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Purchasing a property is many peoples main lifetime goal, and often takes a lot of hard work, time and dedication to achieve. Not to mention the ever increasing costs of property in the UK. It is no surprise then that fraudsters will try to target those who are so close to completing the purchase of a property and strike at the absolute worst moment, leaving the would-be homeowners in a desperate situation, financially and emotionally.

 

This blog will focus on how this kind of property fraud often occurs and some new guidance which can help people avoid falling victim to it.

 

What is Property Title Fraud?

 

Property title fraud is quite rare in the grand scheme of things, but when it does occur it can do substantial damage and can lead to people losing their homes.

 

The main bulk of the scam involves a fraudster changing the registered details of a building so that they can pose as the buildings rightful owner. Once this has been done, the fraudster can apply for a mortgage or sell the property to a buyer and then vanish with the proceeds.

 

Essentially, they temporarily steal their victim’s identity, or that of someone else involved in a property purchase such as a conveyancer, in order to gain personal reward.

 

The year of 2020/21 garnered 22 claims of property title fraud. This may not sound like too much, but these claims led to a massive £3.5m worth of compensation of pay outs.

 

People who own houses that are left empty for long periods are particularly vulnerable to property title fraud, as well as properties which have a high value, are not mortgaged, or whose owners have recently passed away.

 

What does the new guidance suggest?

 

There are ways to fortify yourself and your property from the fraudsters who mean to take advantage of you. Some of which may be simpler than you think, and will definitely be worth doing. The below advice is from the Fraud Advisory Panel, HM Land Registry and the Law Society of England and Wales.

 

Firstly, it is important to remember that all homeowners are at risk of such fraud, but some are more at risk than others. For example, higher risk cases include:

 

Property owners who are:

 

  • Absent (eg, extended holiday, living abroad, in a care home or hospital)
  • Landlords
  • Deceased
  • Long-standing
  • Sole

 

Properties which are:

 

  • Not registered with HM Land Registry
  • Not mortgaged
  • Rented out
  • High value
  • Empty

 

 

Tips to make yourself safer!

 

Register you property with the HM Land Registry:

 

This is a very simple but effective step that can make life a lot easier for homeowners. Being registered with the HM Land Registry creates an official record that can be checked by anyone who needs to confirm your ownership and gives extra legal protections. If you do suffer a loss from this kind of fraud you might be entitled to compensation from HM Land Registry (depending on the circumstances).

 

If you are not registered it is much easier for a fraudster to forge some paper deeds and use them to register your property in their name, leaving you exposed to serious trouble.

 

Keep your registered details up to date:

 

Let the HM Land Registry know of any name changes of address changes that occur. They may need to send you official letters or notices which can act as an early sign of fraud. It is straightforward and quick to update your details, so make any changes as soon as possible.

 

Monitor your register entries:

 

All this requires is a simply signing up to HM Land Registry’s free property alert service. If someone tries to change the register for your property, potentially indicating fraudulent activity, you will be notified immediately. This is an extremely handy service and will give you some peace of mind.

 

This service can be used to monitor up to 10 properties, allowing you to take swift and effective action on any unwanted activity.

 

Restrict your property title:

 

If you or your property are at particular risk of fraudulent transfers, for example you fall into one of the categories above, it is worth considering applying for a ‘restriction’ to be placed on your title. It can come with a small fee but it is worth it.

 

What this means is that in the event of an attempted sale, a title restriction requires the conveyancer to formally certify that it really is the legitimate owner who is making the sale. It is another strong barrier against fraudsters, and can massively disrupt their plans.

 

Our thoughts

 

The guidance on offer here is sound, and many of the tips are very easy to put into practice. The phrase ‘better safe than sorry’ springs to mind, and what may take up half an hour of your day to get organised may just save you months of stress if you are targeted by fraudsters.

 

Fraud of all types is rife at the moment. If you are sent an email that you find suspicious, or are offered a deal on something that sounds too good to be true, always seek another opinion before clicking a link or agreeing to any kind of transaction. If it turns out that what you were offered was real, then a small delay will not matter. However, if you rush into something which is phoney, it can seriously upset your life. Be careful, and as always we are always here to help!

