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Machaela O’Brien, Family Executive at Coodes Solicitors outlines what protection is available locally in Cornwall for victims of domestic abuse.
While progress is being made to provide more protection for domestic abuse victims, many people still suffer in silence and feel that they can’t ask for help.
Sadly, domestic abuse is still a prominent issue. In November 2018 the latest statistics from the Crime Survey for England and Wales were released showing an increase in cases of domestic violence. The latest figures show that an estimated two million adults aged between 16 and 59 experienced domestic abuse in 2017-18, compared with 1.9 million in 2016-17.
We know that the majority of cases are not reported to the police. In many circumstances victims are scared of retaliation if they report the abuse and are often, understandably, frightened by the prospect of facing their abuser in court. Some abusers take control of their partner’s entire lives, whether that’s restricting their access to money or letting them see their friends. Some may have a children with their abuser and stay with them over fear of losing their family.
The good news is that there are a number of local services that are available to people experiencing domestic abuse victims. I would encourage more people to reach out to them.
Although there is now more awareness that domestic abuse can take many forms, this is still not widely understood.
What is classed as domestic abuse?
Domestic abuse is defined as an incident or pattern of incidents of controlling, threatening or violent behaviour perpetrated, in most cases, by a partner or ex-partner.
Domestic abuse can occur in different forms, from physical abuse or coercive control. It’s important to recognise the signs of domestic abuse so we can spot these behaviours affecting ourselves or someone we care about.
How can the police help if I am experiencing domestic abuse?
In many cases, the most effective resolution is to inform the police so that the perpetrator can be arrested and prosecuted.
Also, if you are concerned about a loved one’s partner or wish to know if a new person in your life poses a risk to you, you have the right to ask police if they have a violent past. The Domestic Violence Disclosure Scheme, sometimes referred to as Clare’s Law, enables you to apply for disclosure on someone’s background. The police will disclose the information if it is legal, proportionate and necessary to do so.
What can I do if the police are not involved or won’t help?
The Family Law Act 1996 provides protection for those suffering from domestic abuse through two types of injunctions, a Non-Molestation Order and an Occupation Order.
A Non-Molestation Order can be put in place to prevent an associated person from using or threatening violence and harassing or intimidating an individual. In some cases, if an individual is in immediate danger an application can be made to the court on the same day without the abuser being given notice.
The order can be made for a specific period of time, which is usually six months but it can be extended. It is a criminal offence to breach a Non-Molestation Order and can result in the arrest of the perpetrator.
An Occupation Order regulates who can live in the family home. It is most commonly used to remove an abuser from the home to enable the individual to return or remain in the house without further fear of violence. An Occupation Order can also be used to restrict an abuser from entering the surrounding area.
A lawyer will be able to help you secure either of these orders but it’s important to look for a lawyer that has experience of dealing with domestic abuse. Many members of our Family Team have expertise in domestic abuse and have undergone extensive training to help provide the best support possible.
For more information about how we can help youClick here
What support is available for people living in Cornwall?
There are many local services in Cornwall and across the South West that are dedicated to help and support anyone who is experiencing any form of domestic abuse. Here at Coodes, we work closely with many of these organisations and often refer our clients to them for support.
First Light is a charity supporting people in Cornwall, Devon and Wiltshire. It offers local helplines, confidentiality and specialist advisors for children.
Women’s Aid is a national charity offering help to women and children affected by domestic abuse. They have a 24 hour helpline and a range of online services.
The SUsie Project offers support to men and women who have experienced domestic abuse and are no longer with their abuser. The project aims to help people in Cornwall regain their confidence, self-esteem and realise their ambitions for the future.
The Women’s Centre Cornwall supports women and girls over the age of 11 who have experience some form of abuse. It provides a safe and supportive environment and access to a range of services and helplines.
SPLITZ, Devon Domestic Abuse Support Services offers one to one support for victims of domestic abuse who are at medium or high risk of harm. The support service can help with safety planning, court proceedings and issues such as housing or separation.
Inheritance disputes are on the increase. A recent survey has shown that more people are now prepared to challenge a Will. Sarah Cornish, Partner in the Wills, Probate & Trusts team, and Partner and disputed Wills specialist Melanie Grose at Coodes Solicitors discuss why a properly drawn-up Will can reduce the risk of challenges to your estate in the future.
