Does Getting Married on a “Gimmick Day” Mean You Will End Up Divorced?

family-team

Valentines’ Day – loved by some, loathed by others. Our Family Law team certainly enjoyed it earlier this week! As did florists across the land.

It’s only a day after all – or is it?

A recent study claimed that people who got married on so called gimmick days – such as Valentine’s Day – were more likely to end up divorced. According to a team at the University of Melbourne, Valentine’s Day and days such as 9/9/99 or 1/2/03 were hugely popular wedding dates.

Dr Jan Kabatek and Professor David Ribar acknowledge that it’s not the date itself that increases a couple’s vulnerability but rather what the choice of date reveals about the couple. It is argued that couples who marry on special dates perhaps have less in common and as such are more likely to end up in a divorce.

Can that possibly be true?!

I can’t say that in my time as a trainee solicitor in the Blackadders Family Law team that I’ve seen a high proportion of divorces where the date of marriage was Valentine’s day or any other gimmick day.

I wondered if the same rationale would apply to gimmicky wedding venues or themes, but again I can’t say I’ve noticed a propensity for divorce amongst those married by an Elvis impersonator in Las Vegas. Or maybe clients don’t expose these darkest secrets to their lawyer…

Either way, my advice is to take no notice of this “fake news”!

I think that days like Valentine’s Day do cause people to consider their relationship and reflect on their future together. This is verified by another study which suggests that there is a statistical spike in the number of relationships ending in the days around Valentine’s Day. I wonder if that is just part of the much publicised post-Christmas spike in separations that supposedly inundate Family Lawyers every January.

If you have recently separated then here are a few simple pieces of advice to follow:

A Survival Guide

  1. Don’t listen to well-meaning friends and relatives. Whether they’ve been through a divorce or not, no two cases are the same, nor are the people involved in the relationship.
  2. If you are considering a divorce, see a lawyer for some initial advice on the process involved. Even if you are not ready to progress things, initial advice can help put your mind at rest. Remember a lawyer is not going to be emotionally attached to the situation like you and your well-meaning friends.
  3. Stay off social media. Facebook, Twitter, Instagram and other social media can provide people with a minefield of problems. Remember once you post something online it can be used as evidence. Aggravating, threating and insulting posts can be quite damning in a divorce or child custody case.

“Roses are red, violets are blue, when you need family law advice…we are here to help you!”

Gillian Wilson
Trainee Solicitor – Family Law
@LegallyGillian
www.blackadders.co.uk

New Bankruptcy Court Rules Come Into Force

The Bankruptcy (Scotland) Act 2016 came into force on 30 November 2016 and with it the new Act of Sederunt (Sheriff Court Bankruptcy Rules) 2016. These rules apply to any sequestrations for which the petition is presented, or the debtor application is made, on or after that date.

The new legislation aims to codify and consolidate all of the existing bankruptcy legislation rather than revolutionise the area and the new court rules have largely the same purpose in attempting to make the process more user friendly and accessible in its expression and processes. Many of the 2008 Rules reappear, albeit in an improved order, in the new rules.

One particularly useful addition to the Rules is a dispensing power of the court under Chapter 2 to relieve a party from the consequences of a failure to comply with a provision in the Rules in the event of mistake, oversight or other excusable cause. The Sheriff may use this dispensing power to enable proceedings to progress as if such a failure had not occurred. This will be a welcome relief to many practitioners who are more than aware that the smallest error in procedure can result in the entire court process needing to be recommenced. However, practitioners should not presume that the Court will always make allowances for procedural failings as under Chapter 3 of the Rules the Sheriff may also use their discretion to dispose of the proceedings where such a failure does occur.

The Rules also seek to make the process more accessible to those unable to obtain legal representation. Chapter 4 of the Rules, in addition to permitting suitable lay supporters, also allows for lay representation. However, this is not an automatic entitlement and the Sheriff may only grant an application if they consider that it would assist the Sheriff’s consideration of the case to grant it.

The 2016 Act will likely facilitate a considerable number of AIB sequestrations out with the traditional court process. However, Chapter 9 of the Rules provides that an appeal may be made to the Sheriff where the extra judicial process has been utilised. Meanwhile Chapter 10 provides for the appeal of traditional court process sequestrations to the new Sheriff Appeal Court via Chapter 6 of the Sheriff Appeal Court Rules.

