Protect your Rights...

I recently have had several clients contacting me very concerned that they are separating from their husbands and that the family home is owned in his sole name.

Some have been told by their husbands that they will have to leave because it is "his house" and some have assumed that they have no security because their name is not on the deeds.

In cases where parties are cohabiting and are not married, that might well be the case but where parties are married, the non-owning spouse (so to speak) has a right of occupation by virtue of the fact that the property is his/her marital home, irrespective of the position as to legal ownership.

There is also something that can be done to protect that right, in the registration of a Home Rights Notice (HRN) against the property with the Land Registry.

This straightforward notice is especially important if the non-owning spouse is going to move out whilst the marital finances are being sorted - perhaps to their parents/friends or into rented accommodation - this is sometimes the case where that person feels that it is impossible to remain under the same roof and try and resolve the marital finances and where their spouse refuses to leave the property because his/her name is on it.

The notice can only be registered against one property (the one that has been used as the marital home) - and if a couple has a property portfolio and some of those other properties are owned in the sole name of one spouse, the other would be best advised to consider registering another form of restriction against those.

The effect of the HRN is to put any prospective buyer on notice that the non-owning spouse has a right of occupation of the property. No buyer is realistically going to want to buy the property subject to the notice and they will ordinarily demand its removal before/on completion of any purchase.

The benefit of this is that it can frustrate the owning spouse selling the property from under the other, non-owning, spouse because they will have notice of any proposed sale when they are approached to remove their notice and, in the normal course of events, will refuse to remove the notice to allow any sale to go ahead unless settlement terms can be agreed.

The owning spouse can object to the notice being entered, if they provide appropriate evidence - for example if they believe that the property was never the matrimonial home.

The Notice can be cancelled on the death of either spouse, pronouncement of Decree Absolute, by the non-owning spouse agreeing to release the rights or by Court Order.

A really useful tool and, having explained it to clients, one that helps sets minds at ease!

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Unbundling or unravelling?

The new buzz word of the moment in some legal circles is "unbundling" but could it all lead to matters "unravelling"?

The concept essentially is to offer clients the option of doing parts of the work themselves and paying a Solicitor either for discreet pieces of work or defined parts of a matter.

I can certainly see the benefit to the client in terms of limiting costs but I do think both sides need to be careful that matters don't end up more complicated with the case suffering as a result.

This idea is being discussed over a number of different areas of law but I shall focus on family law, as it is the one I am more familiar with.

Take Divorce as an example. What I mean by that is what lawyers refer to as the "main suit", the paper-process that takes a person from "married" to "divorced". Often misunderstood by clients as encompassing all issues, finances and children as well.

That process is fairly straightforward - yes there are some points that need to be discussed/negotiated but if a Divorce is to proceed undefended i.e. no answer filed by the Respondent (which is not the same as someone disputing what is said about their behaviour but nevertheless agreeing that the marriage has come to an end) then the reality is that the process is defined and why should we not, as lawyers, be able to offer a fixed fee or "unbundled" service to clients?

The level of fixed fee will depend on how much work a client wants to undertake themselves. I know, if i am to do all of the drafting for a client, what is involved and how long it will take me. If a client is being guided by me but undertaking the drafting themselves then there is less certainty about how much input they will need from me in terms of the paperwork.

There has been much discussion about how we can tell whether a client is capable of undertaking the necessary work, how much they understand and whether them undertaking work themselves may put other aspects of the case in jeopardy - that may well be relevant if the client is left to their own devices, entirely unguided or perhaps in other areas.

My view is that each client has a particular relationship with their lawyer and lawyers should be sufficiently adept at client care and client contact to establish a good relationship with each of their clients. It is a matter for discussion between the Solicitor and client as to how work is divided and whether indeed the client wants to do any of the work themselves.

I have had no difficulty with clients opting for our "Guided Divorce". I am clear with them at the outset about our respective responsibilities in terms of paperwork etc. and understand from their feedback that the option of controlling costs by undertaking the preparation of papers themselves has been helpful. Clients feel that they are able to work this way because they know that they have my guidance throughout.

In terms of other matters, I can see that it may be difficult to "unbundle" financial negotiations for example or negotiations concerning child arrangements.

That is twofold, to ask a Solicitor to work on a discreet piece of work, perhaps the preparation of a statement for example, can in fact be counterproductive - the Solicitor will not have been privy to the detail of negotiations and will be unable to advise in the round to ensure that all areas are covered and that the client understands their position and any risks that they face.

This causes a difficulty for lawyers, who are inherently risk averse, because we feel that we are left open to suggestions that we have not fully advised the client about the various possible outcomes or their risks, that there might be some claim raised against us etc. etc.

In addition, fixing a fee for negotiations is difficult because the length and depth of work is an unknown at the outset.

