Grounds For Divorce, “No Fault” A Step Closer?

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“The Times They Are A-Changin” *

Family law has not kept pace with societal developments but as a result of a recent case, this may be changing.

In order to get divorced in England and Wales, one needs to show that the marriage has broken down irretrievably. There are only five grounds to “prove” that this is the case. Three grounds involve periods of living apart. The shortest period is to have lived apart for two years on the basis that both parties to the marriage agree to the divorce. If one party does not agree then parties must live separately for at least five years. The two immediate grounds for divorce are adultery and unreasonable behaviour (fault based grounds). For many years family lawyers (especially those of us who are members of Resolution) have campaigned for a more compassionate “no fault” system in England and Wales. Where appropriate, many family lawyers have tried to assist clients in taking the ‘fault’ out of unreasonable behaviour petitions (as far as possible) by encouraging clients to draft mild divorce petitions and in many cases assisting the parties in agreeing the examples of unreasonable behaviour that will be used.

Family lawyers recognise and statistics bear this out that helping families separate with dignity and as little animosity as possible is better for the mental health of the divorcing couple and for any children of the family.

Mr and Mrs Owens

The decision of the Supreme Court in the case of Mr and Mrs Owens may put pressure on Parliament to look again at the current grounds for divorce and debate the introduction of a ‘no fault divorce system’ in England and Wales.

Mr and Mrs Owens were married for 37 years when they separated in 2015 and Mrs Owens started divorce proceedings on the basis of Mr Owens unreasonable behaviour. Mrs Owens filed a divorce petition on the basis of Mr Owens unreasonable behaviour and initially tried to keep her allegations limited and mild. Things changed when Mr Owens decided to defend the divorce petition. Mrs Owens was given leave to amend her divorce petition which eventually contained 27 allegations of Mr Owens’ unreasonable behaviour.

Mr Owens continued to defend the divorce. The case became one of the 1% of defended divorces in the UK. This meant that the parties had to attend court and provide evidence before a Judge about why Mrs Owens was alleging that the marriage had broken down. The initial Judge found that although the marriage had broken down (at this stage Mr and Mrs Owens were living in separate households) he felt that the 27 examples of unreasonable behaviour were “at best flimsy” and Mrs Owens had failed to prove “the allegations of unreasonable behaviour” against Mr Owens. Mrs Owens went to the Court of Appeal. The Court of Appeal dismissed Mrs Owen’s appeal and did not overturn the decision of the original judge. Mrs Owens then appealed to the Supreme Court. Baroness Hale of the Supreme Court said that “I have found this a very troubling case….” It is not for us to change the law laid down by Parliament – our role is only to interpret and apply the law that Parliament has given us.” The Supreme Court “reluctantly” dismissed Mrs Owens’ appeal. The result is that Mrs Owens is forced to remain married to Mr Owens until 2020, although they have been living apart since March 2015.

One hopes that once Brexit has been resolved, Parliament will debate a much needed reform of divorce law and establish an effective no fault system in England and Wales.

Shoshana Goldhill
Partner
* Bob Dylan 1964

Contributory Negligence

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In a claim for personal injury compensation, it will be a partial defence to the claim to show that the claimant contributed to their injuries. This is known as contributory negligence. Where the claimant can prove that the defendant was negligence, but the defendant can prove contributory negligence on the part of the claimant. The defendant’s liability for compensation will be reduced accordingly. Courts often express a finding of contributory negligence as a percentage or fraction of the damages.

The assessment of contributory negligence is a question of fact judged objectively and by the application of judicial common sense. When considering an allegation of contributory negligence, the court is required to assess whether it is ‘just and equitable’ to reduce the damages having regard to the claimant’s share of responsibility for the damage. This requires consideration of both the causative potency and blameworthiness. This is a very open test that will depend on the particular facts of the case.

For example the court has provided specific guidelines as to the appropriate deduction for contributory negligence when the injured person fails to wear a seat belt. Where the injuries would have been prevented altogether by wearing a seat belt, the damages should be reduced by 25%. Where the seat belt would have made a ‘considerable difference’ or the injuries would have been ‘a good deal less severe’, the damages should be reduced by 15%.

Unsurprisingly there have been numerous authorities where findings of contributory negligence have been made:

  • Pedestrians will rarely be found more responsible for an accident than motorists: the courts have consistently placed a higher burden on motorists to reflect the fact that a vehicle is potentially a ‘dangerous weapon’ Eagle v Chambers [2003].
  • If a passenger gets into a car with a motorist they know to be intoxicated, a finding of contributory negligence may be made against them Donelan v Donelan [1993]. The size of the percentage deduction can vary according to the age and experience of the passenger relative to the motorist.

