No fault divorce: whose fault?

Written by Michelle Bowyer, Solicitor in our Family Team

The Government has announced this week that they plan a consultation on the prospect of no fault divorces.  I anticipate being a participant in that consultation as an accredited member of Resolution, a body which has been driving the campaign for the fault to be removed from divorce.

 The Matrimonial Causes Act 1973 governs divorce and it requires, in absence of a period of 2 years separation by consent or 5 years without consent; the Petitioner for divorce to blame the Respondent for causing the irretrievable breakdown of the marriage.  The current law simply does not permit a party to end their marriage without placing blame unless they are willing to wait for the 2 or 5 year period of separation.

 It is fair to say that sometimes one party is to blame for the marriage break down.  However, I have lost count of the number of clients who have told me that their relationship has run its course or they have simply fallen out of love with their spouse.  It is a frequent source of frustration to a consenting and intelligent adult that they cannot dissolve their marriage by citing that their relationship has simply reached its expiry date.

It is also my experience that even with parties and representatives seeking to resolve all matters amicably, as soon as blame is apportioned, it can cause tension and distress. This can impact upon the parties and more often than not, their children who are witness to that tension and distress.

The outcome of this Government consultation will be significant in the development of UK matrimonial legislation.  It will either keep us where we are which is significant in itself given the wave of opinion for it to be updated; or it will experience an overhaul which could include the opportunity to divorce without playing the blame game.

 In the meantime, a divorce petition needs to be carefully drafted so that it satisfies the court that the marriage has irretrievably broken down whilst trying to minimise the impact of placing blame on a potentially blameless spouse.

 If you require advice with regard to your marriage breakdown, the family team at Bevirs can offer you expert guidance.

 

Congratulations to Emily Bourne on passing your exams

Congratulations to Emily Bourne, another one of our Trainees who passed her recent exam. Emily only had one module left which she passed with flying colours.

In October Emily will graduate and become a graduate member of CILEx. Emily will then enter her final year of qualifying employment before she can qualify to become a fellow of CILEx and at that point will be a fully qualified chartered legal executive.

 

Well done from all of us at Bevirs Emily, we are very proud of you.  

 

 

 

 

Congratulations Michelle Godwin on passing your exams

Congratulations to Michelle Godwin for passing both her Tort Law exam and also the legal research coursework unit.

Michelle has now completed the CILEx course and has achieved a level 6 Diploma in Law and Practice. Michelle is now a graduate member of CILEx. 

 

Well done from everyone at Bevirs. We are very lucky to have you. 

 

 

 

 

Long Leases on Houses the Law of Unintended Consequences

Hugh Ellins latest blog is here!

Long Leases on Houses the Law of Unintended Consequences

When Wimpey and some other developers hit upon the idea of creating long leasehold interests of houses, as distinct from flats, with some nasty provisions such as doubling of ground-rents,  I wonder  if  they  realised the ripples that this would create throughout the housing market.  The justification for this is that as the purchaser did not buy the land on which the house built it was more affordable.  The more cynical of us think this had to do with the ability of developers to then sell the freehold reversion thereby acquiring some more capital value. There are justifications for creating long leaseholds of houses where, for example, there are common areas which need to be maintained in the future by a single body.  There are other ways of skinning that cat without creating long leaseholds of houses.

The problems arose when the freehold interest in those properties was sold to investors in the freehold reversion market.  For whatever reason some of the purchasers of such freehold reversions seem to fall into the most avaricious of such investors.   The purchasers of such houses then found that they were being charged not inconsiderable sums for adding such things as conservatories to their houses or erecting garden sheds.  Then came to light the fact that the ground rents, over a period of time, would increase substantially.  That effectively made the sale of such houses impossible.  As an aside, I do not understand why this doubling of ground rent was not pointed out to the purchasers by their solicitors and suspect that there are now some solicitors who are looking searchingly at their negligence policies.

