Alison Fielden & Co. - News

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25 June 2020Special Update

COVID-19: June Update

Since our last update we have introduced some modified measures to allow us to continue working as normally as possible while complying with changing government guidance. We have largely been working remotely and have been able to offer virtual client meetings via FaceTime or Microsoft Teams, and also some limited short face-to-face meetings outside e.g. for signing documents and handing over ID. These arrangements will continue.

In addition we will now offer some sit-down socially-distanced meetings indoors for some of our Probate clients.

Meanwhile we are gradually increasing the time our staff spend in person in the office. Some remote working will continue.

Please keep checking our website and Facebook page for further updates.

16 April 2020Special Update

COVID-19: April Update

In accordance with government guidelines our offices are currently closed to visitors and clients until further notice.

During this time we will still be available by email and telephone and will be working on current transactions remotely to try to achieve as near as possible a normal service for our clients.

Please do keep in touch and we will do our best to help in the current unusual circumstances.

23 March 2020Special Update

COVID-19: An important update

In these unprecedented circumstances we have taken the decision to close our offices to appointments with effect from Tuesday 24 March 2020 until further notice.

We will contact our clients with ongoing matters by phone and/or email.

In the meantime please continue to check our website and Facebook page for further updates..

July 2019Legal News

The High Court has heard a dispute between two step-sisters who have asked the court to decide which of their parents died first

This unusual case concerns the affairs of married couple John and Anne Scarle who tragically died at home from hypothermia in October 2016 but were not found until around a week later, after worried neighbours called the police. The couple had no children together, but both had children from previous relationships who are now locked in a High Court battle over who stands to inherit the couple's jointly owned property in Leigh on Sea.

The key issue the court has been asked to decide is which of Mr and Mrs Scarle died first.

Why does it matter?

Mr and Mrs Scarle owned their property in Leigh On Sea together. If Mr Scarle died first, then his share of the property would have briefly passed to his wife. When she died, the property would then pass to her children Deborah and Andre. But if Mrs Scarle died first, her share would have briefly passed to her husband, and then on to his daughter Anna when he died.

What does the law say?

The relevant legislation is section 184 of the Law of Property Act 1925. Section 184 says

"In all cases where... two or more persons have died in circumstances rendering it uncertain which of them survived the other or others, such deaths shall (subject to any order of the court), for all purposes affecting the title to property, be presumed to have occurred in order of seniority, and accordingly the younger shall be deemed to have survived the elder."

So where it's not possible to determine who died first there is a presumption that it was the oldest person.

The need to use this legislation rarely arises in the modern day as it is usually possible to determine who, of two people, has died first (even when the deaths are very close or simultaneous). The last major case citing this legislation took place in 1963 where a couple had drowned at sea.

The circumstances of this case

Although experts were instructed it was not possible to reliably determine even an approximate date of death, let alone time. The parties presented evidence based on sightings by neighbours and the date of post found in the property which had been opened.

Mr Scarle was aged 79 at his death whilst his wife was aged 69. As Mr Scarle was the eldest, under section 184 it is presumed that he died first. Lawyers on behalf of Mrs Scarle's daughter Deborah argued that must be right and said that the presumption is there to provide a solution in cases where it is not certain who survived longest, as in this case.

Lawyers for Mr Scarle's daughter Anna argued that, on the balance of probabilities, it was Mrs Scarle who died first. This was based on evidence about the state of Mrs Scarle's body when she was found by the police, which suggested she had been dead for longer than Mr Scarle.

However, Deborah's lawyers argued that the presumption under section 184 would not be rebutted even if it was possible to show that Mrs Scarle had 'probably' died first there would need to be "clear, reliable and compelling evidence" to show, "beyond reasonable doubt", that Mrs Scarle had died first.

The judge hearing the case has reserved his decision until a later date, so we will wait to see how the case is decided.

In the meantime, although the circumstances of the couple's death are very unusual and we do not know what the couple's testamentary wishes were, the case demonstrates the importance of making sure that you have a valid will recording your wishes, as an intestacy may not produce the result you intend.

July 2019Legal News

Lady Hale speaks on the evolution of the concepts of marriage and family

Lady Hale, President of the Supreme Court, has given a speech at the International Centre for Family Law, Policy and Practice on the subject of 'What is a 21st Century Family?' In her speech, given on 1 July but published on 10th July by the Supreme Court, Lady Hale considers the evolution of the concept and history of the institution of marriage and the changes to the role of the family.

In her speech, she concludes that there "three things stand out from the developments of the last 50 years:

"The first is an increasing desire and respect for individual autonomy in adult decision-making - by both men and women... At the same time, we increasingly respect their decisions to bring their adult relationships to an end and their autonomy in deciding upon the financial consequences of doing so...
Secondly, at the same time, the interests of the children involved are increasingly seen as paramount... Their rights to understand and develop their relationships with their parents - of all sorts - while feeling secure in their care arrangements lie at the heart of this. So children's interests are seen as being individual to them in a way that would have been unthinkable in the past.
But thirdly, therefore, is there a tension between these two evolving trends? Can we allow adults their individual autonomy if this conflicts with the best interests of their children?"