That said, I can see no reason why costs for defined stages of proceedings cannot be set in bands with detailed information given about what that "band" involves. That leaves the client clear about the level of costs that they will incur up to a certain point and allows the Solicitor to work on the matter throughout and not piecemeal, which satisfies us as regards our duty to fully advise etc. etc.

I think the reality is that decisions as to whether firms operate this way going forward will be business decisions and the level of fixed fees, "unbundling" or banded fees will need to be carefully assessed and clear letters to clients detailing the extent of the work being undertaken by the firm and by the client respectively.

The legal landscape is changing, fast, and I do think that more flexibility is required and will be demanded by clients - perhaps especially after the 1st April.

This is a brave new world of legal services but who will have the courage?

Legal Aid Cuts fast approaching

Wow, February has totally past me by I’m afraid – hence the lack of any blog posts – apologies.

Recently, I have been amazed about the lack of understanding that there is generally by the public about the forthcoming cuts to legal aid and what that will mean for couples separating after 1^st April.

I am often asked by friends, family and professional contacts “how work is going” and I have spoken with people recently about the challenges that family law as a whole will face in the coming months/years.

More often than not, people are surprised to hear that from April there will no longer be legal aid available for family law matters, save where there has been Domestic Violence – subject to the client being able to provide the necessary evidence of that – or for Care proceedings.

This was hit upon in the press when it was initially proposed but seems to have been lost amongst other news and has not been highlighted for some time now.

Essentially it means that the vast majority of separating and divorcing couples will no longer be able to access legal aid to fund their matters.  It is estimated that this will be about 85% of those cases currently benefitting from legal aid.

It will mean that for couples facing separation or Divorce where there has been no Domestic Violence that they face some stark decisions about how to progress with their Divorce or Separation.

These may be couples with many assets, no assets but a lot of debt, couples facing disputes over the arrangements for their children or any other situation in between.

To represent yourself, perhaps especially in cases concerning arrangements for the children but equally in cases involving the division of marital assets, is stressful and frightening. Whilst a Judge will be available to manage the Court process and explain some of the procedure to couples once proceedings have started it is not the Court’s job to present any one party’s case or advise about the merits of their arguments. Outside of the Court process people may feel entirely alone and unsupported.

In the event that one party has resources to fund legal representation and the other does not, it can leave an imbalance in power in terms of negotiations and is likely to see many more cases progressing to Court proceedings and thereafter to contested final hearings, as a result of negotiations being ineffective.

The Family Courts have principles and checklists to follow both in terms of cases involving children and those concerning the division of marital assets. Add to that the volume of case law, some of which binds and some which informs the Court’s decisions, and it is easy to see that the self-representing litigant may come unstuck.

So…what are the other options:

1.      Research

There are a number of online resources available now that will explain the process of Divorce and the issues that you will need to consider on Separation. You may undertake some research and go it alone.

Consider – a lot of these resources provide only brief information about the paper process of Divorce and fail to fully explain important issues around finances or child arrangements.

Be wary of advice from friends or people down the pub – they may be well-meaning but frequently have their own perceptions or experiences colouring their view.

2.      Mediation

To be invested in heavily by the government over the coming years, Family Mediation is a process whereby couples attend joint sessions with an independent Mediator to discuss the various issues faced on separation – try to resolve their financial affairs and try to agree arrangements for the children

Legal aid remains available for Family Mediation if you pass the financial assessment. You may self-refer or be referred through a Solicitor.

Consider – if you are not eligible for legal aid then you will have to pay for each session of Mediation, although this is often more cost effective than full blown negotiations through Solicitors and can help narrow the issues.

Even if you reach agreement through Mediation, you will need legal advice to ensure that your agreement is legally binding – the Mediator will be able to point you in the right direction and look out for Partnership Schemes between Solicitors and Mediators that will fix fees for you – there is one in Worcester for example.

3.      Middle ground

Some Solicitors offer a middle ground option in terms of Divorce proceedings which will see you doing some of the form filling and correspondence yourself whilst you are guided through by the Solicitor dealing with your case.

This has the advantages of you being certain of your next steps but controlling the costs. Your Solicitor will also be able to advise you about any ancillary issues so that you are clear on your option.

Consider  – there will be a cost to this option but it should be less than asking a Solicitor to fully manage your Divorce proceedings – expect to pay about £350-£400 + VAT and Court fees of £385.

4.      Free initial consultations

Useful and offered by most Solicitors now, this initial form of consultation should allow you to gain some information about procedure and the important issues in your particular case. It is more tailored to you then generic information that you may find online and you can access it without obligation

Consider - it may leave you informed but more concerned about representing yourself going forward. Frequently people who attend to see me for an initial consultation feel clearer on the issues and their options but feeling that they will need support and guidance going forward. That is not really a bad thing, better to be informed early on.

5.      Instruct a Solicitor

The plus side to this of course is that you will have a legal professional guiding you through the minefield that can be Divorce, someone to support you and protect your best interests and someone to advise you about which of your arguments are strongest and which are perhaps fuelled by your emotions.

