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You can view the data here

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Marriages are relationships traditionally based on trust, a willingness to share and the expectation that the relationship is secure and destined to last. However, as of November 2015 an estimated 42% of all marriages in the UK ended in divorce. Is it therefore really unreasonable to protect the property you bring into the marriage at the very outset, before the wedding festivities have even commenced?

Pre-weds in the United Kingdom may wish to consider entering into such an agreement if they have substantial wealth in their sole names they want to ring fence for themselves in the event of breakdown of the marriage, or children from previous relationships they want to pass their own property to under a Will.

However, as the law currently stands, there in no guarantee that divorce courts will abide by the terms of a pre-nuptial agreement when deciding how property should be divided during divorce proceedings. The agreement is only one of many factors a court will take into account.

English courts are inclined to give weight to non-financial contributions spouses make to matrimonial property when deciding on ownership, regardless of who owned the property prior to marriage. At present, there is no guarantee that a pre-nuptial agreement will prevent a court doing this. In the House of Lords judgement White v White (2000) Lord Nicholls emphasised that a spouse may acquire a beneficial interest if they had brought up children, made material improvements to a property or contributed in other non-financial ways. The key case in this area (Radmacher v Granatio (2010)), however did indicate that courts would now consider pre-nuptial agreements in divorce settlements, therefore going some way to provide protection for property owned in a person’s sole name.

The legal profession has traditionally been cautious to give significant weight to pre-nuptial agreements on the basis that, by specifying what would happen upon marital breakdown, such agreements facilitate the disintegration of marriages (the ‘public policy’ argument as put forward by Lord Philips in the Radmacher case). The tide is however changing. A Law Commission report, which followed the Radmacher judgement, highlighted three key reasons as to why pre-nuptial agreements should be made binding:-

Pre-nuptial agreements create certainty for both parties to a marriage as to who owns what, certainty which may prevent disputes and divorce proceedings arising in the first place.
Couples should be free to enter into a binding agreement if they so wish. For a court to deny full effect to such an agreement is to undermine freedom of choice for both parties.
The international dimension – spouses often come from different countries with different legal systems. It is possible that one party will come from a country where pre-nuptial agreements are binding. A Belgian or French national for example may expect a pre-nuptial agreement they have entered into in the UK, or in another country, to have automatic effect. The agreement will however be entirely governed by English law if it is heard in the context of English divorce proceedings. This means that there is no guarantee that an English court will give effect to the agreement, regardless of where it is drafted or the nationality of the parties to it.

Although not guaranteed to have effect, there are clear merits of a pre-nuptial agreement if you have significant assets in your sole name which you would like to ring fence for yourself upon separation, or children from a previous marriage you would like to inherit from you. Such agreements for you may be a realistic and pragmatic choice.

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NELST is a local division of the Access to Justice Foundation which contributes funds to free legal advice services in the North East area.

The Hadaway team have so far raised £140 for their efforts, with more hopefully to come!

Lovely weather, sunburn or suntan (depending on complexion), and of course lovely company was experienced by all.

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The number of UK citizens living overseas is on the rise. In 2015 there were approximately 1.2 million UK-born people living in other EU member states. If you are a UK resident and own property in another EU member state, or are a resident elsewhere in the EU with UK based property, the passing of your property when you die will depend on the relationship between the legal rules of both countries. It is therefore important to have an awareness of a provision of EU law which applies to people who died after 17th August 2015 – The European Succession Regulation, more commonly known as ‘Brussels IV’.

What is ‘Brussels IV’?

Brussels IV is an EU Regulation. EU Regulations automatically become law in any member state which signs up to them. For consenting member states Brussels IV provides that the law of the country in which you are ‘habitually resident’ decides how your property will pass. For example, if you are a UK resident and own property in France, UK law will determine what happens to your French property.

You are ‘habitually resident’ in a country if you usually reside there. This is different from being ‘domiciled’. It is easier to be habitually resident in a country than to be domiciled.