A recent survey commissioned by life insurance company Direct Line has revealed that a quarter of adults are now prepared to challenge a Will if they disagree with the division of estate. With information readily available online, people are becoming more educated on the potential to challenge a Will. An increased diversity of family types, with many choosing not to marry and others re-marrying after a divorce, means inheritance is now often more complex. This opens up the potential for more people to challenge a Will that they feel is unfair.
Why someone might contest your Will
Here at Coodes, we are seeing a dramatic rise in the number of claims relating to inheritance disputes.
While some relatives may feel they are entitled to more than they have been left, a survey of family law specialists has found that undue influence is the most common grounds for contesting a Will. A relative could also, for example, claim that the deceased was persuaded or manipulated into writing their Will in a certain way or that they were in a vulnerable state when they created it. To claim the deceased lacked capacity, they must prove he or she was not able to make decisions, as a result of dementia, for example. In this instance, a good lawyer would contact the GP of the deceased or another qualified medical professional to verify whether or not this was the case.
Learn more about Will and inheritance disputesClick here
Why it is crucial to have an up-to-date Will
Many people make a Will and then forget to review it. However, things change so having an up-to-date Will is incredibly important. With more people deciding to cohabitate and the rise in divorce rates, it is more important than ever for a Will to be updated to ensure your loved ones are looked after. A change in your circumstances could make a big difference to the proportion of your estate that you wish to leave to your partner, children or perhaps another family member or a dear friend.
Many people put off creating a Will altogether as they feel they are too young or they have verbally expressed their wishes to a loved one. Usually, life events such as having children or buying a house will prompt individuals to start looking into drafting a Will. However, anyone over the age of 18 can put a Will in place.
In the event of your death, having no Will would result in the state deciding who inherits your money and belongings under the Intestacy Rules, which could result in someone close to you not inheriting anything at all. This could also cause difficult family relationships. For example, your new spouse could inherit your whole estate, leaving your children from a previous marriage with nothing.
An experienced lawyer will help you ensure your Will reflects your wishes. This is not just limited to your wishes for your estate. You can record your preferences for your funeral arrangements, which could take pressure of your family in the future. Importantly, having a properly drawn-up Will by a professional solicitor will also ensure you have assigned guardians for your children.
Why it is important to think carefully about your executors
An executor of a Will is tasked with carrying out the instructions left by the deceased. Anyone over the age of 18 can be an executor and many people choose members of their family such as their spouse or children. Ideally, it’s better to have more than one executor to divide up the work and also in case an executor dies before you.
It is vital to have executors you trust completely as they are responsible for making sure your wishes are met. If an executor refuses to distribute your estate as requested, the beneficiaries could risk never getting what they are entitled to. You could choose to have a solicitor or accountant as one of their executors who can handle the more complicated and financial matters, although they will charge you for their time.
Having a professionally drafted, up-to-date Will does not stop a claim being made. However, it does gives you the opportunity to counter any claims you may foresee, such as difficult family relationships and second families. In other words, it gives you the best chance or ensuring your family is not faced with the potentially devastating experience of going through an inheritance dispute over your estate.
Find out more about our Wills, Probate and Trust servicesClick here
Sarah Cowley, Partner in Coodes Solicitors’ Residential Property team, comments on proposed leasehold reform and what it could mean for anyone who wants to extend a property lease.
If you own a property on a leasehold basis, you are probably aware of the stress it can cause. In my recent article, I wrote about the issue of extending your property lease if it is nearing the end of its term.
Put simply, if you own a leasehold property you probably do not own the structure of the building, or the land on which it stands. Therefore, you have the right to occupy the property for the duration of the lease but the freeholder could claim it back when the lease runs out. While this is not such an issue if the lease still has a term of hundreds of years, it can be a real problem when the lease is down to under 80 years.
The cost of extending a lease varies enormously but it can be very expensive. The law surrounding leasehold was changed in Scotland and most other countries have much fairer systems. That is why there are now calls for leasehold reform in England and Wales.
Who is calling for leasehold reform?
The Mayor of London, Sadiq Khan, is calling for an overhaul of the leasehold system, which affects millions of homebuyers and property owners in the capital. The problem is not limited to London: an estimated four to five million people in England and Wales are leasehold property owners.
