Author Archives: FGDadmin

Capital Gains Tax (CGT) for couples divorcing or ending civil partnership

The Old Law on CGT Relief

The time for reform on Capital Gains Tax (CGT) relief for divorcing spouses and separating civil partners is long overdue. The previous law allowed couples to dispose of assets on a “no gain or no loss” basis. However, this was only available in relation to any disposals in the remainder of the tax year in which the separation happens. This has left many couples in a race against time to dispose of their assets before the tax year is up in order to benefit from CGT relief. An often near impossible task for many couples who find themselves in lengthily financial settlement negotiations when ending their marriage or civil partnership. Even in the most amicable negotiations parties are reliant on information and documentation from third parties, this often causes further delays to the negotiation process. In addition, couples were ultimately reliant upon the Courts to finalise their financial Consent or Remedy Orders and consequently do not have much control over the timeline.

The New CGT Rules

On 06 April 2023 new legislation was introduced which has changed the CGT rules for divorcing spouses and separating civil partners.  Couples can now benefit from the following changes to CGT rules.

  • “No gain, no loss” CGT relief for up to three years from the end of the tax year in which they separated when disposing of assets.
  • Transfers between parties which are part of a formal divorce or dissolution of a civil partnership agreement will attract “no gain, no loss” CGT relief for an unlimited time.
  • The partner who retains an interest in the former matrimonial home may claim Principle Private Residence Relief upon the sale of the property.
  • Lastly, individuals who have transferred their interest in the former matrimonial home to their ex-spouse or civil partner and are entitled to receive a percentage of the proceeds when that home is eventually sold will benefit from being able to apply the same tax treatment on the receipt of those proceeds that applied when they transferred their original interest in the home to their ex-spouse or civil partner.

The Impact of these Changes

These changes to legislation provide a fairer way for spouses and civil partners to distribute and dispose of their assets upon separation. Individuals will now have the time to fully consider their financial positions without having to rush into decisions to avoid high CGT liabilities, particularly in situations where parties have complicated financial affairs. In addition, we can only hope that this outcome will relieve some of the pressures that many individuals may experience at the time of divorce or dissolution.

Contacts:

If you would like to discuss any of the issues raised in this article, or need advice about a divorce or civil partnership dissolution, please do not hesitate to contact our Family Department on 020 7625 6003 or Priya Dhokia (Head of Family & Private Wealth) by email at p.dhokia@fgdlaw.co.uk

Priya Dhokia offers insight and advice on: recruiting and retaining talent and how you can attract the right people

Priya Dhokia, Head of Family & Private Wealth at Freedman Green Dhokia provides advice and insight to Law Society members on how to recruit and retain talent so firms have the right people on board.

Priya sits on The Law Society’s Small Firms Advisory Committee. She regularly uses her knowledge and expertise to deliver support for the sector.

You can read the full article here:

Recruiting and retaining talent: how to attract the right people | The Law Society

 

Death ends everything – including Divorce!

Last week the Supreme Court held that a Wife could not continue her financial claims against her Husband because he died whilst they were having a divorce dispute. The Wife’s claims for financial relief on divorce were therefore rejected.

The parties in the case concerned were Nafisa Hasan (Wife) and Mahmud Ul Hasan (Husband) – Unger & Anor v Ul-Hasan (deceased) & Anor [2023] UKSC 22 (28 June 2023).

There were disclosed assets in excess of £7m.

Case Timeline

1981                    Parties marry

2006                    Parties separate

2012                    Parties divorce in Pakistan

August 2017       Wife applies to the Family Division of the High Court for financial relief following an overseas divorce

2019                    Court proceedings delayed due to the pandemic

Jan 2021             Husband dies in Dubai, weeks before a hearing

July 2021            Wife’s application is refused

October 2022      Five High Court judges consider case and rule against the Wife

June 2023           Supreme Court hears the case and rejects the Wife’s claims

Upon the Husband’s death, the Wife applied for permission to pursue her claim after his death, against his estate, as a significant wealth had been accumulated during the marriage. The question considered by the court was whether her matrimonial claim could survive the death of the Husband.

The Wife’s application was refused based on the existing law and a previous decision made in 1957, which states that a financial claim during a marriage or after divorce expires with the death of the respondent. But the judge thought that previous decision ought to be challenged and granted the Wife permission to go the Supreme Court and appeal the decision. But the Supreme Court also rejected the Wife’s claim.

