The fight continues for heterosexual civil partnerships

A heterosexual couple who have been battling to have a civil partnership instead of a marriage have lost their Court of Appeal case. Although the Court found that there was a potential breach of their human rights, they were prepared to allow the government more time to decide the future of civil partnerships and it was on that technicality that the couple lost the case. The Judges did however comment that the current state of affairs could not continue indefinitely, perhaps offering a ray of hope for heterosexual couples wanting to enter into civil partnerships.

Human rights campaigners and indeed many heterosexual couples believe that the law as it stands is discriminatory and that they should be afforded the same choices as gay couples i.e. to marry or have a civil partnership.

The government has yet to decide whether to extend civil partnerships to heterosexual couples or abolish them for everyone. Statistics from 2015 show that, following the implementation of law allowing gay couples to enter into a marriage, civil partnerships fell by 85% indicating that there could be scope for them to be phased out. Our take on this is that we believe that this is probably more likely than extending civil partnerships to heterosexual couples.

Despite this set back the couple are going to continue the fight and have confirmed that they will take their case to the Supreme Court. Even if they are unsuccessful, it is highly likely that we will see a change in this area of law in the not too distant future.

Paul Lancaster

Paul Lancaster

Paul Lancaster
Partner
Family Law Team
PLancaster@LawBlacks.com
0113 227 9215

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Should ‘social change’ give rise to a 5 year cap on spousal maintenance payments?

Where should post-marriage financial dependency end? In a world with a greater emphasis on independence, is the law holding back on allowing divorced couples the freedom to move on and become less reliant on their former partner?

This issue was raised in a recent Court of Appeal case where a former spouse was Ordered to provide maintenance payments of £1,441 to his ex-wife for life, a decade and a half after they divorced.

In 2002, the ex-wife received a £230,000 lump sum plus £1,100 per month of maintenance payments when she separated from her husband. 15 years on, the Court heard that the initial lump sum had been unwisely invested in a series of upmarket properties and she was now effectively back where she started, without any capital, living in rented accommodation, working two days a week as a beauty therapist. The ex-wife returned to Court to seek more maintenance from her ex-husband, whereas the husband sought an immediate clean break with an end to the maintenance payments.

In the Court of Appeal’s ruling, the Judge explained that in the 2002 order,  Judge Everall had calculated the wife’s “needs” at £1,441 a month, but had gone on to Order that her monthly maintenance should not be increased from £1,100 on the basis that she also received the lump sum. The Court of Appeal Judge went on to say “the judge made an error of principle. The Order should have been that the husband pays maintenance in the sum of £1,441 a month until further order of the Court”. The Court of Appeal acknowledged that although she had invested unwisely and was “a poor business woman” she has not been found wanton in having credit card debts and that she is now unable to meet her basic needs. As such an increase in monthly payments was Ordered.

This has led to calls from Barrister Philip Cayford QC, for the law to limit maintenance and encourage independence after divorce. He called for changes to the law to limit spouses to a maximum of five years for spousal maintenance and contended that in a world of social change, the judges had an opportunity to order some finality on the issue. There are over countries which follow this approach already.

The judgement in this case is a stark reminder that spousal maintenance payments can always be varied either up or down, even in situations where one party has made seemingly poor investment decisions. More calls for a cap on maintenance terms in the future and social change might see an alteration in the law but for now, it remains in its current state. Nevertheless we have certainly seen a trend that in the last few years the Court have increasingly been making more spousal maintenance Orders for a fixed term rather than for life.

Paul Lancaster

Paul Lancaster

Paul Lancaster
Partner
Family Law Team
PLancaster@LawBlacks.com
0113 227 9215

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Shaking up the Eviction Process – the Homelessness Reduction Bill

We have written before about the current problematic relationship between possession claims and a local authority’s duty to rehouse the tenant under threat of eviction. To summarise, local councils have a duty to re-house those considered “involuntarily homeless”, but what constitutes “involuntary” can vary widely from region to region. Some authorities will set the trigger at the initial notice given by a landlord requesting the return of the property. Others require the tenant to wait for court proceedings and a possession order before acting, while more, including some London authorities, will wait for the landlord to actually instruct bailiffs, and only take steps to rehouse the tenant when a threat of physical eviction is on the table.

These latter regimes have obvious drawbacks both for the tenant and the landlord. Even a tenant willing and ready to leave is forced to be uncooperative and cause trouble for the landlord if he or she is in need of local authority accommodation. If the tenant cannot simply leave after a notice is served, the landlord is forced to incur solicitor and court costs to press the point, usually incurring £1-2,000 of irrecoverable costs. The court fee (currently £355 after the last round of increases) does, however, fall to be payable by the tenant, meaning that a CCJ may be registered against the tenant’s name, to remain on the tenant’s credit record for years afterwards. Where a tenant is in financial difficulties and cannot pay rent, the landlord’s losses will of course be much higher, with the timescale of the possession claim and eviction action potentially depriving the landlord of 2-4 months’ additional rent before a new paying tenant can be installed.

