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transfer of equity illustrated by a man playing chess with houses

What is a transfer of equity?

By | Conveyancing, Property Law

Transfer of equity is the process of you adding or removing someone from the deeds of a property. It is also sometimes referred to as property transfer. There is no sale of the property and at least one of the original owners will stay the same. There are a number of reasons why you may want to do a transfer of equity.

Arguably the most common reason is that you are separating from your partner and dividing up assets. Or perhaps you bought a property yourself but are now in a relationship and would like to add your new partner to the deeds. Maybe you are buying out the equity of a joint owner, or even transferring equity to your children or another family member to provide a financial gift in a more tax-efficient way.

Whatever the reason, you will need to go through the transfer of equity process. There are a few moving parts, but we are going to break it all down for you in this article.

How does transfer of equity work?

When all parties agree on the outcome and the terms and conditions are clear for everyone involved, a transfer of equity can be pretty straightforward. There can be elements that complicate the process, however, such as disagreements and mortgages.

In simple terms, the process of a transfer of equity is as follows:

Step 1 – To start the transfer process, your solicitor will obtain an official copy of the title deed for the property. Your solicitor will review this to check for a mortgage or any other restrictions on the property. As the property’s ownership is changing, you may need to apply for a remortgage or a new mortgage deal if applicable. Speak to your provider or a financial advisor about your options and try and agree a mortgage in principle if possible.

Step 2 – If someone is being added onto the property deeds, you will need to instruct a conveyancer or a solicitor who specialises in conveyancing. In this instance, both parties can be represented together. If someone is being removed from the property deeds, the parties will each need to have separate legal representation.

Step 3 – Your solicitor will take care of the legal work and prepare the transfer documents, confirming things with your mortgage provider (if applicable), as well as the property’s freeholder (if applicable). All third parties will need to be notified and will also need to provide their written consent. Your solicitor will then send the mortgage deed for you to sign.

Step 4 – The process is complete and your solicitor will facilitate the transfer of any funds between parties. Outgoing parties will need to complete and sign an ID1 form in the presence of their solicitor.

Step 5 – Lastly, your conveyancer will calculate any stamp duty liable to HMRC and facilitate the payment of this. They will also ensure that details of the new property ownership are logged with the land registry. This will involve a fee, which can range from around £50 to nearly £1000. It depends on the value of the property.

Of course, it is not always that straightforward. It depends on different factors, such as if mortgage lenders are involved. In some cases, there can be more than two parties involved, for instance, if someone is remaining on the title deeds, someone is being removed from the title deeds and a third party is being added onto the title deeds.

In the instance that someone is leaving the property, the remaining party will need to ‘buy’ the other party out. This will usually involve remortgaging with the existing lender or transferring the mortgage to a new provider altogether.

How long does a transfer of equity take?

Generally speaking, a simple transfer of equity can take around 4-6 weeks to complete. Every transaction is different, however, and it depends on the situation and how complicated it is. If there is a mortgage on the property, the transfer will take longer as you will have to wait to receive written consent from any lenders involved.

If one party does not give consent to the transfer of equity or if the transfer is required as part of a larger legal dispute – for example, a divorce that is being resolved by the Court – this will also throw up delays in the process.

Do you pay stamp duty on transfer of equity?

Whether stamp duty land tax needs to be paid will depend on the ‘consideration’ and the nature of the transfer. ‘Consideration’ refers to the amount of the property that you will take over from the previous owner. Whether you pay stamp duty will be dependent on the size of the consideration. This includes both the equity (value of the property) and the value of the mortgage.

Not all situations where you might need a transfer of equity will result in needing to pay stamp duty. Here is a breakdown of when you might need to pay stamp duty:

  • If you are not married or you are in a civil partnership and transferring to one person, you may have to pay stamp duty
  • If you are gifted a property with a mortgage, you will have to pay stamp duty on the portion of the mortgage that you now own, even if the payments do not transfer to you
  • If you are buying a portion of the equity and the mortgage, you will need to pay stamp duty

concept image of stamp duty land tax

You might not need to pay stamp duty if:

  • You do not have a mortgage
  • If you are divorcing
  • If you have inherited a property in a will, even if it has a mortgage

Transfer of equity costs

Alongside possible stamp duty land tax (which is usually the largest cost), you may come across other costs associated with a transfer of equity. Additional costs do depend on whether you are adding, removing or replacing someone on the deeds, and whether the property is leasehold or freehold. The amount of these costs will differ hugely between individual circumstances.

Here are some of the other costs you may need to budget for:

  • Conveyancing/solicitors fees – this will depend on your conveyancer/solicitor, the property value and whether you need to remortgage the property
  • Legal fees – these fees depend on the solicitor. Some may include it in their general charges and others won’t. These fees often include ID verification, a copy of the property’s register of title and ownership change registration
  • Mortgage fees – some banks will charge you their fees. These include service fees that cater to administrative costs involved in the process.

budgeting jar

Can I do a transfer of equity myself?

Whilst yes, you can do a transfer of equity yourself, it is highly recommended that you turn to a solicitor to do it for you. In the simplest of cases, it is just a case of arranging the document that both you and the person you are transferring to or from the deeds have to sign. This will then need to be sent to the land registry.

If the situations surrounding the transfer of equity are more complex, then it is best to speak to enlist the help of a solicitor to help you. Make Bromfield Legal your first choice for transfer of equity services. Our transfer of equity solicitors can help you get a house deed legally changed, whilst avoiding any potential mistakes.

