Private ClientFILE July 2008
In-House News
Unique International Child Abduction Case
A special “Hague Convention” Family Law rules case has recently been heard which is fairly unique in the English Courts.
It involved an English Mother and an Australian Father and whether or not the Mother had the conditional right to allow their Australian-born child to live permanently with her in England.
The Mother argued that the Father gave his acquiescence and agreement for the child to live in the UK. The Father believed his agreement was on the basis of certain conditions being met, a ‘conditional agreement’.
The uniqueness of this case lies in the type of evidence provided in support of the Mother’s defence, including digital emails, mobile phone text messages and taped telephone conversations. This type of evidence is extremely rare in Hague Convention cases and was introduced to demonstrate the Father’s acquiescence and the Father’s consent to the child remaining in England for five years subject to conditions.
The Australian father in this matter believed he reserved the right to pursue a return of the child if the mother failed to adhere to her side of the agreement conditions.
This case illustrates that it is not only consent that can be conditional but acquiescence can be conditional also. [Consent and acquiescence can be conditional.] The terms, however, have to be clear, readily determined, and not obtained by fraud, misunderstanding or deceit. They had to be intended by both parties to be binding on each other.
Terri Harman, family lawyer at Brethertons LLP explained:
‘The law in this case debated the narrow definition of whether the Father’s ‘acquiescence’ was unequivocal and therefore incontestable and lawful, or whether ‘conditional acquiescence’ (applying certain conditions to acquiescence) means that the acquiescence was not in itself ‘lawful’, and therefore ‘unlawful’.
‘The Court presiding found that the father’s ‘conditional acquiescence’ was unlawful, and dismissed the fathers application for the summary return of their child to Australia.
‘If ‘Conditional acquiescence’ in this instance had been found to be ‘lawful’ by the Court, the mother’s case would have failed and their child would have been returned to Australia.’
The evidence of digital emails, mobile phone text messages and taped telephone conversations contributed to the uniqueness of this case and acts as a reminder for parents to be cautious and extremely clear when setting child arrangements where acquiescence is involved.
Brethertons LLP contacts for Child Abduction advice and support are:
Simon Craddock (simoncraddock@brethertons.co.uk) and
Terri Harman (terriharman@brethertons.co.uk).
E-Conveyancing on the Way
Plans to update the conveyancing process in England and Wales have been ongoing since 1998, when preliminary proposals were set out in a report, compiled by the Law Commission and the Land Registry, entitled Land Registration for the Twenty-First Century. Consultation on how best to go about re-engineering the system has been extensive. The aim is to develop an electronic system of conveyancing that makes buying and selling easier for all those involved in the process.
The Land Registry’s e-conveyancing project, developed by IBM, is expected to go live some time this summer following the introduction of a public key infrastructure (PKI) system that uses cryptography to guarantee the authenticity of property transaction documents. The system is designed to allow authorised users to exchange information quickly, securely and reliably with each other and with the Land Registry. Documents will be encrypted and signed with a digital certificate. Documents will only be able to be produced or read by those in possession of a cryptographic token, username and password. Once up and running, the system should allow property and mortgage registrations to be completed instantly, funds to be transferred immediately, securely and reliably and it will enable accurate and up-to-date information on the progress of all linked conveyancing transactions to be accessed online.
For further information on the e-conveyancing system, see http://www.landregistry.gov.uk/e-conveyancing/.
Who Doesn’t Need a HIP?
Home Information Packs (HIPs) are now required for most residential properties put on the market, but the list of exceptions to the rule – properties that can be marketed without a HIP – is significant.
The most important exception to the rule that all residential properties need a HIP is that no HIP is required where a property has remained on the market since before the date on which HIPs were introduced for that type of property. These dates are as follows:
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1 August 2007 – sales of homes with four or more bedrooms
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10 September 2007 – sales of homes with three or more bedrooms; and
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14 December 2007 – sales of homes with one or two bedrooms.
The other main exceptions to the requirement for a HIP are as follows:
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residential properties not available for sale with vacant possession (in some circumstances)
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seasonal and holiday accommodation (where there is a planning restriction prohibiting continuous occupancy)
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where the residential property being marketed is ancillary to (i.e. is intended to be occupied and enjoyed with) one or more other buildings or areas of land used for non-residential purposes. This example would include farm houses on working farms or shops with residential accommodation where the premises are sold as a single unit; or
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where the property is unsafe or intended for demolition.
There are other exemptions which apply also. We can help you ensure your property sale or purchase runs as smoothly as possible.
