Public Children Law Case Management Hearings

Hello. Welcome, everybody Money. So after Mahmoud and pleased to welcome you to today session distant is a bites I session through data law as of August 2000 and 18 on today that I'm going to be taking you through looking at the position would consent orders in family cases and also claims under the inheritance provisioned for Family Independence Act of 1975. And really looking at what the connection is between two of these. So we're looking at the impact of clean break clauses in financial remedy cases and then also looking at claims under 75 to see really what the connection is and also looking at the nature of the applicant, the criteria on the procedure also. So let's just put this into context, whereby those of you then who do with family cases, financial remedy cases for divorcing couples and several partners. What is over the civil partnership? You'll be aware that quite often, as alongside a divorce or the dissolution of the civil partnership, we will be advising our clients about the importance of entering to a consent order or certainly having a financial remedy order made by way of agreement or falling a contested hearing whereby it's very important to have the dismissal clause in there and therefore dismissing potential claims that either or both of them may have against each other in the future. Either do no lifetime or indeed, even after death. So many of you were wear off the consent orders that we put together, which will have to dismissal clauses in there. So then let's licked link this in with the claims under inheritance provisions for family Depends Sector nineties and five. Let's look at a situation whereby say there isn't a dismissal close in. There's what's the effect of that was the nature. The claim was the categories of the applicant, what does what have to prove and so forth. So let's have a look at the position now. So many of you who do probate will be familiar with the inheritance profession for family independence. Act off 1975 and this is a way off, enabling apart them to bring a claim for a share of the disease estate in a situation where there have been left nothing or little in the will or through the testes. E provision at the inheritance profession for family depend sector 9% if I it doesn't apply to lifetime gifts unless they were made with intention of defeating. Opposed death Claim under 75 Act on a claim therefore cannot be made under the 75 act unless or until the person has died. And this essentially where the person is arguing that they were left Ireland Nothing in the willow very late in the will or through in testis it provisions and therefore they are effectively bringing a claim for share off these deceits estate. Not too big a claim successfully under the 75 Act one has to satisfy a number of conditions. Firstly, they have to satisfy the court that a deceased died domiciled in England wells eso the applicant must prove that domicile sees at the date of death and that regards and I must have died domicile in in the world. So effectively connecting worlds is the permanent place off residents. Secondly, the applicant must be one of persons who is entitled to bring an application under the 1975 act. So he must be the most of locus. Stand idle must be in one of the categories of applicant Could bring a claim and I look at that shortly with you. Thirdly, the applicant must bring the claim within the time limits specified, which essentially is six months from the date of the grant of representation, or the court does exceptionally have the permission. Have the authority rather to be up to grant permission to go after this if that saved his good reason in that regard. So let's look firstly at them. The categories off applicants on his various categories off people who can apply for relief. Foodie 90 Center five Act by way of seeking of financial order from the estate of disease on the grand that a disposition off the estate, either by will or in testis, e or combination of both left them with no reason of provisions financially or no provisional. Tall. So the categories of persons are these. Firstly, there's a spouse or civil partner off the seized. So an example that I gave you, say, husband, wife are still married. They are maybe going through divorce or they haven't living together and said her husband dies. It is possible for the wife through the 1975 act to bring a claim against him. He's a state brought on the basis that he was a spouse. The same principle applies to several partners. But in the second situation is where if the former spouse of former State Department it seized applies, who has not yet formed a subsequent marriage or remarriage or so a partnership. So this is way. So you got husband wife again. You're acting for them under divorce, say the divorce is completed, but they never instructed you on a resolution of finances or the finances were going through. But they hadn't bean resolution unless, say, the husband and dies in that situation. Now here, the former wife, given they are divorced, cannot bring a claim against the former husband's estate on the basis that she's a former spouse off de diseased. And she has not formed a subscript remarriage in the circumstances, so she can also bring your claim. In those circumstances, you can see how that fits in. There are also other categories of applicant. For example, call Haverty of the disease can be claimed by the same sex or opposite sex relationship, as long as they were cohabiting with each other for a period of two years or more immediately before the death of it seized a charter of disease. Come big claim a child of diseases that limited just your journal under 18. A child for the purpose of the 1975 act Horse includes Children who are adult Children. Sort, speak, and many of you will know about the vase. Significant case decided early 2017 the case of Island Again, Mitt against Mitts. And so that's the idea to Mitt Sink, a Supreme Court decision whereby a adult daughter successfully brought a claim against her disease mother's estate for a substantial part of her mother's estate. And also the other category Person is any person who is, in the case of any marriage or civil partnership to we should disease what's at any time, a party treated by this season as a child in the family. So this effectively could be step Children who could bring claims as well in disregard on finding any person who, immediately before the death of the diseased, was being maintained by them, either wholly or partially. But it is seized in the circumstances, he conceded, thinking behind that for today's purposes, because we're looking essentially at the position with 9 75 claims and consent towards relation to financial relief. Proceeding to two categories are