You can trust our qualified and experienced team of solicitors. Contact us today to find out more.

a model house, key and calculator

Remortgaging explained

By | Conveyancing

If you have a mortgage, there will come a time when you might consider remortgaging. In a nutshell, remortgaging is the process of taking out a new mortgage with a new provider on a property that you already own.

Remortgaging is important as it’s a way of ensuring that you have the best mortgage product available to you. Just as you would shop around once your car insurance policy is coming to an end, remortgaging works in a similar way.

Why should I remortgage?

There are many reasons why you might want to remortgage. Remortgaging can help you to reduce your monthly payments, find a better deal or pay your mortgage off sooner. Usually, people choose to remortgage because their current deal is about to end. If you are due to be put on your lender’s SVR, then you may wish to remortgage to avoid higher/variable rates.

piece of paper titled remortgage

Remortgaging can also allow you to borrow more money against your home in order to release capital. Perhaps you want to carry out some home improvements or buy a new car. When your deal is coming up to expiry, a mortgage broker can research raising additional money against the security of your house. This is handy if you are in need of some extra cash.

If you want to change the length of your mortgage, you can do this by remortgaging. You can remortgage to extend your mortgage over a longer period of time to bring your monthly payments down. This could be over 25/28/30/33/35 & up to 40 years (age permitting).

On the flip side, you may find yourself with some extra money at the end of each month and you wish to reduce your term down from 25 to 22 years, resulting in you paying your mortgage off early.

Lastly, if the value of your home has increased, you might be able to remortgage and be placed in a lower Loan to Value (LTV) band. This makes you eligible for lower rates. Remortgaging does come at a cost though, so make sure the amount you’d be saving is enough to warrant the decision to remortgage.

How much does remortgaging cost?

There are numerous fees involved in remortgaging. You need to be aware of these fees in order to work out whether remortgaging is worth it for you.

Arguably the most important fee to be aware of is the early repayment charge. Whether or not you need to pay this will depend on when you are remortgaging. If you are coming out of your current mortgage deal early during a tie-in period, you will be faced with this charge. It is usually a percentage of the outstanding mortgage debt.

calcualtor and pen against a yellow background

This is the lender’s way of recouping some of the interest they will be losing as a result of you breaking your deal early. For example, on a five-year tracker deal, the early repayment charge could be 5% in year one, 4% in year two, 3% in year three and so on. With this in mind, the early repayment charge can be a significant fee. You would need to find a new deal with a much lower monthly payment than your current one in order for it to make financial sense.

To avoid this fee, make sure your remortgage completes after your current tie-in ends. This is usually when your mortgage incentive period ends.

Other fees to be aware of are:

  • Deeds release fee – around £50-300
  • Arrangement (product) fee – around £1000
  • Booking fee – around £100-200
  • Valuation fee – around £300-400
  • Conveyancing fee – around £300
  • Mortgage broker fee – around £300

Remortgaging vs product transfer

Remortgaging is not to be confused with a product transfer, or a product switch as it is often known as. A product transfer is essentially when you switch to a different mortgage product with your current lender. Unlike remortgaging with a different lender, a product transfer is not normally considered to be new lending, unless you are borrowing an additional amount.

A product transfer is generally a quicker (4-6 weeks) and simpler process. This is because your current lender ought to have your details to hand from your original application. You also don’t need to supply wage slips or any documentation. It is just a simple swap of mortgage products. You generally have less fees to pay as well, as you are able to avoid legal costs and valuation fees.

woman meeting with her solicitor about remortgaging

The downside is that you might not get the best deal available by limiting yourself to solely your current lender. Plus, your current lender may do all they can to encourage you to stick with them so as to not lose your business. This can leave you confused. It’s a good idea to shop around for peace of mind that you are making the best decision.

By remortgaging with a new lender, you will have access to more deals. You may even receive incentives such as cashback, a free valuation or free legal fees in order to attract you as a new customer. You will be hit with more fees, however, and you will have to submit a new application and start the remortgaging process from scratch. The best decision for you will depend on your individual circumstances.

 

If you need support during the remortgage process, we at Bromfield Legal are here to advise. Once you have an offer, one of our expert solicitors can provide the remortgage conveyancing on your behalf.

Simply get in touch with us today and arrange to speak to someone at your nearest Bromfield Legal office.

a couple arguing over a piggybank

Spouse pension rights

By | Divorce and Separation

In a divorce, pension funds can often be the biggest asset after the family home, however, they are often overlooked. You will be entitled to part of your ex-partner’s pension, and vice versa so these can be split appropriately during the divorce procedures.

You may have accumulated a number of different pension investments during your working life, from personal pensions, workplace pensions and NEST pensions to name just a few. Your ex-partner may have a right to some or all of these schemes and this can raise feelings of contention.

Why does a spouse have a right to my pension?

When you have built up your own pension funds over the years, it can be difficult to accept splitting it in the event of a divorce – particularly if your ex-partner has been unable to build up a comparable pension pot. This is quite often the case, if a woman has, for example, had to take career breaks to raise a family.

swag bag labelled 'pension', with a measuring tape around it

Your ex-partner may have a stake in your pension funds, or you may have a stake in theirs. This is because pensions built up during the marriage are considered to be matrimonial assets and as such, should be available to be split. As a starting point, assets may be split on a 50:50 basis, however, this will probably alter based on the individual factors in each case, which may include:

  • Whether your partner has their own pension fund which needs adding to the pot before equalising
  • Whether the entirety of the pension was built up during the marriage (including prior cohabitation) or whether there is any pre-marriage or post-separation accrual
  • Whether the equalisation of the pensions will meet the parties’ needs
  • The age of the parties, including whether they are of a similar age and how far away they are from retirement.

