TSP Legal https://www.tsplegal.com Thompson Smith and Puxon Thu, 16 Jan 2020 15:56:13 +0000 en-GB hourly 1 https://wordpress.org/?v=5.3.2 TSP Wills and Estates Team Continues to Expand https://www.tsplegal.com/people-news/tsp-wills-and-estates-team-continues-to-expand/ Tue, 14 Jan 2020 14:21:06 +0000 https://www.tsplegal.com/?p=20475 Thompson Smith and Puxon (TSP) is pleased to announce the addition of Jane Adams (GCILEX) to our expanding, Legal 500 recommended, Wills and Estates Team. Based in our Colchester office, Jane, who is a student member of Solicitors for the Elderly (SFE) and a Dementia Friend, will help TSP’s clients with all of their Wills and Estates needs, including: Wills Powers of Attorney The Administration of Estates (Probate) Inheritance Tax (IHT) and Estate Planning In particular she will focus on Trust work, and will assist Team Leader Fiona Ashworth (TEP) and Solicitor Aileen Hirst (TEP) with the development and expansion of this area of work. Jane started her legal career a number of years ago, initially as a Legal Secretary, but for the last five years has worked as a Graduate of the Chartered Institute of Legal Executives (GCILEx), whilst working her way towards becoming a Fellow of the Chartered Institute of Legal Executives (FCILEx). She has passed her ILEx exams and completed the required qualifying employment to become a Chartered Legal Executive (FCILEx) and is waiting for her  application to be processed. Once fully qualified Jane intends to start studying again and will work towards the Society of Trust
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Thompson Smith and Puxon (TSP) is pleased to announce the addition of Jane Adams (GCILEX) to our expanding, Legal 500 recommended, Wills and Estates Team.

Based in our Colchester office, Jane, who is a student member of Solicitors for the Elderly (SFE) and a Dementia Friend, will help TSP’s clients with all of their Wills and Estates needs, including:

  • Wills
  • Powers of Attorney
  • The Administration of Estates (Probate)
  • Inheritance Tax (IHT) and Estate Planning

In particular she will focus on Trust work, and will assist Team Leader Fiona Ashworth (TEP) and Solicitor Aileen Hirst (TEP) with the development and expansion of this area of work.

Jane started her legal career a number of years ago, initially as a Legal Secretary, but for the last five years has worked as a Graduate of the Chartered Institute of Legal Executives (GCILEx), whilst working her way towards becoming a Fellow of the Chartered Institute of Legal Executives (FCILEx). She has passed her ILEx exams and completed the required qualifying employment to become a Chartered Legal Executive (FCILEx) and is waiting for her  application to be processed. Once fully qualified Jane intends to start studying again and will work towards the Society of Trust and Estates Practitioners (STEP) qualification.

Jane says “My job is to find out as much as I can about my clients so that my advice is based on a complete picture of their circumstances. I really enjoy talking to my clients and going the extra mile for them whenever I can; this is what drives me forward every day. As a firm TSP puts the client at the heart of everything they do and this was one of the reasons I was keen to join the team. ”    

TSP Director and Legal 500 Leading Individual, Fiona Ashworth, said “I would like to welcome Jane to Thompson Smith and Puxon and the team. Jane is an experienced and welcome addition and I wish her every success in her new role with us. The team is very busy and continues to grow; Jane will be a great support to Aileen and I looking after the firms’ Trust clients.”

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The Dogmata of TOLATA – Belief in the Court Process. https://www.tsplegal.com/general/the-dogmata-of-tolata-belief-in-the-court-process/ Mon, 13 Jan 2020 14:07:53 +0000 https://www.tsplegal.com/?p=20427 The modern age has presented many new living arrangements for the public. It is now the norm for couples to reside in property together before entering into marriage or a civil partnership and many couples will decide not to marry or become civil partners. The risk is that the cohabiting couples will make no arrangements for how the property should be held in respect of their beneficial interest or “share” of the property if it is solely owned by one of them. Alternatively, given the difficulty in stepping onto the housing ladder, several people ask for financial assistance from older generations, such as parents, which can result in those assisting selling their own property in order to use the sale proceeds to purchase a new home for both them and the people that they are assisting. The trend of couples opting to live together without legalising their union through marriage or civil partnership has given rise to the illusion of “common law spousal/partner rights”. Such illusion results in couples or those with other residential arrangements facing confusion and potential loss of rights in a property. As such, it is imperative that everyone ensures that their rights in respect of the
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The modern age has presented many new living arrangements for the public. It is now the norm for couples to reside in property together before entering into marriage or a civil partnership and many couples will decide not to marry or become civil partners. The risk is that the cohabiting couples will make no arrangements for how the property should be held in respect of their beneficial interest or “share” of the property if it is solely owned by one of them.

Alternatively, given the difficulty in stepping onto the housing ladder, several people ask for financial assistance from older generations, such as parents, which can result in those assisting selling their own property in order to use the sale proceeds to purchase a new home for both them and the people that they are assisting.

The trend of couples opting to live together without legalising their union through marriage or civil partnership has given rise to the illusion of “common law spousal/partner rights”. Such illusion results in couples or those with other residential arrangements facing confusion and potential loss of rights in a property. As such, it is imperative that everyone ensures that their rights in respect of the property and their ownership is protected in case of the sale of the property, relationship breakdown or other termination of what had, to date, been harmony amongst the property residents.

The Law

For those facing difficulties such as where the legal owner of the property does not recognise a person’s interest, there is a dispute as to the share of that interest or co-owners or cohabitees cannot agree on whether a property should be sold, section 14 of the Trusts of Land and Appointment of Trustees Act 1996 (“TOLATA”) provides an avenue for redress.

Under this section, any person who is a trustee of land or has an interest in a property subject to a trust may make an application to the Court for an order declaring the nature or extent of that person’s interest in the property. For the avoidance of any doubt, the Court’s power is limited to deciding on the co-ownership of the property and is unable under TOLATA to vary the ownership shares of a property.