 

Have questions? Get in touch today!

 

Call us on 020 7928 0276, phone calls are operating as usual and will be taking calls from 9:30am to 6:00pm.

 

Email us on [email protected].

 

Use the Ask Lisa function on our website. Simply enter your details and leave a message, we will get right back to you: https://lisaslaw.co.uk/ask-question/

 

Or, download our free app! You can launch an enquiry, scan over documents, check progress on your case and much more!

 

Links to download below:

 

iPhone: https://apps.apple.com/us/app/lisas-law/id1503174541?ls=1

 

Android: https://play.google.com/store/apps/details?id=com.lisaslaw 

 

 

 

 

 

 

author avatar
James Cook

We are over the moon to welcome Minnie Tse into our ranks, who has filled the role of Office Administrator! During her first week she has already exhibited excellent traits that are suited perfectly to the role, including being hard-working, focussed and with a fantastic attention to detail.

 

Minnie studied Sociology and Education in Hong Kong. Before coming to UK, she worked in the education sector for several years. She loves helping others, especially young people who have special educational needs, whom she worked with very closely in her previous role.

 

In her spare time, Minnie loves watching Korean drama and travelling.

 

Minnie is a native Cantonese speaker and is fluent in English and Mandarin. Her dream is to speak Korean and French fluently one day as well!

 

Have questions? Get in touch today!

 

Call us on 020 7928 0276, phone calls are operating as usual and will be taking calls from 9:30am to 6:00pm.

 

Email us on [email protected].

 

Use the Ask Lisa function on our website. Simply enter your details and leave a message, we will get right back to you: https://lisaslaw.co.uk/ask-question/ 

 

Or, download our free app! You can launch an enquiry, scan over documents, check progress on your case and much more!

 

Links to download below:

 

iPhone: https://apps.apple.com/us/app/lisas-law/id1503174541?ls=1

 

Android: https://play.google.com/store/apps/details?id=com.lisaslaw 

 

author avatar
James Cook

Losing a loved one is undeniably difficult and can lead to serious emotional anguish, depressive thoughts and in some cases trouble dealing with everyday life. It can often be the lowest point in someone’s life, and wherever possible those around them should offer support and comfort to help them get back on track.

 

When it comes to bereavement and work, there is a lot of grey area. Of course, many employers will be fully supportive of their employees and behave with understanding and empathy. However, it may surprise you that the law itself does not actually require them to do so. This is something that a handful of MPs have deemed unjust, and could persuade the government to change.

 

This blog will focus on the recent campaign to alter the UK’s bereavement rules for employees, and what the law currently says on this issue.

 

Bereavement Pay and Leave Bill wins second reading in March 2022

 

Patricia Gibson, member of the SNP party, has been working hard on a new bill that could see those who have lost a loved one be entitled to leave and payment from their employers over their grieving period. In her opinion, to simply rely on employers to be empathetic and give such treatment to their employees is naïve and does not match up to some people’s real life experience.

 

Gibson has already made a difference in this area, as her and some of her colleagues fought and won to give parents who lose a child up to the age of 18 full legal entitlement to leave and pay in the aftermath of such a tragedy. She now wants this same courtesy to be extended to situations where other family members and loved ones have died, such as partners, parents and other close relatives.

 

She is a firm believer that, if this bill is successful, it will lead to a healthier society, with a greater focus on the mental health of those who are part of it.

 

What is the current law for workers experiencing bereavement?

 

As we mentioned earlier in the article, in most instances there is no real legal backing for people experiencing bereavement who require time off. It comes down to the good-will of the employer. Patricia Gibson has, however, made it so parents are legally entitled to time off if their child dies.

 

If an employee’s child dies

 

Employees have a right to 2 weeks off if their child dies under the age of 18 or is stillborn after 24 weeks of pregnancy. This is known as ‘parental bereavement leave’.

 

In some cases employees and workers might also be eligible for ‘parental bereavement pay’.