However, there are many other factors that will be relevant and that may significantly affect how pensions are dealt with.

How are pensions split?

Pensions are divided via a court order, and whether the courts agree to split the pension will usually depend on the pension provisions of each party. If there’s a significant imbalance in pension provisions between the two of you, then the courts are more likely to try and balance this out by sharing one spouse’s pension with the spouse with little to no pension savings.

There are four common ways of splitting pensions; a pension sharing order, pension offsetting, pension attachment (or ‘earmarking’) or via an individual agreement.

alarm clock, with stacks of money

With a pension sharing order, one spouse is given a percentage of any one or more of the ex-spouse’s pension funds by court order. The sum is either transferred into a separate pension scheme or by joining the ex-spouse’s pension scheme and this percentage of the total fund is allocated to the receiving spouse. Either option will be dependent on the rules of the pension scheme.

Pension offsetting is when the value of any pensions is offset against other assets. For example, you might agree to keep the pension fund and your ex-partner might agree to keep the family home. It’s really important to have an accurate pension valuation in this instance to ensure that the divide is equal and fair. Pension offsetting does not necessarily require a court order.

Pension attachment or ‘earmarking’ is when some of your pension benefits at retirement are paid to the ex-partner. This can be done in either a lump sum or as part of the pension income – or both. This only comes into play once the pension holder has started taking their pension. In this instance, you would effectively be deferring the split of the asset until you reach retirement age. As with pension sharing, this arrangement will require a court order.

Lastly, you could come to an individual agreement between the two of you. You might decide to forgo any claims on pension assets in favour of a more balanced settlement of other divorce terms. One party might get better child access arrangements, or child maintenance if they agree not to claim against the other party’s pension assets. You can ask the court to approve an individual agreement and turn it into a court order to provide more protection, just in case a dispute arises at a later date.

Remember – seek legal advice when opting for any of these options. As with most divorce-related issues, it can be both a complex and emotionally charged area to navigate, and the costs of making the wrong decision or not having all the relevant information can be substantial.

How long after a divorce can you claim on a spouse’s pension?

So long as you haven’t achieved a legally-binding financial settlement, there’s no time limit after a divorce for making a claim on an ex-spouse’s finances. The divorce itself only means that you are no longer married – it does not always settle your financial affairs.

If you are looking to protect your pension against this happening, then it is highly advisable to seek a formal financial agreement whilst you go through the divorce process. Even if it all seems amicable now, this can change in the future. A legally-binding divorce financial order will separate your finances from your ex-partner for good, leaving you to both continue with your independent lives.

How to find out the value of your pensions

As part of the financial disclosure required in divorce negotiations, you will need to find out the up-to-date ‘cash equivalent transfer value’ of all pension investments you have. You can obtain these valuations from the pension scheme administrators, although there is sometimes a fee for this service. For work-based schemes, you may need to go through your employer’s HR or payroll department for this information.

Your divorce solicitor will be able to help you through the legal process, the negotiations with the other party and guide you on what you can and can’t claim for or how to respond to claims against your pension. They will also agree and draw up the final divorce agreement, as well as preparing the documents for final court approval to legally dissolve the relationship.

 

The financial side of a divorce can be really difficult and emotionally charged. Whether you are trying to protect your pension funds, or ensure that you are not left short – at Bromfield Legal we will always try and achieve the fairest outcome for you, doing what we can to make the process smooth and straightforward. For more information, or to arrange an initial discussion on how we can help you, please contact us.

how does the divorce process work

How does the divorce process work?

By | Divorce and Separation

You and/or your partner may decide to get a divorce in order to end your marriage. You can only get a divorce if you have been married for at least one year. In an ideal world, you will both agree to want the divorce and the reason why – in which case the divorce process is fairly straightforward. If you or your partner don’t agree to a divorce, it will take more time and cost more money.

There are four main stages to a divorce; filing the divorce petition, filing the response to the divorce petition, applying for the Decree Nisi, and applying for the Decree Absolute. In this article, we will talk through each of these stages.

The five facts of divorce

Before you apply for a divorce, you should try and agree on a reason for your divorce to show that your marriage has broken down. There are five reasons that you can choose from, and these five facts are:

  • Adultery
  • Unreasonable behaviour
  • Desertion
  • Separation for two years with agreement to divorce from your spouse
  • Separation for five years with or without agreement to divorce from your spouse

how does the divorce process work

Divorce in England and Wales is currently fault-based, meaning that you do need to choose one of these facts to support why your marriage has ended.

How to file the divorce petition

The petition can be filed with the court either online or by post. Once the petition has been prepared, it is sent to the nearest divorce centre. It is important that the petition is properly drafted to avoid problems and delays to the process. The marriage certificate needs to be sent with the petition (the original or an official certified copy), and there is a fee to pay of £550.

It is possible to apply for an order that your spouse pays the costs of the divorce proceedings, in which case the application is made in the petition. If the court agrees, it will make an order that your spouse pay you the costs back when your divorce has been finalised. You could also agree to split the costs equally between you.

how does the divorce process work

Either way, the person who makes the application to the Court for divorce is known as the Petitioner, and the other person is known as the Respondent. Once the divorce centre has reviewed the petition, they will send a copy to your spouse to give them a chance to respond.

Remember, whilst it is possible to manage your divorce yourself, the divorce petition alone can be a complex and lengthy form to fill out. If you are instructing a solicitor to represent you throughout your divorce proceedings, they will handle the completion of the petition. This means you’ll avoid any costly mistakes and delays.