Problem Trees and Preservation Orders
Cases involving damage to a property caused by trees located on a neighbour’s land, especially those dealing with subsidence or heave due to roots, are fairly common. One complication that arises is where the tree in question is subject to a preservation order.
In a recent case, a tree on a neighbour’s land was causing continuing damage to a house. As the tree was the subject of a preservation order, the homeowners applied to the council for planning permission to fell it. The homeowners considered that they should be entitled to a declaration that they could fell the tree because it was creating a nuisance and taking it down was necessary to prevent this continuing. The planning application was refused. The local authority considered that the nuisance could be prevented by other methods, such as creating a root barrier or by underpinning the affected house. The court, however, rejected the council’s argument, holding that the existence of alternative solutions to the problem was not relevant. The council therefore appealed to the Court of Appeal.
The Court of Appeal overturned the decision of the lower court. In its view, the purpose of the legislation that covers tree preservation orders is to preserve trees. Therefore, the existence of alternative means of abating the nuisance which would allow the preservation of the tree had to be considered. The legislation could not be considered to apply only to what might need to be done to the tree to solve the problem – it was reasonable to consider alternative action that might be taken which did not involve lopping or felling the tree.
It would appear, therefore, that in circumstances such as this the whole range of possible solutions will have to be considered before the court will support a decision to fell a tree which is the subject of a preservation order.
If you have problems with nuisance caused by your neighbours or their plants, our experts can help you resolve them.
Victory for Pre-Nuptial Agreements
Pre-nuptial agreements have been given a boost following a recent case involving a ‘serial divorcee’.
A pre-nuptial agreement is an agreement made by a couple before they marry specifying how their assets are to be divided in the event that they divorce. They are commonly made by wealthy people, especially where the assets of the couple prior to the marriage are very unequal.
However, UK law does not (in theory) recognise pre-nuptial agreements – the argument being that marriage is to be encouraged in the public benefit, so an agreement which presupposes divorce is contrary to the public good. However, ‘pre-nups.’ are having more influence as the courts increasingly accept that they are indications of a couple’s intentions at the outset of their relationship.
In the case in point, thrice-divorced Susan Crossley abandoned her claim to a share of the fortune of her property developer fourth husband Stuart after their 14-month marriage broke up. Mrs Crossley had received £18 million in divorce settlements from her previous husbands. Prior to her marriage to Mr Crossley, she had signed a pre-nuptial agreement stating that in the event of the failure of their marriage, she would receive nothing. Hours before a scheduled hearing at the High Court, Mrs Crossley abandoned her claim, accepting that she had little or no chance of persuading the Court that the pre-nuptial agreement was invalid.
Mrs Crossley had claimed that the agreement was invalid because her husband, whose wealth is estimated at £45 million, had not disclosed to her ‘tens of millions’ of pounds held in offshore accounts. In an earlier hearing, however, the Court of Appeal ruled that the pre-nuptial agreement should be considered by the Court before looking at any other claim Mrs Crossley might have.
Brethertons' says:
“The courts are having to cope with increasing numbers of divorces involving wealthy clients, which can take up large amounts of court time, so they are becoming more willing to give weight to pre-nuptial agreements. If you are considering marriage and have, or are likely to have, wealth to protect, a pre-nuptial agreement is worth consideration. Contact us for advice on all family and wealth preservation matters.”
What is Collaborative Law?
Divorce can be highly confrontational and can involve a great deal of negotiation conducted by correspondence on the part of solicitors and their clients. This necessarily takes a great deal of time and can make what is already a stressful process even more so in many cases. Also, the client can seem detached from the whole exercise, especially in cases where there is a great deal of correspondence arguing points between the respective law firms involved.
In a bid to provide a quicker and less confrontational process, a new approach to divorce, termed collaborative law, has been created. The idea behind collaborative law is to allow the parties to resolve their differences as far as possible in a quicker and more flexible way, with the hoped-for results being the better preservation of family assets and maintenance of better relations between the divorcing couple. It is offered by lawyers who are specially trained to work in this way, with the aim of achieving a solution which works for the whole family.
Using collaborative law will not be appropriate in all cases, especially where the degree of conflict is great. If it is used and is not successful, a client may still opt for formal mediation or to use the courts.
The collaborative law process involves the client signing a participation agreement, which is in effect an agreement that they will not go to court. The client can withdraw from this at any time but, if they do so, the lawyers who advised them in collaboration cannot represent them in court. A series of four-way meetings follows, involving the clients and their legal representatives, which focus on finding solutions that work for everyone involved. In some situations, a ‘neutral’ third party may be used to suggest solutions to particular problems.