 

Anyone classed as an employee also has the right to unpaid time off if their child (a ‘dependant’) dies under the age of 18.

 

If a child is stillborn after 24 weeks of pregnancy, the:

 

  • birth parent can get up to 52 weeks of statutory maternity leave or pay

 

  • father or partner can get up to 2 weeks paternity leave or pay

 

Both are entitled to 2 weeks parental bereavement leave after they finish their maternity or paternity leave.

 

Where an employee’s dependant dies

 

This is where things get a bit more confusing. An employee has the right to time off if a dependant dies, including:

 

  • their partner

 

  • their parent

 

  • their child (if under 18)

 

  • someone else who relied on them

 

However, no legal right for time off for dependants to be paid, but some employers might offer pay. There is also no guidance on how long this time off can last, only that it should be reasonable. This is obviously subjective and can differ from one person to the next.

 

In all circumstances there is no legal right for any of this time off to be paid. This is seen as a major issue by Patricia Gibson, as it may lead to people being left in a difficult financial position as well as an emotionally distressing one.

 

Time off for a funeral

 

An employee is entitled to time off for a funeral if the person who died was a dependant. For example, their partner or parent. Although, there is no legal right to time off for a funeral if the person who died was not a dependant, for example a friend.

 

The employee and employer may agree on using holiday leave or unpaid leave, but again this is not a legal requirement and may lead to uncomfortable situations if the employer does not behave in an empathetic manner.

 

 

Our thoughts

 

As a business ourselves, we understand the importance of looking after staff and doing everything we can to support them, especially if they are facing hardships. Therefore, we agree that clearer and more generous guidance is needed on this issue. Employers should not be able to simply outright refuse paid leave where their workers have lost someone close to them.

 

Clarity on this issue is the most important thing, as it will allow people understand their situation, while also giving them time to try and grieve without the added pressure that working can bring.

 

We look forward to seeing how the second reading of the Bereavement Pay and Leave Bill goes, and we will keep you right up to date with it on our blog.

 

Have questions? Get in touch today!

 

Call us on 020 7928 0276, phone calls are operating as usual and will be taking calls from 9:30am to 6:00pm.

 

Email us on [email protected].

 

Use the Ask Lisa function on our website. Simply enter your details and leave a message, we will get right back to you: https://lisaslaw.co.uk/ask-question/ 

 

Or, download our free app! You can launch an enquiry, scan over documents, check progress on your case and much more!

 

Links to download below:

 

iPhone: https://apps.apple.com/us/app/lisas-law/id1503174541?ls=1

 

Android: https://play.google.com/store/apps/details?id=com.lisaslaw 

 

 

 

 

 

 

 

author avatar
James Cook

When it comes to family proceedings, the default position is that each party covers their own legal costs. If there is some unreasonable conduct by one of the parties, or circumstances that are deemed relevant enough to warrant some kind of financial support or guarantee, then the courts may take this into consideration and orders can potentially be made. Costs made against parties are not that frequent, and it is more exceptional to order securities for costs. The case we will look at today illustrates a particular set of circumstances where the Court will do just this.

 

Firstly, what does ‘security for costs’ mean?

 

When we say ‘security for costs’ we are referring to an order which requires a party (usually the claimant) to pay money into court, or to act as a guarantor as security for their opponents legal fees. Whether or not such an order is made is up to the courts.

 

The main reason for these orders is to limit risking the awarded party from winning at trial, but then not being able to enforce a costs order against the rival party, either within the jurisdiction or abroad. In some instances, the claim may be discontinued until the security is provided.

 

Let’s look at a case: MG v AR

 

The case in question concerned an eight-year-old child of a Lebanese-Canadian mother and a father who has dual Saudi-British nationality, who had been subject to a Central Family Court order providing for her to remain in her mother’s primary care, with weekly contact with her father.

 

In April 2018 the mother took the child to Dubai, on what she claims was planned as a two week holiday. The father, on the other hand, claims that the trip was in order for the mother and child to relocate there permanently.