When making a financial order on divorce, the court’s primary concern is to look at each party’s needs to assess what the appropriate financial split might be. Where a party has died, they clearly have no future needs. Consequently, this would impact the division on divorce. But it all very much depends on when the death has occurred. In some cases, where there is a death after a financial order has been made, it can lead to the order being set aside based on the change in parties’ circumstances.

However, in this case, the death occurred before a financial order was made. Once a party has died, it is not possible to proceed with the divorce and consequently any financial claims arising from it.

If the deceased dies domiciled in England and Wales then the surviving spouse can make a claim under the Inheritance (Provision for Family Dependants) Act 1975. The problem in Nafisa Hasan’s case was that her former Husband was domiciled abroad.

To complicate matters, Nafisa Hasan, also died during the proceedings before a financial order was made and was prevented from continuing her claim. Therefore she was not able to receive her entitlement due from the marriage and leave it to her estate in accordance with her wishes. Her entitlement would have been distributed to the beneficiaries of her former Husband’s estate instead.

This case highlights the implications for international clients where spouses or former spouses are domiciled abroad.

It also highlights the need to consider what would happen in circumstances where a party dies before a financial order is made, particularly as the Office for National Statistics reports that the rate of divorce for older couples is on the rise.

This case has led to calls for legal reform, but until then, it is safe to say that death really does end everything!

Contacts:

If you would like to discuss any of the issues raised in this article, or need advice about a divorce or civil partnership dissolution, please do not hesitate to contact our Family Department on 020 7625 6003 or Priya Dhokia (Head of Family & Private Wealth) by email at p.dhokia@fgdlaw.co.uk

Appointment of Priya Dhokia to the Law Society’s Small Firms Advisory Committee

We are pleased to announce that Priya Dhokia has been appointed to the Law Society’s Small Firms Advisory Committee.

Here is what Priya had to say:

Having been a Partner at Freedman Green Dhokia for over 11 years, I look forward to providing my knowledge and expertise to assist the Law Society in setting their agenda to deliver support for small firms.

This is an exciting opportunity to work with my fellow committee members, all of whom are as enthusiastic as I am: Jennifer DougalEmma Egerton-JonesPriya KrishnanParvien A., Sally Azarmi, John Morelandnazmin choudhury, Anthony Earl, Donna GoodsellShazia Khan, Nicholas Woolf, Marcus Hayes MBE, and Kezia Evans

Together we will provide strategic advice and practice insights for the benefit of the legal community.

If you work in a small firm, please do feel free to reach out to me to discuss any issues relating to our sector.”

You can find out more about the work that the Committee does here:

Small Firms Advisory Committee

No-Fault Divorce is finally here!

On 06 April 2022, the Divorce, Dissolution and Separation Act 2020, came into force. This has brought about the biggest reform of divorce laws, in England and Wales, in half a century. Couples looking to separate are no longer required to lay blame on one another to prove the irretrievable breakdown of their marriage. The new law sets the stage for a more amicable divorce process between couples.

Previously, the Applicant (or then Petitioner) would have been required to prove that there had been irretrievable breakdown of their marriage based on at least one of five facts, being (1) adultery (2) unreasonable behaviour, (3), desertion for two years or  more, (4) separation for two years or more with the other party’s consent or (5) separation for five years or more. This would often polarise the parties’ positions before proceedings had even started, giving rise to unnecessary conflict.

Under the new no-fault divorce procedure, the applicant must believe that the marriage has broken down irretrievably and they are simply required to sign a statement confirming this.

Anyone applying for a divorce or to end their civil partnership will be able to either apply individually (sole applications) or jointly (joint applications).

What Does this Mean for Couples Looking to Apply for Divorce?

The Application

Sole applications can be made online via the HMCTS digital service or by lodging a paper application at court. If the applicant has legal representation their solicitor must lodge their application through the online service. The court fee payable is £593.

A sole application for divorce cannot be changed to a joint application at a later stage. Therefore, applicants will need to decide this at the outset.

Once the sole application is made the court will serve it on the Respondent. The Respondent is required to acknowledge receipt of the Application within 14 working days of receiving the Application, by completing and sending back an ‘Acknowledgement of Service’ form to the Court.  This will then be sent to the Applicant.

After 20 weeks the Applicant can apply for a Conditional Order. The Court will then notify the other side if the Conditional Order has been made.

