It was announced earlier this year that as from a date in May of this year (which as yet remains unknown), the fees for applying for a Grant of Probate or of Letters of Administration would increase substantially, so that there will no longer be a flat fee of £155 but instead the following fees will be applied by the Probate Registry:-
Estates up to £50,000: No fee (this is the only reduction)
Estates worth more than £50,000 up to £300,000: £300
Estates worth more than £300,000 up to £500,000: £1,000
Estates worth more than £500,000 up to £1m: £4,000
Estates worth more than £1m up to £1.6m: £8,000
Estates worth more than £1.6m up to £2m: £12,000
Estates worth more than £2m: £20,000

Probate is usually required to access someone’s assets after they have died, unless those assets do not include any land, property or shares, or they do not exceed £15,000 in value or they were all held jointly with someone else.

The problem is that it is not normally possible to access the deceased person’s funds until after the Grant of Probate is obtained and therefore families wanting to obtain Probate may well struggle to meet these fees. This will be a particular problem for families who are rich in asset value terms (for instance if they own lots of property or land) but are cash-poor.

This proposed increase in fees, which is nothing more than a back door tax, seemed to have gone unchallenged. Our Solicitors felt very passionately that this was a very unfair increase and have been supporting their professional bodies in challenging this proposal as well as taking this up with our MP.

It has now been announced that the proposed increase in fees will be reviewed by Parliament after Easter after a parliamentary panel of experts deemed them to be unlawful. Their highly critical report said that these changes could breach the constitutional principle that there should be no taxation without the consent of Parliament. It called for the proposals to “have the attention” of both houses.

Despite this, the Ministry of Justice has stated that their plans to introduce these fees remain un unchanged and although they will be considered by Parliament after Easter, it is intended that they should come into force as soon as possible.

We will keep you updated on this topic, but if you have any queries about obtaining Probate or would like to speak to one of our specialist Solicitors please telephone us on (01267) 237441.

There is a common misconception that when their relationship breaks down, partners who have chosen to live together rather than marry, will have the same rights on separation.. Very often partners who have lived together will refer to themselves as a ‘common law spouse’. This however is not a recognised legal status and the law differs quite significantly between co-habitees and spouses.

Married couples who separate are often able to bring a claim against all of each other’s assets to include property. The size of that claim will vary depending on a number of factors including the length of the marriage, whether there are any dependent children and the available assets to meet each other’s respective needs. The Courts will consider what is fair and equitable in all of the circumstances.

The outcome for a couple living together can be very different, despite the fact that, often, it is only a marriage certificate which separates the individual circumstance.

Unmarried couples do not have any automatic or guaranteed rights to any share of the other financial resources on separation. This is regardless of whether there is a long standing relationship or whether there are any children of the family. A starting position when examining how assets should be split between unmarried couples is what was expressed between them. By way of example, if the deeds of the property which has been the family home are in the sole name of one partner, there is a presumption that upon separation, that partner will retain the entire interest in the property. The same will apply in relation to savings held in an account in the name of one partner and any debts, regardless of whether they were accrued for the benefit of the family.

The Courts do have powers to make Orders to change that position although those powers are enshrined in complex legislation which does not account for an approach based on fairness – a stark contrast to the law surrounding the breakdown of a marriage.

It is also the case that a widowed partner in a long standing relationship will not automatically inherit from their partner if their partner did not make a Will.

It is felt amongst the profession that this is an area of law which is in great need of reform. For many years people have chosen to live together rather than marry and the principles surrounding the breakdown of those long standing relationships are archaic and not reflective of modern day society.

Some recent case law gives a flavour of the Courts recognising this need for change. In February of this year, there was a case decided in the Supreme Court which received a lot of media attention. It was held by the Court in that case, that a surviving cohabitee can still claim against their partner’s public service pension. This was despite the fact that the deceased in this case had failed to give his partner’s details in a nomination form. This is a clear example of the Court recognising the length of the parties’ relationship and putting their minds to what is fair and equitable in all the circumstances.

It must be noted however that in this case, the parties had not separated. They were very much together in a long standing, living together relationship. The law as it stands would not allow a partner to make a claim against her cohabitee’s pension pot in circumstances where the relationship merely breaks down. This continues to result in an extremely unfair situation in some circumstances. One partner could have sacrificed furthering a career to care for and raise the children of the family, whilst the other was able to achieve career goals, increase their income significantly and build a favourable pension pot for retirement. In these circumstances, for an unmarried couple, pension sharing would not be available.

The law in relation to those choosing to live together continues to be insufficient in relation to protecting the rights of the parties upon separation. It is for this reason that it is essential that parties who are intending on living together or even have been living together are open and honest about what they would each expect to happen if the relationship did breakdown. The agreement reached should be recorded in a Co-habitation agreement so that there is a forum to enforce that agreement if there was ever a dispute.

For further advice and assistance on this matter, please contact our Family Law Specialist, Mrs Nia Thomas on 01267 239194 for a 30 minute free consultation.

A recent Court of Appeal decision has caused uproar when the Court of Appeal refused a woman’s petition to divorce her husband of nearly 40 years.

Mrs Owens maintained that her husband was unpleasant to her, castigating her over a historical affair and disparaging her in front of family and friends.

In the landmark ruling, the most senior family Judges in England and Wales said that Mr Owens’ actions did not amount to unreasonable behaviour. They held that “Parliament has decreed that it is not a ground for divorce that you find yourself in a wretchedly unhappy marriage, though some may say it should be”.

The ruling means that Mrs Owens must wait 3 more years before she can qualify for automatic divorce on the basis of 5 years separation without requiring the consent of her husband. People may divorce after 2 years separation, but only with the consent of both husband and wife. The ruling, which Mrs Owens will now challenge in the Supreme Cour, has fuelled claims for reform of divorce laws as the Court of Appeal Judges in their ruling asked whether the time had come for legislation to be changed to allow for a “no fault” divorce.

Other Judges hearing the case dismissed Mrs Owens’ appeal “with no enthusiasm whatsoever”. One of the Judges stated, “I very much regret that our decision will leave the wife in a very unhappy situation”. The Court acknowledged that Mrs Owens will now be stuck in a loveless marriage for the next 3 years unless her husband takes the honourable and humane course urged upon him by the Court in granting her a divorce. The couple have already lived apart for 2 years.

It is hard to understand why one party could genuinely enjoy any aspect of a marriage from which one of them is trying to escape, but the Judges’ verdict hinged upon a strict interpretation of the divorce laws as they currently stand i.e. whether Mrs Owens could evidence that the marriage had irretrievably broken down. Mrs Owens’ lawyers argued that Mr Owens’ behaviour contributed to a “drip, drip effect” of being berated and humiliated.

Supporters of “no fault” divorce argue that the only people in a position to say whether a marriage has broken down or why it has broken down, are those who are party to it.

A “no fault” divorce would avoid the necessity of having to assign blame to one party and could reduce the stress of divorce. It is also much more likely to promote co-operation between divorcing parties when negotiating financial settlements and arrangements in respect of children.

Our family lawyer, Mrs Nia Thomas is a member of Resolution and actively promotes negotiation without the necessity of going to Court. Such an approach promotes keeping confrontation to a minimum which in turn, reduces stress and legal fees for the divorcing couple and their family.

For further information on what Resolution means or of any aspect of divorce or family law, please contact Nia Thomas on 01267 237441 or by email at nia.thomas@utk.co.uk.