The Court Proceedings

If there is no substantial dispute of fact, then the “Part 8 procedure” in the County Court can be used i.e. claims where a defence is not necessary and the Court can decide the matter without detailed pleadings being submitted. This means that the claim form, particulars of claim and all evidence in the form of a witness statement and exhibit have to be filed on the defending party.

If they do not respond to the claim, then the matter is listed for a relatively short hearing (typically one hour) and an order for possession and sale is made if the Court is satisfied that the claim has been established on the balance of probabilities.

The difficulties arise where there are substantial disputes of fact. Examples would include disputes over deposits paid for a property, allegations of maintenance and running costs of the property by one party and any defences of the property or contribution being a gifts rather than as consideration for a proprietary interest. The Court will need to be addressed on issues such as the intention of the parties and the purpose for which the property is held.

Whether the part 8 or part 7 procedures are followed will become apparent from any pre-action correspondence exchanged between the parties i.e. the more complex and involved the matter appears to be during the pre-action stage, then the more likely than not that the part 7 procedure should be pursued.

If the part 7 procedure is followed, being the general procedure for legal proceedings, then only the claim form and particulars of claim will be served on the defending party. The claim will be allocated to a track, which will inevitably be the multi-track, given the value and complexity of the claim, and will require represented parties to prepare cost-budgeting documents before further directions for disclosure, inspection, expert evidence and the exchange of evidence are set by the Court.

As set out above, the part 7 procedure is demonstrably more involved procedure and parties are therefore at the administrative mercy of the Court insofar as receiving dates listing costs and case management hearings, pre-trial reviews and trials. The certainty of the use of such procedure is that the claim will not reach conclusion for several months and potentially years.

Mediate v Litigate

The Court’s continued approach is to encourage parties to engage in Alternative Dispute Resolution (“ADR”) as an alternative to litigation. Whilst on paper TOLATA claims appear clear cut, the reality is that they can easily become convoluted and more involved once Court proceedings are instigated. A failure of a party to consider ADR may be viewed, depending on the circumstances of the case, negatively by the Court and have an impact or swaying factor on any costs award made by the Court to that party.

In any event, for a person depending on the proceeds of sale of the property to start a new life and to purchase new property, waiting for the conclusion of the legal proceedings and exhausting several thousand pounds in the process is a daunting and frustrating prospect.

Alternatively, if family members or persons with whom the preservation of a relationship is important, it would be prudent to consider and engage in mediation before Court proceedings are issued given that, if settlement is reached in mediation, the agreement is one that the parties have worked on together and can accept, rather than a decision that has been handed down by the Court and that they have to deal with.

TOLATA claims are an effective way of dealing with an otherwise denied or undefined interest in a property. However, it is important to gather all evidence to support the claim seeking such declaration of their interest before embarking on the litigation process. In this regard, declarations of trust are invaluable pieces of evidence in demonstrating to the Court the residents’ intention of how the property was to be shared.

Fortunately, the members of the Dispute Resolution Team at Thompson Smith and Puxon have many years of experience in dealing with such claims. The team can be contacted on 01206 574431 or by email at info@tsplegal.com.

In the alternative, if parties wish to engage in mediation, trained Civil and Commercial Mediators Sharon Auton and Laura-Pauline Adcock-Jones are able to assist. For more information on our mediation services, please click here.

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CQC Rates Colchester and Ipswich Hospitals as Requires Improvement https://www.tsplegal.com/general/cqc-rates-colchester-and-ipswich-hospitals-as-requires-improvement/ Thu, 09 Jan 2020 09:43:34 +0000 https://www.tsplegal.com/?p=20393 The Care Quality Commission (CQC) published its Inspection Report of East Suffolk and North Essex NHS Foundation Trust on 8 January 2020. The report rates the overall trust, which comprises of both Colchester Hospital and Ipswich Hospital, as requires improvement. The CQC inspects and regulates healthcare service providers in England. They ask the same five questions of all services: are they safe, effective, caring, responsive to people’s needs, and well-led? Where they have a legal duty to do so, they rate the quality of services against each key questions as outstanding, good, requires improvement or inadequate. Where necessary, the CQC take action against service providers that break the regulations and help them to improve the quality of their services. The CQC’s decision on the overall ratings takes into account the relative size of the service and its professional judgment to reach fair and balanced ratings. The CQC inspected both hospitals in 2017 under their previous registration at which time Colchester Hospital was rated as requires improvement. From 11 June to 18 July 2019 the CQC inspected 14 core services provided by the trust. These included urgent and emergency care, medical care, surgery, maternity services, and outpatients at Colchester Hospital. They
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The Care Quality Commission (CQC) published its Inspection Report of East Suffolk and North Essex NHS Foundation Trust on 8 January 2020. The report rates the overall trust, which comprises of both Colchester Hospital and Ipswich Hospital, as requires improvement.

The CQC inspects and regulates healthcare service providers in England. They ask the same five questions of all services: are they safe, effective, caring, responsive to people’s needs, and well-led? Where they have a legal duty to do so, they rate the quality of services against each key questions as outstanding, good, requires improvement or inadequate. Where necessary, the CQC take action against service providers that break the regulations and help them to improve the quality of their services. The CQC’s decision on the overall ratings takes into account the relative size of the service and its professional judgment to reach fair and balanced ratings.

The CQC inspected both hospitals in 2017 under their previous registration at which time Colchester Hospital was rated as requires improvement.

From 11 June to 18 July 2019 the CQC inspected 14 core services provided by the trust. These included urgent and emergency care, medical care, surgery, maternity services, and outpatients at Colchester Hospital. They also inspected urgent and emergency care, medical care, surgery, critical care, maternity services, children’s and young people’s services, end of life care and outpatients at Ipswich Hospital and community health in patient services.

What the CQC found – Overall trust

The CQC’s rating of the trust stayed the same; “requires improvement”.