Once the Conditional Order has been made, the Applicant must wait a period of 6 weeks and one day before becoming entitled to give notice for the Conditional Order to be made Final.  That usually involves filling out a simple form and sending it to the Court. The Final Order follows within a few days.  You will not be divorced until the Final Order has been made.

In a joint application the procedure is mostly the same as a sole application. However, both parties to the marriage are essentially joint applicants. The applicants will be known as “Applicant one” and “Applicant two”, rather than the Applicant and the Respondent.

Joint applicants can change from a joint application to a sole application after the application has been submitted. However, this can only happen at the conditional and final order stage.

Responding to a divorce application

If your spouse has made a sole application for divorce, the court will send you (as the respondent) a copy of the application by email with a follow-up letter from the court with details of how to access the application. This letter will contain the divorce application, the Notice of Proceedings and the Acknowledgement of Service form.

You should receive the application within 28 days of it being issued by the court, unless the Applicant has permission to serve you later than this.

You will need to fill out and return the Acknowledgement of Service form to the court, within 14 days of receipt of the application. Your solicitor can complete this on your behalf and then file it at court.

We recommend that you seek legal advice prior to responding to any divorce application.

Disputing a Divorce

You can only dispute a divorce or dissolution in specific circumstances. The Respondent cannot dispute that there has been an irretrievable breakdown of the marriage. Divorce and dissolution applications can only be disputed because:

  • the Respondent disputes the jurisdiction of the Court in England and Wales;
  • the Respondent disputes the validity of the marriage or civil partnership (for example, if the parties have not entered into a legally valid marriage);
  • the marriage or civil partnership has already been legally ended;
  • it will also be possible for the Respondent to challenge proceedings for reasons such as fraud and procedural compliance (for example, the marriage was not formed in accordance with the relevant rules and regulations)

The 20 week period

After the court has issued the application, you must wait a period of 20 weeks before you can apply for a conditional order, which is the first stage of the divorce.

Conditional Order

The conditional order is the first of two orders made in the divorce proceedings. The conditional order does not end your marriage. It confirms that the court accepts you are entitled to a divorce. You remain married until the conditional order is made final.

Final Order

You must wait a period of six weeks and one day after the date of the conditional order, before you can apply to the court for a final order.

This is the second order made in the divorce and it is this order that will end your marriage.

Applying for a divorce

At Freedman Green Dhokia, we welcome the new no-fault divorce law reform as it brings us one step closer to ensuring that the law is in line with the world we live in today.

Our lawyers are committed in advising couples throughout the divorce process in a sensitive, time and cost-efficient manner.

If you would like to discuss any of the issues raised in this article, or need advice about a divorce or civil partnership dissolution, please do not hesitate to contact our Family Department on 020 7625 6003 or Priya Dhokia (Head of Family & Private Wealth) by email at p.dhokia@fgdlaw.co.uk

No-fault divorce, now an Act of Parliament

On 25 June 2020, The Divorce, Dissolution and Separation Bill received Royal assent and became an Act of Parliament. The new law, which is expected to come into effect in Autumn 2021, will promote “no-fault divorce” by removing the requirement to assign blame in divorce petitions (please read more about this here: Divorcing on the basis of unreasonable behaviour). After years of campaigning, the change is monumental and a step in the right direction for family law practitioners.

The changes to filing for a divorce petition will be as follows:

  1. The requirement to establish one of the five facts for divorce will be dispensed with. Instead, one party, or indeed the couple, can make a statement of irretrievable breakdown of the marriage;
  2. It will no longer be possible for one party to dispute the divorce (unless their objection is based on legal validity, jurisdiction, fraud, coercion or procedure) because a statement of irretrievable breakdown will be sufficient in demonstrating that the marriage has irretrievably broken down;
  3. Couples will be able to make a joint application for divorce;
  4. A new minimum time period of 20 weeks from the date of the petition to the date of the Conditional Divorce Order (previously known as Decree Nisi) will be introduced. There will then be a further 6 weeks before individuals can apply for a Final Divorce Order (previously Decree Absolute). This change allows couples to have more time to agree on financial and practical arrangements.

Should you wait until the new laws are introduced before you file for divorce?

Whilst it is hoped that no-fault divorces will come into place in Autumn 2021, this is not guaranteed. In any event, it may not be possible or realistic for some people to wait that long to file for divorce and, for many, ending the marriage in legal terms helps them to move on and rebuild their lives. Seeking the advice of a solicitor can be helpful in terms of weighing up the pros and cons of each option and discussing the best course of action which is, of course, dependant on the circumstances of the case.