You may wish to consider instructing a Collaborative Solicitor, and follow the Collaborative law process.

Consider – there is clearly a cost to instructing a Solicitor but you should be provided with detailed cost estimates at the outset and updated about any costs throughout.

Several Solicitors now offer fixed fee packages or banded costs – so that you know what your costs will be at each stage of the process. You may also be able to agree a capped fee with your Solicitor at the outset.

There may be sources of funding open to you and there are a couple of organisations that offer loans to cover the cost of financial negotiations and proceedings on Divorce. Be sure to take financial advice and be clear on the terms of any loan.

Whichever option is chosen, Divorce is a difficult and stressful time for all involved, if possible choose an option that will help you minimise the strain.

Costs and control in Divorce

So February is nearly upon us, scary - one month down!

I have struggled this month with diet, exercise and all the new year resolution type things that I was to do but all of that pales into insignificance when I meet new clients struggling with all of that, normal life, children and the prospect of a separation.

Many have been happy that finally they have felt able to do something about the feelings that they have harboured for a long time but even when people have plucked up that courage and taken that step they find themselves trying to deal with a process that is alien to them and the costs that come with it.

I have read in several places over the last month or so that Divorce costs £10,000+ (I have seen that as a statement in itself with no qualification about the level of assets or complexity of the case).

Now whilst I accept that there are some cases that are complex or very contested and which attract alot of legal costs, there are many more that are relatively straightforward and that should not attract anywhere near that amount. It worries me to think that there are people who will shy away from getting the legal advice they need to make an informed decision because of scaremongering about costs.

There is a cost, of course, to obtaining specialist legal advice on Divorce - much as there is a cost to having your car fixed or taking financial advice - but there is also a value to that advice - be it in peace of mind, protection of assets or security for the future.

People going through the process of separation or divorce want control, they want fairness and they want to feel that they are not lost and that they have direction - that is fine but often the sticking point is cost.

In late 2012 I entered a Mediation Partnership with Mediation Worcestershire, along with a few other Solicitors in the area. The concept is that people who attend Mediation to resolve their differences but who naturally require legal advice at some point in that process, will be able to turn to members of the Partnership for that advice at a fixed cost.

The aim is to make sure that couples who are separating have the benefit of control through the Mediation process with access to the specialist legal advice that they need at a cost that is clear.

I am imensely pleased that as a profession as a whole we are trying to ensure that access to legal advice remains open and never will this be more important than post April 2013, when the availability of legal aid for family law cases will be abolished, save for those cases involving Domestic Violence or Care issues.

I know that there is a cost to bear for legal advice but I hope that as this year progresses people do not leave themselves counting the cost of not having had it!

New Year, next chapter?

Whilst this festive period may have been a happy time, for many the added stress, constant planning and financial pressure will have left their relationships at breaking point.  When the New Year comes round and people stand back to assess their lives and relationships, many may decide to separate or Divorce.

Rarely do I find that the Christmas period has been the cause of a relationship breakdown and often separation is something that couples have been discussing between themselves for quite a while. When another year arrives on the calendar people think about a new start, new opportunities and new possibilities. It often seems easier to draw a line in the sand at the end of the old year and try to be optimistic about the future at the beginning of the new one, whatever difficulties you might be facing.

Often, the idea of instructing a solicitor may seem 'too big a step' when all you really want is an understanding of what your options may be going forward and clients frequently tell me that they have delayed getting advice because they were concerned about the costs or fearful about feeling pressured into a certain course of action – presumably having listened to the media’s view of lawyers generally.

I can only imagine that in 2013, with Legal Aid being withdrawn by the government for almost all Family Law matters, the number of people feeling this way will increase. And yet, separation or Divorce is a major life decision and one that you should make with as much information as possible.

I offer a free initial consultation on family law issues and spend time explaining to clients the options and discussing ways forward. I hope that clients leave more reassured and clearer about their next steps and they frequently tell me that this is the case, which is good to hear!

Recently, we developed a range of fixed fee options, again, in the hope of reassuring clients and in anticipation of Legal Aid being withdrawn, to assist the many people that will require advice after April 2013 but simply cannot afford to pay on the basis of an hourly rate. It remains to be seen whether many other firms will take the same line but it I clear that the legal market is changing.

Couples separating will more and more be faced with a vast array of organisations and firms seeking to offer legal advice – they will have to decide, do I get advice from my supermarket, an online organisation or a traditional law firm. Do I want to deal with a call centre, someone over e-mail or do I value my life and future enough to want the person dealing with it all to be accessible, someone I can visit face to face and develop trust in?

So I start 2013 positively, having done all I can to enable our clients to access the advice they need at an affordable cost, and anxious to see how the legal market will change this year.

Bring on the next 12 months!