At Blythe Liggins we recommend the preparation of pre-nuptial agreements (quite often referred to as pre-nups).

A pre-nup is an agreement in which a couple record their rights and obligations in relation to property, capital income, debts and any other assets.  They can record how they want to divide assets should their marriage fail and what financial support they will provide to the other in the event of separation or divorce.

Without a pre-nup the court can, upon divorce, include all assets in the financial settlement, including any acquired before the marriage.

Pre-nups are not strictly enforceable in the UK as there is currently no legislation making them legally binding.  However, UK courts do now recognise such agreements and are willing to hold parties to them provided that they are fair in all the circumstances. This principle was first established in the case of Radmacher v Grantatino in 2010 when the court refused to vary a pre-nup entered into by the parties before they married.

Indeed the Law Commission, which is a statutory independent body that advises on the law, has recommended that there be a change in the law whereby such agreements should be upheld unless they are found to be unfair.

A carefully drafted pre-nup should afford the parties a large degree of protection provided that the financial needs and any financial responsibilities towards the children have been met. You can include a review provision within a pre-nup in case there is any change of circumstances not specifically catered for in the agreement such as ill health, redundancy, having more children etc.

It is important when preparing a pre-nup that both parties fully disclose their finances and are both afforded the opportunity of taking separate legal advice.  The agreement must be freely entered into so a pre-nup should be executed (signed) no fewer than 21 days before marriage.  This should avoid a party to such an agreement being forced to sign it shortly before their wedding day.  At Blythe Liggins we suggest that a pre-nup is ideally signed a month before your wedding day.

At Blythe Liggins we will prepare a bespoke pre-nup to cover your particular needs. We will make sure that it covers everything that you want it to. It is a good idea for parties to think about what they would like to happen if their marriage should ever come to an end. For example:

1. What would happen to property that either of you brought to the marriage?
2. What would happen to the family home?
3. What would happen to any property given to you or inherited during the marriage, or any assets you paid for yourself?
4. What would happen to any income or assets derived from trusts?
5. What would happen to any money you’ve saved/earned during the marriage?
6. What would happen to your pensions?
7. How would you deal with debts?
8. Would either of you pay or receive any maintenance and if so for how long?
9. What kind of events might require a review?
10. How would you divide contents to include ownership of vehicles or maybe a joint art or record collections that you may have built up over the years?
11. What kind of arrangements would you put in place for the children that you have or are likely to have?

Pre-nups are not just the reserve of wealthy couples. Increasingly we are being asked to prepare such agreements for couples marrying for the second time who want to protect their respective children’s future inheritance. In addition, young couples starting out on life’s journey together are also looking to prepare such agreements, particularly where one party may be contributing significantly more than the other towards their first home together.

CAPTION: Louise Sheasby, Chartered Legal Executive in the Family Law Department

 

 

 

 

 

When a medical professional or treatment provider makes a mistake, should they admit it to the patient or just hope that they are never found out?

Regulation 20 of the Health and Social Care Act* states that care providers must act with openness and transparency in the event of a serious incident. This is known as the ‘Duty of Candour’ and the Regulation came into force in November 2014 for NHS bodies and April 2015 for all other organisations.

The information provided to the patient or their family should include an account of all the facts known about the incident and confirmation as to what will happen next. The family should be kept informed of any investigation and its outcome, which should be followed up in writing and include an apology.

Most hospital trusts fully comply with this duty but in September 2020, in the first case of its kind, the Care Quality Commission (CQC) prosecuted a Trust that failed miserably to adhere to the Regulations.

University Hospitals Plymouth NHS Trust was ordered at Plymouth Magistrates’ Court to pay a total of £12,565 after admitting it failed to disclose details relating to a surgical procedure or to apologise, following the death of a 91-year-old woman.

The CQC brought the prosecution after it emerged that the trust failed to share details of what happened to Elsie Woodfield prior to her death at Derriford Hospital, in Plymouth, following an unsuccessful endoscopy procedure. The trust also failed to apologise to Mrs Woodfield’s family within a reasonable timeframe.

Mrs Woodfield suffered a perforated oesophagus during an endoscopy in December 2017. As a result, the procedure was abandoned and Mrs Woodfield was transferred to the hospital’s Marlborough Ward for observations. While there she collapsed and later died.

Following the operation, it was found that the trust had not communicated what had happened with Mrs Woodfield’s family in an open and transparent way, nor had it apologised for what had happened to her in a timely manner.

This is a welcome decision as it is vital that all care providers are open and transparent. Poor Mrs Woodfield’s family were never afforded that courtesy and let us hope that the case serves as a timely reminder for others to abide by their Duty of Candour.

