March 2007

New website launched!!

September 2006

Our main news is that on 18^th September '06 we moved to:

16 WHITE FRIARS, CHESTER CH1 1NZ

Our telephone and fax numbers remain the same, as does our e-mail address.  Unfortunately there is no parking available at White Friars for clients.  The car park behind the office was sold to a developer some years ago.  There is a small car park near the office on the corner of Nicholas Street and Weaver Street, beside the Magistrates Court.  There are larger car parks on the Little Roodee and in Pepper Street.

16 White Friars will be the fourth office that the firm has occupied since 1890 when Francis Mason started his practice in Godstall Lane.  He and Thomas Moore Dutton went into partnership in 1906 and moved to a fine Georgian building at 18 Newgate Street.  In 1963 construction of the Grosvenor Precinct forced a move to Hunter Street.  We look forward to welcoming clients old and new to White Friars and particularly those clients (and there are quite a few of them) who have told me that they remember first instructing the firm when we were in Newgate Street!

Home Information Packs (HIP)

You will probably have seen comment in the media on the Government’s plans for Home Information Packs. From 1^st June 2007 all owners of residential property in England and Wales will need to arrange a Home Information Pack before placing their house on the market for sale (this does not apply to commercial property but it does cover residential investment properties).

The packs must contain an energy performance certificate, searches and title documents.  Initially there was a requirement for a Home Condition Report (HCR). This was to be a brief, standard “ticked box” report prepared by a Home Inspector who had taken a prescribed course. Some optimistic commentators compared HCRs to Home Buyer’s Reports but the qualification of a Home Inspector could hardly compare with the training undergone by a chartered surveyor. As the HCR did not contain a valuation, banks and building societies would still require a valuation. There were many protests that the HCR made Home Information Packs expensive (estimates suggested up to £1000 for the full pack). The Government has now decided that a Home Condition Report can be included in the pack but will not be mandatory.  We will be able to prepare Home Information Packs or to provide the legal input for other pack-providers.

From 1st June 2007 Home Information Packs become mandatory. Prior to putting your home on the market you will need to obtain a Home Information Pack. The pack will include:

• A sale statement – describing the property being sold
• Forms the seller can use to give more information about the property and fixtures and fittings
• Evidence of title – from the Land Registry or copies of the deeds to the property
• Replies to standard searches – such as planning permissions, road schemes, water and drainage
• Warranties and guarantees – for building work

For leaseholders, the pack will also include:

• The lease
• Details of the landlord or managing company
• Regulations made by the landlord or management company
• Details of service charges and recent requests for payments for ground rent and insurance
• Information about current and planned works

We can assist you regarding HIP. For more information please contact Tim Parker or Sara McInnes.

Civil Partnership – The New Law

The Civil Partnership Act 2004 was implemented in December 2005. This is one of the most significant pieces of family legislation for several years. The underlining aim of the legislation is to permit couples of the same sex to form registered civil partnerships thereby creating a new legal status for such couples.

Once registered they acquire a package of rights and responsibilities which subject to some key differences will place them on the same footing as married couples.

The main provisions contained in the Act include:

• Formation of civil partnership by registration
• Formal dissolution of civil partnership which has broken down irretrievably
• Grounds on which a civil partnership can be declared a nullity
• The financial effects of the dissolution of the partnership including arrangements for the division of property, pensions and tenancy succession rights
• The ability of registered partners to acquire parental responsibility for each other’s children
• Recognition under inheritance and intestacy rules

Collaborative Law

Diana Williams, Denise Woodward and Jackie Rawcliffe are trained collaborative lawyers. Collaborative law allows clients to use a lawyer to help them find solutions to divorce related problems without any resort or threat of resort to the court.
In the collaborative process all negotiations take place directly with the clients present and active, achieving transparent, round table negotiations. The disqualification from taking the case to the court means that collaborative lawyers and their clients stay at the negotiating table far longer and exert far more efforts to encourage lateral problem solving.