It rated the overall key questions as:-

Are services safe?

Are services effective?

Are services caring?  

Are services responsive?

Are services well-led?               

Requires improvement

Good

Good

Requires improvement

Good 

Are services safe?

The CQC report sets out the reasons for the rating as including that:-

  • Not all services had enough staff with the right qualifications, skills, training and experience to keep patients safe from avoidable harm and to provide the right care and treatment.
  • Issues providing mandatory training in key skills to all staff. Medical staff did not meet the trust’s compliance target in most courses.
  • It observed several examples where systems and processes to maintain cleanliness and control infection were not being implemented effectively. Staff did not use control measures consistently to protect patients, themselves and others from infection.
  • The design, maintenance and use of facilities, premises and equipment did not always keep people safe.
  • Risks to patients who used services were not always assessed, monitored and managed on a day-to-day basis. In the emergency departments staff did not always complete risk assessments and environmental risk assessments for each patient in a timely manner, particularly for patients with mental health needs.
  • Staff did not always keep appropriate records of patients’ care and treatment. Within the emergency department at Ipswich Hospital, staff did not keep detailed records of patients’ care and treatment. Records were not always clear, up-to-date, stored securely or easily available to all staff providing care.

Are services responsive? is rated as requires improvement because:

  • People could not always access services when they needed it and received the right care promptly. Waiting times for referral to treatment and arrangements to admit, treat and discharge patients were not always in line with national standards. It found particular issues with admission and access and flow across the surgery services and within the emergency departments.
  • Access to mental health services in the emergency department within Ipswich Hospital was pressured out of hours and was not always available in a timely fashion 24 hours a day, seven days a week.

Areas for improvement

The CQC found areas for improvement that the trust MUST put right to bring services into line with legal requirements including:-

  • Ensuring that mandatory training attendance improves to ensure that all medical staff are aware of current practices.
  • The trust must ensure patient care records are accurate, complete and contemporaneous and that pertinent risk assessments are completed and updated for all patients across the trust.

For Colchester Hospital action also includes ensuring:-

Urgent and Emergency Care

  • That risks to patients are identified, documented and regularly reviewed to ensure patients are safe from avoidable harm.
  • That staff have the necessary skills and competencies to safely carry out their role.
  • That medical records and confidential patient information are stored securely to ensure patient confidentiality.
  • That there is an effective governance and risk management framework in place to identify, manage and assess all risks relevant to the emergency department.
  • That there are clear lines of accountability for patients in the emergency department. Standard operating procedures should be developed and embedded in all areas.

Medical Care

  • That the governance and risk management processes are embedded and consistently applied to maintain oversight of identified risks.

Surgery

  • It effectively audits compliance with the World Health Organisation’s Five Steps to Safer Surgery checklist.
  • Medicines are recorded and stored in line with trust policy.
  • Resuscitation equipment is checked in line with professional guidance.      
  • Medical staff complete mandatory training, in line with trust targets and national guidance.
  • Changes made following never events are fully embedded in clinical practice to minimise the risk of reoccurrence.

For Ipswich Hospital the action includes ensuring:-

Urgent and Emergency Care

  • Staff comply with infection prevention and control measures.
  • Staff undertake thorough risk assessments, including environmental risk assessments, to ensure its premises and facilities are suitable for the safe care and treatment of patients with mental health needs.
  • All medications are appropriately and securely stored.
  • All patient records, including medication and fluid charts, provide a detailed record of patients’care and treatment and both paper and electronic records are appropriately and securely stored.
  • There is an effective governance and risk management framework in place to identify, manage and assess all risks relevant to the emergency department.
  • There are clear lines of accountability in the emergency department. Standard operating procedures should be developed and embedded in all areas.

Medicine

  • That venous thromboembolism (VTE) assessments are completed for all patients in line with guidance.
  • That food and fluid balance charts are completed accurately and contemporaneously.

Surgery

  •  Learning from incidents is embedded into clinical practice.

Critical Care

  • That consent and best interest decisions are documented clearly in patient records, and that mental capacity assessments are carried out as soon as there is reason to doubt whether a patient has capacity to make decisions about their care.
  • That mandatory training compliance and appraisal completion improves in line with the trust target.

Maternity

  • That all risk assessments are completed for women.
  • That women have their physiological observations taken in accordance with the service’s policy.

Outpatients

  • That the administration of hospital prescriptions is monitored and recorded.

The CQC also found 30 things the trust SHOULD improve to comply with a minor breach that did not justify regulatory action, to prevent breaching a legal requirement, or to improve the quality of services.

Whilst there are several areas that need improvement the report identifies areas of outstanding practice in urology services at Colchester Hospital and in critical care and maternity services at Ipswich Hospital. It also identified that staff worked well together and treated patients with compassion and kindness. 

For more information you can read the full CQC report here.

Stacey Anderson, FCILEx in the Clinical Negligence team at Thompson Smith and Puxon, said “It is disappointing that the trust has been rated as requires improvement again by the CQC, the same rating as the previous inspection in 2017. Hopefully the trust will use the report to make the necessary improvements to ensure patients accessing the trust’s services are kept safe.”

If you think you may have been the victim of a medical accident or inadequate care, contact our Clinical Negligence team on 01206 574431 or by email at info@tsplegal.com to find out more about how we can help you with your potential claim.