Chapter 13 of the Rules provide that expenses may either be as taxed, in which case such taxation must take place before decree is granted, or alternatively the Sheriff may modify the expenses to a fixed sum. This latter option may be more attractive in instances where expediency is vital.

The rules concerning intimation are largely unchanged and in particular still do not provide for email intimation, as is becoming more commonplace in other forms of procedure. Whilst provision for intimation by email may be lacking from the Rules, they do allow applications to make a submission in support of a motion or to give evidence via a live link (e.g. a television link). It should be noted that such a “live link” does not have to be a television link but that the method must allow the person using the live link to be heard in the courtroom and hear the proceedings in the courtroom. If a live link, other than a television link, is to be used then an application must be made to the Sheriff for this link to be permitted.

Fresh statutory court forms, including the eagerly anticipated “Form of application for direction”, are now available and may be found at: https://www.scotcourts.gov.uk/rules-and-practice/forms/sheriff-court-forms/bankruptcy-forms—2016-rules

We hope this briefing is useful but if you would like to discuss how either the Act or the Rules affect you or your clients please contact our Insolvency and Corporate Recovery Team.

Alastair Johnston
Solicitor – Dispute Resolution
@LitigationLawyer
www.blackadders.co.uk

3 New Year Resolutions You Should Try To Stick To This Year!

It’s midway through January and many of us are trying to stick to our latest New Year resolution. Our household has finally consumed the mountain of cheese and biscuits and our attention has now turned to getting fit (again!), eating healthily (again!) and cutting out the wine (well maybe just one on a Saturday night…!).

We all make New Year resolutions but how many of us actually stick to them…? Here are 3 important resolutions you should definitely try to keep this year:

  1. Make a Will

It is common for people to put off estate planning. A joint study carried out by The Co-operative Funeralcare and The Co-operative Legal Services in October 2015 suggests that 60% of adults in the UK don’t have a Will and therefore could be at risk of having nobody appropriate to control their estate if they die. Having a Will lets you decide who you wish as your executors and can give clear direction of how you wish your estate to be dealt with and under what terms.

If you do already have a Will in place, when was the last time you reviewed it? If your circumstances have changed, does it still reflect your wishes? Do you need to update your executors or beneficiaries? We would recommend you review your Will approximately every 5 years and also following major life events such as buying your first home; moving in with your other half; marriage; separation; divorce; bereavement; having children; retirement and receiving an inheritance.

It is also very important that co-habitants put Wills in place as there are no automatic rights for co-habitants. Your partner does not have any definite rights to your estate. It will be at the Court’s discretion as to what your partner will be entitled to receive.  This could be nothing at all, or anything up to the maximum amount that a spouse would be entitled to receive on your death.

  1. Check your title deeds

When updating your Will, you should also have the title deeds to your property checked if held in joint names to ensure that they are in line with the terms of your Will. If the title is held by way of a survivorship destination e.g “to Mr and Mrs and to the survivor of them” then on the first death, the house automatically passes to the survivor. You may wish to consider altering your title so it is held in equal one half shares e.g “to Mr and Mrs equally between them pro indiviso”.

In that case, on the first death, that share of the property is dealt with in accordance with the Will. By making this simple change and including appropriate provisions in the Will, it could provide some protection of the asset from care costs.

  1. Put a Power of Attorney in place

If you are capable of managing your own affairs, you should consider putting a Power of Attorney in place in the event that you lose this capability perhaps due to illness or old age. Putting a Power of Attorney in place is quick, straightforward and relatively inexpensive and allows you to appoint someone (or more than one person) you trust, commonly a relative or friend, to manage your affairs on your behalf. If you already have a Power of Attorney in place, you should ensure that it is up to date.

If you do not have a Power of Attorney and for whatever reason become incapable of acting, assets can be frozen and welfare decisions cannot be made. Spouses, civil partners, co-habitants and children as next of kin have no power to make decisions on your behalf. A family member or local authority will have to apply to the Sheriff Court for a Guardianship Order and it is the Sheriff’s decision whether the person named in the application is suitable to take on the role as Guardian. Involving the Sheriff Court is an expensive and lengthy process, which can easily be avoided.