Applying for a divorce

At Freedman Green Dhokia, we understand that much of the law relating to divorce is outdated and so we welcome any change which is in line with the modern world we live in today.

Our lawyers are committed in advising couples throughout the divorce process in a sensitive and time and cost-efficient manner.

If you would like to discuss any of the issues raised in this article, or need advice about a divorce or civil partnership dissolution, please do not hesitate to contact our Family Department on 0207 625 6003 or Priya Dhokia by email at p.dhokia@fgdlaw.co.uk.

Divorce and unreasonable behaviour

The current law

As it stands currently, there is only one ground for divorce in England and Wales, which is the “irretrievable breakdown of the marriage”. The party who is filing for divorce (the Petitioner) needs to state on what basis the marriage has broken down, by citing one of the following five facts:

  1. Adultery
  2. Unreasonable behaviour
  3. Desertion
  4. Two years’ separation with the other party’s consent
  5. Five years’ separation (no consent required)

Unless the petitioning party is able to rely upon adultery, desertion or separation, they will need to demonstrate that the other party is to blame for the breakdown of the marriage, on the basis that their behaviour has been unreasonable. It can sometimes be difficult to find examples of unreasonable behaviour on an objective basis, as the question of what constitutes “unreasonable” can be subjective. This is why the petitioning party must explain what effect the behaviour has had on them personally (whether that be psychologically, emotionally or physically), rather than simply listing the unreasonable behaviour. The current law presents a further hindrance to the petitioner insofar as a petition must be presented within six months from the date of the last incident of unreasonable behaviour.

This issue surrounding a petitioner struggling to demonstrate unreasonable behaviour is highlighted in the case of Owens v Owens. Mrs Owens cited Mr Owens’ unreasonable behaviour as the reason for the breakdown of their marriage and Mr Owens contested the application. The Judge at first instance held that Mrs Owens had exaggerated the seriousness of her allegations against her husband and found that there was no unreasonable behaviour that Mrs Owens could rely upon. Mrs Owens appealed the decision and the matter was subsequently put before the Court of Appeal. Unfortunately for Mrs Owens, the Court of Appeal agreed with the Judge at first instant. After Mrs Owens appealed the decision for a second time, the matter was heard at the Supreme Court where the Judges took the view that it is their role to apply the facts to the law laid down by Parliament, and, in the circumstances, they were not satisfied that that Mr Owen’s behaviour met the threshold for unreasonable behaviour. Notwithstanding the Judges’ decision, the Supreme Court acknowledged that the current law had not been adapted to reflect modern day relationships.

Historically, family law practitioners have argued that the blame-based system is both outdated and unsatisfactory as it can lead to animosity between the parties which, in turn, can be detrimental when negotiating financial settlements and children arrangements. Even in situations where both spouses agree that the marriage has come to an end, through no fault of either party, one party will need to be held accountable for the divorce petition to proceed.

If you would like advice on this matter, please do not hesitate to contact Priya Dhokia of our Family Department on 0207 604 2985 or email him at p.dhokia@fgdlaw.co.uk.

 

Reforms to Leasehold  Enfranchisement – the tide is changing

A leasehold interest is considered a “wasting asset”: its value will almost always reduce over time and will eventually revert to the landlord. Until now, an individual’s right to a lease of their flat, has been governed in the main by the Leasehold Reform Housing and Urban Development  Act 1993. A leaseholder has been compelled over the passing of time to request a longer lease in order to increase/preserve value in the flat. The 1993 Act offers  a term equal to the unexpired term of the existing lease plus a further 90 years, at a premium to be determined usually between the landlords and tenants valuers based on both negotiation and valuation principles prescribed by law, and  at a peppercorn (nil) rent, otherwise on the same terms as the existing lease subject to certain exceptions.

But with the advent of the long-awaited Law Commission Report issued last year, all this was set to change. The impetus behind the reform was the sense that the current system was “unfair”, “uncertain”, “too expensive” and “complicated”. It is made all the more significant when one considers that it is estimated that “there are over 4.2 million leasehold properties in England alone, comprising 18% of all housing stock. Indeed,  other estimates, suggest that there are far more leasehold owners than these statistics suggest.

Earlier in the year, housing minister  Robert Jenrick’s  made an announcement bringing the reforms back into sharp focus. In the wake of this  many leaseholders and landlords alike will have been left wondering how to respond to or deal  with their leasehold assets, whether on the landlord or tenant side of the coin.