However, this situation has been sufficiently marked to make it to parliament, and the Homelessness Reduction Bill is currently making its way through the House of Lords. Unlike some recent legislation, this is a relatively streamlined piece of law reform aimed squarely at standardising the duty of local authorities to re-house, and lessening the financial burden on both landlords and tenants. Amongst other reforms, the Bill specifically identifies that a local authority must recognise the service of a notice of possession under section 21 of the Housing Act 1988 (the usual form of notice bringing a tenancy to an end after the fixed term has expired) that expires within 56 days as a trigger for being eligible for housing assistance. Ideally, this will mean that authorities that otherwise would have left things to the last minute will take steps to rehouse tenants being evicted before court proceedings are necessary.

The potential danger of the reform is that local authorities will simply not be able to keep up with demand now their obligations are being triggered earlier in the process, and it is to be hoped that the Bill will be accompanied by initiatives for more local authority accommodation (and the constant need for lower cost housing in many areas of the country).

Adrian Czajkowski

Adrian Czajkowski

Adrian Czajkowski
Legal Executive
Commercial Dispute Resolution Team
ACzajkowski@LawBlacks.com
0113 227 9296

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Pulling the Rug out from under House-Buyers

The law of property ownership can be a study in contradictions. On the one hand, almost everyone will rent or buy property in some way during their lives. On the other, the law itself often relies on fairly arcane tenets and distinctions going back hundreds of years.

One of the major distinctions the law draws is between freehold and leasehold ownership. To own freehold is to own outright and forever, without obligation to someone with a better title to the land. To own leasehold is to receive a limited degree of ownership from someone else – either the freeholder or an intervening leaseholder. The difference between having a 1,000 year lease of a flat and renting for six months under an assured shorthold tenancy is just one of degree.

Leasehold ownership has traditionally been used either for short term occupation or for longer term residency where owning the specific land is not practical, most commonly with flats. Hence the freeholder might own the land and the building exterior while the leaseholders each own the interior of their own flats. Who owns what – and therefore who is responsible to pay for repairs, for example – can be a contentious legal matter. However, owning a house has traditionally been a matter of owning a freehold title in most parts of the country.

Recently, however, this has begun to change. Some modern housing estates, rather than being parcelled out into freehold plots, have been retained by the developers, with the houses sold on as leaseholds. This is a less attractive prospect for the buyer for a number of reasons. Firstly, all leaseholds attract rent, even if it is a nominal sum (“a peppercorn” in legal parlance). Whilst the annual sum may only be a hundred pounds or so in these leasehold houses, this represents a sizeable long-term source of profit for a developer retaining the freehold to hundreds of such leases. Secondly, a leaseholder has obligations and restrictions imposed by the lease, including limits on building extensions or altering the fabric of the property. Leaseholders do not have the freedom to do what they wish with their properties – their homes are not their castles, but only outposts in someone else’s property empire. If the buyer later treats the property in a way that breaches the terms of the lease, the freeholder would be entitled to take legal action to seek compensation, a reversal of any unauthorised changes to the property or, in the worst case, the termination of the lease.

Britain is undergoing a housing shortage, with consequent high prices meaning that buying a property is out of reach for many trying to get on the property ladder.  That an increasing proportion of new properties are being sold as leaseholds rather than freeholds, and without any real reduction in price, is an unwelcome additional pressure on buyers, who are being asked to pay more, but may be getting less and less.

Picture of Luke Patel

Luke Patel

Luke Patel
Partner
Commercial Dispute Resolution Team
LPatel@LawBlacks.com
0113 227 9316
@LukeLawBlacks

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Heterosexual Civil Partnerships: a missing provision?

In the UK same-sex couples now have the option to enter into either a civil partnership or marriage. This is in contrast to heterosexual couples, who can currently only enter into a marriage. Many people see this as unfair.  For some heterosexual couples a civil partnership would offer a formal, legal tie, but without the constraints of a centuries old tradition and the associated gender and cultural stereotypes of marriage but this is not open to them.

Prior to 2004, same-sex couples were denied many of the housing, social security, succession and other rights commonly enjoyed by their opposite-sex counterparts. Following the Civil Partnership Act 2004, a degree of parity was afforded same-sex couples who could at that time not marry, but could enter into a civil partnership. The purpose of the Act was clear in its resolve to remedy this inequality and not to extend the provision to all. Following the enactment of the Marriage (Same Sex Couples) Act 2013 same-sex couples could then enter into either marriage or civil partnership.

In 2016, Tim Loughton MP proposed the Civil Partnership Act 2004 (Amendment) Bill, arguing that it was a “glaring inequality” that civil partnerships were not available to opposite-sex couples. Tim Loughton was a notable opponent of same-sex marriage, and described people as having “complex motives” for same sex couples wishing to have their relationships recognized by a civil partnership.

During debates on the amendment, The Government cited a 2014 consultation which found 76% of respondents were opposed to extending the scope of civil partnerships to include opposite-sex couples.