The Law Commission is now analysing the findings of its consultation paper on leasehold reform and is due to publish a report sometime this year. The review includes looking at leaseholders’ rights to purchase the freehold of their home and join other leaseholders in the collective purchase of the freehold of a block of flats. It also examines the process around extending the lease on a house or flat.
While it is not yet clear what the reforms will mean, it looks very likely that change is on its way.
Should I wait for reforms before extending my lease?
Everyone who owns a leasehold residential property already has the right to extend it and buy the freehold, provided legal criteria are met, but the process can be complicated. One of the reasons for this is that the cost of a lease is a delicate, expertly-assessed balance between the value of its location and the length of time the lease has to run.
The best advice is to look at your own circumstances when deciding next steps. You may be tempted to wait for new legislation before extending your lease and it pay off for you if you do so. However, imminent reforms are not guaranteed and any delay will add to the cost of extending your lease.
If you are in this position, you will need to consider a number of factors. The potential cost of a lease extension starts at thousands of pounds, but this increases rapidly when leases are under 65 years. For each year you delay, you could end up adding an additional one per cent of the value of the property to the cost of extending.
And that is not all. Short leases are valued at less than longer ones, which can deter buyers if you want to move. If you are planning to sell your property, it might therefore make sense to get a lease extension now rather than deal with a falling valuation, which will make your property less attractive to potential buyers.
There is another difficulty with short leases: lenders don’t particularly like them. They are generally of the view that it makes the loan seem riskier, so many have strict criteria as to the length of the term they will agree. For some leaseholders, therefore, it will make sense to extend to secure their mortgage rather than wait to see what the Government intends to change.
I am quietly optimistic that change is coming, though, of course, nothing is certain. If you are one of the many people who are wondering whether to extend your lease now, or wait for reform, it is a case of balancing all the different factors to work out what is the least risky option for you.
Litigation Executive at Coodes Solicitors, Hayley Gaffney, outlines what landlords need to know about the new Fitness for Human Habitation Act.
After being approved at the end of last year, the Homes (Fitness for Human Habitation) Act is set to come into force in England only on 20 March 2019. It will apply to all new or renewed secure, assured (including assured shorthold) and sublet tenancies of under seven years commencing on or after that date, including a renewal of an existing lease. For periodic tenancies beginning before 20 March, it will apply but there will be a 12 month grace period for compliance.
With so little time until the new legislation comes into effect, it is important for landlords to ensure they understand the implications.
The new legislation amends the Landlord and Tenant Act 1985 and requires property owners to ensure that their accommodation is fit for human habitation at the start of the tenancy. They must also maintain this standard throughout the time the tenant resides in the property.
What does ‘fit for human habitation’ mean?
Put simply, to be classed as fit for human habitation, your property must be safe to live in. The legislation states you must ensure there is no serious defect that the courts would deem makes the property unfit for someone to live in.
Damp and mould growth, natural lighting and drainage, as well as sanitary conveniences and facilities for preparing and cooking food are among the issues that are covered by the Act. The property will be deemed unfit if one or more of the conditions makes it unsuitable for someone to live in.
This is judged by the court, not only on the basis of the property’s condition, but also for its suitability for the tenant. For instance, a young and healthy tenant would have a higher threshold of suitability than someone with young children, a health condition or an elderly tenant.
What is the penalty if my property is found to be unfit?
The new legislation allows tenants to bring court action direct to the judge, rather than going through the council. The judge will decide whether the property is unfit based on the evidence provided.
Under the new Act, tenants can sue for damages for the entire length of the contact or tenancy and the landlord can be forced to perform repairs.
There are certain defects that a landlord is not responsible for and it is expected that the landlord should receive reasonable notice to remedy any issues before court action commences. We advise landlords to speak to a solicitor if you are unsure of your obligations and your rights to reasonable notice and time to undertake works and whether the works are actually your responsibility.
New electrical inspection regulations for landlords
The government has also recently announced tougher requirements on landlords to carry out mandatory electrical inspections. The new legislation will require all specified private rented property owners to carry out electrical checks once every five years. This is currently only required for HMOs but will extend to all private rental properties.
Landlords must ensure that inspectors are qualified and have the necessary competence to undertake an inspection. Minimum level guidelines will be published by the government and penalties for non-compliance has yet to be decided.