applicant that I was really particularly interested in discussing. We did today their foot off on the 1st 2 are in a specific apartment received or secondly, the former spouse or former civil partner deceased. So to apply as a spouse off civil partner one and has to ensure that they weren't married to have been a civil partnership. When he sees at the time of death, if the applicant therefore remarries or registers a new civil partnership before the hearing glass, not a barter, a successful claim to court may, of course, take data can deciding whether to make in order and not because, of course, marriage in itself. So we death in itself does terminate that matters. So you know, husband, wife were married and then husband dies that the death springs about determination of marriage. So in Lord or wife could remarry. And if she does before the days to find a hearing, then although it's not a bar, the court may, of course, they don't can't deciding whether or not she's to get relief in those circumstances, and a court would really consider what financial provision would be reasonable in the circumstances, whether or not that provision that required for her maintenance or not, that it's common guidelines which will be considered, which will been looking at, for example, the side of the estates that needs off the applicant in these circumstances, the reasons why the disease left nothing in the will own through in testis e. But a court will also consider specific issues relating to the age of the applicant, for example, in the duration of the marriages of a partnership. So the longer the marriage or civil partnership, the stronger potentially to claim is the court also look a contribution that the applicant has made to the wealth of the family, including looking after the Children, for example, sacrificing a career, bringing up a family so you can see many of these factors of a similar to what would be considered if one is looking at application of the criterion, the Section 25 of the match one of cause that 19 3 when one is dealing with the resolution off disputes, falling, a divorce or, in the case of civil partnership under the CPI of 2000 and four. So the court to consider what the applicant may have received it. A marriage had ended in divorce. Father on death Nice if I was the former spouse or former save apartment deceased. Applying indoor circumstances at this is limited to only those former spouse of former civil partners where they have not remarried. A former announces a partnership at the time off the marriage, and this is where very important to check. Therefore, if you are looking at bringing a claim under 1975 act to see whether or not there was in fact a consent order or whether there was a dismissal clause in the financial relief proceeding. So if they waas say you had acted 40 party in the financial remedy proceedings and in fact, it was a dismissal clause dismissing future claims that either both of them I have engaged each other than, of course, that would then prevent your client, as the former spouse from them, bring a claim under a 1975 act. So very important to check that on that reason, a provision for former spouse informative partners such provisions would be reasonable in those circumstances to receive maintenance on. In addition to the common guidelines that I mentioned it, a court consider again matters relating to the age of the applicant duration and a marriage of civil partnership on also the contributions again, As I mentioned earlier So again, it's very similar factors in that regard. Taking that further than what you'll find is that when it comes there for you looking at reasonable financial provision 90 Center five Act, therefore sets up to standards for determining at what is reasonable financial provision. And essentially, you've got what's known as the surviving spouse or surviving civil partner standard, which is such financial provision as it be reasonable, in order circumstances of the case for spouse of civil partner to receive whether or not that provision is required for their maintenance. And secondly, there's what's known as the ordinary standard, which applies to all other categories of applicants to choose. Essentially looking at what they would cry for their maintenance under the nice sent five act, therefore really set site the guidelines which to court they need to consider in deciding whether or not any reason provision has been made or should be made in the circumstances. It is the common guidelines which will be considered in every case and in their special guidelines that I've just mentioned. So the common guidelines, some of which have mentioned, are matters such as looking at the financial resources and needs of the applicant and also other applicants and beneficiaries, both nine. Also in the foreseeable future, the court taken to cap the moral obligations by D m applicant towards the diseased at the size and nature of the estate is going to be relevant, as is the physical or mental disability of any of the parties or the beneficiary, as well as any other information which is relevant. Such the conduct of the applicant under provisions so that if, for example, to say, there was an electoral wishes, for example, that D diseased put together setting that why they are leaving nothing or little to the potential applicant in no circumstances. So any Richard statement body sees kept with a wheel by way of electoral issues or maybe even a statement, as I mentioned earlier, it's very important ensure that any claim is brought within the six month period six months from the date off, the granting of a grant of representation or such other appeared there after where the court may exceptionally allowed application be made there after, if not to check to see whether or not to grant a representation has been issued or not. It's possible to carry out what's called a standing search with the probate registry, and they will be able to confirm us to when the ground is taken out. Sort of six months would effectively start from that. Now. The orders that have been made for claims under a 1975 act actually very similar in many respects to the types of orders that could be made under Section 25 off M. C. A. 1975 90 73. So effectively at the types of orders that can made could be periodical payments for any period of time. For example, a lump sum payments, for example, transfer property, segment of property and also the acquisition of property for transfers. They concede these very similar holders that can be made under the 19 5 act has what ordinarily would see when one is looking at or just I've been sort under Section 25 of the emcee, a in that regard. And once the orders are made, the order is deemed effective from a date of death. On order may result in other