Leaseholders may think they should hold off extending their lease until the law reform comes into before parliament and gets enacted in legislation. The important point to note however is that not only is the precise timescale for the proposed reforms uncertain, the reforms are also likely not going to affect all leaseholders equally, and therefore a “one size fits all” approach is not appropriate.

The proposals for all residential units are as summarised as follows:

  • Abolish the two year ownership rule, allowing any leaseholder to apply for a lease extension, instead of waiting until they have owned their property for two years when the premium will have likely increased.
  • 990 year extension. The landlord will retain the ability to take back the property on the grounds of re-development in the last 5 years of every 90 year period, subject to certain requirements.
  • New right for leaseholders with very long leases or onerous ground rents to buy out their ground rent or long leases separately rather than having to do both.
  • Marriage value, currently payable on leases less than 80 years, which assumes that the value of one party holding both the leasehold and freehold interest is greater than when those interests are held by separate parties, is likely going to be removed from the premium calculation although this is not yet 100% certain.

Broadly speaking, this places  leaseholders into three following camps:

  1. Leaseholders who may not necessarily be impacted in a huge way by the reform and may consider carrying on as normal for the time being in making new claims and progressing with existing ones;
  2. Leaseholders who see some clear benefit in holding off for a while at least until things become clearer with regard to this new regime that’s being proposed;
  3. Leaseholders who fall in between camps 1 and 2

Which camp any given leaseholders fall into varies depending on the precise length of lease, value of property, level of ground rent and personal circumstances. For example, if you have a  lease of over 80 years and ground rents are not massively onerous, there may not in fact be a huge material benefit save for fees savings, when considering the fact that the premium is getting greater over time it will take to get the reforms through. Equally, in a lease under 30 years the reversionary value has the most impact in determining the premium due and therefore it is unlikely that the abolition of marriage value will have a huge impact when balanced against the rate of ever increasing reversionary value over the effluxion of time.

What is safe to say is that a leaseholder can only really determine whether or not it is worth extending now or later by engaging specialist valuation advice and legal advice.

If you are a freeholder or leaseholder and would like advise on this issue and the potential impact on you please do not hesitate to contact Gary Green of our Property Department on 020 7625 6003 or email her at g.green@fgdlaw.co.uk

Family Law Series Part 3: How does the length of your marriage impact the financial split on divorce?

As examined in Part 1 of this Series, one of the factors the Court must have regard to when exercising its powers to make Financial Orders on Divorce, is the “duration of the marriage”.  In cases where the marriage has been extremely short, the Court may order no financial provision at all: whereas, after a lengthy marriage the starting position will be to divide everything equally.

This is an approach that most people would agree with, but inevitably it is not always that simple.  You might assume that a marriage lasting just a few years would be treated as a short marriage, but that may not necessarily be the case if the parties have lived together before ‘tying the knot’.

In the case of GW v RW (2003) EWHC 611 (Fam) the Judge stated:

“I cannot imagine anyone nowadays seriously stigmatising pre-marital cohabitation as “living in sin” or lacking the quality of emotional commitment assumed in marriage.  Plus, in my judgment where a relationship moves seamlessly from cohabitation into marriage without any major alteration in the way the couple live, it is unreal and artificial to treat the periods differently.  On the other hand, if it is found that the pre-marital cohabitation was on the basis of a trial period to see if there is any basis for later marriage then I would be of the view that it would not be right to be included as part of the “duration of marriage”.”

A marriage lasting just a few years that is preceded by 10 years of seamless cohabitation would therefore be treated as a long marriage.  This can have a significant impact on the financial orders made, as not only will a Court start from a position of equality between the parties, but the property and wealth accrued during the 10 years of cohabitation will also be treated as forming part of the marital pot to be shared between them.

The duration of the marriage is just one of many factors to which the Court must have regard.  The Court is also required to give first consideration to the needs of any child(ren) of the marriage and also to take into account all the circumstances of the case.  Therefore, in most cases, the duration of the marriage is unlikely to be a determinative factor in the Court’s decision-making process, particularly if there are insufficient assets to meet the parties’ needs.

If you would like advice on this newsletter or family issues generally, please do not hesitate to contact Priya Dhokia of our Family Department on 020 7625 6003 or email him at p.dhokia@fgdlaw.co.uk