 

The mother and child ended up staying in Dubai until May 2019, claiming that the father had seized their passports (evidence to support this claim remains unfounded). After this period, they moved onto Canada where they lived for the past couple of years.

 

The father was successful in an application for the child’s return to Dubai, however this was set aside in April 2020 by the Court of Appeal of Ontario. Essentially, the father’s return application could only go ahead on the condition that he promptly commence a similar proceeding in the Central Family Court, where he could apply through the Ontario court to lift the stay and seek a rehearing of his original application should the English court decline jurisdiction.

 

In legal terms, the father could only succeed if he successfully invoked the parens patriae jurisdiction based on the child’s British citizenship. At the pre-trial review the mother applied for an order for security for costs against the father, amounting to £127,000 as a result of costs and financial orders made in previous proceedings.

 

 

What must the court consider?

 

There are a number of issues the court will look at when deciding to move on an application for security of costs or not. Some of which we will list below:

 

  • The likelihood of a successful claim – if there is clearly no road to success for the person applying, the court is highly unlikely to order security as the defendant is unlikely to achieve a costs order in its favour.

 

  • If the court determines that the defendant has a good chance of obtaining a costs order, it must then be satisfied by evidence that there is a real risk that they will not be in a position to enforce that costs order.

 

  • The conduct of the relevant party throughout prior proceedings.

 

  • The court may reflect future litigation uncertainties, as well as potential reductions on a detailed assessment, in a percentage discount from the sum claimed.

 

  • The court must be sure that whatever choice they make is ultimately just.

 

 

What did the courts decide in this case?

 

With regard to the above points, the courts concluded that the father did not have a meritorious substantive case and that in fact the mother had a good chance of obtaining a costs order. It was found that the father did have the means to pay such costs and that the mother would face significant difficulties enforcing any costs order.

 

Due to these circumstances, the courts made an order for security for costs against the father in the mother’s favour of £50,000. This was to be paid as a single lump sum.

 

What do we think?

 

Legal proceedings can often be stressful enough, and in certain circumstances can lead to financial difficulties. These court orders for financial security can make a big difference to people, and should be used, but only when the specific situation arises that deems them just. It would be unfair for people to be on the correct side of the law, win their case, but still be unable to rely on not coming out of the situation financially unstable through no fault of their own.

 

 

Have questions? Get in touch today!

 

Call us on 020 7928 0276, phone calls are operating as usual and will be taking calls from 9:30am to 6:00pm.

 

Email us on [email protected].

 

Use the Ask Lisa function on our website. Simply enter your details and leave a message, we will get right back to you: https://lisaslaw.co.uk/ask-question/

 

Or, download our free app! You can launch an enquiry, scan over documents, check progress on your case and much more!

 

Links to download below:

 

iPhone: https://apps.apple.com/us/app/lisas-law/id1503174541?ls=1

 

Android: https://play.google.com/store/apps/details?id=com.lisaslaw 

 

author avatar
James Cook

We are absolutely delighted to welcome Katherine Sun who joins us as a Legal Assistant. She has already shown herself to be extremely hardworking and friendly, fitting in to the team excellently.

 

After working in one of the leading entertainment companies in Beijing, Sohu, Inc, as a legal advisor for 4 years, Katherine came to London and has since completed two master’s degrees, majoring in Marketing and Management of Intellectual property. She is looking forward to enhancing her legal skills here with us at Lisa’s Law.

 

In her spare time Katherine enjoys going to the gym, listening to music and watching Netflix. She also enjoys socialising with friends, and is a huge Harry Potter fan. We are sure that she will bring some magic of her own to our firm!

 

Katherine speaks fluent Mandarin and English.

 

Have questions? Get in touch today!

 

Call us on 020 7928 0276, phone calls are operating as usual and will be taking calls from 9:30am to 6:00pm.

 

Email us on [email protected].

 

Use the Ask Lisa function on our website. Simply enter your details and leave a message, we will get right back to you: https://lisaslaw.co.uk/ask-question/

 

Or, download our free app! You can launch an enquiry, scan over documents, check progress on your case and much more!