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Traders Beware! Incoterms 2020 Now in Effect https://www.tsplegal.com/general/traders-beware-incoterms-2020-now-in-effect/ Wed, 08 Jan 2020 09:10:45 +0000 https://www.tsplegal.com/?p=20375 Do you adopt or incorporate Incoterms in any of your contracts for sale or purchase of goods? Or do any of your trading parties’ terms and conditions refer to Incoterms? If so you may be inadvertently trading on such terms. Incoterms are a standardised set of international trade terms which define the responsibilities of sellers and buyers for the delivery of goods under sales contracts. They are published by the International Chamber of Commerce (ICC) and are often used in transactions by parties trading internationally, in order to ease international trade. The first set of Incoterms was published in 1936. The most recent version (being version 9) came into force on 1 January 2020 – the previous published version was Incoterms 2010. The new Incoterms contain 11 rules, some of which are applicable to any mode of carriage, and others which are applicable to carriage by sea and inland waterways only. Given that there are now differences between Incoterms 2020 and Incoterms 2010, traders should ensure that their contracts make clear, if reference is made to Incoterms, which version applies. Some of the changes introduced in the Incoterms 2020 version include: removal of the term “DAT” (Delivered at Terminal), and introduction of
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Do you adopt or incorporate Incoterms in any of your contracts for sale or purchase of goods? Or do any of your trading parties’ terms and conditions refer to Incoterms? If so you may be inadvertently trading on such terms.

Incoterms are a standardised set of international trade terms which define the responsibilities of sellers and buyers for the delivery of goods under sales contracts. They are published by the International Chamber of Commerce (ICC) and are often used in transactions by parties trading internationally, in order to ease international trade.

The first set of Incoterms was published in 1936. The most recent version (being version 9) came into force on 1 January 2020 – the previous published version was Incoterms 2010.

The new Incoterms contain 11 rules, some of which are applicable to any mode of carriage, and others which are applicable to carriage by sea and inland waterways only.

Given that there are now differences between Incoterms 2020 and Incoterms 2010, traders should ensure that their contracts make clear, if reference is made to Incoterms, which version applies.

Some of the changes introduced in the Incoterms 2020 version include: removal of the term “DAT” (Delivered at Terminal), and introduction of the term “DPU” (Delivered at Place Unloaded); clarifying, in relation to CIP and CIF terms, obligations of the parties in relation to insurance; providing, in relation to FCA, DAP, DPU and DDP, that the seller or the buyer may undertake the carriage itself (rather than entering into a contract for carriage).

Traders should also be particularly alive to how using Incoterms might impact on them following Brexit. Import and export duties and controls may be imposed following Brexit and, if Incoterms apply, the effect may be that either the buyer or the seller may be responsible for duties and obligations that did not exist before Brexit.

If you would like any further information about this, please contact Corporate and Commercial Solicitor Mary Anne Fedeyko by email at info@tsplegal.com or by phone on 01206 217049. Legal 500 Leading Individual Mary Anne leads the Corporate and Commercial team at Thompson Smith and Puxon Solicitors.

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Divorce and Separation Top Tips https://www.tsplegal.com/solicitor-articles/divorce-separation-top-tips/ https://www.tsplegal.com/solicitor-articles/divorce-separation-top-tips/#respond Fri, 03 Jan 2020 08:44:00 +0000 https://www.tsplegal.com/?p=15215 If you are involved in a relationship breakdown, there are a number of things that you need to think carefully about and sort out, especially if you are embarking on or are considering a divorce or dissolution of a civil partnership. In the interests of brevity we will refer only to divorce in the rest of this article but civil partnerships attract similar law and procedure. Our expert team of family law solicitors can help you through the process and here are a few of their top tips on what you need to be thinking about if you are facing a separation or divorce: What do you want and when do you want it? Think about whether you want to obtain a divorce now, in which case your marriage will be legally dissolved, or whether instead you want to separate with a view to deciding on a divorce at a later date. Either way, the related financial and children arrangements can still be sorted out and you should speak to a solicitor specialising in family law about the different options available, including entering into a Separation Agreement with your spouse to deal with these matters if the divorce is going
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If you are involved in a relationship breakdown, there are a number of things that you need to think carefully about and sort out, especially if you are embarking on or are considering a divorce or dissolution of a civil partnership. In the interests of brevity we will refer only to divorce in the rest of this article but civil partnerships attract similar law and procedure. Our expert team of family law solicitors can help you through the process and here are a few of their top tips on what you need to be thinking about if you are facing a separation or divorce:

  1. What do you want and when do you want it?

Think about whether you want to obtain a divorce now, in which case your marriage will be legally dissolved, or whether instead you want to separate with a view to deciding on a divorce at a later date. Either way, the related financial and children arrangements can still be sorted out and you should speak to a solicitor specialising in family law about the different options available, including entering into a Separation Agreement with your spouse to deal with these matters if the divorce is going to be postponed. If the financial arrangements are not agreed, then it may be necessary to get divorce proceedings under way in order to have access to the Court’s powers to resolve financial and property issues.

If you decide that you want a divorce, you should also consider how long it is likely to take bearing in mind the legal procedure, the cooperation of the other party and the current Family Court processing times. In can currently take around 8 to 10 months to conclude the proceedings, but in some cases it can take longer. We would also normally recommend not concluding the proceedings until such time as the financial arrangements have been resolved, which may effect the overall timescale. A contested divorce, while unusual, will take much longer and potentially cost a lot more than an undefended divorce.

  1. Have you been married for at least one year?

If you decide that you want a divorce, then you will need to apply to the Family Court to obtain this. The application attracts a court fee (currently £550) unless you qualify for a fee exemption or reduction. Before the Family Court allows you to apply for a divorce, you must have been married for at least one year. If you have been married for less than a year, you should seek legal advice about the other options available to you to formalise your separation. once you have been married for a year you can initiate proceedings provided that you are able to prove the existence of one or more of the five facts which are referred to in section 5 below.

  1. A divorce cannot be applied for jointly, but ideally should be agreed between you both

A divorce can only be applied for by one party, not jointly. One of you will need to start the process by completing the Divorce application form. That person will be referred to as the Petitioner. The other party will need to respond to the Petition and they will be referred to as the Respondent. Although you cannot apply jointly for a divorce, you can still both agree for there to be a divorce.

