By Naomi Potter, Associate Solicitor
Taking your children abroad this summer?
With the school summer holidays nearly here, problems can arise where one parent wants to take their children abroad on holiday and the other parent is not happy about this.
Many parents are unaware that it is a criminal offence to take their children out of the UK without the consent of every person who has parental responsibility for the children. Where however a Child Arrangements Order has been made which states the children are to live with a particular parent, then that parent may take the children out of the UK for a period of less than 1 month at a time without permission of the other parent with parental responsibility. If that parent is wanting to take the children on holiday at a time when the other parent is due to spend time with the children under the terms of a Child Arrangements Order, then this should be agreed with that parent so as not to breach that Order. The parent with the Child Arrangements Order that states the children live with them should try to agree alternate arrangements, to make sure that the children do not miss spending time with the other parent. If the intention is to take the children away for longer than 1 month, then the consent of everyone with parental responsibility is needed or an application needs to be made to the Court for a Specific Issue Order for permission to take the children out of the UK. The parent who does not have a Child Arrangements Order stating the children live with them, will need the consent of everyone with parental responsibility or the permission of the Court to take the children out of the UK.
Where there is no Child Arrangements Order in place stating where the children live and if either parent wishes to take the children abroad, if a parent with parental responsibility will not consent to the proposed holiday then again, an application can be made to the Court for a Specific Issue Order for the children to be taken out of the UK for a holiday. Some parents may not agree to the children being removed from the UK for a holiday if it would interfere with time that they spend with the children and therefore you should try to make alternate arrangements for any time missed to be made up.
It is good practice and responsible parenting to try to agree the arrangments in advance with the other parent, whether taking the children on holiday abroad or in the UK. The parent not taking the children on holiday should be told how long the children will be away, where the children are staying, contact number and if going abroad flight numbers. The children should ideally be able to on occasions during the holiday speak to the other parent either on the phone or facetime or skype.
If you would like more information please contact Naomi Potter on 01665 606100.
By Naomi Potter, Associate Solicitor
What options are available to help separating couples resolve issues relating to finance and children?
Choosing the right process at the beginning could save you time and money in the long term.
Set out below are briefly the main options available: -
Reaching an agreement between yourselves
Reaching your own agreement can be the cheapest way to resolve matters. There are many aspects that you will need to consider and it can be a complex process. It would be sensible to obtain some legal advice to ensure you know your rights and the implications of any agreement reached and to ensure it is legally binding.
There are several organisations that can provide a mediation service where you and your former partner can go together to try to work out with a mediator how best to arrange things between yourselves. Mediation does not suit everybody but where it does suit a couple it is a highly recommended way of dealing with matters in an amicable, adult and civilised fashion.
Mediators are neutral and will meet with you and your former partner together and will identify those issues you cannot agree on and help you to try to reach an agreement. They are able to provide information but cannot give either of you legal advice.
You and your former partner are able to consult your own family solicitor for support and guidance throughout the mediation process.
If it is not possible to reach an agreement and you want to make an application to the Court, it is now compulsory for you to be referred for a Mediation Information and Assessment Meeting (MIAM) unless there are exceptional circumstances.
Each person appoints their own collaboratively trained lawyer and you, your former partner and each of your lawyers all meet together to work things out face to face. You and your former partner and your lawyers sign an agreement that commits you to trying to resolve matters without going to court. If the collaborative process breaks down, this prevents the lawyers involved from representing you both in Court proceedings.
You and your former partner appoint an arbitrator who will make a decision that will be final and binding. You can each have your own family lawyer to advise and represent you. Family Arbitration allows parties to resolve disputes more quickly, confidentially, cheaply and in a more flexible way.
You appoint your own family lawyer who will negotiate with your former partner’s family lawyer.
If you cannot reach an agreement, an application is sent to the Court. If your matter is urgent an application may be necessary straight away. The Court upon receiving an application will set a timetable for the next steps including a first hearing.
If you would like more detailed information on the options available please contact Naomi Potter on 01665 606100.
By Mark Warcup, Director
Conveyancing is the process by which ownership of a property is transferred from one person to another.
What are "searches"?
As part of the conveyancing process searches are routinely carried out. The usual searches on the purchase of straightforward residential property would be as follows:
Local authority search, which will potentially disclose a lot of information about a property, for example it's planning history, whether it has immediate access on to a public highway, whether there are any trees on the property which are protected and whether the property is affected by any public footpaths (along with quite a few other things).
Mining authority search, which will disclose whether the property is likely to be affected by any past mining operations.
Water authority search, which will disclose whether the property is connected to the mains water and drainage systems, and the routes of any known services.
Environmental search, which will disclose whether there is any known record of any work having been carried out in the past which might have contaminated the land upon which the property is built.
What are "restrictive covenants"?
Restrictive covenants are restrictions imposed on the land by a previous owner, and if properly imposed they are enforceable against all future owners. An example of a restrictive covenant might be a covenant that prohibits the use of the property as a pub, or for the purposes of a business.
What is "exchange of contracts"?
Exchange of contracts is the point at which a contract to buy and sell a property is entered into, and when both parties become legally obliged to go ahead. Until then, either party can withdraw. On exchange of contracts a deposit, normally 10%, is paid by the buyer to the seller. Usually, this money is held by the solicitor acting for the seller until completion. The contract fixes the date for completion.
What is "completion"?
Completion is the date when the balance of the money is handed over by the buyer to the seller. Ownership of the property passes to the buyer on completion and the buyer can move into the property.