 

Links to download below:

 

iPhone: https://apps.apple.com/us/app/lisas-law/id1503174541?ls=1

 

Android: https://play.google.com/store/apps/details?id=com.lisaslaw 

 

author avatar
James Cook

Everyone likes to be rewarded for the work they do, and it is a well-known fact that employees who feel valued by their employers tend to be more productive and achieve a more harmonious work/life balance.

 

However, in some circumstances there can be friction in the work place. One such issue that has arisen in the case we will look at today is a debate over ownership rights of a particular software. Does the fact that the material was written by a single person matter when that person is under the employment of a wider firm? We will examine this the legal components of this matter and offer some potential tips that can be followed in order to avoid such confusion in the future.

 

Let’s look at the case: Penhallurick v MD5 Ltd

 

This case revolves around work completed by Mr Penhallurick, specifically a collection of literary pieces consisting of computer software. This work was done while Mr Penhallurick was employed by the company MD5 Ltd.

 

The trouble begins due to Mr Penhallurick’s claiming that the final product is his alone, as the sole creator. He also held the opinion that he had completed early versions of the product before he worked for MD5 Ltd, which was essential to its final form. MD5 Ltd contended that all of the software was created in the course of Mr Penhallurick’s employment, therefore the copyright was owned by them.

 

The issue of payment added an interesting dynamic to the case, whereby Mr Penhallurick claimed that he had simply licensed the copyright of the software to MD5 Ltd in return for the payment of royalties. This was disputed by MD5 Ltd, who claimed that any extra payments that Mr Penhallurick had earned were in the form of bonuses rather that a precursor to any royalties agreement.

 

 

What did the courts decide?

 

The court found that even though much of the work had been completed on Mr Penhalluricks’s personal computer, and at his own home, it was still done in the course of his employment at MD5 Ltd. The nature of the work he was doing at home was cohesive with that which he was paid to do by MD5 Ltd. This included the source code for the product, which was considered the most vital part of the material. It was found that despite choosing to work from home, the work itself was indistinguishable from his duties at MD5 Ltd.

 

An interesting observation from a legal point of view comes in the form of Mr Penhallurick’s perceived confusion over legal drafting surrounding his duties, in other words, his employment contract. He argued that it was not made clear that such work completed in his own time would still be considered MD5 Ltds property. However, the judge ruled that any disputes over contracts which did not go in his favour, especially having been agreed to before seeking any legal advice, did not carry much weight in circumstances such as these, especially when the evidence indicated that all of the most important aspects of the disputed product were created after Mr Penhallurick began working for MD5 Ltd, and the task of doing so was central to his regular duties.

 

Our thoughts

 

This case illustrates perfectly the importance of knowing your legal standing in any given situation, and more specifically in terms of your employment. While some may sympathise with Mr Penhallurick, we must look at this case purely from a legal point of view. Parties must be sure to seek legal advice on any contract that is put before them before they agree to it, especially if they feel vague on any of the points raised in such contract.

 

For example, if there was a clause in Mr Penhallurick’s contract regarding work completed at home being separate from that which he completes in the office or other locations, the court may have been more willing to take his side of the argument, or at least give him some more credit. If Mr Penhallurick knew he was going to work a lot from home with the intention of taking ownership of the outcome of that work, then this hypothetical clause should have been at the front of his mind.

 

While there may be room for debate in terms of an ethical or moral way to view the outcome of this case, on the evidence given here, we must agree with the decision that MD5 Ltd is entitled, legally, to the ownership of this software.

 

Have questions? Get in touch today!

 

Call us on 020 7928 0276, phone calls are operating as usual and will be taking calls from 9:30am to 6:00pm.

 

Email us on [email protected].

 

Use the Ask Lisa function on our website. Simply enter your details and leave a message, we will get right back to you: https://lisaslaw.co.uk/ask-question/

 

Or, download our free app! You can launch an enquiry, scan over documents, check progress on your case and much more!