The UK is not a signatory to Brussels IV. This means that the Regulation only affects UK residents who specifically have property in EU member states which are signatories to it. If you have property in any other parts of the world, Brussels IV does not apply. Ireland, Denmark and the UK are the only member states which are not signatories.

If you do not want the legal system of your country of residence to determine how your property passes you can make an express election in your Will for another country’s legal system to apply. For example, you might want to make an election if you are a French national living in the UK and want French law to apply.

I have property in Scotland and I am resident in England/I have property in England and I am resident in Scotland. What does this mean?

Scotland and England are part of the same legal entity (the UK), for the purposes of EU law. Brussels IV does not change the relationship between the two countries.

There is however a conflict of laws between the Scottish and English legal systems. Scotland operates a system of ‘forced heirship’ meaning that specific family members have a right to certain portions of your property regardless of the terms of any Will. English law on the other hand provides for ‘testamentary freedom’ meaning that you have total freedom to decide who will inherit under your Will. If any family members are not due to benefit under your Will, and they wish to inherit, they will have to claim through the English courts. If you have Scottish property it would be sensible to seek advice from a Scottish solicitor, in addition to any solicitor you see for the drafting of your English Will.

I have property in an EU member state and am a UK resident/ I am an EU resident and have UK property – What is the impact of Brexit for me?

As the UK did not sign up to Brussels IV in the first place Brexit has no impact. Brussels IV has only been relevant in the past, and will only continue to be relevant in the future, when the other country involved is an EU member state which is itself a signatory to the Regulation.

Please contact our Asset Management department if you have overseas connections and would like to discuss how to deal with these in a Will.

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The Newcastle upon Tyne Law Society Annual Dinner took place on Thursday 20th November 2014 in the Banqueting Suite, Civic Centre, Newcastle upon Tyne.

Attending from Hadaway & Hadaway were Janet Littlefield (front left), Victoria Richer, Kate Davidson, Lynne McGonnell, Charlotte Hall, Judith Grange, Alan Horn, Tony Malia, Alastair McDonald, Derek Billham, John Coulter and Alan Douglas (back right).

The event was hosted by the President, Verity Dobbie, and sponsored by Northumbrian Water Property Solutions with guest speaker Baroness Tanni Grey-Thompson DBE. The Newcastle Law Society Awards 2014 were presented during the evening.

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Hadaway & Hadaway Solicitors (Office is situated directly opposite Bittermann & Wood’s offices in North Shields).

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We can still provide legal aid for the following types of work*:-

• FAMILY
• HOUSING
• CRIME
• MENTAL HEALTH

Come and see us now at…

58 Howard Street, North Shields. NE30 1AL.

Or call us on 0191 2729063 to make an appointment.

*for low income households only; subject to conditions & assessment

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Under section 144 of The Sentencing and Punishment of Offenders Act 2012 a person commits an offence if:-

a) the Person is in a residential building as a trespasser having entered it as a trespasser,

b) the person knows or ought to know that he or she is a trespasser, and

c) the person is living in the building or intends to live there for any period

The offence is also committed by a person who holds over after the end of a lease or licence even if the person leaves and re enters the building.

For the purposes of the Act a ‘building’ includes any structure or part of a structure (including a temporary or moveable structure), and a building is ‘residential’ if it is designed or adapted, before the time of entry, for use as a place to live.

The offence is punishable by a maximum term of up to 6 months imprisonment, a maximum fine of £5,000.00, or both.

Justice Minister Crispin Blunt said “For too long squatters have had the Justice System on the run and have caused home owners untold misery in eviction, repair and cleaning costs. Not any more. Hard working home owners need and deserve a justice system where their rights come first – this new offence will ensure the police and other agencies can take quick and decisive action to deal with the misery of squatting”.

The idea behind the new offence is to protect home owners and legitimate tenants who have been excluded from their homes as well as people who own residential buildings they do not live in such as landlords, local authorities or second home owners.

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