assets, whether in your joint names or your sole names,can give rise to a matrimonial claim. The family home may therefore be included within your matrimonial claims upon divorce.


If my child is taken away (by Social Services or the Court) will I get to see him/her?

Almost certainly, as the Court will be most concerned with what is best for your child and unless there are very good reasons why there should be no contact then the rule is that there will be some contact. This is known as the presumption for contact.


What is mediation?

Mediation is an alternative to going to court to resolve issues. This is a voluntary process whereby you and your spouse will meet on a number of occassions with a mediator to discuss the issues arising from your separation. Mediators are trained to help people resolve disputes. Mediators are independent and will not take sides in a dispute. They are not advisors so will not give legal advice, but will work with you and your lawyer alongside the mediation process.


How much does a divorce cost?

A simple divorce costs in the region of £1,100 including the fees that need to be paid to the court. If there are issues to sort out relating to children and your finances it can be more time consuming and more costly.

Property

Why do I need a survey done before I buy?

Sellers of property are not obliged to answer any questions from us in the conveyancing process about the physical condition of the property. Anything the seller tells you cannot be relied upon by you either. The general law is “the buyer beware”. This means that you, the buyer, should make all necessary inspections and surveys to check the condition of the property for yourself. This includes the electrical and gas fittings, for example. You can only rely upon your own inspection and survey and this must be carried out before you become legally bound to your purchase. You will not be able to complain of – or (generally) take court action about any defects which come to light after exchange of Contracts.


What is the Completion Date?

The Completion Date is the date when you buy the property. It is the day on which you are entitled to move into it, once the entire purchase price has been paid. If you are selling your home, too, this is the day you must have moved out by. We agree this date with you shortly before Contracts are exchanged. This is an area which frequently causes difficulty in the event of a “chain”, as all parties must agree the date of completion in that chain. You should not make any arrangements that you cannot easily alter regarding your completion date, until Contracts have been exchanged. This includes serving notice if you are in rented accommodation or final removal bookings.


Why should my flat have a leasehold rather than a freehold title?

Most titles contain promises given by people to do certain things. Legally, these promises are dealt with differently for freehold and leasehold titles, however. A landlord in a lease will give a number of promises to do things – to maintain the building and grounds which the flat is part of, insure those areas, replace the roof or fix the foundations. The leasehold flat owner can force the landlord to keep those promises, even if they did not originally give them. This would not apply for a freehold flat unless complicated procedures were followed every time ownership changed hands. As a result there are practical problems in keeping freehold flats insured and maintained. Freehold flats are therefore difficult to mortgage and sell. This can limit the value of the flat.


How long will it take to buy or sell my home?

Generally it takes around 6-8 weeks for all steps to be completed, parties ready and money in place. However, in complex transactions, or where money or information is not readily available, it can take longer. This is particularly the case in a chain of transactions. Equally, where all parties are committed to move swiftly and cooperate with each other, provided the money and all information is to hand promptly, transactions can move far more swiftly.


Do I need an EPC before I can sell or rent my property?

If you are selling or renting a dwelling, generally you must have an EPC prepared for you as a preliminary part of that process. The same applies for many commercial premises. However, there are numerous exemptions, exceptions and regulations governing this issue. The Agent who markets or rents the property for you will be better able to answer this question, when they know all the specific characteristics of your property. If an EPC is not available when it should be, breaches are enforced by a financial penalty.


What is exchange of contracts?

This is the stage when you are legally bound to your sale or purchase. Before contracts are exchanged, anyone can change they minds and withdraw from the transaction without having to pay their buyer or seller anything. That changes on exchange. Once that has happened, if you do not sell or buy on the completion date - and it is not the other party’s fault (even if it is not yours either) - you will be in breach of contract. It is therefore not a step to take lightly or before all checks have been made and money is in place.


What is the completion date?

On a purchase the “completion date” is the date when you buy your new home. It is the day on which you are entitled to move into it, once the purchase price has been paid in full. If you are selling your home, this is the day you must have moved out by. We agree this date with you immediately before contracts are exchanged. This is an issue which can cause difficulty in a “chain”, as all parties must agree the same date for completion in that chain. Otherwise the chain has to be “broken” by someone having to move into temporary accommodation and store their furniture. You should not make any arrangements that you cannot easily cancel or postpone based on an anticipated completion date, until Contracts have been exchanged. As a result you should not serve notice on your landlord if you are in rented accommodation or make final removal bookings until exchange has happened. Even though people in chains often “fix” their preferred completion date in the early stages of the transaction, this is not binding on anyone until contracts are exchanged. Circumstances change over time and frequently the original dates discussed cannot be kept.


I am the Tenant of a unit/shop/office. The lease runs out in a couple of months. Can I stay on?

It depends. If your lease is within the Landlord & Tenant Act 1954, then yes, you are entitled to apply to your Landlord for a new Lease on similar terms. There are some important time limits for dealing with an application to renew a Lease, and certain grounds on which your Landlord can decline. Alternatively, in certain circumstances you might be able to stay on after the Lease runs out, without renewing it. If your lease is outside the Act, then different provisions apply, and you are not automatically entitled to a new Lease, and must move out when the lease comes to an end. There are quite a few elements to these procedures, and we will be very happy to advise and assist you with this.