The High Court recently provided helpful guidance in the case of Hernandez v Acar 2019 on the issue of liability where a vehicle exiting a minor road had collided with a motorcycle which was exceeding the speed limit on the major road approaching the junction.

The Claimant submitted that the Defendant had pulled out without having a clear view or looking properly. The Defendant alleged that the Claimant had ridden his motorcycle at approximately 50mph in a 30mph speed limit zone, and that he could not reasonably have seen the Claimant or avoided the collision.

In reaching his conclusion having consider expert evidence relating to the speed of the defendant, the Court found the accident was the product of fault on both sides, the Claimant’s was going too fast and the Defendant’s was not getting a proper view before pulling out.

When determining the apportionment of liability, the Court placed a “little bit more blame on the Claimant than the Defendant.” However, he held that the Claimant was a vulnerable road user, being a motorcyclist, this tilted the balance back in favour of the Claimant. The Court gave judgement for 60% of the Claimant’s claim and 40% of the Defendant’s counterclaim.

Although the decision is fact specific, this judgement does provide helpful guidance when balancing the respective duties of different categories of road users and evaluating liability apportionment in road traffic accident cases.

Commercial Premises and the Mees Regulations

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What are the Minimum Energy Efficiency Standards (MEES)?

The MEES regulations came into force on 1st April 2018. From this date any commercial property that has an EPC rating of lower than an “E” is not permitted to be rented to new tenants or to have an existing tenancy renewed until such time as an “E” rating is obtained. This means that for commercial properties which fall below this requirement steps will need to be taken to improve the rating.

It is important that landlords are fully aware of their duties under MEES as in the event that the landlord continues to let a commercial property in breach of MEES fines can be imposed. If any such letting continues in breach of MEES for up to three months then a fine of 10% of the property’s ratable value could be imposed, subject to a maximum of £50,000.00. If that letting continues for longer than three months this fine can be increased to 20% of the property’s ratable value capped at £150,000.00. It is important therefore that landlords are fully aware of their obligations and ensure compliance.

Exemptions

There are some exemptions which would allow a substandard property to be let or continue to be let. These largely fall into four categories the first of which is a temporary exemption of six months which can be granted to new landlords.

The second is the devaluation exemption which allows for an exemption in circumstances where the necessary energy efficiency measures would decrease the property’s value by 5% or more. There is then the seven year payback test which will only require landlords to make such improvements where the cost of those works are likely to be recovered by the landlord in savings in the seven year timeframe, and finally the consent exemption which applies when a third party consent to the proposed improvements is required and although sought has been refused.

MEES Regulations and the future

From 1st April 2023 the prohibition on continuing to let sub-standard commercial property will be extended to cover all existing commercial leases. This means that landlords are well advised to undertake a full review of their commercial property portfolio to ensure compliance ahead of 1st April 2023.

How Adams Harrison can help you?

Given the penalties that can occur from failure to comply with the MEES Regulations it is important that you seek professional legal advice on your obligations. At Adams Harrison we have a team of experienced commercial property solicitors who can advise you on a wide range of commercial property related issues including the MEES Regulations.

Government Issues Landmark Domestic Abuse Bill

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In July 2018 we published a Legal Update which addressed the lack of support and protection of domestic abuse victims in the Family Courts. Our concern in particular was that victims in Family courts had less protection in legal proceedings than victims in criminal courts. As detailed in our previous Legal Update, the protection of domestic abuse victims was to be discussed by Parliament in July 2018. Following that consultation, on the 21st January 2019 the Government published a landmark draft Domestic Abuse Bill. The bill will help to tackle not just the crimes associated with domestic abuse but also the wider issues surrounding domestic abuse including the support of victims.

For the first time the legislation will introduce a statutory government definition of domestic abuse. The definition defines the relationship between the abuser and the victim as well as defining what constitutes abusive behaviour. The bill lists five types of behaviour which constitute domestic abuse. These are physical or sexual abuse, violent or threatening behaviour, controlling or coercive behaviour, economic abuse and psychological, emotional or other abuse. The Government has stated that the purpose of defining the abuse is to enable everyone to understand what constitutes abuse. The hope is that it will assist victims themselves and will encourage more victims to come forward, report the abuse and enable them to access the support they need.

The bill will also establish a Domestic Abuse Commissioner. The Commissioner is to raise awareness and encourage good practice in the prevention of domestic abuse, the detection, investigation and prosecution of domestic abuse offences and the identification of the perpetrators of the abuse, the victims and the children affected by the abuse.

The legislation will also introduce new Domestic Abuse Protection Notices and Domestic Abuse Protection Orders. These Notices and Orders will provide victims of abuse with further protection and will place clear restrictions on the actions of the perpetrators of abuse.