Responding to a divorce petition

As a Respondent, you must send an Acknowledgement of Service form to the Court within 8 days of receiving the divorce petition. This lets the Court know that you’ve received the divorce petition and whether you agree with the divorce or whether you disagree.

If you do want to defend the divorce, you have 21 days after returning the Acknowledgement of Service divorce petition to send a defence to the Court. This will cost you £245. If you or your partner disagrees with the divorce, it is strongly advised that you seek legal advice from a qualified family law solicitor.

The Decree Nisi

If the divorce is not defended, as the Petitioner, you will then need to apply for a Decree Nisi. The Decree Nisi is the Court’s way of saying that they see no reason why a divorce cannot be granted. It also fixes the earliest date when the application can be made for the Decree Absolute, i.e. when your marriage will end.

how does the divorce process work

In order to apply for a Decree Nisi, it is necessary to file with the court an application, together with a statement in support that confirms that all of the information in the Petition is correct. If everything is in order and there are no concerns, the Court will fix a date for the pronouncement of the Decree Nisi.

The Decree Absolute

After the Decree Nisi has been pronounced, a minimum of six weeks and one day have to elapse before an application can be made for the Decree Absolute. The Decree Absolute ends your marriage. It does not, however, end the financial commitment between you and your spouse. It is open to either party to make claims in respect of financial matters either before or after the Decree Absolute, unless an order is made by the Court. This is where using a solicitor in your divorce is important. They will ensure that you get a fair settlement and that you get what you are entitled to.

how does the divorce process work

Once the Decree Absolute is made, the divorce process is complete and you are legally divorced. This entire process will usually take around 4-6 months, but it depends on whether the situation is contentious, whether you have child arrangements to consider and whether you run into any issues with splitting money or property.

Why use a solicitor when getting a divorce

A solicitor really can be invaluable when getting a divorce. They can help you decide on which of the five facts for divorce you want to use, and let you know what evidence you will need. They can also be the middle-man between you and your ex-partner so that you don’t have to communicate with them if you don’t want to.

If you can, it is best to use a solicitor – and one that specialises in divorce and separation, such as us here at Bromfield Legal Solicitors. We’re here to make the process simpler, smoother and quicker. We will always do what is right and fair to obtain the best outcomes for our client in a divorce. For more information on how we can help, please contact us.

when should i look to remortgage

When should I look to remortgage?

By | Property Law | No Comments

Remortgaging is a little bit like renewing your car insurance. It’s important to shop around and make sure that you have the best mortgage product available to you. And whilst it is possible to remortgage up to six months before your fixed term ends, you need to decide whether it makes financial sense.

Most people will choose to remortgage as their current deal comes to an end. Remortgaging before your current deal ends can be expensive, as you may spend more on early exit fees than you’d save on the better deal. It’s not worth remortgaging if you’d spend more on fees than you’d save.

What is remortgaging?

Remortgaging is the process of taking out a new mortgage to replace your current one on a property that already belongs to you. No one is tied into the same mortgage forever – it’s something that can be reviewed regularly to make sure that you’ve got the best deal for your situation and this is exactly what the remortgaging process allows you to do.

when should i look to remortgage

You can either remortgage by switching to a new deal with a new lender, or by switching to a different deal with your current lender. There are pros and cons to both, depending on your individual circumstances and the deals on offer to you at the time of remortgaging.

Should I remortgage early?

Whether you should remortgage early depends on your individual circumstances, and whether the fees you’ll need to pay in order to get out of your current deal outweigh the money you’ll save on the new deal. Whilst mortgage lenders want to entice you in with attractive rates, they also want to lock you in so getting out of your deal early can be difficult. Be sure to double-check the terms and conditions of paying off and exiting your mortgage early.

when should i look to remortgage

You may want to avoid remortgaging before your current deal ends and steer clear of any costly fees. Instead, you could start looking for a remortgage deal around three months before your current one ends, giving you enough time to shop around, get advice and complete the application process in time to synchronise your current deal ending and your new deal starting.

How long does remortgaging take?

The process of remortgaging doesn’t take all that long. Remortgaging to a new lender can take up to two months. If you are switching over from the same mortgage provider to another one of their products, then it could take just a month. If you are involving a third party (such as Help to Buy or Housing Association) then the process can take longer, as it is a slightly more complicated process.

when should i look to remortgage

Generally, the basic remortgaging process is as follows, but can vary from lender to lender:

  • Your current lender writes to you to let you know that your current deal is coming to an end. If you are on an introductory deal such as a two or five-year fixed rate, they will let you know that you are due to revert to the Standard Variable Rate (SVR)
  • Ask your lender for a closing balance, which is the amount needed to pay off the remaining mortgage loan. This is the amount you’d need to borrow if you choose to remortgage
  • You may want to find a mortgage broker to search the whole of the market and find you the best deal for your circumstances
  • If you decide to change mortgage lenders, you’ll need to appoint a solicitor such as us here at Bromfield Legal. We will sort out any paperwork needed, carry out all necessary searches, and deal with the drawing up and signing the mortgage deed. The process will usually take longer if you change lenders
  • The eligibility and affordability checks will be carried out. You will need to provide documents such as three months’ bank statements and/or payslips, utility bills, address details, photographic ID, your P60 etc. Your mortgage broker will be able to advise you on exactly what to have ready
  • Your lender issues your Mortgage in Principle
  • Your lender will arrange a valuation, to confirm that the house is worth enough to secure the amount that you are asking to borrow
  • If the lender approves your mortgage application, you will be sent your offer letter
  • Your solicitor requests the money from the new lender and uses it to pay off the old mortgage
  • Your solicitor registers the mortgage holder’s detail with the Land Registry.