In the majority of cases we recommend that before you start divorce proceedings you should speak to or contact your spouse to let them know that you wish to divorce and to seek their agreement. Of course, there are exceptions to this and we will discuss this with you, if necessary. Notifying the other party may help to ensure that the divorce is not disputed and will also allow your spouse to have an input in what is included in the Petition, if necessary. This should help to keep the costs and timescale for the divorce to a minimum. It also means that the divorce will not come as a complete shock to the other party and, in turn, this should aid important discussions that may need to take place regarding the financial and/or children arrangements as it demonstrates your understanding that both of you will need to be fully involved in the process which you should try to resolve amicably.

It is important to bear in mind that, in relation to negotiating a financial settlement or agreeing arrangements for children, it does not matter who applies for the divorce or what reason is used in the Petition to say that the marriage has broken down, as this in itself has no effect on how you divide up your finances or sort out the arrangements for the children.

  1. Marriage certificate

In order to start divorce proceedings, you will need to provide the Family Court with either your original marriage certificate or a certified copy (photocopies will not be accepted). If you do not have the original marriage certificate and you cannot get a copy of it, you will have to make a separate application, alongside the divorce application, to issue the Petition without it. If your marriage certificate is not in English, you will also need to provide an official certified translation of the marriage certificate.

  1. There is only one ground for divorce

The only basis upon which you can obtain a divorce in England and Wales is by satisfying the Family Court that your marriage has irretrievably broken down. This breakdown can only be proved by establishing the existence of one or more of five specific facts, which are:

  1. the Respondent’s adultery
  2. the Respondent’s unreasonable behaviour
  3. the Respondent’s desertion of at least two years
  4. separation of at least two years and the other party consents to a divorce being granted
  5. separation of at least five years

In some cases, there may be more than one fact in existence, but for the purpose of the Divorce Petition it is only necessary to rely on one fact to establish that your marriage has irretrievably broken down.

In practice, even if you are certain that your spouse has committed adultery, it may be difficult to obtain an undefended divorce on this basis if your spouse is unwilling to provide a formal admission. In those circumstances it may be sensible to consider a behaviour divorce as an alternative as, if the Respondent wishes to defend such a divorce he or she will have to prepare and submit a formal response to the allegations, which is likely to be more difficult and expensive for them to do than simply denying that adultery has taken place. It is possible for the Respondent to deny allegations of unreasonable behaviour while still allowing the divorce to proceed on that basis.

  1. Financial and children arrangements still need to be resolved

It is important to understand that whilst the divorce process will end your marriage, it will not automatically sort out what is to happen in respect of your financial and/or children arrangements. You will still need to resolve these matters, rather than leaving them open-ended, and we recommend that you should sort them out before the divorce is finalised. Alternatively, if you are going to postpone your divorce but still agree to separate, you should consider entering into a Separation Agreement with your spouse to deal with these matters. Either way, you should try to reach amicable agreements about the children, money and property.

Before you start making any decisions, you should speak to a solicitor who specialises in family law to help you understand how best to deal with these matters, what the law is, what key areas need to be considered and what your options are.

In terms of money and property, you should, at the very least, compile a full list of all the assets and debts (whether held in sole names or jointly with your spouse or another party), what income you each receive from all sources and what pension assets you both hold.

In terms of the assets, you will need to include property (including land and buildings), bank and building society accounts, national savings accounts, shares, ISAs, all types investments, life insurance and endowment policies, cash, personal assets (cars, collections, pictures, jewellery and furniture for example), business interests and pensions. Whilst this is not an exhaustive list, it is a very good starting point. You will also need to consider mortgages on property owned, as well as any liabilities either of you have, such as credit and store cards, bank loans and hire purchase agreements for example.

There may be tax consequences arising from your divorce or separation and you should obtain professional advice from an accountant or tax expert about such matters before making any final decisions on how to deal with the money and property issues.

If you have children, you will need to agree where the children will live and what arrangements will be put in place for the children to spend time with both parents. You will also need to sort out the child maintenance arrangements. We recommend you visit the Government’s Child Support website which has a helpful calculator to give you an indication of the amount of child maintenance that you could expect to pay or receive.

  1. How to resolve the divorce, financial and children matters

Whether you are divorcing or separating, you need to think about how the issues addressed in this article can be resolved. There are lots of ways in which divorce, separation, financial and children matters can be sorted out. These include direct discussions, mediation, collaborative law, solicitor negotiation, arbitration and court proceedings.  If the divorce is agreed, then you usually will not have to attend court. It is also possible to work out the financial and children matters without attending court and you should speak to a solicitor specialising in family law about the different ways such matters can be resolved, so that you can make an informed decision on what option is best for you and your family.

  1. Speak to a solicitor as early on as possible

When family issues arise it is often a very worrying and sensitive time, especially when children are involved. The financial and emotional effect of a separation or divorce can be significant and it is best to obtain professional and expert advice from a solicitor who specialises in family law as early on as possible. Even if the relationship breakdown is amicable, it is important you fully understand what is involved, what the law says and what options are available to you and the family when it comes to sorting out the financial and children arrangements.

When you are separating or getting divorced, there are always lots of questions that need answering. We have covered only a few in this article. To find out more please get in touch with the Thompson Smith and Puxon Family team on 01206 574431 or email info@tsplegal.com.