One significant change set out in the bill is that the cross examination of victims by their abusers in the Family courts has been prohibited in certain circumstances. Clause 50 of the bill prohibits the cross examination in person in family proceedings when there has been criminal convictions, cautions or there is a current criminal investigation underway. The bill states that if the perpetrator of the abuse has been convicted of, given a caution for or charged with a domestic abuse offence then they may not cross examine in person a witness who is the victim or alleged victim of that offence.

Clause 50 of the bill further prohibits the cross examination in person in family proceedings when there is a civil injunction in place. The bill states that that if the perpetrator of the abuse has a protective injunction made against them which remains in force, they are prohibited from cross examining the witness who is protected by the injunction.

Whilst the bill affords the victims of abuse with this protection, the bill further states that the victim of the abuse is prohibited from cross examining in person the perpetrator of the abuse. Whilst some may see this as affording the perpetrator a level of protection, in reality, it does protect the victim from further abuse from the perpetrators responses to any cross examination. The bill does however recognise that in the interest of justice it is, at times, necessary for cross examination to take place. The bill therefore provides the Court with the ability to appoint a legal representative to carry out any necessary cross examination on behalf of the prohibited party thus enabling the case to progress whilst ensuring the victim is sufficiently protected.

The banning of cross examination is a much needed step forward in the protection of victims of abuse in the Family Courts. The Justice Secretary, David Gauke commented on this aspect as follows:

‘Domestic abuse destroys lives and warrants some of the strongest measures at our disposal to deter offenders and protect victims.

That is why we are barring abusers from cross examining their victims in the Family courts – a practice which can cause immense distress and amount to a continuation of abuse – and giving courts greater powers, including new protection orders, to tackle this hideous crime’

The bill has been welcomed by many domestic abuse charities and specialist support services including Katie Ghose, the Chief Executive of Women’s Aid who was one of several heads of domestic abuse services who wrote a joint letter to the Lord Chancellor and Secretary of State in 2018 calling for the Government to take urgent action in banning the cross examination of victims by their abusers in Family courts.

Katie Ghose stated:

‘The Domestic Abuse Bill has the potential to create a step change in the national response and this must be backed up with sustainable funding for our life-saving network of specialist support services to make a real difference to survivors’ lives’

It is very much hoped that the changes set out in the draft Domestic Abuse Bill will ensure the victims of domestic abuse are provided with the support and protection they deserve.

Our family law team regularly deal with domestic abuse cases therefore if you require advice or assistance please contact our Family Department.

Noise Nuisance

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A recent High Court decision in the case of Fouladi v Darout Limited {2018] EWHC 3501 has confirmed the previous legal position that a landlord (freeholder) is not liable for nuisance caused by its tenant merely because the landlord did not take steps available to him to prevent what was causing the nuisance, even when the landlord knows that its tenant is causing a nuisance.

The court held though that the Claimant had suffered noise nuisance in her flat (flat 62) from the occupiers of flat 66 above her flat and she was therefore successful with her claim against the tenants of flat 66.

There are certain circumstances in which a landlord can be liable for noise nuisance caused by its tenants. Most leases have a covenant for quiet enjoyment and this can be relied upon in some noise nuisance cases. If the landlord participates and/or authorizes the nuisance then he will be liable.

In the recent case referred to above the landlord had failed to address the fact that the occupiers of the flat above the Claimant were carrying out work that they should have obtained consent from the landlord to undertake. Even though the landlord knew the works were being carried out (without consent) he was not liable for the noise nuisance.

Noise nuisance claims are just one area of property litigation that this firm can advise, assist and represent you in relation to.

First Time Buyers – How Can I Protect Gifted Monies?

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With the stamp duty exemption which came into effect in 2017, the growth of the Help to Buy ISA, and the continuing increase in Help to Buy and shared ownership developments it would be fair to say that we are currently in a market more tailored to first time buyers. That said, there has been no magical formula concocted to assist with the ever rising property prices; getting on that ladder and putting together a 10% deposit is still a huge ask for most. As a result, individuals often have little alternative but to turn to the bank of mum and dad.

With all of this in mind a question we are often asked is whether or not there is a way to protect the monies being gifted. This is a perfectly understandable and reasonable request as, although most parents (if able to do so) are willing to gift the monies to their child, we do appreciate that, more often than not, those monies are intended to help their child and not the partner. This is an important distinction to consider as the most common first time buyer scenario is an unmarried couple. Should the couple split up after purchasing the property, unless an alternative provision is in place, the net proceeds of any sale will be allocated equally between the parties. The result of this is that both parties would be enriched by the gift as opposed to the one whose parents made the gift in the first place.

One option available to first time buyers to combat this risk and protect a gift is a Declaration of Trust. This can be a relatively straight forward document drafted by your solicitor to ensure that before any proceeds are divided a specified sum (i.e. the gift or a relevant percentage) is taken from the net proceeds (after the repayment of any mortgage and estate agent and solicitor fees) and allocated to the individual who has sought to protect it. Any remaining monies can then be split in accordance with the buyers wishes under the Declaration, thus protecting the gift and the intentions of all involved.