Both parties work with specially trained collaborative lawyers. They each receive legal advice and guidance and discuss and resolve issues through face to face meetings. The process can if necessary include other professionals such as counsellors or financial specialists to help reach an agreement.

Provided everyone enters the process in good faith it is faster and less acrimonious than court proceedings.

The collaborative process helps maintain channels of communication between the parties. This is particularly important if they need to co-operate as parents after divorce or separation. Collaborative law is not for everyone but it is an option for people who want to avoid the uncertainties of the court based system.

 1.        What is the aim of collaborative family law?

·        To assist you both to resolve all matters arising out of your separation in a dignified and respectful way for the benefit of the whole family.

2.         What is collaborative family law?

·        You and your partner retain separate specially trained lawyers who will assist you in resolving issues without going to court.

·        Your collaborative lawyer acts for you, providing legal advice and guidance throughout the process, but working with your partner and his/her lawyer as part of a team to help achieve settlement.

·        You, your partner and your lawyers agree to work together in a respectful, honest and dignified way to try and reach settlement without threatening to go to court.

·        You sign an Agreement disqualifying your collaborative lawyers from representing you at court if the collaboration process breaks down. Neither of the lawyers, or their respective firms can then act for you although they will still be bound by confidentiality about any negotiations which had occurred. You would need to instruct new lawyers to proceed to court.

·        Issues are discussed and hopefully resolved in ‘4 way’ face to face meetings between you, your partner and your lawyers. Settlement discussions take place in your presence which helps ensure that you and your partner remain in charge of the process. The process thereby helps improve future communication, this is particularly important when you have children.

3.         What is a 4-way meeting?

·        A ‘4-way’ meeting is where you and your partner sit in a meeting with your collaborative lawyers to discuss the issues you wish to resolve.

·        An agenda is set before the meeting by your collaborative lawyers taking into account the issues you both wish to discuss.

·        You and your partner have a duty of full and frank disclosure.  You both provide all documents  within the process

·        Correspondence between lawyers is discouraged, thereby keeping costs and acrimony to a minimum.

·        Discussions focus on the needs and interests of you, your partner and the children.

·        Meetings are arranged at the start of the process without you having to wait for court dates. Provided all the participants enter the process in good faith, the process is faster, cheaper and less acrimonious than the court proceedings to reach a resolution.

·        You and the lawyers can work as part of a group of professionals, including counsellors, mediators and child and financial specialists to draw on the skills of other professionals to assist you and your partner in the process.

·        For issues requiring expert opinions (for example an accountant to give tax advice or value a business) the collaborative team will normally jointly instruct independent consultants, following discussions with you at the ‘4-way’ meeting..

4.         Is collaborative family law the best choice for me?

• Collaborative family law is not for every client or indeed every lawyer but it is worth considering if some of the following is important to you.
• You want a dignified non-aggressive resolution of the issues.
• You and your partner have children and wish to reach a resolution by agreement with their needs and interests being your priority.
• You do not wish to incur the costs and animosity generated by court proceedings.
• You would like to keep open good relations with your partner in the future.
• You and your partner have extended family and a number of friends to whom you would both wish to remain in contact in the future.
• You value retaining control over decisions about your financial arrangements or arrangements in relation to the children but with advice from experts.
• You do not wish to “hand over” decision making to either your lawyer or to a court
• Your main aim in the process is not to “seek revenge” on your partner.
• You need the assistance of a lawyer to help you negotiate in face to face meeting.