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TSP Appoints Two New Partners https://www.tsplegal.com/general/tsp-appoints-two-new-partners/ Thu, 02 Jan 2020 10:29:50 +0000 https://www.tsplegal.com/?p=20306 Leading Essex Law firm Thompson Smith and Puxon (TSP) is pleased to announce the appointment of Aileen Hirst Ltd and Robert Ashworth Ltd as new partners in the firm from 1 January 2020. Aileen Hirst and Robert Ashworth are both solicitors in the Wills and Estates team and the appointment of their companies as partners in TSP brings the total number to 13. Aileen and Robert advise clients on their Wills, Lasting Powers of Attorney, Trusts, and Estate Administrations (Probate). In particular, as a qualified member of the Society of Trust and Estate Practitioners (STEP), Aileen has a special interest and expertise in Trusts and, along with team leader, Fiona Ashworth, is the team’s Trust specialist. In 2020, as a director in the team, Aileen will focus on developing and expanding the Trust work that the team undertake. Robert meanwhile has a particular specialism in advising farming and agri-business clients on their succession and estate planning. Robert and Fiona both have strong agricultural family ties and will work together to continue to develop the team’s expertise in this area. In addition Robert will spend part of his working week at our Clacton office and will assist Fiona in growing and
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Leading Essex Law firm Thompson Smith and Puxon (TSP) is pleased to announce the appointment of Aileen Hirst Ltd and Robert Ashworth Ltd as new partners in the firm from 1 January 2020. Aileen Hirst and Robert Ashworth are both solicitors in the Wills and Estates team and the appointment of their companies as partners in TSP brings the total number to 13.

Aileen and Robert advise clients on their Wills, Lasting Powers of Attorney, Trusts, and Estate Administrations (Probate). In particular, as a qualified member of the Society of Trust and Estate Practitioners (STEP), Aileen has a special interest and expertise in Trusts and, along with team leader, Fiona Ashworth, is the team’s Trust specialist. In 2020, as a director in the team, Aileen will focus on developing and expanding the Trust work that the team undertake. Robert meanwhile has a particular specialism in advising farming and agri-business clients on their succession and estate planning. Robert and Fiona both have strong agricultural family ties and will work together to continue to develop the team’s expertise in this area. In addition Robert will spend part of his working week at our Clacton office and will assist Fiona in growing and developing the Clacton-based team.

TSP Senior Partner, Mary Anne Fedeyko, adds “Since joining us both Aileen and Robert have assisted Wills and Estates team leader, Fiona Ashworth, developing and building the team into the extremely well-regarded and experienced team of 15 that it is today. We have ambitious plans to develop the team further and Aileen and Robert will play a key part in this. They both thoroughly deserve their appointments and, on behalf of the Directors and staff at TSP, I am delighted to welcome Aileen Hirst Ltd and Robert Ashworth Ltd to the partnership. Their collective experience and expertise as Wills and Estates Associate Solicitors has already proved to be a great asset to the firm and I am sure that under the stewardship of Fiona and her newly appointed fellow directors the Wills and Estates team will continue to flourish.”

Aileen added “I am really pleased to become, through my company, a partner in Thompson Smith and Puxon. I am keen to support Fiona and to help her continue to grow the team particularly with the firm’s Trust matters, however, I’m also looking forward to assisting with the on-going development of the firm as whole.”

Robert continues “I echo everything that Aileen has said. In particular, I’m looking forward to helping to promote and expand on the good work that we currently already do in our Clacton office.”    

The TSP Wills and Estates team is recommended by the Legal 500 in Essex, and, in the results which were published in September 2019, team leader Fiona Ashworth was highlighted as a Leading Individual and both Aileen and Robert identified as Rising Stars; future leaders of the firm. It is no coincidence therefore that their hard work and commitment has been rewarded with directorships at TSP. 

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A Fond Farewell After 35 Years https://www.tsplegal.com/general/a-fond-farewell-after-35-years/ Tue, 24 Dec 2019 10:52:53 +0000 https://www.tsplegal.com/?p=20266 It is the end of an era at Thompson Smith and Puxon (TSP), as Richard Porter, third generation Porter and TSP Director, retires from the firm. TSP Directors and Staff came together at the firm’s Christmas party at Wivenhoe House on Friday 20 December to wish Richard, who heads the Employment Law team, a long, happy, and healthy retirement. Fellow Director, Steve Webb, was called upon to say a few words. In summing up he said “Richard has three qualities that set him apart as a lawyer. Firstly, he is a perfectionist. Whatever he does he always does it to the best of his ability as his record shows. Secondly, he is the best natural advocate that I know – he is concise and persuasive, talking less, but saying so much more. Lastly, he is the perfect gentleman.” Steve and Richard are pictured together, left.  Richard responded, speaking fondly of his time at TSP, and how proud he is to have followed in the footsteps of his father and grandfather before him. After the speeches were complete Richard’s secretary, Julia Kingston, presented Richard with an Ipad and card on behalf of the Directors and Staff. Richard passes the stewardship of
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It is the end of an era at Thompson Smith and Puxon (TSP), as Richard Porter, third generation Porter and TSP Director, retires from the firm. TSP Directors and Staff came together at the firm’s Christmas party at Wivenhoe House on Friday 20 December to wish Richard, who heads the Employment Law team, a long, happy, and healthy retirement.

Fellow Director, Steve Webb, was called upon to say a few words. In summing up he said “Richard has three qualities that set him apart as a lawyer. Firstly, he is a perfectionist. Whatever he does he always does it to the best of his ability as his record shows. Secondly, he is the best natural advocate that I know – he is concise and persuasive, talking less, but saying so much more. Lastly, he is the perfect gentleman.” Steve and Richard are pictured together, left.  Richard responded, speaking fondly of his time at TSP, and how proud he is to have followed in the footsteps of his father and grandfather before him. After the speeches were complete Richard’s secretary, Julia Kingston, presented Richard with an Ipad and card on behalf of the Directors and Staff.

Richard passes the stewardship of a thriving Employment team, rated Top Tier in Essex by the Legal 500, and with a very healthy client base, to fellow director and Legal 500 leading individual Jolyon Berry.

Richard has helped many people and touched many lives during his time at TSP and he leaves us with our very best wishes for the future. You will be missed by us all Richard.

A Distinguished Career

Richard was educated at Holmwood House Preparatory School and Charterhouse and joined the Colchester Royal Grammar School in the sixth form. He studied law at Anglia Ruskin University before undertaking his training contract at Stewards in Ipswich and then joining TSP in 1984, like his father and grandfather before him. He became a partner in 1987 and spent a number of years in our Clacton office, heading the team there. In 1997 he completed his Masters Degree in Law with the University of Leicester.