What rights do workers have once they have been made redundant by an employer that has gone into administration or liquidation? Coodes Solicitors Employment Lawyer Philip Sayers comments, in light of the latest news from troubled café chain Patisserie Valerie.
In the latest in a stream of headlines about Patisserie Valerie, it has now been revealed that the company has failed to pay hundreds of its redundant workers.
If a company becomes insolvent, some or all of its employees may be made redundant. This is what has happened in the case of Patisserie Valerie. When an employee is made redundant, he or she will retain certain rights and entitlements, even if the employer is unable to pay them.
Employees who have been made redundant due to insolvency have the right to know how their job is affected and what they should do next. An insolvency practitioner will step in to handle a number of employment procedures. Their role includes providing each employee with a RP1 form and a case reference number to use when applying for any money owed. Depending on the situation, an employee can apply to the government’s Redundancy Payments Office for a number of outstanding monetary arrears due from their employer.
Within six months of being made redundant, an employee can apply to the government for the following:
Employees should have been continuously employed by the insolvent business for a minimum of two years to claim redundancy payment, which is capped at £508 a week. An employee under the age of 22 can be eligible for half a week’s pay for each year they completed at that age. This rises to one week’s pay for each year for employees aged between 22 and 40 and one and half week’s pay for each year if the employee is 41 or older, to a maximum of 20 years.
After being made redundant, an employee can get paid for holiday owed. This includes any holiday days which they were not paid for in the 12 months before the insolvency for up to six weeks of holiday days. This is capped at £508 a week.
An employee who has been made redundant may also be able to claim for outstanding payments, such as unpaid wages, overtime and commission. This is also capped at £508 a week and an employee can receive up to eight weeks’ worth of outstanding payments.
Statutory notice pay
An employee is entitled to a paid statutory notice period, capped at £508 a week, even if it is not in their contract. An employee will be paid one week’s notice for every year they were employed, up to a maximum of 12 weeks.
More information, and details on how to apply, can be found on the government’s website.
These rights and compensation are only available when the employer enters into a formal insolvency event, which can include administration, liquidation or Company Voluntary Arrangements (CVA).
One problem I have encountered when advising clients is when an employer runs out of money and ceases trading but fails to enter into a formal insolvency event. In that situation for all sums except a redundancy payment, an employee will have to bring about a tribunal claim and get a judgment against the employer before the Redundancy Payments Office will pay out.
Have you considered an Asset Protection Trust as a way of helping your family avoid care home fees? Coodes Partner and elderly client specialist Louise Southwell comments on the risks.
There are many potential pitfalls of gifting or selling your home to your children during your lifetime. In fact, it is rarely advisable. For some people the aim is to try to avoid having to pay for expensive care home fees. In most cases it will neither save inheritance tax nor protect the value of the home against means testing for care funding purposes. In many instances it will cause expensive problems.
Is an Asset Protection Trust a safer alternative?
Many people believe that a safer alternative is to set up an Asset Protection Trust and transfer ownership of their home into that. In certain very limited cases this can work but there are risks.
I am not going to consider the inheritance tax issue, as that is a whole other topic, but let’s consider the possibility of using an Asset Protection Trust to protect the value of your home against means testing for care funding purposes.
If you are given a place in a care home, a Local Authority must carry out an assessment of your ability to pay for your care. If you have assets worth more than £23,250 you will have to pay for your care in full. The value of your share in your home will be taken into account when calculating its worth, unless it is occupied by your partner or spouse or an older or incapacitated relative or dependent child.
What if you dispose of your home, with the intention of taking it out of the equation for means-testing? Well, should you then need care then the Local Authority is entitled to regard that disposal as a deliberate deprivation of capital and assess you as if the asset was still yours. My colleague Clare McLeish writes about this here.
Why a properly drafted Will helps protect your assets
If your Will is properly drafted by a qualified lawyer it is absolutely possible and acceptable for you to ring-fence the value of your share in your home against means testing and depletion, should your partner or spouse need to be in residential care after your death. This can be done either as an outright gift or by setting up a Trust. The latter is usually the more attractive option to retain some flexibility in the arrangement for the surviving spouse or partner.