Why should I remortgage?

There are many reasons why you might want to remortgage. Most commonly, people remortgage because their current deal is about to end. If the fixed-rate term of your mortgage is ending and you are due to be put on your lender’s SVR, then you might want to remortgage to avoid higher/variable rates.

Perhaps you want to borrow more money against your house in order to release capital, for example, to carry out home improvements, buy a new car, or to consolidate debts. When your deal is coming up to expiry, a mortgage broker can research raising additional money against the security of your house if you are in need of some extra cash.

when should i look to remortgage

You may also decide to remortgage if you want to change the length of your mortgage. Perhaps the monthly payments are proving too expensive. You can remortgage to extend your mortgage over a longer period of time. This could be over 25/28/30/33/35 & up to 40 years (age permitting). The opposite may also be true, where you are finding yourself with some extra money at the end of each month. You may decide to reduce your term down from 25 to 22 years, for example, resulting in you paying your mortgage off early.

If the value of your home has increased, you might be able to remortgage and be placed in a lower Loan to Value (LTV) band, thus making you eligible for lower rates. Remember though, unless you’d make a pretty big saving, the cost of remortgaging could negate the savings you’d make so make sure you weigh up all the costs before making any decisions.

At Bromfield Legal, we understand that remortgaging can be a way to reduce your interest rates and payment installments on your mortgage, or on other debts. When there’s so much at stake, it’s a wise idea to bring in a legal expert to ensure that the process is dealt with properly.

Our expert mortgage advisor team are here to support you through the remortgage process. Just contact us today and arrange to speak to someone at your nearest Bromfield Legal office.

what does probate involve

What does probate involve?

By | Probate | No Comments

Probate is the process of dealing with the estate of someone who has passed away. It generally involves getting permission to carry out the wishes within someone’s Will, organising and settling their estate, and possibly clearing any taxes and debts left behind.

There are specific rules that set out how you go about notifying the authorities and distributing the estate, so if you are responsible for executing someone’s Will, you need to be aware of how it all works.

Who is responsible for arranging probate?

If the deceased has left a Will, it will name someone that they have chosen to administer their estate. This person is known as the ‘executor’ of the Will. In most cases, this will be a family member or close friend of the deceased. The executor is the only person who can apply for probate to administer the estate.

what does probate involve

If you have been appointed as an executor and you don’t want to administer probate yourself, you can appoint a professional executor. You may also want to do this if you’re faced with a particularly complex case. In fact, in complex cases, a professional executor may be essential. A professional executor will expect to be paid from the proceeds of the estate for carrying out this duty, and they will usually carry out the entire probate process and receive a fee for this also.

What does the probate process involve?

Every estate and every Will is different, and the exact probate process will depend on the instructions left in the Will and the assets and beneficiaries that the estate has. Here is the basic process for an executor:

  • Gather the full details of the estate’s assets and debts
  • Apply for a Grant of Probate, the legal document that gives you the authority to deal with the deceased’s property
  • Notify banks, building societies, and relevant government departments such as the council and HMRC of the deceased person’s death (most government departments can be notified in a single move via the Tell Us Once service)
  • Complete an inheritance tax return and pay any tax due
  • You receive a Grant of Probate
  • Repay any of the deceased’s outstanding debts
  • Distribute the rest of the estate according to the instructions left in the Will.

what does probate involve

Once all taxes and debts have been paid and all the inheritance has been passed on, probate ends. The process will take around a year for most estates, however, this will depend on the size and complexity of the estate. International probate can be more complicated and usually takes between six months and two years.

Can probate be contested?

Sometimes, disputes can arise during probate between the executor, beneficiaries, creditors, or tax authorities. These disputes can cause delays and if you aren’t already using a professional executor, you may need to list the help of a solicitor to advise on how to progress.

There are several ways in which probate could be contested. This could prevent you from even being given a Grant of Probate. In some cases, a beneficiary or relative of the deceased may enter a caveat, which can prevent or delay probate being granted. This might happen if two people are entitled to apply for probate, or if questions arise about the legitimacy of the Will. An individual can challenge or contest a Will if they believe:

  • The Will has been forged
  • The deceased had reduced mental capacity when writing their Will
  • The deceased was under undue influence when writing their Will
  • The person contesting the Will was financially dependent on the deceased and the Will doesn’t provide for them.

what does probate involve

When a caveat is placed on the estate, the person who placed it will need to state their reasons within eight days, or it will be removed. Otherwise, it goes to the courts to resolve and probate will be granted to the most appropriate person.

What if there isn’t a Will?

In many cases, someone may pass away without having written a Will. If this is the case, you cannot get a Grant of Probate. You can, however, administer the estate and distribute inheritance through a slightly different process. Instead of being distributed through the terms of the Will, the estate must instead be distributed according to the Rules of Intestacy. Only spouses, civil partners, children, and other close relatives can inherit under these rules and the law will decide this based on an order or priority, as follows:

  • Spouse or civil partner
  • Children
  • Grandchildren
  • Great-grandchildren
  • Parents
  • Siblings
  • Nieces and nephews
  • Other close relatives.

Do you need help and advice with obtaining probate, or are you looking to appoint a professional executor? At Bromfield Legal, we have qualified experts who are well placed to assist. Please contact us to find out more.

a male and a female sat opposite each other but the female is looking away from him upset

Can you get a divorce if the other person refuses?