5.         What is the difference between collaborative law and mediation?

• In mediation the mediator is prohibited from giving either of you legal advice and cannot assist you in advocating your position. A mediator is neutral.
• The mediator is there to facilitate you and your partner and has a duty to advises you each to take separate legal advice, either during the process or after.
• Any settlement discussed during mediation is only binding once each of you have had the opportunity of taking separate legal advice and have transferred the agreement into a separate consent order of the court. The mediator cannot prepare the court documents for you nor finalise the process.
• Provided Agreement is reached your collaborative lawyer can act for you in the divorce and prepare the court papers to obtain the consent order.
• Lawyers are rarely present during the mediation sessions and their advice may be given too late to assist in the process.
• In collaborative family law, you each have your own lawyer throughout the process advising you and advocating on your behalf.  If you and your partner lack negotiation skills or financial understanding or feel vulnerable when in the sole presence of the other party, collaborative family law could be preferable to mediation.
• Mediators may still have a role in the collaborative process if you and your partner wish to consult a mediator regarding an issue.  Collaborative lawyers can assist you in finding a suitable mediator.

6.         What kind of information and documents do I have to provide in collaborative family law negotiations?

• You and your partner sign a participation agreement which provides full and frank disclosure of all documents and information that relate to the issues.  Disclosure is made at an early stage.

7.         What happens if my partner/spouse does not give full and frank financial disclosure or undertake the collaborative family law process in good faith?

• Under the terms of the collaborative agreement, the lawyer must withdraw from acting from their client if he/she has withheld or misrepresented information intentionally or is participating in the process in bad faith.  Likewise, it is open to your collaborative family lawyer to advise you to withdraw from the process if they do not consider that your partner (or indeed their lawyer) is keeping to the terms of the agreement.
• If you consider that your partner will not be honest during the collaborative process, then collaborative family law is unlikely to be a good choice for you.

8.   What if some time after issuing a settlement agreement in collaborative law process, I discover that my partner has failed to disclose relevant information?

• The settlement agreement reached during the collaborative family law process is no different from any other negotiated settlement.  If the outcome of the settlement would have been different if the information had been available, then it is open to you to seek to overturn the agreement, even if it has been confirmed by a court order.

9.         Why can’t you go to court retaining your existing lawyers if I and my partner/spouse fail to reach an agreement?

• The reason that collaborative family law has been successful and developed (in other jurisdictions) is the fact that the lawyers are disqualified from acting for the client should collaboration fail.  The disqualification agreement means that all the parties, including the lawyers and clients, are attempting to achieve settlement without threatening or being subject to the threat of court proceedings when things become difficult.
• You are collaborating without the background of potential court litigating, and lawyers are encouraged to work together in assisting you to reach settlement.
• By agreeing at the outset not to go to court, your partner and the lawyers can be encouraged to reach creative settlements.

LASTING POWER OF ATTORNEY

MENTAL CAPACITY ACT 2005

The Act received Royal Assent on 7 April 2005.  The Act governs decision-making on behalf of adults who lack mental capacity, both where they lose capacity at some point in their lives, and where the incapacitating condition has been present since birth.  It covers all decision-making on their behalf by attorneys, or court-appointed ‘deputies’.  It also clarifies the position if formal process has not been adopted.

What is a Lasting Power of Attorney (LPA)?

A Lasting Power of Attorney (LPA) is a new statutory form of power of attorney created by the Mental Capacity Act.  Anyone who has capacity to do so may choose a person (an ‘attorney’) to take decisions on their behalf if they subsequently lose capacity.  The LPA will replace the Enduring Power of Attorney (EPA) currently provided for by the Enduring Powers of Attorney Act 1985.  Unlike an EPA, and LPA can extend to personal welfare matters as well as property and affairs.

What will happen to my EPA?

Although the Enduring Powers of Attorney Act 1985 will be repealed on implementation of the Mental Capacity Act, the legal effect of an EPA already made under the current law will be preserved.

Can I change my EPA to an LPA?

No. You will need to draw up a separate LPA, although you will be able to go on using an EPA even after the Act is implemented.

What is a living will?

A living will is not a legal term.  It is referred to in the Mental Capacity Act as an advance decision to refuse treatment.  It means that you can make a decision now, about treatment you would not want in future when you have lost capacity.  An advance decision must be in writing, signed and witnessed, and if it applies to life-sustaining treatment there must be a statement that the decision stands even if life is at risk.