A Power of Attorney can be put in place to manage your finances only or your care and welfare only, although it is common to combine these powers in one document. You can appoint different people to deal with your finances and welfare, if you wish but we would suggest to always appoint a substitute attorney.

Planning for the future is essential regardless of age and wealth and if you take a few hours now, it will save your family a lot of unnecessary stress and expense. These New Year resolutions may seem daunting but once done, will give you absolute peace of mind.

What more could you want from a resolution?

Karin Bousie
Associate Solicitor – Private Client
@LawyerKarinB
www.blackadders.co.uk

5 ways to reduce your Inheritance tax bill this Christmas!

Christmas is a time for giving and there are several ways to make over cash or assets to someone as efficiently as possible when it comes to inheritance tax (IHT). IHT is only currently payable on any portion of your estate that is above a threshold of £325,000, and is charged at 40%, however this is reduced to 36% if you donate 10% or more of your estate to charity. If you are thinking of gifting assets or cash as presents this year, then read on to ensure that your gifts do not fall foul of IHT.

1. Small gifts

If you are in a position to do so, get Christmas covered by making use of the small gifts exemption. You can gift up to £250 each year to as many different people as you like in any one tax year (6 April to the following 5 April) without being liable for IHT.

2. Annual allowance

Over and above the small gifts exemption you can gift up to £3,000 in each tax year without paying IHT. You can carry forward all or any part of the £3,000 exemption you don’t use to the next year but no further. This means you could give away up to £6,000 in any one year if you haven’t used any of your exemption from the year before.

3. Gifts out of regular income

A less well known but very useful relief is the gifts out of income relief. Any gifts you make from surplus income as opposed to capital are free from IHT if they are part of your regular expenditure. There is no limit on the sums gifted provided the gifts do not impact on your normal living standards in that the funds used to make the gift are indeed surplus. This means that you could make regular monthly or annual gifts of the difference between your income for the year and your expenses for the year without them falling into your estate, but you do need to document the intention to provide HMRC after your death if your estate is liable for IHT. If for example, your income is £150,000 p.a but you only spend £100,000, then you could give away the remaining £50,000 without it counting as a gift for IHT purposes.

4. Gifts to exempt beneficiaries

  • Spouses: If you are married or in a civil partnership, you can give anything you own to your spouse or civil partner if their permanent home is in the UK so your estate won’t have to pay IHT on what the gift is worth. Gifts to an unmarried partner, will not benefit from this exemption.
  • Charities: A lot of us gift to charity at this time of year so remember any donations to charities based in the UK are exempt from IHT. If you use the gift aid scheme you can also save on income tax.
  • National institutions, such as museums, universities and the National Trust as well as UK political parties are exempt.


5. Weddings

The festive season often means a family wedding and gifts in contemplation of marriage

are exempt from Inheritance Tax up to certain amounts:

  • parents can each give £5,000
  • grandparents and other relatives can each give £2,500
  • anyone else can give £1,000

You have to make the gift on or shortly before the date of the wedding or civil partnership ceremony.

You can still make gifts that do not fall into any of the above groups. These gifts will be treated as potentially exempt transfers (PETS). On the basis you do not benefit from these gifts and provided you live for at least 7 years, such gifts should be free of IHT.

So with Christmas fast approaching, enjoy stress free gifting without worrying about IHT this festive season!

Karin Bousie – Associate
Private Client
@LawyerKarinB
www.blackadders.co.uk

‘Court Appeal’: My top four tips on making your first court appearance

I recently made my first ever court appearance.  It was not a “You Can’t Handle The Truth” moment, nor was it a “Razzle Dazzle ‘Em” performance.  However it was certainly an experience I won’t regret.  Whilst I have found that some trainees can’t wait to don their gown and stand before a Sheriff for the first time, others avoid the court seats all together and say with much conviction “It’s just not for me!”. Indeed it may be the case, not everyone sees themselves as the next Harvey Spectre, however I would suggest if there’s an opportunity to make a court appearance whilst you are a trainee, take it, even if it’s just the once. You will certainly learn something and you never know, you might even enjoy it.

Of course, I am still very much a court room novice, learning with every appearance I make. However, I have taken the opportunity to reflect on my experience so far and have compiled a list of top tips that I hope may chase away some of those first appearance nerves.