By | Divorce and Separation | No Comments

Even when a divorce has been agreed on by both spouses, the situation can often get contentious. When one party refuses the divorce, it can make things all the more difficult. Divorce isn’t a nice thing to go through, and you probably want it over and done with. When your spouse refuses, the process may stretch out much longer than expected.

A resisting spouse may refuse to sign the necessary divorce papers, or may simply fail to respond to a request for divorce or hide away and bury their head in the sand. When this happens, it can seem impossible to progress the divorce, however, this is not the case. You do have options.

Can I get a divorce?

In England and Wales, you can get a divorce if:

  • You and your spouse have been married for over a year
  • Your marriage is legally recognised in the UK
  • The UK is your permanent home or at least the permanent home of your spouse
  • Your relationship has broken down irretrievably

can you get a divorce if the other person refuses

When it comes to proving that your relationship has broken down irretrievably and cannot be saved, you’ll have to give one of the following reasons to back up your claim:

  • Your spouse committed adultery (note that you cannot use this as your reason if you have then since lived together as a couple for over six months after you found out)
  • They behaved unreasonably, which could include being physically violent, using verbal abuse and/or taking drugs, but could be an accumulation of less serious behaviour
  • They deserted you for two years or more
  • You and your spouse have been separated for two years or more, and they agree to the divorce

You will need to cite your reason/s in your divorce application. Once submitted, if it is all correct and legal you will be given a notice that your application has been sent. You’ll also receive a copy of your application stamped by the UK divorce centre, and be given a specific case number.

What if my spouse refuses?

What you can do if your spouse refuses to get a divorce will depend on your circumstances. There are a few instances where you do not need your spouse’s cooperation in order to advance with the divorce – for instance if you have been separated and living apart for five years or more, as mentioned above. You also do not need their cooperation if you are basing the divorce on your spouse’s unreasonable behaviour. In other cases, it can be a little trickier.

can you get a divorce if the other person refuses

When you file for divorce, your spouse will be sent an Acknowledgement of Service form alongside the divorce papers. This form will give your spouse the opportunity to agree with the divorce, or detail their intent to try and prevent it from happening. The Acknowledgement of Service form must be completed in order to confirm that they have received the divorce papers, and they have eight days to respond.

If they do not respond to the form, this could be their way of refusing the divorce. This can be very frustrating, and not to mention expensive and time-consuming in the long-run. You can progress with the divorce, but you will need to satisfy the court that your spouse has received the divorce papers. You have a few options here.

What are my options?

You can pay an additional fee and instruct the Court Bailiff to re-serve the divorce papers to your spouse. This will serve as enough proof to the court that your spouse has received them and you can progress. Alternatively, you can use a Process Server. This is very similar to instructing a Court Bailiff, however, the Process Server will often go to greater lengths to effect service, and therefore your prospects of success will be better. Once the Process Server has delivered the papers, they provide you with a certificate service which you must present to the court. This is usually the quickest way of proceeding, if your spouse is being difficult.

Perhaps you have hard evidence such as a letter, text, or email from your spouse in which they confirm that they have received the divorce papers. In this case, you can make a separate application for what is referred to as Deemed Service. In this instance, you won’t need to arrange for your papers to be re-served through a Court Bailiff or Process Server. The decision to grant Deemed Service is made at the judge’s discretion, so if you apply for it, it does not necessarily mean that you’ll be granted it.

can you get a divorce if the other person refuses

Your last resort is usually Dispensed Service. You can only apply for this if you have tried all of the above three options without success and it is the only means to progress with the divorce without your spouse’s Acknowledgement of Service form. This is only allowed if the court is completely satisfied that you’ve done absolutely everything you can to find your spouse and serve them with the divorce papers.

Once you have utilised one of the above options (or all of them), you should be able to progress to the next stage – the Decree Nisi stage. The Decree Nisi is a document that says the court sees no reason for you not to divorce. At this stage, you will not need any further reference to your spouse. You will not need them to attend to any other documents in order to secure the Decree Absolute, which is what will complete your divorce.

What if my spouse tries to defend the divorce?

It is not always the refusal to acknowledge a divorce that can complicate proceedings. Your spouse may actively try to defend and prevent it. Perhaps they do not accept that the relationship has broken down, or they do not agree that the grounds stated in the divorce papers are correct. In the event of a spouse defending the divorce, they must file with the court an Answer to Divorce form that allows them to state why they disagree with it. They have 28 days to submit this.

can you get a divorce if the other person refuses

If they do not submit this form, then you can go ahead and apply for the Decree Nisi. If they do submit it in time, you may have to go to court to discuss the case and the ultimate decision will be left to a judge. Defended divorces are very rare. It’s a costly and often futile process, with the court usually being reluctant to force couples to remain married.

If you and your spouse really can’t come to an agreement, then always seek legal advice from a solicitor that specialises in family law, such as us here at Bromfield Legal. We can help you decide on the best route to take, and we’ll contact your spouse and their solicitor so that you don’t have to. We can also represent you in court if necessary, in order to get the issues dealt with as smoothly and professionally as possible. Contact us today and let us guide you through this difficult time.

young child holding the hand of an adult but a lake

Who can apply for a Child Arrangements Order?

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A Child Arrangements Order can be applied for when a couple separates and there is a dispute about where a child or children will live. Such an Order is made under Section 8 of the Children Act 1989.

Only some people, however, can apply for a Child Arrangements Order without the Court’s permission.

Who doesn’t require leave of the Court to apply?