In his early years of practice Richard worked in crime and by 2000 was reputed to be the best defence lawyer in town. He was one of the first solicitors to be given higher rights of audience in the Crown Court, was on the Attorney General’s list of Special Prosecutors, and spent time as a Deputy District Judge dispensing the law, as well as defending his clients.

By 2000 Richard had done what he could with crime and turned his hand to Employment Law, bringing the same enthusiasm and vigour as he had with the criminal law. He is a member of the Employment Lawyers Association and a Legal 500 Leading Individual for his Employment work and under his stewardship the team had gone from strength to strength, being rate as a Legal 500 Top Tier Employment Team in Essex since October 2017.   

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New Year and New Beginnings https://www.tsplegal.com/solicitor-articles/new-year-family-law/ https://www.tsplegal.com/solicitor-articles/new-year-family-law/#respond Tue, 24 Dec 2019 08:52:00 +0000 https://www.tsplegal.com/?p=14392 A new year brings new beginnings and with this in mind, here are a number of ways our specialist Family Law team can help you embark on the new challenges that 2020 may bring:- Are you newly engaged? Did you get engaged over the Christmas and New Year period? If you did then 2020 will mark the start of a very exciting chapter in your life. Whether you are intending a long engagement or otherwise planning the big day for later in the year, you may wish to consider the option of entering into a pre-nuptial agreement with your partner. Whilst the idea of signing a pre-nuptial agreement might not be a particularly romantic one, such agreements should be considered by all couples planning their wedding or civil partnerships. TSP can advise you on the issues to be considered in such an agreement and help prepare or review an agreement for you. Buying a home or moving in with your partner Are you moving in with your partner this year or buying a property together? If so, then there will be a lot to organise and although we know that the last thing you really want to be thinking about
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A new year brings new beginnings and with this in mind, here are a number of ways our specialist Family Law team can help you embark on the new challenges that 2020 may bring:-

  • Are you newly engaged?

Did you get engaged over the Christmas and New Year period? If you did then 2020 will mark the start of a very exciting chapter in your life. Whether you are intending a long engagement or otherwise planning the big day for later in the year, you may wish to consider the option of entering into a pre-nuptial agreement with your partner. Whilst the idea of signing a pre-nuptial agreement might not be a particularly romantic one, such agreements should be considered by all couples planning their wedding or civil partnerships. TSP can advise you on the issues to be considered in such an agreement and help prepare or review an agreement for you.

  • Buying a home or moving in with your partner

Are you moving in with your partner this year or buying a property together? If so, then there will be a lot to organise and although we know that the last thing you really want to be thinking about is what you might do if things go wrong in your relationship at some point in the future, there are still some practical considerations you should address, particularly if you are unmarried. This is due to the fact that the law treats unmarried couples differently to married couples on relationship breakdown.  There is no such thing as a common law husband or common law wife. Regardless of the length of your relationship, you will not acquire the same legal rights and responsibilities as a married couple or civil partners. This means that if you are buying a property together in joint names and one of you is contributing more than the other to the purchase, you should  not only discuss this with your conveyancing lawyer at the time of purchase, but also consider entering into a Declaration of Trust to record how the property is owned and in what shares.

If you are moving into your partner’s property or plan to live together outside of marriage or civil partnership, then you should consider entering into a Cohabitation Agreement (otherwise known as a Living Together Agreement) with your partner. Amongst other things, such agreements can set out how the mortgage repayments and household bills will be paid, how any joint account will operate, responsibility for renovations or repairs, and what is to happen to the property should your relationship unfortunately break down.

TSP can advise you on the law as it affects unmarried couples and prepare or review Declarations of Trust and Cohabitation Agreements on your behalf.

  • Are you recently separated?

If you have recently separated, then 2020 may mark the start of the process bringing that separation to a formal conclusion whether by way of divorce or civil partnership dissolution proceedings. Here at TSP we can advise and represent you in connection with such proceedings, as well as help you resolve the very important and related children and financial arrangements. We can also help you in connection with entering into a Separation Agreement with your former partner.

There may be financial and property issues to address, as well as sorting out the arrangements for your children in terms of where they are to live and how much time they are to spend with both parents, all of which we can assist you with. You may be considering relocating abroad or starting afresh in a new town or country. If you have children, then there will be important considerations to address and you will need to agree those arrangements with the other parent if court proceedings are to be avoided.

If you wish to discuss any of these issues, please do not hesitate to get in touch to find out how we can help. We offer a free 15 minute initial telephone chat to provide general information. Please call 01206 54431 for further details or email us on info@tsplegal.com.

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The Trusts Registration Service – What is it and do I need to register? https://www.tsplegal.com/general/the-trusts-registration-service/ Tue, 24 Dec 2019 03:16:00 +0000 https://www.tsplegal.com/?p=20119 We are all familiar with the need to produce ID documents when opening a bank or building society account, or instructing a solicitor or accountant.  Counter-terrorism, money laundering and fraud are key concerns for governments across the globe. In 2017, as a result of the EU’s 4th Money Laundering Directive, HM Revenue and Customs introduced the Trusts Registration Service (TRS), to step up its systems to combat terrorism and money laundering.  The TRS is an online system requiring trustees of certain trusts to provide more information to HM Revenue and Customs, including full details of the beneficiaries. This replaced the old paper system for registering trusts and obliges trustees responsible for any trust which incur an income tax or Capital Gains Tax liability to register on the TRS.  As well as greater transparency, the TRS is part of HM Revenue and Customs ambition to become one of the most digitally advanced tax administrations in the world. The new registration system has had teething difficulties, partly as a result of the number of trusts that were already in existence that were required to be registered online by the deadlines imposed by HM Revenue and Customs.  However, it seems as if most
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We are all familiar with the need to produce ID documents when opening a bank or building society account, or instructing a solicitor or accountant.  Counter-terrorism, money laundering and fraud are key concerns for governments across the globe.