I say “properly drafted” because here at Coodes we are unfortunately engaged in unscrambling a number of schemes for clients. Before consulting us, they purchased their schemes from enticingly named national companies alleging to be experts in Trusts. The set-up costs are generally around £4,000-£5,000 and in each case the scheme is unnecessary.
What are the risks of setting up an Asset Protection Trust?
The term Asset Protection Trust is a bit of a giveaway. The phrase is used not to describe one particular type of Trust (it can apply to a variety of different sorts) but the purpose of the Trust. This is to protect the assets in it against means-testing and use for care funding and/or tax liability.
The problem is the same whether you give away or sell the asset to a Trust. If you sell your home to the Trust, you may well incur a liability to stamp duty land tax as well as the expense of formal valuation of property and Land Registry fees. If you gift the property or sell it at undervalue, you may also find yourself having made a gift with a reservation of benefit for inheritance tax purposes. You may also incur an annual charge to income tax under the previously owned asset taxation rules. Once the home is disposed of to someone other than the occupier, the capital gains tax principal private residence relief it is lost. In addition, there will be no tax uplift to the market value of the property when the person who disposed of the property passes away.
And of course, once you have given it away, you lose your control of your own home.
So, should you be tempted to part with the ownership of your property, tread carefully and seek proper advice. All is not as simple as it may first appear.
Fortunately medical mistakes are rare but what can you do if you are unhappy with the care you have received? Rachel Pearce, Partner at Coodes Solicitors, discusses the process of making a clinical negligence claim.
Most of the time, we are fortunate to receive excellent care when we are treated in hospital or by a GP. However, sometimes mistakes are made or the quality of care is not what it should be. Sadly, the consequences can be life-changing. If you are in this situation, you may have considered making a clinical negligence claim but perhaps you don’t know where to start or feel daunted by what may be involved.
What is a clinical negligence claim?
A clinical negligence, or medical negligence, claim involves seeking compensation. If you have been injured when being treated in hospital or a GP surgery, and are experiencing problems in your life as a result, then you may have a valid claim. If you have lost a loved one as the result of a mistake or poor treatment then you may also be able to claim compensation.
When can I make a medical negligence claim?
If you feel you may be entitled to make a clinical negligence claim then it is best to act quickly. There are a few reasons for this. An important part of making a clinical negligence claim is that it can help you to receive private treatment to help you with your recovery. Starting this treatment as early as possible will give you the best chance of getting your life back on track.
Most clinical negligence cases have a three-year limit for making a claim. This starts from the date of the injury, or the date when you first became aware that the injury was the result of negligence. For cases involving children, this three-year period begins on their 18th birthday.
Starting the process as soon as possible will give your lawyer the best chance of thoroughly investigating the case for you.
How do I go about making a clinical negligence claim?
Making a clinical negligence claim may seem very daunting. It can be a complex process, but if you instruct an experienced lawyer who specialises in medical negligence cases then it is their job to make the process as easy as possible for you. Choosing a firm which, like Coodes, offers advice on a no win, no fee basis will relieve any concerns you might have about the financial risk of going through a claim. Coodes is now also the only law firm in Cornwall to offer Legal Aid for clinical negligence claims involving birth injuries.
The first step is to contact a lawyer, who will discuss your experience with you. An experienced lawyer will make you feel comfortable and at ease. They will then be able to tell you whether or not you are likely to have a strong case. It is helpful to have a timeline with you for the first meeting so you can talk through what happened in as much detail as possible.
Why should I make a clinical negligence claim?
Many people who have not been through the process of making a claim, assume it is all about financial compensation. In my experience this is not the main reason why most people want to pursue a claim.
For some, it is important to get recognition for what has happened and for those involved to admit they were in the wrong. Others are very motivated by ensuring changes will be made so no-one else has to go through what they went through. Another good reason for making a claim is to get the treatment you need to recover and try to get your life back to where it was. For many clients, being financially compensated is helpful. Perhaps, for example, you have experienced loss of earnings as a result of your injury or had to adapt your home.
Everyone is different, but it is likely you will want to pursue a medical negligence claim for a number of these reasons. It is most likely to be about fighting for justice and securing compensation to help rebuild your life.
Do you really know how much your conveyancer will charge to help you buy or sell your house? Coodes Partner and Residential Property lawyer Jo Morgan welcomes new requirements for conveyancers to provide clear and comparable information on pricing.