beneficiaries. Therefore, we seem less than what would have ordinarily got the will or the testes. See provision on that, therefore, that would need to be born in mind. Also now, this is where it's very important. Therefore, to bear in mind that if you are hands dealing with a client where you're dealing with the finances for them, then following a divorce that it's very important to build that with any potential claim there is order, maybe in the future. So as I mentioned earlier, when you're dealing with somebody's divorce or dissolution of a civil partnership, it's also very important incumbent upon the lawyer to speech the client about the possibility of also having a clean break order by way of consent. We've not, through it contested hearing. At the very least, there should be consideration of a consent order dismissing future claims because, as you can see potentially, therefore there are claims that can be brought in often are brought under the 1975 act on the basis that the deceased it was a special civil partner of the applicant, or indeed was the former spouse, a former civil part of the applicant. But of course, in appropriate cases where it say that the parties were se living together and there was no talk of divorce and said her husband dies. And of course, it's only reacting proper. One would argue that he's he's widow in that situation. If she was left, nothing in the will or no circumstances should be in touch to bring a claim and therefore denied 75 act, of course, will be there to assist her in that regard. But if, as a lawyer, you advising on a divorce and actually falling that food, and that's why it's very important to start talking about the client about the need for dismissal clauses to be entered into, I assume it's possible there after now. This is where two very useful cases in this regard about people bring your claims against the other party. Many years after De Force on one of the cases was the White and Vince case of 2015 case. This is one where the couple had in fact divorced some 22 years previously, so you can see had been many, many years. Previously on a decree absolute had been pronounced. Now what happened is the couple had lived together. They're married for about two years, and they didnt divorced the husband and went on set up after some time at the Equal Tress Ity Energy Company, which provides homes provide certainly alternative forms off energies provisions to several 1000 homes across England. Wells and he's told her estate in 2050 was in a region of some 57 million. The wife's brought an action against the year husband by where financial relief on the basis that they were now divorced and she was the former spouse. But on the basis that she argued that they had not never in factories older finances. So she first or foremost to satisfy the court that there was no dismissal clause because, as I mentioned earlier, had they had the divorce and say there was a consent order through the financially for seniors, the court dismissed future claims. And, of course, it wouldn't be impossible for the former wife to bring an action against a former husband circumstances on the basis that a dismissal. Claws on also hear the fact he started. There had been a remarriage, and many of you will know about section 28 of the matter. And, of course, that 1973 which effectively is a remarriage trap, where if the person has not really allowed provisioning the divorce petition all the application to make a claim for financial relief in the future. If after the divorce they remarry, why the party remarries and the applicant would not be entitled to bring an action in that regard. The problem here on the facts, however, was that the court could not see the divorce petition had bean. The divorce had been dealt with 22 years previously had been some time the court did not retain. They file. The lawyers did not have flowers and clients didn't have to file. And therefore there's no we have really double checking to see whether or not that provisional divorce petition had been take to enable they claim to be brought against the other, uh, in the future, even after any remarriage. But the court took the view that they would effectively allow uneducated cut consideration to be applied here whereby they would take the view that, given the particular circumstance of the parties of that type, it was only right and proper that the door should be left over for them to bring a claim, as I said had the bean, a consent order had Davina financial relief application and proceedings that it may well be that they would have been dismissal closes and therefore, of course, would mean that there is no, uh, room to enable any future application thereafter. Say concede that this a good illustration off at the the effect of not having dismissal clauses or not being able to confirm us to whether or not one had left the door open to bring a claim in the future. Many years later on a subsequent case was applies and Brides Case 2017 case We're here. There was a claim brought against for financial relief against a former husband some 10 years after the divorce. So the court again did allow this on. The court was concerned off have about the significant delay, bringing a claim as wonder factors which would then assist the court and deciding what they amount off. The release should actually be so Therefore, summing up what I've discussed with each day can see that there is certainly a correlation between consent orders in financial remedy cases and also claims under the 1975 Inheritance Provisions for Family Dependence Act. If that consent order was entered into doing a financially proceedings or the that might matter went to trial and the court made a financial dismissing future claims, of course, that would therefore trumpet the possibility of their for bringing a claim under 1975 act in the future. But if one wasn't done, of course not. Center five act is a very important act in and of a necessary act in some of circumstance of them that have mentioned to enable people to bring claims particularly say, if it's thesis bouts of the deceased where they were living together that weren't even thinking of divorce. They were happily married and living together on, say, Theo, the wife dies and her husband needs to bring a claim against the estate on the basis that the world that she made, she hadn't updated, for example, and she had left most of it to other people other than her husband. That's where it quite legitimately. He may then need to bring your inaction in the 1975 Act for relief. In those circumstances, they can see the thinking behind that. Okay. I hope that's been a useful bites I session for you. Can I thank you very much for listening and I'll speak to next time. Thank you very much. Bye for now.