Joint ownership is a complicated legal issue and we recommend that you discuss it with your solicitor or a specialist property lawyer here at Adams Harrison. We would advise that you discuss such an option with a financial specialist to ensure that the figures to be agreed upon are fair and reasonable.

Jack Stewart, Solicitor, Adams Harrison

Digital Assets And Your Will

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Most people are aware of the importance of making a Will to deal with physical assets. Relatively few of us, however, have probably considered what will become of our digital assets when we die.

What is a digital asset?

A digital asset is one that requires a password and username to access. For example, digitally-stored music collections, social networking sites, and online investment and banking accounts.

What to do?

It may be that dealing with your digital estate is as simple as updating your Will to include a digital assets clause. Thereafter, you should note down your passwords for safekeeping. If your Will is being held by Solicitors, it may be a sensible idea for you to provide them with a copy of this information that will be stored confidentially beside your Will. This is particularly useful if you have also appointed Solicitors as your executors.

Failure to plan for digital inheritance can cause problems as without usernames and passwords it can be very difficult for executors to access web domains, social networking sites and other online accounts. As the executors’ duty is to gather in and administer all of the assets of a deceased’s estate, it is important that they are armed with the necessary information to enable them to do so.

The challenge is therefore to keep the information up-to-date and hidden yet accessible when the time comes.  It is important to remember that you should not include details of your web-based accounts, passwords and user names in your Will. This is because a Will, once proved, becomes a document of public record and therefore potentially accessible by fraudsters.

For more information, please contact us for expert and friendly advice.

Employment Tribunals of England and Wales Latest Statistics

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The Employment Tribunals of England and Wales have reported the last quarter’s statistics for April to June 2018 for claims issued within the Employment Tribunals.

There has been a 165% increase in claims.  This is thought to be  attributed wholly to the fee regime being abolished.  The result though is that there is a shortage of judges to hear cases.  In some regions cases are not being listed for a final hearing until 12 to 18 months after receipt of the claim (ET1).  There is a recruitment drive for fee paid judges to help in  alleviating this problem.

At this time of very busy Tribunals it would appear more than ever that attempting other means to resolve a dispute or claim with an employer is more advantageous than waiting the inordinate amount of time to have a case heard.

I have the experience and skill to negotiate settlement of claims, particularly if dealing with the details of the claim from early on in the case. I undertake this work for both employees and employers.

Personal Injury Update 2018;Changes to Whiplash Claims

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One of the major developments this year was the passing of the Civil Liability Bill which introduces reforms to whiplash injury claims.

The reforms aim to reduce the number of low value road traffic accident claims and the cost of insurance premiums and to prevent fraud. The Bill was introduced in the House of Lords on 20 March 2018 and it passed its final stage through Parliament on 20 November 2018. A date for Royal Assent has yet to be set but it is anticipated shortly.

As part of its reforms, the government also proposes to increase the small claims limit from £1,000 to £5,000 for road traffic accident claims and to £2,000 for all other types of personal injury claim. The implementation of the whiplash reforms (including the new road traffic accident small claims limit) have been pushed back until April 2020.

The whiplash reforms and the increase to the small claims track limit will bring more claims into the small claims regime where legal costs are not recoverable. This means that more claimants will be left to bring their claim without a solicitor at a time when they should be focusing on recovering from their injuries.

If you require assistance or advice regarding a personal injury claim then please contact Anton Bilinski.

Increase in Probate Court Fees

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Historically probate court fees have been a fixed amount (currently £155 when applying through Solicitors or £215 when making a personal application) with a charge of 50p per office copy of the Grant required. The only exception to this is where an estate is valued at less than £5,000 where there is no fee payable.

As from April 2019, the probate fees are set to be paid on a sliding scale dependent on the value of the estate rather than the fixed amount. For estates worth less than £50,000; no fee will be payable. However, for estates exceeding this sum, the fees will range between £2,500 to £6,000.

It is currently, and will continue to be the case, that executors will need to fund the probate court fees upfront before access can be gained to the deceased’s bank accounts. Currently; most banks are willing to release funds for inheritance tax prior to probate being granted and may be willing to release funds for court fees too. However, often estates are property rich and cash poor and it may be necessary for executors to fund the fees personally. They will of course be able to reimburse themselves from the estate when the estate is in funds.

The government have failed to explain why it is choosing to place this burden on bereaved families and have failed to comment upon why the changes were not included in the recent Budget.

Although the exact date when the new fees will take effect is not yet known, they are anticipated to apply for applications received after that date rather than deaths which occur after that date. We recommend that if you are in the early stages of dealing with an estate that an application is made sooner rather than later.