There has been increased scrutiny of the house-buying process over the last few years. In particular, there is a push for the transaction time to reduce and efficiencies to be made across the board. A key issue is that when it comes to hiring a solicitor for conveyancing, many people are left bewildered and confused as to which firm will provide best value for money.
The Competition and Markets Authority (CMA) has conducted a market study into legal services. It found that some of the key areas for improvement were in relation to clear and concise information about pricing.
The report concluded that many people find it difficult to make informed choices when choosing a conveyancer, due to a lack of transparency about pricing, service and quality. When deciding which conveyancing firm suited them best, a number of people said they felt that they did not have the right information to make a genuine choice.
This lack of transparency weakens competition in the market. Questions have also been raised in relation to the quality of the service many conveyancers provide.
What are the new price transparency requirements for conveyancers?
On 6th December 2018, new rules came into force for legal firms that practice conveyancing and other areas of law, including certain motoring offences, uncontested probate, employment tribunals and immigration. The new rules require conveyancers to publish clear and concise information about pricing, legal costs and disbursements on their website. They must also clarify exactly which of their services are included in the price.
Firms also now need to provide clients with the key stages of transactions and expected timeframes of the conveyancing process, as well as making available the qualifications and experience of their conveyancers.
Why has transparent pricing been introduced?
The purpose of the new requirements is to help customers make a much more informed choice when deciding who to appoint as their conveyancers. What may at first appear to be the ‘cheap and cheerful’ option does not always turn out to be the best choice for a client. Appointing a more experienced advisor to guide you through the, often very stressful, process of buying or selling a property will often turn out to be better value in the longer term.
Why I welcome the new requirements for conveyancing
At Coodes we welcome the new requirements to provide clients with clearer and more comparable information on our pricing, services and expertise. We take the view that we should make as much information as possible available to all our clients.
We know that buying or selling a property can be stressful so we want to make it as easy as possible. One way we have made the process easier is by allowing clients to instruct us online 24 hours a day, seven days a week. We can now provide you with a conveyancing quote emailed straight to your inbox through our instant quote service, available here. The estimate will include legal costs, disbursement and costs such as stamp duty so you can weigh up finances before instructing. As we have been named best conveyancing firm in Cornwall and Devon, we will have no hesitation in answering any questions you may have about our team’s qualifications and expertise.
These changes will help anyone looking to buy or sell a property better understand what service they will get from a conveyancer, and exactly how much it will cost.
Jodie Walmsley of Coodes Solicitors’ Personal Disputes team, explains the steps you can take to recover the debt, using the Small Claims Court Procedure.
Unfortunately, many of us will occasionally find ourselves in the difficult situation of being owed money. It could be the company you were dealing with went into administration, or you weren’t supplied with goods you paid for. Perhaps you loaned money to another person who has failed to repay or you are a sole trader who is owed money for work you have carried out. In all these circumstances, the Small Claims Court Procedure can be utilised. Whether you are owed money by an individual or a company, the Small Claims Court is used for claims where the debt does not exceed £10,000. It is designed for an individual or a company to handle the claim themselves however advice may be sought where needed.
We often get enquiries in relation to debt claims which are below £10,000. This guide sets out what you should take into consideration before lodging a claim and what you can do if you require assistance.
Is it cost effective to lodge a small claim?
The Small Claims Court is designed for individuals or companies representing themselves. This enables costs to be kept to a minimum, but there are fees involved:
The initial Court Fee of £25 – £410, depending on the amount of the claim.
A £40 Court Allocation Fee (if the claim is over £1500).
The hearing fee of between £25 – £325 (paid if and when the case gets to a hearing and dependant on the amount of the claim)
What should I consider before bringing a small claim?
If you choose to lodge a claim, you as the Claimant need to prove you have a genuine claim should the claim go to a final hearing before a Judge. You need to establish whether you have a genuine claim from the outset. It may be helpful to ask yourself the following questions: Do you feel that you have a strong case that you can document with supporting evidence? Do you have a contract with the debtor for the unpaid sum? Do you feel you have been genuinely wronged?
Can I claim back the costs in bringing a claim?
You should be aware before bring a claim in the Small Claims Court that there is very limited scope in recovering costs in bringing the claim or associated solicitor’s costs.
