What implications does Brexit have for separating couples?
Charles Tennant, a partner in the Family team at Coole Bevis Solicitors explains the significance of the deadline for the Brexit transition period, which ends on December 31.
As matters currently stand, EU law states that divorces and associated family issues – such as arrangements for children – filed and finalised in a member state are recognised in other European countries.
However, this will no longer apply to family law proceedings in England and Wales after the end of this year, creating a potentially complex battle if the separating couple ultimately live in different countries.
This change could have substantial implications for financial claims and the arrangements for the care of children including where they will live in the future.
Charles said: “It’s a very important time in family law and it’s crucial that people are aware of these impending changes.”
“If any individual is considering a divorce or proceedings for the arrangements for their children, they should seek legal advice now and ideally issue those proceedings before the end of the year.”
“Failure to do so could lead to unnecessary confusion or delay. For example, if one person involved in the proceedings is living in the UK and the other is in an EU country, it is currently unclear how it will be decided where cases are heard and how a verdict will be recognised in another country.”
“Ideally, individuals should take steps now to eliminate the risk of future uncertainty.”
Until the end of this year, couples commencing divorce proceedings will be able to select which country they are issued in, with a law known as Brussels II ensuring the outcome will be recognised across Europe.
What happens if my ex-partner says the children have to stay with them during the Covid19 restrictions?
Co-parenting during COVID-19
During these uncertain times, we have received an increase in enquiries about children moving between two homes during the restrictions. So far as possible, any existing arrangement should continue to be followed whilst taking into account current Government guidelines. Guidance issued by Sir Andrew MacFarlane, the President of the Family Division in March 2020 allows for a parent to temporarily vary the arrangements set out in a court order in circumstances where following the terms of an Order would be against health advice. The guidance goes on to make it clear that if one parent makes a decision which the other parent does not agree with, this decision can be examined at a future court hearing to check whether it was a sensible and reasonable decision to make in the circumstances of the case. Continuity is in the best interests of the child, therefore if safe and possible, existing arrangements should be followed. If the usual arrangements can’t take place for a period of time, you should consider alternatives such as FaceTime or WhatsApp video calls, Zoom or similar, if video is not possible, contact should be maintained by telephone. Remember, the government guidance states “Where parents do not live in the same household, children under 18 can be moved between their parents’ homes.” So where possible it should be followed, however the decision must be made jointly between the parents and it is therefore important to communicate with one another and agree a solution which is in the best interests of the child. It is advisable to record any change in the arrangements in writing this can be by text or e-mail.
What is Family Law Mediation?
A mediator’s role is to assist opposing sides to discuss, listen and agree a way forward to settle their dispute. Family Law mediators are highly trained specialists who can help you jointly agree the best possible solutions for your family, including the children. Normally the mediator starts by meeting each party individually. You can explain the issues, any specific worries and your desired outcomes. Normally this is followed by joint sessions although, on occasions, we may suggest that the parties are in separate rooms. This is called shuttle mediation. Mediation can be a very effective alternative to Court. In most cases it is less stressful and encourages better communication between the parties. It is often particularly helpful when seeking practical ways to manage the needs of any children. It also costs less than going to Court. Any consequent parenting or financial agreement can be made legally binding with a consent order or child arrangement order. The Courts encourage mediation so if you decide that you do want to file proceedings, you will need to show that you have considered mediation first. Please contact our Family Law team for more information…
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What is a commercial lease?
At its most basic, a commercial lease is a legally binding contract made between a property owner (a landlord) and an occupier (a tenant). The lease gives the tenant the right to use the property for its business or commercial activities for a set period of time. In return for this, the tenant will pay money to the landlord. Importantly, the lease will also outline the rights and responsibilities of both the landlord and the tenant throughout the length of the lease.
Get the details right from the start.
Know what it is you are looking at. Your ideal business premises may be freehold, leasehold, or only available on a short term licence. From the get go you should know: –
- the full extent of the property you want (i.e. is it a whole floor(s), part of a floor, or a whole building);
- what is the property used for (e.g. shop, office, restaurant, etc.);
- who are all the parties involved (i.e. full names & addresses (see below)).
What am I agreeing to?
