brexit uk law

The Impact of UK Departure From The EU On Family Law

As everything keeps changing with connections between the UK and EU, legislation is taking quite a hit. Who has jurisdiction over who, what decisions will be affected by new legislation both in family law and other financial and personal areas that will be on everyone’s minds. Only time will tell what the final outcome will be.

While the country is still reeling from the EU referendum, we need to take a much closer look at how departure from the EU will impact family law in England and Wales.

Family law is not a stranger in the sense of taking steps to move away from the EU which will take quite a bit of unraveling from the EU legislation. The same can be said regarding many of our other laws. Without a doubt, this will take quite some time and the process will probably drag out for quite some time. Although the long-term impacts of Brexit, or departure of the UK from the EU, may not be fully felt for quite awhile, there are many consequences in regard to future divorces from the EU.

Nigel Shepherd, chair of the family law organisation Resolution, spoke after the referendum was announced. He stressed that the results have created a period of great uncertainty. This has emphasized the uncertainty arising from the fact that family law is essentially linked to the referendum and other jurisdictions.

The EU Legislation

Being in force since 2001, Brussels IIa has been an important part of the EU legislation and offers uniformity and a certainty in recognizing the divorce proceedings in various jurisdictions of the EU. With its absence, Family Court in the UK will need to adopt new avenues for addressing some important areas that will continually pop up in matrimonial proceedings.

As a perfect example, the most significant problem in issuing divorce proceedings will be to consider whether the court you are applying to actually has jurisdiction to accept your proceedings. Even more crucial could be involving multinational couples trying to figure out which court will hear their divorce petition. This is very important because different jurisdictions have to decide financial cases in different ways. Some courts could be seen as more favourable to one party over another. In many cases, there will be a mad dash to issue the petition first to the country that will be most favourable to the spouse. What country has jurisdiction is still governed by the EU legislation.

Bear in mind, in the absence of this important EU legislation, this will lead to even more uncertainty regarding who has the jurisdiction to hear the case. It has been iterated that the courts will have to fill the vacuum with something that would be similar to Brussels II in order to address the situation.

Adding to this, the Brussels IIa allows an order that was created in England to recognised and is enforceable in other jurisdictions. Orders that are commonly affected by the EU legislation includes child custody, other arrangements and matrimonial orders that need to be addressed by the new legislation in order to stay enforceable across the borders.

Keeping agreements made between multinational couples in a divorce are governed by Brussels IIa which allows for a more uncomplicated approach for enforcement across different jurisdictions. The enforcement of these agreements will need to be addressed in light of any new legislation and will have the greatest impact on matrimonial property and who owns what in different countries.

Other Arising Issues

Although family law is not the leading victim of departure from the EU (or Brexit), there will still be a great deal of uncertainty leading up to the formal Brexit while negotiations continue with the EU and this could take a number of years.

In a time of great uncertainty for couples divorcing, there will be even greater anxieties and fears that will arise. On a broader scale, the possible impact of Brexit could lead to an increase of interest rates, a fall in pension values, and the outcome of the property market. All of these situations will also add to many more concerns in what has become a very stressful time.

What’s In The Future

That said, some analysts have suggested that while breaking away from the EU will cause a period of uncertainty, there might be an opportunity to embrace change. By drafting domestic legislation that can provide better laws than what currently exists with the EU might be a positive solution.

The final outcome cannot possibly be known at this time. Couples who are dealing with difficulties are strongly advised to seek out guidance as soon as possible. They need to fully understand the complexities of Brexit and understand the impact that they may experience both on their personal and financial circumstances.

In Conclusion

With the changes of Brexit, there will be many challenges ahead and what courses will be the most positive for family law and many other legislation. Time will tell the final impacts and outcomes and how much anxiety and stress lies ahead. Family law has many challenges yet to be seen. Couples looking for divorces should get counsel in order to understand the changes and how they will be impacted.

unmarried separation law

Legislation To Protect Separating UK Unmarried Couples Overdue

According to the Office Of National Statistics, unmarried couples and families living together are the fastest growing cohabitants in the United Kingdom. As of 2016, there are approximately 3.3 million cohabiting families and the number has doubled since the statistics taken 1996 at 1.5 million.

Legislation for the protection of  unmarried couples and families is well overdue.  Lawyers have been arguing this issue for well over 10 years.  This includes the rights and responsibilities of unmarried couples upon separation and should be addressed as soon as possible.

A recent survey by the Family Lawyers Organisation of its members revealed that 88% of cohabiting couples believe they have legal protection.  It has also shown that 98% mistakenly believed they have the same rights as married couples.

Due to the statistics from surveys, it is believed that legislation for unmarried couples has not provided proper legal protection.  Back in 2007, the Law Commission recommended a plan that would be a contribution-based financial award for separating couples who had a child together and lived together for a certain period of time.  Couples in the plan also had the option to back out if they chose to.

In 2011, the government announced they would not move forward with these proposals.  Even though the commission called on the next government to move forward and not delay, there was a lack of interest or political will.  In light of more pressing issues of national interest, there have been no changes.

Nigel Shepherd, chair of Resolution and head of family law at Mills & Reeve, told Solicitors Journal that his organisation envisions a law where unmarried couples could meet the criteria, through a committed relationship, allowing them the right to apply for certain financial orders upon separation.