* Health and Social Care Act 2008 (Regulated Activities) Regulations 2014

CAPTION: Claire Kirwan, Partner and Head of the Clinical Negligence Department

When a marriage, sadly, breaks down it is necessary sometimes to look at the family business and agree how it should be dealt with. For example very often it is possible to preserve the family business, since it is the business that has provided prosperity in the past and will be a source of income for the future.

In a recent article I pointed out the importance of obtaining the appropriate expert accountancy evidence to deal with such matters as the capital value of the business, recapitalisation and liquidity. These issues are core to reaching a financial settlement within divorce proceedings. There are other issues relating to practical matters such as a spouse resigning from the company, either in an executive capacity as a director, or resigning as an employee. In those circumstances, the person who takes on the company will provide, typically, indemnities with respect to future trade liabilities and potential tax liabilities.

For a number of years the court has been preoccupied with various issues relating to how a company should be valued with respect to divorce proceedings. For example, a number of different values can be attributed to a company. A company will have a value that was amassed prior to the marriage ceremony, a different value when the parties separated and a further value if the case ends up in court later on. This conflicting evidence can impede how a case may settle.

The courts, however, are seeking to adopt a more pragmatic view and in the case of Martin v. Martin which was reported in the Court of Appeal in 2018 the Judge adopted what may be viewed as a more arbitrary approach, applying a straight line apportionment to the increase in the value of the business over its life span. Quite clearly no business develops and grows in this way, but with a growing focus on fairness by the Judges in decisions they make, we can assume that the focus of the Judge was not just on what is correct in terms of the business valuation, but what is fair and just. In other words, the judge may seek to disregard complicating variables, and instead look at the value of the business during its lifetime and then apportion that increase in the value of the business accrued during the marriage.

In the first instance therefore, it is important to commission the appropriate report from an experienced forensic accountant who deals with such matters, but in addition, to adopt the type of pragmatism that the case of Martin v. Martin brings to the table when seeking to negotiate a settlement, as opposed to going through a court process of litigation, which is to be avoided because of additional cost and delay.

When dealing with a business as part of a divorce, it is important that the correct valuation evidence is obtained and appropriately evaluated. The family department here at Blythe Liggins are always willing to assist and can be contacted at agb@blytheliggins.co.uk or 01926 831231.

 

We have certainly been living though very worrying times.  Not only have we, as a country, had to face a national health crisis but an economic crisis too, with the effects of both no doubt burdening us as a society for many years to come.

Confined to home for weeks on end and the suspension of normal life as we know it has no doubt had an impact upon us all. Sadly, this has added to the pressure on relationships that were already fraying at the edges pre-lockdown. It is anticipated that the number of divorces are set to spike following the easing of the current restrictions.

However, if you are contemplating divorce you should ask yourself if you have exhausted all other avenues, such as marriage guidance counselling.  Divorce is a big step.

The mechanics of obtaining a divorce nowadays are usually straightforward, particularly if both agree that the marriage is over.  The difficulties tend to lie in resolving practical issues stemming from divorce such as how to separate, arrangements for the children and money matters.

It is true to say that in this life you get what you pay for.  An internet service can be impersonal and you could end up doing a lot of the paperwork yourself.  It is therefore vital that you appoint a specialist family lawyer as they will be able to expertly guide you through this process.

A good family lawyer will take a sensible approach to your case and give you sound pragmatic advice and it won’t cost the earth!

Many family lawyers understand the financial constraints placed upon families, particularly at this difficult time.  Many solicitors are more than happy to talk to you upfront about their likely fees and will work within your budget.

Most cases can be resolved by agreement which can sometimes save time and money. This is what a good family lawyer will aim to achieve for you.

The family department at Blythe Liggins offer a personal service tailored to meet your individual needs.  Please feel free to contact us for a confidential chat.

 

CAPTION: Louise Sheasby, Chartered Legal Executive, Family Department

Of primary concern, quite naturally, for people going through a divorce is to find out what type of financial award they might ultimately receive. We at Blythe Liggins like to think that we are adept at providing clients with advice that may very well lead to a financial settlement being entered into.  This advice can only be given once the extent of the matrimonial assets has been determined.  In other words both sides disclose to one another what their capital assets amount to and what income they have.

One of the challenges in dealing with financial disclosure is to calculate the value of the parties’ business interests.  There are many clients who trade either by themselves or in partnership or under the guise of a limited company.  The challenge is to arrive at a valuation of the company so that in turn this can be factored into the type of fair and reasonable settlement that the parties very often aspire to, with the aim of avoiding court proceedings.

So what is a company worth?  In the very best of times it can be challenging to ascertain the value of a company.  There are many factors to be taken into account, for example very often a discount will need to be applied for a minority shareholder. In the alternative the company might have liabilities on the one hand or be overstocked on the other.  Arriving at a valuation of a business interest has always been challenging but even more so nowadays due to the Covid-19 crisis which ironically in connection with some companies has enhanced their value, but in the case of a majority of businesses has caused their value to decline.