  1. Learn from the Masters

If you are a trainee solicitor and a colleague offers you the opportunity to watch them in action, go. Much can be gained from watching a colleague who is a dab hand at court appearances. Before you go to court, try to get as much information as possible on the case and work out where you are in terms of court procedure. Having that background knowledge should help with your understanding of what is happening in court and allow you to get more out of the experience. If you do go to observe a colleague, make sure you are actively listening to proceedings and see if you can pick up on points which impressed or persuaded the judge. If you are a law Student, remember that most courts are open to the public and if you have some spare time, observing court can help you when it comes to your studies.

  1. Get to know your Learned Friends

If you do get the chance to go up to court with a colleague prior to making your first appearance, the chances are they will know some of the other court solicitors. In the short space of time I have been appearing in Dundee Sheriff Court, I have become familiar with many of the regular court solicitors. It is a good idea to make the effort to get to know them, as you never know when you might be in need of a few words of wisdom from one of your learned friends. I have found other solicitors in the court room to be very welcoming and happy to lend a helping hand. It can be useful to have a brief chat with the solicitor for the other side before your case calls. Again, if you have established a positive professional relationship with that other solicitor, this can make such discussions more comfortable.

  1. Be Prepared

Although the time you need to prepare for a court appearance may vary significantly depending on the type of court work you are doing, try your best to get in some preparation time, especially for those first few appearances. Think about what you are asking the judge to do, what is your fall-back position if this is refused, what might the judge ask you? What rule allows the judge to do what you are asking? What law supports your position?  Think about the worst case scenario and what you would do if it were to occur. The chances are that your first appearance will be relatively straight forward, but court can be unpredictable and you will feel more relaxed if you have done your research and feel prepared.

  1. Keep Calm and Go Back to Court

If you do end up doing a court seat during your traineeship, you will likely make a number of appearances and at least one of them won’t go quite as planned. Whilst it is an unpleasant experience to have a ‘bad day’ in court, I am told it is something all court solicitors go through, especially during the earlier stages of their career. So if it does happen, don’t let the fear fester, get that gown back on and head back to court. By all means reflect on your mistakes, learn from them, but try not to let them knock your confidence.

So, even if you think that court holds no appeal for you, face your fears, grab the opportunity and step into the unknown. You never know, just like a court appeal, your views are always subject to change. Good luck!

Gillian Wilson
Trainee Solicitor – Family Law
@LegallyGillian
www.blackadders.co.uk

 

Commercial Property specialist joins solicitors’ growing Glasgow office

Scottish law firm Blackadders has continued its expansion in the west of Scotland by recruiting an experienced commercial property adviser to its Glasgow base.

John McKie, who will join Blackadders as a partner on December 5th, is the latest addition to the firm’s presence in Scotland’s largest city.

John was previously a senior associate in DWF’s commercial property team in Edinburgh, having been with the firm (formerly called Biggart Baillie) since 2006.

Dual-qualified as a solicitor in Scotland and England/Wales, John has significant experience in advising on all real estate matters, in particular investment acquisitions, secured lending, freehold and leasehold sales and acquisitions as well as commercial leasing.

With the arrival of Mr McKie Blackadders now has 27 partners and over 260 staff across the country.

The firm acquired well-known Glasgow law practice Boyle Shaughnessy in April 2016, in addition to opening offices in Edinburgh, Aberdeen and Perth. In September 2016 it appointed Stephanie Carr, an accredited specialist in Insolvency Law, to lead its Glasgow office.

Its steady growth secured the firm the Best Newcomer Award at the 2016 Scottish Business Insider Awards as well as catapulting it to number 142 in the latest SME300 listings.

John said the prospect of joining such an ambitious Scottish law practice was too good to miss.

“Blackadders has established itself as a very forward-thinking firm and being offered the chance to play a part in helping it to grow in Glasgow and the west really was an opportunity I couldn’t turn down.

“My particular expertise is in retail and leisure, acting for landlords and corporate occupiers in the office, business park and industrial sectors and in dealing with residential, commercial and mixed use developments. In addition to having acted for some of the biggest household names in retail and leisure, I have also been involved with the acquisition and subsequent management and sale of shopping centres across Scotland for institutional investors.

“With Glasgow being one of the prime retail destinations in the UK there are some fantastic opportunities for us to play a part in the city’s continued success as a shopping and leisure hotspot.”