I rent a flat. How much notice does my Landlord have to give me? How much notice do I have to give him? How long must we wait before either of us can give that notice to each other?

A Landlord must give their Tenant 2 months’ notice to quit, whereas Tenants need only give their Landlord 1 month’s notice of their intention to vacate a property. If the tenancy is still within its fixed term, which is usually (but not always) 6 months, then no less than 2 months’ notice must be given to bring the tenancy to an end on the date specified within the notice, which must be no sooner than the last day of the fixed term. If the fixed term of the tenancy has expired at the point notice is to be served, and the tenancy is continuing on a rolling monthly basis, then again 2 months notice to quit must be given but in this case the date of expiry of the notice must be the last day of a “period” of the tenancy. The period of a tenancy is calculated by reference to the date upon which rent is payable. For instance, if rent is payable monthly, on the 5th day of each month, the period of that tenancy runs from the 5th of the month to the 4th day of the following month. In that case, no less than 2 month’s notice must be given to expire on the 4th of the month, 2 months hence. In each case, a formal written notice must be used, containing certain core information in order to give the tenants valid notice to quit. A different form of notice is used depending on whether the tenancy is within or outside its initial fixed term. Proof of service of the notice upon the Tenants must be retained in all cases in case it becomes necessary to commence court proceedings for possession of the property.


Wills & Trust

Why should I make a will?

A will is a legal document under which you can choose who to leave your belongings and money to after you die. You can choose who is to have what and in what shares and decide who is to have that family heirloom after you die. They can also help saving Inheritance tax and avoid family feuds after death. If you wish to benefit a charity or anyone who is not an immediate member of your family it is also vital to have a will as they would receive nothing if you do not have one. If you do not have a will then your estate will be distributed under an old set of laws called the Intestacy Rules which govern who receives the estate of someone who does not have a will. They are an ineffective answer to most people’s needs.


Do I need a new will to update addresses

In short, no. The addresses in wills are only used for identification purposes and a simple note to sit alongside your will noting any changes will suffice.


Will I need help with obtaining probate?

Obtaining a grant of probate after someone dies can be a very complex process. Even when dealing with an estate with just a few assets or bank accounts can be difficult and the paperwork can be time consuming and confusing. Investigations need to be undertaken to ensure that you fulfil all of your duties as Executor and if you fail to do so, you can be fined by HM Revenue and Customs and held personally liable for any losses to the estate. We can assist you from the very basic advice and guidance filling in the necessary forms to taking all of the pressure from you completely and dealing with the full administration of the estate. We can also advise on the tax position and ensuring that only the correct amount of tax is settled and advise on the best way to deal with any compliocations that may, and often do, arise.


What are the benefits of creating an LPA?

It is not possible to amend EPA’s and so if a person wishes to change their attorneys, then this would have be done via the creation of a new LPA. The Health & Welfare LPA can only be used when a person does not have the requisite mental capacity to make a specific decision, such as where they should live, who visits them etc. This LPA also acts like a living will and a person can allow their attorneys to give or refuse consent to life sustaining treatment on their behalf when they can not do this themselves. This power overrides any other and can be vitally important for end of life decisions if for example, a person is in a vegetative state or a coma. By creating LPA’s, the donor has the reassurance that they have chosen who should step in at any given time – they retain an element of control in managing their affairs even when they can not control it themselves. LPA creating also avoids the necessity of applying to the court of protection for a deputyship order to manage someone’s affairs, in the absence of an EPA of LPA, which is costly, lengthy and onerous on the deputy once the order is made. Creating an LPA is a bit like insurance, you do it with the hope that it is never needed, but if they are, then they are worth their weight in gold.


What is the difference between an Enduring Power of Attorney and a Lasting Power of Attorney?

The main difference between an EPA & a LPA is that since September 2007 the law changed and new EPA’s could not be created. All EPA’s that were correctly executed before this date remain legally binding documents and valid. EPA’s are simple documents that can be used before or after someone has lost mental capacity and there remains a duty on the attorneys to register the document if the donor looses capacity. Unfortunately, as EPA’s were so simple that they were open to abuse and this was part of the reason why the law changed. The main differences between them are: 1) There are two types of LPA, one dealing with you property & finances and one dealing with your health & welfare – EPA’s generally deal with property & finances 2) You can appoint substitute attorneys making LPA documents more flexible. 3) In LPA’s you can apply restrictions, conditions or add guidance to your attorneys in how they manage your affairs. 4) In LPA’s you can notify up to four people of your intention to register the LPA’s as an additional safeguard against abuse. 5) LPA’s request that a specific person either a professional (Solicitor, GP etc) or a close friend act as your certificate provider, confirming that you understand the nature of the LPA, what the document seeks to achieve and ensures that there is no influence from any undesirable third parties – again providing a safeguard. 6) The health & welfare LPA allows you to say whether your attorneys can make end of life decisions on your behalf.