There were two results in that the responsible developers have set up funds to deal with either the variation of the lease or, indeed, the potential repurchase of the freehold reversions.  The other consequence is that the government investigated the issue and has produced a paper headed “Tackling Unfair Practices In The Leasehold Market “ which, for those interested in this issue, is worthy of study.  The government has promised action on the matter but given the present issues before the government I doubt that this will be produced for some time – if at all.  If the government falls and the labour party forms a new administration then such legislation may well be introduced but who knows when and what.  That has created ripples concerning the house market and has also affected the sale of flats.  For many years there has been an active market in the sale of freeholds subject to long leases – known as freehold reversions.  There are some who invest in that market who are only interested in extracting the maximum return from their investment and will use legal, but what might be classified as ‘sharp’, practices to achieve their ends.  There are others who invest in that market who act responsibly, achieve a sensible return on their investment whilst acting fairly and properly to the owners of the leases.  I mention this because some of the issues that have been raised in respect of long leases of houses are now being considered in respect of long leases of flats. The effect is  that sales of some  flats are not progressing either because mortgagees will not lend  or purchasers are being advised against those leases.  The ultimate effect of all this could be that the market in freehold reversions will collapse which, in time, could mean that blocks of flats are not properly maintained. That is which is to the disadvantage of the lessees and may lead to  a reduction in value.  I appreciate that that is a Doomsday scenario and usually such issues are resolved without Armageddon occurring, but I can foresee that the market in flats on long leases and the sale of freehold reversions will, as they say, go through interesting times.  That usually means a period of uncertainty and difficulty. As an aside I think that  many advisers  are over reacting  but we do have to deal with the over reaction.

Perhaps a concluding example will best highlight the issues.  The example, I am afraid, is of a technical nature.  One has to assume in this example that the ground rent payable under the lease either is or will increase beyond £1,000 a year in London and £250 a year elsewhere.  If that occurs the lease, unintentionally, becomes an assured tenancy which means that it is subject of what is known as Ground 8.  Ground 8 is a ground for possession by the landlord  where rent has not been paid.  The problem with Ground 8 is that it is mandatory where, at the time that the landlord notifies the tenant of the arrears there is, in the case of a long lease, at least three months’ rent outstanding and that that position is still in existence at the time of any Court proceedings.  In those circumstances the Court must grant possession.  That is of serious concern to any potential mortgagee who can see that its security could disappear.  Whilst there are some practical solutions to the issues, the theoretical risk is causing ripples in the market place. One solution is for the mortgagee to pay the arrears and add that some to the amount owed.

If you are an investor in freehold reversions, now is probably the time to give yourself an Away Day to consider your strategy. If you are the owner of a long lease who might be going to wish to sell the lease within the next couple of years, now is the time to talk to your solicitor to see what can be done.

Hugh Ellins 29th August 2018

 

 

 

Wife’s petition to divorce husband dismissed by Supreme Court

The Supreme Court Judgment in Owens –v- Owens released today:

This case concerns Mrs Owens petition for divorce from her husband of 40 years.  She is 68, he is 80.  She wishes to divorce,  he doesn’t and he therefore defended her petition.  At a county court trial, the Judge found that Mrs Owens examples of behaviour were all “flimsy”, “exaggerated” or “taken out of context”.  The court found that she had failed to prove that the marriage had broken down as a consequence of her husband’s behaviour and therefore the long appeal process began and ended up in The Supreme Court which has today delivered their Judgment.  Mrs Owen’s appeal has been dismissed and she must remain married to her husband.

Mrs Owens must now wait until 2020 when she can proceed with a petition based upon 5 years separation (which does not require her husband’s consent).  However, this case highlights to all practitioners the need for careful drafting of divorce petitions.  A good practitioner will find a balance between proving that the petitioner’s life is intolerable as a result of the respondent’s behaviour whilst seeking to keep tension to a minimum. 

If, like Mrs Owens, you fail to demonstrate a link between the other party’s behaviour and it becoming intolerable to live together, then you too may find yourself in a position where despite your feeling that the marriage has broken down, you will be unable to legally remove yourself from it.

If you require advice in relation to your marriage breakdown, our family team at Bevirs can offer you expert advice.

 Michelle Bowyer 25.07.2018

Meal Ticket for life : the end?

Stuart McNeil, Head of Litigation on Mills-v- Mills

https://www.lawgazette.co.uk/law/supreme-court-rules-in-mills-v-mills-the-end-of-a-meal-ticket-for-life-/5066921.article

The Supreme Court has formally issued its judgement in a case where an ex-wife had applied to increase her maintenance payments of £13,200.00pa. As a result of losing money awarded to her in the divorce settlement made over ten years earlier, she had got herself into debt. The Supreme Court has ruled that the Judge who first heard the case was correct when refusing to increase the maintenance on the basis that the couple had already divided their capital and the husband should not have to pay more because the wife had lost much of hers.