Emma Gray, Head of Commercial Property commented, “I have known John for a number of years; he is an accomplished commercial property lawyer with a wealth of experience and legal acumen.  He will be an asset to the team and I look forward to working with him. His appointment will enable us to further build our strength in commercial property and reflects the increase in demand that we are seeing for our services on the West Coast. We are working our way through an ambitious, long-term strategy for our firm and our ability to attract lawyers of John’s quality is a vital to its success.”

Wills & Thrills: 3 succession planning scares to avoid!

As a fan of horror films, this is a time of year that I always enjoy: the TV schedules are filled with marathons of blood-curdling, bone-chilling classics.  As a solicitor regularly advising on Wills and estate-planning issues, this gives me a rare excuse to combine these deathly interests.

Succession planningis the way in which we plan for what should happen after our own death, and is something that can really haunt your family if not done properly.  So to help make sure your affairs are in order, here are three horror shows that you can avoid forcing your loved ones to sit through:

The ex-Bride of Frankenstein

It is vitally important that you review your Will if you separate or divorce from your spouse or civil partner.

For spouses who are separated but not divorced, the situation is particularly urgent.  No matter how long you have been separated, your Will still stands and so your ex-spouse would still be entitled to act as your executor and inherit your estate if that is what the Will says.  The same is of course true for unmarried couples who feature in each other’s Wills.

For divorcees, the situation is about to become a little easier.  The new Succession (Scotland) Act 2016 provides that, for deaths on or after 1 November 2016, the deceased person’s Will is to be read as though their ex-spouse had pre-deceased.  This will mean that even if the deceased person had not actually gotten round to changing their Will, their ex-spouse would not be appointed as executor or stand to inherit anything.  This brings Scotland into line with the position that has long been the case in the rest of the UK, which will hopefully mean fewer disasters for people who have consulted Google Q.C. rather than an experienced solicitor.  However relying on this rule is no substitute for actively reviewing the Will and taking good advice.  For instance, the new rule will do nothing to remove people from your Will such as the children or parents of your ex-spouse:  you still need to take action if you want to take them out of the Will.

Rosemary’s Baby (is not in her Will)

There is a little-known rule in Scots law with the snappy Latin title of the conditio si testator sine liberis decesserit – just imagine hearing it being chanted through your bedroom wall at midnight.  If it sounds scary, it’s because it is!

This rule tells us that if a child is born after the date of their parent’s Will, and if the Will does not provide for that child and the parent later dies, then the child can revoke the parent’s Will.  This leaves the parent intestate (i.e. dead without a Will).  The parent’s estate would then be divided in terms of the “default rules” of intestacy.  This could have frightening implications for unmarried couples, as the laws of intestacy are particularly unkind to unmarried partners or cohabitees of the deceased person.

The answer to this is simply ensuring that you apply “good house-keeping” by reviewing your Will after any significant changes to your family – hatches, matches and dispatches.  This is not a difficult trap to avoid, but it can be a real chiller – particularly if you have a “Damian” in your family!

The Inheri-Tax-Us Chainsaw Massacre

You can’t run or hide from death and taxes, however you certainly can escape from death-taxes.  Inheritance tax is charged at 40% for estates over the allowance known as the nil rate band (currently £325,000 per individual), and so it has the potential to really slash the inheritance that you’d hope to pass to your family.

You can outrun this tax-monster, but it will take some good forward-planning.  There are many ways in which to do this – however the simplest tends to be with the gift of generosity.  By being generous to your family (with gifts) and to yourself (by spending money), you can reduce the value of your taxable estate.  There are many rules about different kinds and sizes of gifts:  some gifts will leave your estate immediately, while others will require you to survive for seven years before their value will leave your estate.  If you struggle to remember that crucial number of years, just remember it is the same as the number of blood-chilling films in both the Saw and Police Academy series – though I’d recommend burning those rather than giving them away.

 “Who you gonna call?”

Don’t go screaming into the abyss – Blackadders’ Private Client Team are available to help with all your worldly (and other-wordly) concerns.  We are also available to travel to see clients at home if they cannot make it into our office.

Stewart Dunbar
Associate Solicitor – Tax, Trust & Care
@LawyerStewartD
www.blackadders.co.uk