July 2019Legal News

The President of the Supreme Court risks political storm by questioning legislation before parliament

The president of the Supreme Court has taken the constitutionally unusual step of publicly criticising a bill that is making its way through parliament. Lady Hale said the Divorce (Financial Provision) Bill, introduced by crossbench peer Baroness Deech, was 'more threatening' to the support system of the family than the perceived threat from no-fault divorce.

Lady Hale made her comments in a speech entitled 'What is a 21st Century Family', delivered at the International Centre for Family Law, Policy and Practice on 1 July but published by the Supreme Court yesterday.

Baroness Deech's bill had its third reading in the House of Lords in December. It is now before the Commons, though no date for a second reading has been set.

Under the bill, pre- and post-nuptial agreements would be binding provided certain conditions are met. Matrimonial property would be divided equally and spousal maintenance limited to five years unless the spouse would otherwise suffer serious financial hardship.

Lady Hale questioned the bill's 'one size fits all' approach. Referring to critics who say that 'no-fault' divorce legislation will weaken the stability of marriage, she said: "More threatening in my view is Baroness Deech's bill, which has made its way through the House of Lords and is now before the commons."

She said: "I can see the attractions of all of this when set against the agony, the uncertainty and the expense of seeking our tailor-made solutions. But I question how one size fits all can possible meet the justice of the case or fulfill the role of the family in shouldering the burdens which it has created rather than placing them upon the state. I fear that it assumes an equality between the spouses which is simply not there in many, perhaps most, cases."

July 2019Legal News

Recent divorce case confirms courts have little sympathy for parties who fail to give full financial disclosure

"The recent decision in Thum v Thum is a reminder that the court has little sympathy for parties who flaunt their disclosure obligations. A case cannot properly proceed if either party is refusing to give full and frank disclosure as to their assets. Parties must take care not to give the court a poor impression of their conduct or face the consequences."

July 2019Legal News

Local authorities accountable for protection of all vulnerable children in their area

A landmark judgment has ruled that local authorities can be held legally accountable if they fail to protect vulnerable young people and children in their area who are considered to be at risk, regardless of whether they are officially in care.

A previous Court of Appeal decision which gave social workers exemption from liability in cases where children who are known to social services are harmed was also overruled.

In the judgment in Poole Borough Council v GN which was handed down at the Supreme Court, the argument that defensive social working decisions would be made if they were afraid of civil liability was found to be outdated and disapproved of, and that social workers could be found to owe children a duty of care to protect them from harm even when they are not the subject of a formal care order.

July 2019Office News

Alison Fielden & Co. hold cake sale in aid of CHYP

Our Annual Cake Sale in aid of Cirencester Housing for Young People (CHYP) raised over £200 for this important local charity.

April 2019Legal News

New Law proposed to end the need to find fault or wait for years for a divorce

Divorcing couples will no longer have to blame each other for the breakdown of their marriage as the Justice Secretary today (9 April 2019) announced a new law to help reduce family conflict.

The move follows a public consultation where family justice professionals and those with direct experience of divorce voiced their support for reform. New legislation will therefore be introduced to Parliament to update our 50-year-old divorce law which has been shown to exacerbate conflict.

Ministers are acting to change the law after responses also revealed that the current system can work against any prospect of reconciliation, and can be damaging to children by undermining the relationship between parents after divorce.

Current laws demand proof that a marriage has broken down irretrievably and force spouses to evidence 'unreasonable behaviour' or years of separation, even in cases where a couple has made a mutual decision to part ways.

Marriages are not saved by the ability of one spouse to 'contest' a divorce in court. Very few divorces are contested but this practice is known to be misused by abusers choosing to contest a divorce purely to continue their coercive and controlling behaviour. The government therefore proposes to remove it.

Proposals for changes to the law include:

  • retaining the irretrievable breakdown of a marriage as the sole ground for divorce
  • replacing the requirement to provide evidence of a 'fact' around behaviour or separation with a requirement to provide a statement of irretrievable breakdown
  • retaining the two-stage legal process currently referred to as decree nisi and decree absolute
  • creating the option of a joint application for divorce, alongside retaining the option for one party to initiate the process

As always the devil will be in the detail, we await sight of the legislation. It is not yet known when these proposed changes in the law will take place and people should defer taking legal advice on their situation.

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Alison Fielden & Co.
The Gatehouse
Dollar Street
Cirencester
Glos. GL7 2AN
DX 39418 Cirencester
Tel 01285 653261
Fax 01285 885372
alison@alisonfielden.co.uk