Any parent of the child is automatically entitled to apply for a Child Arrangements Order, whether or not they have Parental Responsibility for the child. Any guardian or special guardian of the child can also apply.

Also entitled to apply is any person named in a currently-in-force Child Arrangements Order with respect to the child, as a person with whom the child is to live.

who can apply for a child arrangement order

You can also apply without needing to seek the Court’s prior permission, if you are a party in a marriage – whether or not subsisting – in relation to the child. This provision enables step-parents – including those in a civil partnership – to apply, in addition to former step-parents who fulfil the criteria.

The right to apply without leave of the Court is also granted to any person that the child has lived with for at least three years. This period doesn’t need to be continuous, but must not have begun more than five years or ended more than three months before the application.

Nor will you require leave of the Court to apply for a Child Arrangements Order if:

  • You have the consent of each person named in such an Order as a person with whom the child is to live
  • There is an existing in-force order for care, and you have the consent of each person in whose favour the order was made
  • The child is in a local authority’s care, and you have the consent of that authority
  • You have had a Child Arrangements Order made in your favour in relation to the ‘contact’ aspects, and the Court has awarded you Parental Responsibility – meaning you can apply for a Child Arrangements Order in relation to the ‘residence’ aspects
  • You have, in any other case, the consent of everyone with Parental Responsibility for the child

If you are a local authority foster parent, you will be entitled to apply for a Child Arrangements Order relating to whom the child is to live with, and/or when the child is to live with any person, if the child has lived with you for a period of at least one year immediately before the application.

Similarly, if you are a relative of the child, you will be entitled to apply for a Child Arrangements Order relating to whom the child is to live with, and/or when the child is to live with any person, if the child has lived with you for a period of at least one year immediately before the application. For the purposes of this provision, a relative is the child’s grandparent, sister, brother, aunt or uncle.

Who requires leave of the Court to apply?

If you do not meet the above criteria to be entitled to apply without the Court’s permission, you can seek leave of the Court to do so. If leave is granted, this does not necessarily mean the application for a Child Arrangements Order will be successful.

The Court will consider the below factors in deciding whether or not to grant leave:

  • The nature of the proposed application for the Order
  • The applicant’s connection with the child
  • Whether there is a risk of the proposed application disrupting the life of the child to such an extent that it would cause them harm
  • In cases where a local authority is looking after the child, what the authority’s plans are for the child’s future, as well as the wishes and feelings of the parents of the child

who can apply for a child arrangement order

How Bromfield Legal can help

For further information about Child Arrangements Orders and your entitlement to apply for one, please don’t hesitate to contact our professionals in family law today.

We can help to put your mind at rest about childcare arrangements, whatever your situation, and advise you on the next steps to take.

two wedding rings resting on a page of a Spanish dictionary

What is a prenuptial agreement?

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A prenuptial agreement, otherwise known as a ‘prenup’ for short, is a written contract created by two people before they are married. It’s designed to provide clarity and certainty around the arrangements in the event of a breakdown of a marriage. It saves time and the stress of arguing about the finances at a later stage. It typically lists what each person owns, including debts, and specifies how money and assets will be split.

No one enters into a marriage expecting it to fail, but if a prenup is something that you are considering, it’s really important to know how they work.

Why might you consider a prenuptial agreement?

two wedding rings resting on a page of a Spanish dictionaryThere’s almost a taboo around considering a prenup. Many people see it as anticipating the breakdown of a marriage before it has happened, but it doesn’t need to be that way. Getting a prenup is simply about considering every eventuality and making sure that your finances, your future, and your children’s futures are secure – no matter what happens. That’s got to be worth giving a second thought.

Prenups are common amongst wealthier couples as they may have more of a need to protect their assets. Perhaps one party has a large inheritance or owns property or business. In normal circumstances, most couples consider a 50/50 split the starting point in the event of a divorce, however, a prenup allows you to make more specific arrangements if one of you is wealthier than the other and wants to protect their wealth.

That being said, prenups can also be incredibly valuable for couples of more modest means, and there is a range of reasons why. You might consider a prenup if:

  • You want to clarify financial rights
  • You want to avoid arguments about how things will be divided in the event of a divorce
  • You want to pass separate property to children from prior marriages. Without a prenup, a surviving spouse might have the right to claim a large portion of the other spouse’s property, which may not leave much for the children
  • You want to get protection from each other’s debts

What happens if I don’t get a prenup?

It’s fair to say that the majority of couples in the UK do not have a prenup, despite having a 33.3% divorce rate. Without a prenup, you will need to work out what you are entitled to in a divorce – which can be difficult when emotions are already running high. If you fail to decide how to split your assets, a Judge will decide for you. When doing so, they will take the following into account:

  • The needs and welfare of any children under the age of 18
  • The income, earning capacity, property, and other financial resources which each of the parties within the marriage has or is likely to have in the foreseeable future
  • The financial needs, obligations, and responsibilities which each of the parties has or is likely to have in the foreseeable future
  • The standard of living enjoyed by the family before the breakdown of the marriage
  • Any physical or mental disability of either of the parties to the marriage
  • The contributions which each of the parties have made or are likely in the foreseeable future to make to the welfare of the family
  • The duration of the marriage

what is a prenuptial agreement

Is a prenup legally binding?