 

Links to download below:

 

iPhone: https://apps.apple.com/us/app/lisas-law/id1503174541?ls=1

 

Android: https://play.google.com/store/apps/details?id=com.lisaslaw 

 

author avatar
James Cook

The love and responsibility that parents feel for their children can be one of the most powerful things in the world. Often, parents will make life decisions based around what is best for their children, even when it means a harder life for themselves. However, there are times when parents can make the wrong decisions even if they believe they are acting in a way that benefits their children. This can be especially prevalent when the parents are having trouble in their relationship and the child ends up being caught in the middle of the feud.

 

Today’s blog examines a recent case in which a mother acted to keep her child all to herself against the father’s will, but her actions ultimately reduced the time she could spend with her child.

 

The case in question: A (a child) (supervised contact) (s 91(14) Children Act 1989 orders)

 

At the centre of this case is a seven year old child whom we will refer to as A. A’s mother, it was found, had been deliberately isolating A from the father. This meant putting distance between them, moving far away from the father and not allowing any contact. This was done in a covert fashion so that the father did not know exactly where the child and the mother were.

 

Along with moving away, the mother also sent various emails to A’s school, A’s doctor’s office, the police and social services which slandered the father and brought against him numerous unfounded allegations, many of which were very serious had they been true. Emails were also sent to the father directly.

 

Not only was the mother complaining about the father, but she also raised issues with many of the professionals involved in A’s life, such as social workers and legal officials.

 

Such behaviour was deemed irrational by the first instance family Court, and orders were made for A to live with her father and that any future contact between A and the mother be professionally supervised. Further orders were made to ensure that neither mother nor father could make further applications in the proceedings without permission of the court.

 

The mother appealed on the basis that the supervised visits coupled with the removal of her ability to freely appeal would drastically hinder her chances of progressing to unsupervised contact with A.

 

 

Decisions to be made

 

Within this case there were a few different aspects for the courts to take into considerations. The first was concerned with the mother’s erratic behaviour, which was ultimately decided to be out of her control and to the detriment of A. The court’s only option was to either prohibit all contact between the mother and A or have the contact be supervised. Due to the importance of familial contact, the choice was made in favour of supervised contact as opposed to none at all.

 

Secondly, there was the order to limit applications made from either parent. Often, such an order is put in place where parties make excessive applications to courts regarding a certain matter, often with no solid grounding in reality. In this case the harassment experienced by the father, along with complaints made to police and social services by the mother amounted to enough reason to make such an order. If such applications continue to be shrouded in unfounded allegations and devious complaints, then it was decided to be in the best interest of A that a limit be put on them.

 

Behaviour backfires

 

It is clear to use here that the mother’s behaviour played a huge role in the outcome of this case, and that had she acted in a more reasonable way, perhaps co-operating with the father more, then she may not have had her time spent with A restricted and supervised in this way.

 

We would say that before making any kind of rash decision in relation to your child, it is always best to seek legal advice to make sure that what you plan to do will not actually have adverse consequences for you or your child. Extreme behaviour such as what we see in this case is seldom a good idea.

 

 

Have questions? Get in touch today!

 

Call us on 020 7928 0276, phone calls are operating as usual and will be taking calls from 9:30am to 6:00pm.

 

Email us on [email protected].

 

Use the Ask Lisa function on our website. Simply enter your details and leave a message, we will get right back to you: https://lisaslaw.co.uk/ask-question/ 

 

Or, download our free app! You can launch an enquiry, scan over documents, check progress on your case and much more!

 

Links to download below:

 

iPhone: https://apps.apple.com/us/app/lisas-law/id1503174541?ls=1

 

Android: https://play.google.com/store/apps/details?id=com.lisaslaw 

 

 

author avatar
James Cook

We are thrilled to announce Xinru Jia has joined us as a Legal Assistant, and has already shown herself to be a fantastic addition to our firm!

 

Xinru achieved her bachelor’s degree in law in 2020 from Zhongnan University of Economics and Law, she then graduated from UCL in 2021 with master’s degree in law.

 

While at university, she took up internships in both law firms and courts, which allowed her to gain practical experience. She also earned the China Legal Professional Qualification Certificate in 2019.