The property you want isn’t for sale. However, the owner will let it to you. When you take on a leasehold property, the landlord (or its agent) will discuss and agree with you the main terms of the proposed lease. Typically, these heads of terms would include the following: –
- the names and addresses for all of the parties involved (Landlord, Landlord’s Agents, Landlord’s Solicitors, Tenant, Tenant’s Agent, Tenant’s Solicitors, Tenant’s Guarantor(s) (if any), and Management Company (if any));
- a description of the property being let to you, including a plan;
- how long the lease will last (i.e. the Term);
- what the rent will be when the lease starts and whether the rent will be reviewed during the Term;
- whether you are able to end the lease early (i.e. a Break Option);
- whether there is a payment for the lease (i.e. a Premium);
- do you have to pay a rent deposit to the landlord to hold during the Term;
- is the lease protected under the Landlord and Tenant Act 1954;
- is there a service charge, in addition to the rent, and what are the services provided;
- what you must contribute towards the landlord’s insurance;
- what can the property be used for;
- how you can transfer your lease (i.e. Assignment);
- can you let the property yourself (i.e. Underlease);
- to what standard you must repair and maintain the property;
- what alterations to the property can you make;
- will you need to do your own fit out works and whether you have a rent free period to do these in;
- will the landlord be doing any works before the lease starts;
- costs (typically, each party will be responsible for its own legal costs and third party expenses);
- other conditions (e.g. confidentiality agreement and/or exclusivity agreement)
Coole Bevis’s commercial property team will be happy to guide you when you are going through these discussions with the Landlord or its agents. We can also review the heads of terms before being finalised.
As my solicitor, what will you do for me?
When you have finalised the heads of terms, the parties’ solicitors become involved. As the tenant’s solicitors, we would usually carry out the usual due diligence. This includes investigating the landlord’s freehold title, raising enquiries, commissioning property searches and then reporting to you.
The landlord’s solicitor drafts the lease (and rent deposit deed (if any)). As your solicitors, we negotiate and review the draft lease and any other documents. Once in an agreed form, we will report to you in readiness for completion.
We will also tell you if any Stamp Duty Land Tax (‘SDLT’) is payable on the lease and, if necessary, point you in the direction of specialist tax advice before you are committed to your lease.
What is the timescale?
Depending on the property, depending on the number of parties involved, depending on how quickly others deal with their solicitors, depending on a whole host of unknowns, the whole process from heads of terms to getting the keys from the landlord’s agents may take longer than you anticipate. You should therefore allow plenty of time in your business plan for when you can start operating your business.
Do I need other professional advice?
As your solicitors, we do not assess the value nor do we inspect the physical state and condition of your target property. For this you will need a surveyor and you are recommended to have one. If the heads of terms state you must keep the property in full repair, you must have the property surveyed as soon as possible. If you have, as you should, negotiated a limited repairing obligation, then it is eminently sensible to have what is known as a photographic schedule of condition attached to the lease. Importantly, the schedule will be attached to the lease to record the condition of the property as at the start of the lease. Typically, your obligation to repair will be limited so that you are not obliged to return the property to the landlord in any better condition. In both cases, it is your surveyor who prepares these and can give you a guide on the property’s value.
If you are contemplating making any alterations (including your fit out works), you should get all the necessary work detailed and liaise with us and your surveyors as soon as possible. The landlord will want to see these details before completing the lease. If what you want to do is substantial, the lease will require you to get the landlord’s permission before you can start. This is known as a Licence to Alter. Your surveyor will be able to tell you whether the works are feasible before you are committed by the lease of the target property.
We are used to working closely with all members of your professional team.
What happens when I complete my lease and after?
Once all the documents are agreed & signed by every party, and all your queries have been answered by your advisors, you will be able to agree a completion date with the landlord. We will tell you how much you have to pay on completion, including any advance rent (less any agreed rent free period), contribution to the landlord’s insurance, service charge (if any), third party expenses (including SDLT), and our agreed fees as your solicitor.
On the day of completion, you are given the keys and can move in. Following completion, we will pay any SDLT due on your behalf and (if necessary) register the lease at the land registry. Once all the formalities are dealt with, we will send you your copies of all the documents involved for safe keeping.
Every member of Coole Bevis’s specialist commercial property team is very happy to work with you and advise on leases and any other commercial property transactions. You can contact us on 01273 323231 / 01403 21200 / 01903 213511 or firstname.lastname@example.org.