In the UK, a prenup is not yet legally binding. A prenup does still carry very significant weight and will be upheld by a court so long as it meets a certain set of criteria as decided by the Supreme Court and further reviewed by the Law Commission. This is as follows:

  • The prenuptial agreement must be freely entered into
  • Both parties must understand the implications of the agreement
  • The agreement must be fair
  • The agreement must be contractually valid
  • The agreement must have been made at least 28 days before the wedding
  • There should be disclosure about the wider financial circumstances
  • Both parties must have received legal advice
  • It should not prejudice any children
  • Both parties’ needs must be met

As a prenup must meet these criteria, it is wise to enlist the help of a solicitor to either assist you in deciding and writing the terms of the agreement or have a solicitor look over your agreement if you have already put it together. This will save you having your prenup disregarded by a Judge in the event of a divorce.

what is a prenuptial agreement

How can Bromfield Legal help?

Here at Bromfield Legal, we work with you personally and tailor prenuptial agreements to your own specific requirements. Just like you, we want to make sure your finances, assets, and property ownership are set out clearly and fairly. You can trust our expert advice and support to save you money when you need it most.

Need to speak to an expert? Just get in touch via our online enquiry form or give your nearest Bromfield Legal branch a call.

What is a Child Arrangements Order?

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One of the most difficult parts of going through a divorce or separation is the impact it will have on any children involved. Couples with children may have to have a Child Arrangements Order when divorcing or separating. This is a court order that regulates who the child is to live with, and how much time will be spent with either parent.

If you and your ex-partner can easily agree on these things, you may not need a Child Arrangements Order. You can then avoid going to court hearings and you do not need any official paperwork. It can be difficult to come to an agreement however and even if you do, you may still want to make your agreement legally binding.

Who can apply for a Child Arrangements Order?

A Child Arrangements Order is commonly applied for by separating parents, however this is not always the case. Sometimes one of the parties may not be a biological parent, or may be a guardian or other relative. For example, grandparents may apply for a child arrangement order in a situation where one or both of the child’s parents has passed away or if they are having difficulty arranging to see their grandchildren.

what is a child arrangements order?

In order to apply for a Child Arrangements Order, you must have some sort of parental responsibility for the child. For example:

  • A parent, guardian or a special guardian
  • Someone who currently has parental responsibility of the child
  • A person in a marriage or civil partnership when the child is a child of the family (even if they are not a biological parent)
  • Anyone who has residence order in respect of the child, or who has lived with the child for three years or longer-term

Anyone else who wishes to seek a Child Arrangements Order can only do so if they apply to the court for permission first.

Agreeing on a Child Arrangement Order

Any parent wants to do what is right by their child, but it can be difficult to know exactly what that is sometimes. You’re not expected to know it all and it’s not easy to reach an agreement, so there are routes for you to take for some extra support. You could start with mediation. A mediator provides third party, unbiased advice and help on deciding what is best for the child going forward. This includes:

  • Where the child lives
  • When they spend time with each parent
  • When and what other types of contact take place (phone calls etc)
  • Child maintenance payments

At the end of mediation, if an agreement can be reached you’ll get a document detailing what has been agreed, however this is not legally binding. If you were unable to agree on suitable terms, or you would like the terms to be legally binding, the next step is to enlist the help of a solicitor to draft a consent order for a court to approve. A consent order is a legal document that confirms your agreement, signed by both you and your ex-partner.

what is a child arrangements order?

A solicitor will also be able to help by providing advice on deciding the terms of your Child Arrangements Order, drafting legal documents and agreements, legal advice during the mediation process and help filling in forms. They will also help by if necessary, preparing evidence and supplemental information for court hearings.

Once the Child Arrangement Order is applied for, the Court schedules a ‘directions’ hearing to encourage the parents to reach an agreement that takes into consideration what is best for the child. If this is not possible, further hearings can be scheduled where evidence can be filed and witnesses can be called. At the final hearing, the court reviews all of the evidence and statements, and makes a final decision which is put into an order of the Court.

When doing so they will primarily consider:

  • The wishes of the child
  • The child’s emotional, physical and educational needs
  • Any danger of abuse or neglect
  • The ability of the child’s parents/guardians to meet the child’s needs
  • The effects on the child of any changes in circumstances as a result of the order

Can you make changes to a Child Arrangement Order in the future?

Let’s say that five years down the line you decide to make some changes to the Child Arrangement Order. Family circumstances change over time and particularly as a child gets older, so it’s understandable that you might find yourself needing to make some adjustments.

what is a child arrangements order?

If you and your ex-partner both agree to any changes, then you won’t be breaching the order by departing from its terms. That doesn’t mean that the changes you’ve informally made are legally binding however, unless the order is formally varied by in court. If you want to be sure that there will be consequences if anyone breaches these new terms, you will need to involve the Court.

What happens if one of us breaches the Child Arrangements Order?

The Court can help you decide on the details of a Child Arrangements Order, but once in place it does not monitor any breaches. It would only become aware of a breach if a formal application for an Enforcement Order is made by either party. This will be investigated by the Court and if necessary, an Enforcement Order will be issued. When making an Enforcement Order, the person in breach could be faced with a warning, a fine, community service or in the worst cases, a prison sentence.

When the child reaches the age of 16, the Child Arrangements Order is usually redundant, unless the order specifically states otherwise. From this point, it’s up to the child to decide how much contact they would like to have with the parent they don’t live with – but they must remain living with the parent detailed on the order until they reach the age of 18.

How Bromfield Legal can help

Childcare arrangements are often the main worry in divorce or separation. We understand this as childcare arrangement solicitors and experts in children’s matters, and we will aid you with resolving issues about where a child should reside and who they should have contact with.

We understand that court action should be a last resort, so will always endeavour to resolve issues before this happens. For support with your Child Arrangements Order, get in touch with us today.