In a recent court case, a heterosexual couple has been unsuccessful in challenging their rights to enter into a civil partnership. Ms Steinfeld and Mr Keidan say they are discriminated against as they do not have the same choices as gay couples and that the current law is incompatible with their rights to private and family life. The court ruled that opposite sex couples are not disadvantaged because they can achieve the same recognition of their relationship, and the same rights, benefits and protections by getting married.

The second reading debate on the Civil Partnership Bill was adjourned and will resume on 24 March 2017 for further debate. However, working from the premise that there should be parity between heterosexual and same-sex couples, rather than extending the scope of civil partnerships to include heterosexual couples, another possibility which we feel may be looked at in the future would be to completely abolish civil partnerships altogether, thereby meaning that both heterosexual and same-sex couples can simply marry. Had same-sex couples simply been given the right to marry back in 2004 rather than 2013 it seems to us unlikely that civil partnerships would ever have been introduced at all.

Paul Lancaster

Paul Lancaster

Paul Lancaster
Partner
Family Law Team
PLancaster@LawBlacks.com
0113 227 9215

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Brexit Stage Left

On 24 January 2017 the Supreme Court delivered its eagerly anticipated decision in the case of R (on the application of Miller and another) v Secretary of State for Exiting the European Union [2017] UKSC 5 which is likely to be remembered in legal history as one of the key constitutional cases of this century. But why? What is it about this legal case that marks it out from the others?

It is a cornerstone of the English legal system that decisions made by public bodies can be challenged by those with a sufficient interest in that decision. Legally speaking this is done by way of an application for judicial review in which the Court is asked to review the lawfulness of a decision made by a public body.

This case started out life as an application for judicial review in which Gina Miller and other interested parties asked the Court to review the lawfulness of the Government’s proposal to use something called prerogative powers to commence the process of leaving the EU following the outcome of the EU referendum in June 2016.  Prerogative powers, which historically used to be exercised by the monarch but are now exercised by the Government, ordinarily permit the Government to take action without needing the prior consent of Parliament.

The claimants argued that it is a principle of the UK constitution that Parliament is sovereign. In other words Parliament is the only body that has the authority to make and unmake laws. Therefore because service of a notice under Article 50 of the Treaty of the European Union (which is the notice that needs to be served to start the process of withdrawal) would have the effect of removing rights provided to citizens in the UK as a result of EU law, the service of such a notice requires the approval of Parliament.

The defendant (the Government) argued that when Parliament enacted the European Communities Act 1972 (which made the UK a part of the EU) it must have intended that the Government would retain the ability to use prerogative powers to withdraw from the EU. As a result it was not necessary to pass an Act of Parliament to start the process of withdrawal from the EU.

The High Court, and subsequently, the Supreme Court disagreed with the Government and by a majority of 8 to 3 the Supreme Court ruled that an Act of Parliament was required to authorise the Government to serve a notice under Article 50.

The decision, which has altered the way in which the withdrawal process will be commenced, does not, and cannot, change the outcome of the referendum. That said, the importance of this case is the confirmation provided by the Supreme Court that the only way in which the decision of the referendum can be implemented is one which is compliant with the terms of the UK constitution (which requires the enactment of legislation in this instance).

Following the decision, the Government has announced that it will publish a White Paper outlining its proposals for withdrawal following which a Bill will be placed before Parliament. As a result, there still remains an element of uncertainty surrounding the manner in which the UK will “brexit” from the EU and that may remain the case for some time…

Aimee Hutchinson

Aimee Hutchinson

Aimee Hutchinson
Solicitor
Commercial Dispute Resolution Team
AHutchinson@LawBlacks.com
0113 2279 203
@AimeeLawBlacks

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The use of videos to say goodbye

An increasingly popular online tool is the use of ‘ethical will videos’.  These ‘ethical wills’ are being used by people around the world to pass on life lessons and values and leave important messages in their own words to others upon their death.  ‘Deadsocial’ have created a space where a person can create their own ‘ethical will’ video and they arrange for these to be released to different online accounts upon their death.  The videos allow the deceased person to say goodbye, pass on words of wisdom and allow their family and friends to have a video to remember their loved one by.

For anyone who has seen or read PS I Love You, these videos bear similarities to those letters which kept arriving every month after the husband’s death.  However, it should be noted that these videos will not give you flowers, birthday cakes or holidays to Ireland! A query which has been raised is whether these videos will be used as a similar method to help our loved ones throughout the grieving process or whether they will become a tool for those to hold on to the deceased for as long as possible and inevitably delay the grieving process.  Either way these videos can be used as an acceptance tool in the lead up to someone’s death and also a healing tool for their families.

If you are interested in creating your own ‘ethical wills’ or would like to watch examples, please visit: http://deadsocial.org/legacy-builder/creating-your-ethical-will

However, it is important to note that these ‘ethical wills’ are simply messages and wishes. For any of your wishes to be legally binding, with regards to actual assets, then such details must be included in a valid will.

Annie Beaumont

Annie Beaumont

Annie Beaumont
Paralegal
Private Client Team
ABeaumont@LawBlacks.com
0113 227 9269

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