We are delighted to announce that Rebecca Carr has been appointed a Partner in our expanding practice.
As Head of Litigation Rebecca joined Straw and Pearce in January 2015 from a niche commercial practice in the East Midlands. She has over 10 years experience in dealing with a wide variety of litigious matters and specialies in commercial litigation. Her portfolio of work covers everything from Partner/Director and Shareholder disputes to property litigation and general contractual disputes. She also advises on landlord and tenant disputes and injunctive relief. In her spare time Rebecca enjoys spending time with her family, socialising with friends and has occasionally be known to hit the gym!
Straw and Pearce have recently welcomed Javenpreet Kooner, a Solicitor, to our expanding Litigation Department. Javenpreet is an experienced litigator with experience of all levels of commercial disputes, alternative dispute resolution and employment law.
Rebecca Carr, Head of Litigation at Straw and Pearce, said “I am delighted that Javenpreet has joined our team. Having worked together previously I know from experience that she will not only give sound legal advice but she will also consider the commercial reality and impact of litigation on our clients. I am confident that her skills will complement and enrich our varied team.”
One of the most common misconceptions we find as solicitors when advising non-married parties upon breakdown of their relationship is the belief that if a couple have been living together for a certain period of time then they become either common law husband or wife. This is not true. Further some believe that as a cohabitant they may have to provide financially for the other and/or divide their finances. Again this is not entirely correct.
More and more clients are requesting legal advice in this area most likely as a result of the fairly recent case of Southwell v Blackburn in 2014. In that case the female was awarded a lump sum even though the parties were not married. The press referred to this as a landmark case which would open the floodgates however in reality the court had simply followed the old rule of proprietary estoppel.
Proprietary estoppel arises most commonly when the owner of a property causes another to act to his/her detriment in the belief that he/she will obtain an interest in the property.
The above case involved an unmarried couple who had two children aged 11 and 12. They moved in together in 2002. Miss Blackburn helped select the property, but Mr Southwell bought the house in his sole name, with a mortgage of approximately £100,000 and equity of approximately £140,000 from his previous home. When the relationship broke down in 2012, Mr Southwell changed the locks at the property. Miss Blackburn applied to the court for an equal share of the property.
Miss Blackburn argued that the couple intended to purchase the house together and that she would be an equal owner. Miss Blackburn’s understanding was that the property would later be transferred into joint names. Mr Southwell denied this; he argued he had simply agreed to provide Miss Blackburn with a home for as long as their relationship would last.
The first instance judge, HH Judge Pearce-Higgins QC, rejected Miss Blackburn’s claim to be a beneficiary of a constructive trust, as there was no evidence of a clear promise that she would become an equal owner of the property. The judge did, however, uphold her alternative claim of proprietary estoppel, because Mr Southwell had assured Miss Blackburn that she would have a secure home and she had given up her own accommodation in reliance on that promise.
The judge valued her claim at £28,500 (calculated by looking at what Miss Blackburn had lost financially and adding inflation) and ordered Mr Southwell to pay her this sum to put her back in the position she was in before she gave up her house to live with him.
In order to avoid situations such as the above, couples who intend to co habit need to consider entering in to a co-habitation agreement. This is a contract between the parties which will set out how their assets are to be divided upon breakdown of the relationship.
Where parties do not have a co-habitation agreement in place there can be difficulties when resolving the finances. However under the present law the main issue to resolve is nearly always and solely the former family home. As co-habitants there is no legal claim against the other parties’ assets in their sole name and in particular in relation to pensions.
When resolving the issue of the former family home where the property is in joint names the starting point for the court is a clear 50/50 division of the sale proceeds. It is wise for co-habitants when purchasing a property together to consider having the property held as tenants in common and having a declaration of trust confirming what contributions each party has made to the purchase.
If children have been born to the relationship then schedule 1 of the Children Act 1989 entitles unmarried parents to make financial claims on behalf of the children. This includes but is not limited to periodical payments, lump sum orders and settlement of property. The factors and principles which are relevant are heavily focused on the children but will take into account each parent’s income, earning capacity, financial needs and obligations.
2015, funding has been re-introduced to cover the cost of paternity testing in private law cases in the family courts that involve children.
Under the new provision Cafcass and Cafcass Cymru are able, in defined circumstances, to facilitate and fund the provision of DNA tests which are directed under s 20 of the Family Law Reform Act 1969 by Courts in England and Wales. The service will be limited to the following circumstances:
an application has been made for a Child Arrangements order under s 8 of the Children Act 1989,
the application cannot be determined unless a dispute about the paternity of the child is resolved, and
the parents or persons with care of the child are prepared to cooperate with the direction made by the court.
This is a significant step forward in the governments aim to support and speed up the court system and has been implemented in partnership by Cafcass and DNA Legal.
In two related cases, the Supreme Court has now re-affirmed that there is no bar on re-opening financial settlements, in the event that the original awards were based on false, misleading, or incorrect information.
If you have grounds to believe that the original determination of your financial settlement was wrong, and/or evidence to support that financial disclosure was misleading, then it may be possible to re-open the case and seek a further award.
CONTACT our dedicated specialist financial team, Jenny Ellis, Natasha Abel, on 01509 268931. Make use of our free half hour so that we can tell you the circumstances in which you are likely to qualify.
From 1st October 2015 there are a number of changes to housing law that will affect both landlords and tenants, particularly the private sector. These changes will affect all new tenancies and impose obligations upon the landlord. Please contact us if you seek advice.
Staff at Straw and Pearce have baked home-made cakes for the Macmillan Coffee Morning,held at the Loughborough Office,in aid of Macmillan Cancer Support.