This right would kick in automatically unless the couple chose to back out.  The court would be able to make the same orders as they do for divorced couples but on a limited basis.  These benefits could include payments for child care which would allow the caregiver the ability to work.

According to Julia Thackray, former head of the family team at Penningtons and programme leader at Central Law Training, believes reforms are well overdue.  She went on to point out, with the increasing number of couples living together, it is even more critical that the government gets back to the issue of cohabitation and financial protection for these people.  This issue should not be a carbon copy of divorce but should offer some level of protection and as a safety net where  otherwise real needs will not be met.

Unfortunately, there are many cases where people are extremely vulnerable, they have children, cannot work or only work part-time, and this contributes to more family financial concerns.  They have to compromise their earning abilities and limited housing options and there is absolutely nothing they can do about it.  In other situations where couples do not have children but have other expenses, they are not allowed to make a property claim.  Due to other expenses, it may allow the property owner to pay off more on their mortgage so they can have an advantage later on.

In June of 2015, Lord Marks introduced the Cohabitation Rights Bill to address this huge vacuum in the law.  This bill would provide basic protections for unmarried couples and a provision for their property upon one partner’s death.  Under the bill, the court would be able to make a financial settlement order where there is a “retained benefit” or “economic disadvantage” dependent. This would allow for “qualifying contributions” be made for either financial or other reasons.

Before an order can be presented, the court must deem whether it is fair when addressing any “discretionary factors” which would include the earning capabilities of both parties and the welfare of a child.  Couples would also have protection upon a death instead of just separation and this is a very important point.

Lord Marks’ bill also has safeguards in place that would provide protection for insurable interests in lives, being intestate upon death, and rights related to their home.  It also provides for the possibility for a claim against a partner’s estate upon death.

Lord Marks will take part in an upcoming debate to support extending the legal rights of those who choose not to marry.  Those advocating reform will want to stay up on the progress being made by the bill in the House of Lords.  Without a specific date for the second reading of his bill, no one is any closer in guaranteeing cohabitation laws will meet the demands of the 21st century than the Law Commission was 10 years ago.

Unmarried couples should have the same protections and rights as those who are married.  With the growing number of people are choosing to live together vs marrying, the government must address these concerns in a timely manner.

property ladder

Getting on the property ladder in the UK

In the UK, the traditional home buying strategy has been changing for young first-time buyers and millennials. How so? They are asking mum and dad for a loan before going to the bank.

Buying a home is more expensive than ever, reaching the home price rates of 2007 all across the country. People are staying in their parent’s home longer, renting, and sharing prices with room mates over buying a house and this has actually made lending standards more difficult to reach, especially with the high deposit standards.

The average price for a first time home purchase in 2014 has risen 10.5% over 2013, bringing the price to £192,000 (with a 10% deposit around £20,000). Many of Britons young are borrowing from their parents to cover that deposit and get them started, a Shelter UK polls estimates that the average loan parents give their children at about £23,000 so those numbers match what some may expect.

If this is something you yourself are considering doing to help your child (or other family member) in their first home purchase, the below options are good ways to feel secure in this high loan expenditure without denying your child or loved one the help they may need.

1. No matter what, have your family loan written out in some sort of legal agreement. While it may seem awkward to do to your children, it can also help them learn more about different financial options, help them feel a sense of responsibility in paying you back, and also help ease any worry you may have in giving a loan to a family member. These legal documents should share how much you are loaning, if there are any below-market interest rates applied, and if there is a specific date you expect the loan to be paid out.

2. If you don’t have the funds to give the money to your child but you’d still like to help out, you have the option of taking a loan against your house and then giving that money to the family member in question. This does make your own home collateral for the loan, which is riskier if your child ends up not having the money to pay you back (due to job loss or health emergency, whatever the case may be) but it is an option to consider if you think your child is responsible enough to trust with this risk.

3. If you work with a solicitor, you can create a deed of trust with the borrower. This would mean that in return for the loan, your family member would pay you back a certain amount when they eventually sell the house. You could set a flat fee or a percentage of sale purchase, whatever you think would be the most beneficial for your loan situation.

4. If you are lending money to an only child, a Lifetime Mortgage can be used to give your child an early inheritance. This is a great way to give your child the money they need now for their home, but it also prevents them (in most cases) from getting any additional money from the sale of your home when you pass away or join an assistive living (or long term care) facility. This can be complicated if you have more than one child, however.

5. If you can’t give your young home buyer the money, you can help them get a loan from the bank with a guarantor mortgage. This means that if your child falls behind on payments, you agree to cover their payments until they can start paying again.

While an increase in home productions could help ease these difficult barriers to entry for new home-buyers, it’s not something we see happening soon since the building of homes has stayed steady at less than 100,000 new residences per year over the past decade. This is hurting entrepreneurs as well, who have been moving their officers away from the city so that they can afford to hire more employees in areas that don’t require higher salary commitments to meet the cost of living.

Until the price to buy for first time home-buyers decreases (as well as the cost of living in the UK), Britons may have to continue to rely on the support of people that have a longer standing credit and earning history – their family.