It is not a solicitor’s job to value a business interest, or shareholding but rather for a forensic accountant to undertake this task.  However, what is important is to instruct the appropriate accountant with the necessary skill sets to value a business interest and at the same time for the solicitors instructing the accountant to provide them with the appropriate information which will form the bedrock of their valuation report.

There are many questions for the accountant to be answered, not least of all the capital value of a party’s interest in a business but also the liquidity of the business and whether or not there are any plans for re-capitalisation or ultimately perhaps even a sale.  The matrimonial department at Blythe Liggins has worked with many businessmen and business women over the years, helping them to find solutions that not only protect their business interests and livelihood but also produce a fair and reasonable result for the parties when ultimately they divorce.

Legal advice on how a business might be dealt with when a marriage breaks down or a relationship fails can be sought by speaking to a member of the matrimonial department here at Blythe Liggins.

 

CAPTION: Andrew Brooks, Partner and Head of the Family Department

When a marriage sadly breaks down, it is necessary to look at the assets that both parties have. From many years of experience, we have learned at Blythe Liggins that  the assets that the parties initially draw our attention to are, for example, the value of the family home, the value of any savings, bonds and  ISAs etc.

All of the above assets are obvious and at the forefront of clients’ minds. It is only when we delve into the value of the pension funds in some cases that it becomes apparent that, surprisingly, the value of the pensions can be greater than the totality of the other matrimonial assets combined. In many instances, the value of their respective pension funds very often comes as a complete revelation to our clients.

Pensions are, therefore, very much on the agenda when it comes to reaching a fair and reasonable financial settlement. Recently, one of our top family Judges, HHJ Hess, has provided guidance on how pensions should be treated within divorce proceedings. It is important to get this right because pensions, over the passage of time, can increase exponentially in value and are an essential asset for those parties to divorce proceedings who ultimately retire. The Family Law department at Blythe Liggins is happy to advise clients on their options regarding pensions when it comes to divorce proceedings and a financial settlement. Contact them on our main switchboard number of 01926 831231 or via agb@blytheliggins.co.uk.

CAPTION: Andrew Brooks, Partner and Head of the Family Department

The present law on divorce dates back to 1973 and it is widely recognised that it can cause problems for parties when they divorce since they very often have to rely upon introducing unreasonable behaviour to end up being divorced.  This has, for a very long time, been considered to be divisive and harmful to parties, when in reality a husband and wife have drifted apart and there is in fact no acrimony.

The new law passed it’s reading in the Houses of Parliament on 2 September and is on its way to the committee stage and becoming law, hopefully during the latter part of 2020/2021. When the  new law is in place it will mean that the current law, where one party often has to blame the other for the breakdown of the marriage will cease and instead a divorce may proceed on the basis of no blame. This will remove a degree of unpleasantness which can blight the relationship between a husband and wife unnecessarily.

It is our view at Blythe Liggins that the new law, when it is implemented, will not make divorce more common.  Neither will it mean that divorce is any easier, it will certainly not make divorce any quicker since even under the proposed new law the divorce process will still take 26 weeks.  However, it should make divorce less acrimonious which will allow people to move on with their lives and to reach agreements in connection with their children and finance and property in more orderly and constructive ways.

This new law is long overdue and the Family Department here at Blythe Liggins look forward to the introduction of the new law.

CAPTION: Andrew Brooks, Partner and Head of the Family Department

Many parents wrongly assume that when they appoint a godparent for their child, then that godparent will be able to step in to take care of their children if they were to die.  They live with this false assurance that all will be well in the event of their unfortunate demise.  However, this is not the case and parents must be aware of the legal difference between a godparent and a Guardian.

The role of a godparent is purely moral and religious and it has been a custom for many decades for parents to name a godparent for their child as part of their religious culture or otherwise.  However, naming this godparent does not create any legal relationship between the godparent and the child and so if the child’s parents were both to die, then the godparent would not automatically become the child’s Guardian and all sorts of legal issues may follow including court battles between relevant parties (eg other family members).

A Guardian’s role on the other hand is a legal role and so if both of the child’s parents were to die during the child’s minority (aged 18 or under), then the Guardian would have those legal rights and obligations as intended by the late parents in respect of that child.

Parents may wish to appoint the same person as both godparent and Guardian and there is nothing wrong with this but if parents wish for that chosen person to care for their child in the event of their death, then it is important to formally appoint that person legally as a Guardian.

The appointment can be made within the parents’ Will although it is also possible to draw a separate formal document.  The preference however nowadays is to include the appointment within a Will.  It is extremely important to take advice prior to legally appointing a Guardian to ensure that both the parent and the intended legal Guardian understand how the appointment will work as it will be tailored to the circumstances of each case.

