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Family Asset Protection Trusts

H M Revenue and Customs introduced compulsory registration of all trusts in September 2022. A number of our clients had been contacted by the companies who had advised on and set up, a Family Asset Protection Trust, asking them to arrange registration of their trust.

It has become apparent that many people are being advised by such companies to enter into these trusts at considerable cost believing that their property will be protected against inheritance tax and/or care home fees.

These companies are advising clients to transfer their property or cash into these trusts during their lifetimes and advising them that their property or cash would no longer form part of their estate and that the trust would then own them. The inference being that their value would not be taken into account on death for inheritance tax purposes or when moving into permanent care and calculating their contribution towards care fees.

However, local authorities are permitted to investigate a person’s financial history, including money transferred outright to another person or into a trust. The local authority can deem this to be deliberate deprivation of capital i.e. the transactions had been entered into specifically to reduce the value of a person’s estate. In such instances, the local authority can disregard the transfer and deem the person to still own those assets. The local authority have been known to look back into transactions up to 15 years prior to a person going into care for transfers. The long and short of it is that if the transfer had been entered into due to concerns over care fees, it will be deemed to be deliberate deprivation of capital.

In addition, if an asset has been transferred and the person retains some benefit in that asset i.e. they transfer their house but continue to live in it, they are deemed to have reserved a benefit in the asset. For inheritance tax purposes this is known as a gift with reservation of benefit, which does not reduce their estate for the calculation and its value is still taken into account.

Unfortunately, it appears these trusts, which often cost thousands of pounds, are not correctly explained to clients and they end up entering into what Age Concern describe as “a worthless piece of paper”. Sadly, they can also lead to future costs where the trust company are named as trustees and any changes are needed to the trust.

If you have any queries about Family Asset Protection Trusts or wish to discuss care home fees or inheritance tax planning, please contact our private client team.

Sarah Bruce, Legal Executive, Haverhill/Saffron Walden office
19 April 2023

Marriage and Civil Partnership (Minimum Age) Act 2022

The Marriage and Civil Partnership (Minimum Age) Act 2022 came into force on Monday 27 February 2023, varying the minimum age of marriage. The Act is long overdue and is very much welcomed by divorce lawyers in England and Wales.

Traditionally, the minimum age of marriage was 12 for a woman and 14 for a man. When the Ages of Marriage Act 1929 came into force, it raised the minimum age of marriage in the UK to 16, on condition that parental consent was obtained from each child’s parent or guardian.

The introduction of the Marriage and Civil Partnership (Minimum Age) Act 2022 is intended to safeguard children from forced marriages and the related risk of exploitation, by raising the current legal age from 16 to 18 years old, irrespective of parental consent. To be clear, forced marriage is when you face physical pressure to marry (for example, threats, physical violence or sexual violence) or emotional and psychological pressure.

It is now no longer possible for anyone under 18 to marry or enter a Civil Partnership. Indeed, it will be a criminal offence for anyone under 18 to enter a marriage, and there will be no longer be the necessity to find evidence of coercion.

Further, any person who even attempts to organise a marriage where someone is under 18 will commit an offence under section 121 of the Anti-social Behaviour, Crime and Policing Act 2014. This includes actions such as booking a church, or other venue for the purpose of a marriage.

Though guidance has been organised for many organisations, to include educational organisations, it is vital that children, parents, grandparents, educators and other professionals know about this alteration in law and understand that child marriage is illegal in England and Wales. Therefore, if you require any help, or assistance on this issue, or any issue relating to a family matter, to include divorce, nullity, or financial matters connected to divorce, please do not hesitate to contact our specialist divorce lawyers here at

Adams Harrison, 14 – 16 Church Street, Saffron Walden, Essex, CB10 1JW,
Adams Harrison, 52a High Street, Haverhill, Suffolk, CB9 8AR,
or
Adams Harrison, 43 High Street, Sawston, Cambridge, CB22 3BG,

and ask to speak to our expert lawyers Shoshana Goldhill, Emma Bilsborrow, or Kerri Westlake.

Grandparents:- Their Role, Rights And Responsibilities

The role of grandparents continues to evolve and perhaps become increasingly more important. Almost two thirds of all grandparents look after their grandchildren regularly, often whilst parents are at work. A contributory factor is the cost of childcare which means there are many informal family arrangements.

The Children Act 1989 as amended requires grandparents to seek permission (leave) of the court to file a section 8 application. This creates a two stage procedure, except in some exceptional circumstances where a grandparent may make an immediate application.

A grandparent has no parental responsibility in law which means they cannot make major decisions such as about medical treatment, schooling and for travelling outside the UK which can present difficulties for grandparents caring for their grandchildren. In the case of Re J (Leave to Issue Application for Residence Order) [2003] 1 FLR 114, Thorpe J suggested that trial judges should have greater appreciation for the contribution made by grandparents for the care of their grandchildren.

A large number of grandparents may sadly lose contact with their grandchildren when parents separate. The first step must always be to try to resolve issues within the family by agreement or through mediation.

Which court orders can grandparents apply for? The most likely court orders are a Special Guardianship Order (Section 115 of Adoption and Children Act 2002) or a Child Arrangements Order (Section 8 Children Act 1989 as amended).

  • A Special Guardianship Order lasts until a child is 18 unless changed by earlier court order. It enables the special guardian to have parental responsibility for the child and to take most decisions about the child without consulting the parent. Major decisions such as changing the child’s surname or taking them abroad for more than three months require agreement of the parents or the court’s permission. The child retains birth family links albeit that the parental responsibility of the parents is reduced.
  • A Child Arrangements Order can be granted to grandparents to confirm that the grandchild lives with them, provided they have the court’s permission to seek such an order or are exempt from doing so. A Child Arrangements Order granted to grandparent(s) can set out who the child lives with and how much time the child will spend with the parent(s) or other persons with parental responsibility.

Government Issues Landmark Domestic Abuse Bill

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.