Should you be successful in your claim you may well recover the Court Fees on top of the judgment debt. However, solicitor’s costs are not usually recoverable save for some limited fixed fee nominal costs.
What happens after I have lodged a claim with the Small Claims Court?
The Defendant will be notified of your claim. They will choose whether to accept the debt and make the payment or to defend. If they accept that the debt is payable that is unfortunately not the end of the case. The Defendant will return the necessary paperwork to the Court and the arrangements for payment will then need to be agreed or the amount to be paid negotiated.
If the Defendant defends your claim, they will have 28 days to respond (if they acknowledge the claim within 14 days of receipt). The Court will then issue what is known as a Directions Questionnaire, which will give specific steps for the parties to adhere to in a specified time.
The Court allocates the claim based on the information received and issues a Notice of Allocation to the parties, stating how to prepare for the final hearing. At this point the parties are offered free Court Mediation to try and resolve the dispute before a final hearing takes place.
What if I win but the debt still remains unpaid?
Unfortunately, this may happen even if you have obtained Judgment against your debtor. This means you will have to take steps to enforce the judgment in order to be repaid the debt. There are a number of ways to do this, including using Court Bailiffs to collect the money, freezing the assets of the debtor or putting a charge on any assets or money. All of these options involve further steps to be taken and further Court fees.
Will I need assistance to handle this process?
You will need to consider whether the amount of your claim will exceed legal fees. However, if you are thinking about instigating a claim, or have had a judgment obtained and want to know the best route to go down next, it may be advisable to attend an initial appointment with a specialist lawyer. This will allow you to discuss options and find the best way forward to give you clarity and peace of mind.
What legal rights does cohabitation actually provide? Lucy Theobald, Partner in Coodes Solicitors’ Family Team, comments on the enduring power of the common law marriage myth.
A recent survey by the National Centre for Social Research and University of Exeter has revealed that 46 per cent of us believe that cohabitees share the same rights as married couples. In other words, around half of the UK population still believes in the myth of common law marriage, despite the fact that it has no base in English law.
More of us are choosing to live together without getting married. If, along with the UK’s other 12.7 million cohabiting couples, you choose not to tie the knot, what rights can you and your partner expect?
Do cohabiting couples have any property rights?
Generally cohabitees have limited property rights. An important difference compared with married couples is that one partner does not usually acquire the right to a share in the other’s property just because they live together. This can have a devastating impact on couples who separate, or if a partner passes away. My colleague Darren Higginson writes about this in more detail here.
There are ways in which cohabiting couples can give themselves some protection. A Living Together Agreement sets out arrangements including day-to-day living expenses and a couple’s preferences for what should happen to the property, should they separate in future. This must also be reflected in the Will of both people to ensure their wishes are followed in the event of their death.
What are the legal rights for cohabiting couples with children?
The number of cohabiting couple families has doubled since 1996 and now accounts for around 15% of UK families. Worryingly, the recent survey shows that that people are significantly more likely to believe in common law marriage when children are involved. 55% of households with children who responded to the survey thought that common law marriage exists, compared with only 41% of households without children.
Cohabiting couples do not automatically get the same rights as married couples, when it comes to children. Unless he is named on the child’s birth certificate, an unmarried father has no legal status as a father.
What are the financial implications of cohabitation?
Unlike with divorce, there is no entitlement for maintenance or financial support when cohabitees separate. Unfortunately, if you are unmarried you face more financial risks should you separate or if your partner dies.
Growing numbers of older couples are choosing to live together. If you are starting out in a new relationship later in life, the issues around finances can be complicated, particularly if you have been married before and have children.
If you are not married, you have no automatic right to inherit any part of your partner’s estate or assets. Therefore, it is very important for cohabiting couples to have an up-to-date Will that sets out their wishes. You should also be aware that a marriage automatically overrides a Will. If you do not have a Will then the state will decide who should inherit under the Intestacy Rules. It is important to know that a cohabitee has no rights under intestacy.
Whether or not you decide to tie the knot or continue to live as a cohabiting couple, make sure you understand your rights. Citizens Advice has some useful information here about the legal differences between marriage and cohabitation. If you choose not to marry, it is vitally important that you take any steps you can to protect yourself, your partner and your children, including having a Will drawn up by an experienced lawyer.