Contested Will – Who Pays?
A recent case, involving the family of a man who died and left his entire fortune to the Conservative Party, illustrates one of the main exceptions which can apply, in cases involving wills, to the normal rule that ‘the loser pays the costs’ of a legal action – both their own and those of the winner. This is called ‘costs following the event’ in legal terminology. It means that the party in whose favour the issue is decided normally has his or her costs met by the unsuccessful party. The principle behind this rule is that the winner in a contested claim should not be worse off because of having to use legal proceedings to demonstrate the rightness of their argument.
There are, however, exceptions to this principle. In the case of contested wills, there are two exceptions. The first is when the cause of the litigation was the behaviour of the person who drew up the will. An example of this might be where the will was inconsistent with itself or unclear as to its meaning. In this case, the costs of the legal proceedings will normally be borne out of the estate. The second exception is when the circumstances are such that it is reasonable for an investigation to be made of the circumstances surrounding the will. In this case, the costs of the proceedings will generally be shared between all the parties to the action.
In the case in point, the man left £8 million to the Conservative Party and the will was contested by his family on the basis that he was not ‘of sound mind’ when he made it – in legal parlance, he lacked ‘testamentary capacity’. Evidence was presented to the court that the man was delusional to the extent that a challenge to his last will was more or less inevitable in any circumstances. The court ruled the will invalid. The question of how the legal costs should be borne was then raised.
The court ruled that it was proper in the circumstances for the Conservative Party to investigate the issue of the man’s testamentary capacity once the will had been challenged. Their costs to that point should therefore be met out of the estate. In this case, both sides had appointed experts to examine the issue of testamentary capacity. Their reports were exchanged, as is normal practice. The court ruled that it was appropriate for the costs to be shared up to the point at which the reports of the experts were exchanged.
Brethertons’ view:
“This case is important because it shows that the courts will be sympathetic as regards costs when the circumstances meet the exceptions to the ‘loser pays costs’ rule. Many families are wary of challenging wills which have been created when the testator lacked mental capacity, because they fear the costs of losing. However, when the circumstances justify it, the costs of the challenge may be borne, in whole or in part, by the estate.”
It should be remembered, however, that eccentricity is not a sign of lack of testamentary capacity.
Mental Illness and Wills
A will is only valid if the person making it has ‘testamentary capacity’, which is the basis of the phrase ‘being of sound mind’. In simple terms, having testamentary capacity means that a person:
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can understand the meaning of the will
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has some sort of understanding of what assets the will deals with
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is aware of their moral obligations and who will benefit from the will; and
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can understand in broad terms the effect of the will.
Recently, a woman died several years after writing a will which, on the face of it, seemed rational. It was, however, disputed after the grant of probate on the ground that the woman had lacked testamentary capacity when the will was made.
The court heard that the woman had a long history of mental illness and was likely to have been mentally disturbed when the will was drawn up. As the mental condition from which she suffered was severe to the point of being disabling, the court revoked the grant of probate.
In Brief
Bereavement Damages Increase
The level of damages for bereavement in England and Wales has been increased from £10,000 to £11,800 and the new level applies for causes of action which commenced after 31 December 2007.
It is intended that in future, adjustments will be made at three-yearly intervals.
Inheritance Tax Threshold
As announced in the 2007 Budget, the threshold above which Inheritance Tax is payable on a deceased person’s estate rises to £312,000 for the tax year 2008/2009. The threshold for 2009/2010 will be £325,000, followed by a further rise bringing the level to £350,000 for the tax year 2010/2011.
2008 Training Webinars
Our 2008 programme of training Webinars (seminars over the internet) has now been prepared. This years subjects include:-
6th August 2008: Employment Law for Managers
This webinar covers all areas of employment law for managers, with a particular focus on the following:
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Why do you want to employ staff at all?
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Subcontractors that are really employees
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Foreign workers – the Rules and Regulations
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Age Discrimination
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Disability Discrimination
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Hiring and Firing- getting it right
22nd September 2008: New Build Problems - How to Overcome Them
This webinar will cover the following topics:
Each webinar training link costs £50 plus VAT.
You need no special equipment other than a telephone with a hands free facility and a computer with an internet connection. You will hear the speakers through your telephone and see interactive slides/graphics on your PC as the speaker makes the presentation. Copies of the speakers handouts/slides will be emailed in advance of the presentation. Please complete the booking form below to reserve your link.
To download a booking form visit the events page at www.brethertons.co.uk