The case has attracted a lot of attention in the press suggesting that this is the end of the ‘meal ticket for life’. This case doesn’t actually make any definitive principles about long term maintenance payments as the decision turned very much on its own facts, but nevertheless it highlights the increasing trend for courts to try to ensure that couples are able, and are expected, to stand on their own feet as soon as possible after separation, which is why achieving a clean break by the payment of extra capital instead of maintenance, is often the best way forward, whenever possible.

 

Network Rail successfully sued over knotweed

Emily Bourne, Trainee Legal Executive in our residential conveyancing team talks about the recent case against Network Rail due to overgrown knotweed.

On 3rd July 2018 the Court of Appeal heard the case between Network Rail and a Mr Williams and a Mr Waistell. The Appeal was brought by Network Rail after the Cardiff County Court found in favour of Mr Williams and Mr Waistell in respect of their claims of private nuisance against Network Rail who allowed Japanese knotweed to grow on their land which was adjacent to the properties owned by Messrs Williams and Waistell.

Japanese knotweed itself is a hardy bamboo-like plant that is strong and grows quickly spreading through its underground roots or rhizomes. Both the Royal Institution of Chartered Surveyors (RICS) and the Environment Agency have published papers regarding Japanese Knotweed and comment on its ability to affect drains, patios, boundary walls etc. The eradication of Japanese Knotweed must be carried out by licensed organisations and entails a long and complex treatment process.

Mr Williams and Mr Waistell were the owners of two adjoining semi-detached bungalows in Maesteg, South Wales with Network Rail owning the land immediately behind their properties. On Network Rail’s land was a large clump of Japanese Knotweed which all the parties agreed had been there for at least 50 years. Messrs Williams and Waistell brought claims in private nuisance against Network Rail on the basis that the Japanese Knotweed had encroached on their properties and interfered with their quiet enjoyment of their properties.

At the initial trial the Judge found that whilst the Japanese Knotweed had encroached on to the properties no physical damage had actually been caused but when considering the ‘interference of quiet enjoyment’ element of the claim the Judge held that whilst physically there was no loss because of the minimal amount that the Japanese Knotweed encroached onto the properties, Williams and Waistell had suffered the loss of quiet enjoyment.

The Court’s reasoning was that the amenity value of a property includes the ability to dispose of it at a proper value. This combined with the fact Williams and Waistell had to live with the concerns and consequences of having Japanese Knotweed on their land amounted to a loss of quiet enjoyment. The Court did not grant an injunction compelling Network Rail to treat the Japanese Knotweed but did award compensation to both Williams and Waistell.

The Court of Appeal agreed with the Trial Judge’s decision but on different grounds. The Appeal Judges said the Trial Judge was wrong to conclude a diminished market value was enough to amount to a loss of quiet enjoyment. Instead they held that due to the nature of Japanese Knotweed, the mere presence on Williams and Waistell’s land affected their quiet enjoyment because not only was there a risk of future physical damage but also it placed a burden on them to deal with the issue of removing and treating it.

Beware conveyancers when completing the property information form to ensure the question on knotweed is answered accurately.

Further expansion for Bevirs

Bevirs Law is pleased to announce further expansion of the Family Law Team at its Swindon office with the appointment of Heather Reilly. Heather’s appointment follows the recent appointment of Claire Webb in the Family Care Team.

Heather joins Bevirs Law Family Team which supports a constructive, non-confrontational approach to family law matters. She will advise on all aspects of family law dealing with divorce, financial and children issues.

Stuart McNeil, Head of the Family Department comments, “I am pleased to welcome Heather to the team. Her appointment strengthens our department further allowing us to continue to offer a high level of specialist advice.”

Bevirs Law has grown significantly in the last 12 months with appointments in Commercial Property and Wills and Estates.

Stuart added “We have seen consistent growth in the last three years and we are aiming to maintain that growth over the coming years. We are continuing to recruit and also train existing staff to meet the demand for high quality legal services from our clients.”