Indeed, who has parental responsibility for the children, whether the parents are married, unmarried or divorced and whether there is a step parent are all factors that will need to be taken into consideration and so it is crucial that parents take independent legal advice before appointing a Guardian.

It is possible to include conditions upon the appointment of a Guardian and also to appoint a substitute Guardian if the originally intended Guardian pre-deceases the parents.  It is also extremely important that the document is appropriately executed to ensure that it is legally binding.

If parents do not legally appoint a Guardian and there are no other family members able to care for the child following their death, then the Court may appoint someone else instead and this may not always be the person that the late parents would have intended/wished to care for the child originally.

Also, parents must be aware that appointing a Guardian is only expressing one’s wish and if, following the death of both parents, other family members intervene and wish to care for the child themselves, then there may be a legal battle as the priority of the Court will always be what is in the best interests of the child. Professional expert advice will need to be taken from a specialist childcare solicitor to advise further at that stage, should the situation arise.

In summary, if you have young children and you would like the peace of mind of knowing what arrangements will be in place in the event of your untimely demise, you need to check your Will to ensure that you have included an appropriate guardianship provision.  If you have not made a Will or do not have suitable provision in your existing Will, you should seek suitable advice as soon as possible. Do remain aware that appointing a Guardian is purely expressing a wish and that depending on the circumstances of the case post appointment and most importantly post death, Children Act proceedings may arise subsequently in the event of a dispute.

Please do not hesitate to contact one of our experts if you need additional advice and guidance in this regard.

CAPTION: Sophia Mellor, Associate Solicitor in the Family Department

A Leamington litigation lawyer, who started work as a butcher’s boy after leaving school, is now celebrating 40 years with Leamington solicitors, Blythe Liggins.

Darryl Barnes is a key member of the firm’s dispute resolution team, using his wide experience of acting in the County Court, High Court and Court of Appeal to represent both claimants and defendants.

But his time with the firm did not get off to a promising start. “I was two hours late for work on my first day!” he said.

He was driving to Blythe Liggins in his Ford Cortina when he was flagged down by a motorist who saw petrol pouring out of the tank.

“I had to find a place where I could park over a drain so the petrol wouldn’t flood the road. Then I had to wait for the fire brigade and then get the car to a garage. It wasn’t the most auspicious start to a new job but fortunately the firm was very understanding!”

Darryl was joining the solicitors after spending five years with a Coventry law firm, which he had joined as a trainee.

“When I was at school in Rugby, I used to deliver meat for a local butcher before going to school each day. I sometimes also helped out in the shop on Saturdays so, when I left school and was wondering what career to follow, I spent six months working as a butcher’s boy while waiting to get a placement with a law firm,” he said.

But it hasn’t all been plain sailing. In 1989 he was struck down with cancer and fought a long battle for two years, during which time he also developed sepsis and then became one of the first 20 people in the UK to receive stem cell treatment for his tumour.

“The firm was absolutely marvellous and supported me the whole time, through months of gruelling chemotherapy and radiotherapy and my transfer to a London hospital where they were in the early days of using stem cell treatment.”

Today, Darryl, a keen motor racing fan, keeps fit by walking miles along canals and through the countryside, often with his wife and two children.

“It’s been a rollercoaster ride but I’ve enjoyed every minute of – well, most of it!”

 

CAPTION: Darryl Barnes, Litigation Lawyer at Blythe Liggins

An expert at a Leamington law firm has cautiously welcomed plans by the government to restart the house-buying market. Homebuyers and sellers had initially been told to delay completion on deals until lockdown ends. However, estate agents were given the go-ahead to reopen offices and arrange property viewings as of last Wednesday following a slight easing of restrictions.

Tim Lester, partner at Leamington-based Blythe Liggins, which is a member of the Law Society’s conveyancing quality scheme (CQS), said that while the restart is a welcome shot in the arm for the market, people should be aware there won’t be an immediate return to normality.

He said: “Throughout the pandemic to date, we have endeavoured to support the sales process as far as possible and make every effort to help clients due to complete on properties.

“This changing gear in terms of the market is very welcome news. Progressing transactions may not be as straightforward as they were pre-lockdown but we have adapted, and will continue to adapt, to the change in climate and do what we can to work with clients and agents to facilitate moves.”

As part of the ‘new normal’, conveyancers have been told to carry out as much of their business as possible remotely and, where client meetings must take place, measures should be in place to ensure appropriate social distancing and hygiene.

Tim said: “The process could well take longer than pre-lockdown due to restrictions still in place, so I think potential buyers and sellers need to bear that in mind.

“To try to lessen the effects, we would encourage sellers to instruct upon marketing, rather than upon acceptance of an offer, as a lot of timesaving work can be carried out during that preliminary period, thus helping us make the process as smooth as possible.”

Contact Tim if you would like further advice on 01926 831231.