If you would like any further information please contact Ashlynne Butler on 01665 606100 or email email@example.com
By Chris Thompson, Director
Why should I make a Will?
By making a Will you can set out in writing who will inherit your money and property. This has the advantage of providing certainty for your family.
If you do not make a Will then the law sets out who is to receive your estate. This is known as Intestacy. This is in effect a set list of relatives who are entitled to inherit from a person’s estate if they die without leaving a Will. There are a number of particular problems which can arise namely;-
A Will can also specify the following:-
Executor – These are the people who ensure that the Will is carried out correctly and deal with your estate for you.
Gifts- You can specify in your Will the individuals who receive set gifts of money or particular items from your estate.
Charities – You can use the Will to give gifts to charity.
Guardians – If you have young children then you can specify in your Will who would act as their Guardian if you die before they reach the age of 18.
A Will made by a Solicitor provides certainty for your family.
If you would like any further information please contact Chris on 01665 606100 or email firstname.lastname@example.org.
By Naomi Potter, Associate Solicitor
How can I get a divorce?
To get a divorce in England and Wales, you have to show that you have been married for at least one year and that your marriage has irretrievably broken down, which can be proved by one or more of five facts:-
The person who starts the divorce proceedings is known as “the Petitioner” and his/her spouse is called “the Respondent”. The divorce is started by lodging a Petition with the Court together with your marriage certificate and a Court fee of £550, unless you qualify for help with fees. The Court will stamp the Petition, give it a case number and send a copy to your spouse.
When your spouse receives a copy of the Petition, he/she must fill in a form known as an Acknowledgment of Service, to say that he/she has received the Petition and whether or not he/she intends to defend the divorce. If he/she does not intend to defend, then your divorce will be known as an undefended divorce. If he/she say that they do not want a divorce (known as contesting), this will be a defended divorce. If your spouse indicates that he/she wishes to defend the proceedings then the Court will have to list a hearing. Defended divorce proceedings are rare. If your spouse does not return the form, you may be able to pay the Court to serve the papers in person or pay a process server to serve the Petition in order to prove that the Petition has been served on your spouse.
If the divorce is undefended, you can apply for your Decree Nisi and the Court will check the divorce papers and if they are happy you are entitled to a divorce, they will send out a Certificate of Entitlement to a Decree, with a date for when the Decree Nisi will be pronounced. The Decree Nisi will then be pronounced on that date and you will receive a copy of the Decree Nisi from the Court sometime thereafter. A Decree Nisi does not mean your divorce is final. You must wait six weeks and one day being the earliest date you can apply for the Decree Absolute, which will finally bring the marriage to an end. The grant of a Decree Absolute may have a negative impact on your financial position, for example, losing pension benefits and may mean you are no longer entitled to any inheritance you may have otherwise been entitled to. Therefore, it may be advisable not to apply for the Decree Absolute until financial matters have been dealt with and you should discuss this with your solicitor before applying for the Decree Absolute.
If you, as the Petitioner, do not make an application within three months of the earliest date on which you can apply for the Decree Absolute, your spouse can then apply for it, however, the Court will have to list a short hearing to decide whether or not the Decree Absolute should be pronounced at that stage.
If your spouse co-operates, the divorce is likely to take around 6 months from start to finish. Sorting out finances can take longer.
If you would like any further information about divorce or separation please contact Naomi on 01665 606100 or email email@example.com.
By Mark Warcup, Director
Landlords – how can you get possession of your property if the tenant is not paying the rent?
The first thing to say here is be careful!
You do need a court order to repossess any residential property and if you take any action that might in any way be construed as harassing the tenant, you may be guilty of a criminal offence. This dates back to the Protection from Eviction Act 1977.
You have a couple of options, but you do need to be careful to follow the rules, and use the proper prescribed forms.
You can serve the tenant with 14 days notice that you intend to go to court for an order for possession. If the tenant does not clear the arrears, you can then make an application to court for a possession order. The tenant has an opportunity to respond to the court application before a court hearing takes place. If the court grants a possession order, it is normal to order possession in 14 days. If the tenant does not leave, you then need to arrange for the court bailiffs to enforce the order and take back possession. You can also get a judgement against the tenant that the rent arrears are paid, although in the vast majority of cases the tenant will leave and it will not be cost effective for the landlord to pursue the rent arrears.
If the tenancy has expired or is close to expiring, you can serve the tenant with 2 months notice to leave the property. If the tenant does not leave then you still need to make an application to court for an order for possession, but you can use the "accelerated procedure" which normally means a court hearing is not necessary, so the court case will not take as long. Under this procedure you would not get a judgement against the tenant for the rent arrears, only an order for possession.
If you take the first option then you will be able to start your court application quicker, but it will probably take longer to go through the court process, whereas if you take the second option it will be longer before you can start your court application, although it will then probably go through the court process quicker. The choice is yours.
Either way, if you have a tenant who is not paying the rent it is quite unlikely that they will pay any more rent once they are aware that you are trying to get possession back.
I recently attended a court hearing for a possession order in one of the small local courts to find that the court service had forgotten to organise a Judge for that day. Thankfully on this occasion the tenant did come to court and with the help of the duty solicitor who represented her we were able to reach an agreement that we left at court as a "consent order" for approval by a Judge later. If we had not been able to do that, our case would have been adjourned, as were the other cases at court that day. If there is one thing that I have learnt over the years, when going to court you should always expect the unexpected.