In 2017, as a result of the EU’s 4th Money Laundering Directive, HM Revenue and Customs introduced the Trusts Registration Service (TRS), to step up its systems to combat terrorism and money laundering.  The TRS is an online system requiring trustees of certain trusts to provide more information to HM Revenue and Customs, including full details of the beneficiaries. This replaced the old paper system for registering trusts and obliges trustees responsible for any trust which incur an income tax or Capital Gains Tax liability to register on the TRS. 

As well as greater transparency, the TRS is part of HM Revenue and Customs ambition to become one of the most digitally advanced tax administrations in the world.

The new registration system has had teething difficulties, partly as a result of the number of trusts that were already in existence that were required to be registered online by the deadlines imposed by HM Revenue and Customs.  However, it seems as if most of these initial problems have been overcome which is just as well as the UK government is now agreeing the implementation of the EU’s 5th Money Laundering Directive. This significantly expands the scope of the TRS, widening the definition of trusts that need to be registered such that trustees of all UK express trusts will be required to register these trusts, whether or not a tax liability has arisen. 

The trusts that are expected to need registering with the TRS will include discretionary trusts, interest in possession trusts, many types of bare trusts, charitable trusts and employee ownership trusts. This list is not exhaustive and the government has said that the onus will be on the trustees and their agents to determine whether the trust will need to be registered.

The registration dates are yet to be confirmed but the proposals are that unregistered trusts already in existence on 10 March 2020 should be registered with the TRS by 31 March 2021.

New trusts created on or after 1 April 2020 will need to be registered within 30 days of creation.  There is still some uncertainty as to how this short timeframe can be achieved and we await further details from HM Revenue and Customs.

In addition to trusts, the TRS is also the system for registering complex estates that have tax reporting obligations during the period of administration. Simple estates can still use the informal reporting method at the end of the administration period but more complex estates now require registering with the TRS before tax returns can be filed and tax paid. 

If you are a trustee of an existing trust, or you are thinking about being appointed as a trustee, or if you are  dealing with a someone’s estate, it is important to be aware of your obligations to register with HM Revenue and Customs and the tax reporting requirements so that the trust or estate does not incur fines or penalties.

If you would like advice and information about the TRS or trusts and estates generally the Thompson Smith and Puxon Wills and Estates team can be contacted on 01205 574431 or by email at info@tsplegal.com.

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Talking and Teamwork to Tackle Christmas Break-ups https://www.tsplegal.com/general/christmas-break-ups/ Thu, 19 Dec 2019 21:54:00 +0000 https://www.tsplegal.com/?p=20217 The latest figures from the Office for National Statistics (ONS) show that overall rates of divorce have reduced, falling to their lowest level since the 1970s. However, relationship breakdowns continue to spike after the festive season, and experts say these figures do not directly translate into more couples experiencing a ‘happy ever after’.   There were 90,871 divorces of opposite-sex couples in 2018, a decrease of 10.6% compared with 2017 and the lowest number since 1971.  Couples are also staying married for longer before they divorce, an average of 12.4 years for those divorcing in 2018, up from 9.6 years in 1996.  But analysts suggest that these figures are due in the main to marriages taking place later in life and often following a period of living together, which can act as a pre-marriage trial.  The figures also reflect that there are far fewer marriages taking place overall, at nearly half the number of 1974.  Administrative delays at Ministry of Justice divorce centres have driven 2018’s figures down as well, with the subsequent catch up on processing of divorce petitions expected to translate into a higher number of completed divorces in 2019. Unreasonable behaviour remains the most common reason for divorce. 
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The latest figures from the Office for National Statistics (ONS) show that overall rates of divorce have reduced, falling to their lowest level since the 1970s. However, relationship breakdowns continue to spike after the festive season, and experts say these figures do not directly translate into more couples experiencing a ‘happy ever after’.  

There were 90,871 divorces of opposite-sex couples in 2018, a decrease of 10.6% compared with 2017 and the lowest number since 1971.  Couples are also staying married for longer before they divorce, an average of 12.4 years for those divorcing in 2018, up from 9.6 years in 1996.  But analysts suggest that these figures are due in the main to marriages taking place later in life and often following a period of living together, which can act as a pre-marriage trial.  The figures also reflect that there are far fewer marriages taking place overall, at nearly half the number of 1974. 

Administrative delays at Ministry of Justice divorce centres have driven 2018’s figures down as well, with the subsequent catch up on processing of divorce petitions expected to translate into a higher number of completed divorces in 2019.

Unreasonable behaviour remains the most common reason for divorce.  In opposite-sex couples, when marriages ended in divorce, 51.9% of wives and 36.8% of husbands petitioned on this ground.

At present, the only grounds for divorce is that the marriage has broken down irretrievably, by reference to one or more of the following faults; adultery, unreasonable behaviour, the rarely-used ground of desertion,  two years of separation where both parties agree to divorce, or five years’ separation in which case the consent of the other party is not required.

TSP family law expert Marcus Price said  “There has been much discussion about changing the law to allow for completely no-fault divorce, which at present is only available after 2 years’ separation. It is hoped that changes will now be made following the December 2019 General Election. In the meantime, we need to support couples in navigating the current process without animosity, which is even more important when children are involved.” 

This echoes guidance from support organisations such as the NSPCC who encourage parents to talk to their children and prepare the ground for separation and divorce, by avoiding accusations and apportioning blame or asking children to take sides. 

He adds: “Where it is possible, talking things through is generally best, and you don’t have to do it all on your own, as someone can sit in to help focus those conversations on positive negotiation, whether it’s just between the two of you, or as a family with your children. 

It doesn’t have to be a professional at this stage, although it’s a good idea to get some expert input before you make any agreement over financial and property issues or children arrangements, to be sure it is fair for both sides and that the welfare of any children under 18 is the priority.

Approaching separation on the basis of collaboration and mediation may ease things and make this very difficult phase of life just a little less tough.” 

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