 

In addition to law, Xinru also studied psychology during university as her minor. When she is free, Xinru enjoys swimming and playing the piano. She also learning the flute.

 

Xinru speaks fluent Chinese and English.

 

Have questions? Get in touch today!

 

Call us on 020 7928 0276, phone calls are operating as usual and will be taking calls from 9:30am to 6:00pm.

 

Email us on [email protected].

 

Use the Ask Lisa function on our website. Simply enter your details and leave a message, we will get right back to you: https://lisaslaw.co.uk/ask-question/ 

 

Or, download our free app! You can launch an enquiry, scan over documents, check progress on your case and much more!

 

Links to download below:

 

iPhone: https://apps.apple.com/us/app/lisas-law/id1503174541?ls=1

 

Android: https://play.google.com/store/apps/details?id=com.lisaslaw 

 

author avatar
James Cook

We are so pleased to welcome Xijia Xie into our firm, joining us as a Legal Assistant. He has proven himself to be dedicated and knowledgeable, a real asset to our team!

 

Xijia is a qualified public service interpreter (DPSI English Law Pathway, Mandarin/English). He completed his MA in Law while studying at the University of Law in 2021 and did his first master’s degree in Translation and Interpretation at Newcastle University in 2020.

 

Before coming to the UK, he worked at Air New Zealand (Shanghai Base) from 2014 to 2019.

 

Xijia speaks English, Mandarin and Japanese.

 

Pleased to have you on board, Xijia!

author avatar
James Cook

Written by Xinlei Zhang.

 

The recent case of Sismey v Salandron [2021] 10 WLUK 372 illustrates the importance of having a clear break following a divorce settlement. It concerns a divorce settlement which was not effective during the parties’ lifetime, but only came into force by way of a will on one party’s death. What happened to such settlement when the relevant party died and his will which was supposed to implement the settlement had it been invalidated? Would such settlement still be able to be saved by the Court? Let’s look at this case.

 

Facts

 

The Husband purchased a property in his sole name, later married to the Wife in 1988. The Property was used as their matrimonial home during the marriage. There was a child, T, between the Husband and the Wife. The Husband formed a relationship with M in 2002, which led to the separation between the Husband and the Wife. In 2017, a Consent Order was approved by the Judge regarding their financial division, in which the Husband agreed to leave the matrimonial home (“the Property” hereinafter)e left  to T on his death by way of will. Other agreed terms were the Wife would take the savings and a joint investment property; and the husband would retain his pension.

 

In 2019, the Husband remarried to M. He subsequently died on 8 January 2020.

 

Although the Husband did execute a will which reflected the divorce settlement between the couple in 2017, it was automatically revoked by his subsequent re-marriage to M, which means that the gift of the Property to T contained in the will was no longer valid. In the meantime, as the Husband did not execute another will before his death. He died intestate. As his spouse, M inherited the Husband’s estate, including the Property.

 

This was clearly out of T’s expectation (and the Wife).  He made a claim against the Husband’s estate for the Property  on the ground that there was a breach of the agreed divorce settlement. M counter claimed and argued that the divorce settlement was entered with the intention of defeating her future claim. Therefore, it is unenforceable. She also submitted that the Wife received greater value of assets than she would have achieved if they had been in divorce financial proceedings.

 

What did the Court decide?

 

The Court upheld the divorce settlement and dismissed M’s counter claim. . It was the Court’s view that the divorce agreement reflected the Party’s genuine intention. After the issuing of the consent order, the Property was simply held on trust for T by the Husband, which should not form part of this estate any longer and hence be passed to M on his death.

 

Comments

 

Although T eventually claimed back the Property,  the costs of the proceedings and the delay therefrom cannot be ignored. If the legal title had been transferred to T with the Husband being a lifetime tenant or a lifetime trust regarding the Property had been set up in favour of T at the time of divorce, the subsequent litigation could have been avoided completely. This case demonstrates once again that it is advisable to obtain a clean break upon one’s divorce, because no one can foresee what might happen in the future, intended or not.

 

 

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author avatar
James Cook

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