Rozwód bez orzekania o winie
Przejście z wzajemnego obwiniania się do bardziej nowoczesnego rozwiązania.
Obecne prawo rozwodowe jest od dłuższego czasu uznawane przez profesjonalistów za archaiczne i problematyczne. Uważają oni, że obowiązujące reguły doprowadziły do dodatkowych problemów pomiędzy małżonkami, gdyż obwiniają się oni wzajemnie, co oznacza, że w niektórych przypadkach rozwód staje się zagmatwany i nieprzyjemny. Był to główny powód zatwierdzenia Ustawy o Rozwodzie, Rozwiązaniu Małżeństwa i Separacji z 2020r. Celem tej Ustawy jest unowocześnienie sposobu w jaki przeprowadza się rozwody i przywiązanie większej wagi do takich kwestii jak mienie czy dzieci, a nie separacji indywidualnych osób.
Obecnie obowiązujące prawo rozwodowe
Aby uzyskać rozwód na terenie Anglii i Walii należy przekonać Sąd, że nastąpił całkowity rozpad związku małżeńskiego. Jednak znacznie łatwiej udowodnić to, jeżeli małżonkowie mieszkali osobno przez ostatnie dwa lata.
Co jest brane pod uwagę przez Sąd przy rozwodzie?
Składając wniosek o rozwód, należy pamiętać, że istnieje pięć prawnych powodów do rozpadu małżeństwa:
- Zdrada małżeńska
- Nierozsądne zachowanie współmałżonka
- Opuszczenie przez współmałżonka
- Mieszkanie osobno przez przynajmniej 2 lata, przy czym obydwie strony muszą wyrazić zgodę na rozwód
- Mieszkanie osobno przez co najmniej 5 lat, przy czym druga strona nie musi wyrazić zgody na rozwód.
Jak od tej pory zmieniły się zasady?
Nowe prawo wchodzi w życie 6 kwietnia 2022r i ma na celu ułatwienie procesu rozwodowego dla par pragnących się rozwieźć.
Powód rozwodu – jedną z największych zmian jest usunięcie potrzeby obwiniania drugiej strony za „całkowity rozpad związku małżeńskiego”. Innymi słowy, rozwód może zostać orzeczony w związku z rozpadem małżeństwa, którego nie da się uratować, gdyż nie ma już potrzeby opierania się na jednym z pięciu powodów.
Minimalny 20-tygodniowy okres przejściowy – Od złożenia wniosku do wydania warunkowego orzeczenia rozwodowego będzie musiało upłynąć co najmniej 20 tygodni. Da to stronom czas na przemyślenie ich decyzji oraz na sprawdzenie czy mogą dojść do porozumienia.
Wspólny wniosek rozwodowy – strony będą teraz mogły złożyć wniosek o rozwód wspólnie, co powinno zminimalizować konflikt między nimi.
Jasna terminologia – nowa Ustawa została unowocześniona i zostało z niej usunięte archaiczne słownictwo, na przykład osoba, która stara się o rozwód będzie określana mianem „applicant” (wnioskodawca), a nie jak poprzednio „petitioner” (powód/ powódka)
Brak możliwości oponowania rozwodu
Zgodnie z nowym prawem, jeżeli jedna strona stara się o rozwód, druga strona nie może się na niego nie zgodzić.
Dlaczego doszło do zmiany w prawie?
Największym problemem w obecnie obowiązującym prawie jest to, że za rozpad małżeństwa obwiniana jest jedna ze stron. Doprowadziło to do ogromnych problemów między parami oraz oznaczało opóźnienia. Również, w sytuacji, kiedy jedna ze stron nie chce pozostać już w związku małżeńskim, a druga nie chce tego zaakceptować, wpływa to na długość postępowania rozwodowego. Usuwając konieczność obwiniania drugiej strony, oraz podważania powodów do rozwodu, nowe prawo umożliwi skrócenie czasu potrzebnego do uzyskania rozwodu, a cały proces rozwodowy będzie mniej stresujący dla stron.
Jaki będzie teraz koszt rozwodu?
W MLS zdajemy sobie sprawę, że rozwód jest trudny, emocjonalnie i finansowo. Dlatego zawsze staramy się oferować ustaloną sumę oraz darmową konsultację wstępną, aby sprawdzić czy jest to możliwe w Państwa konkretnych okolicznościach.
Informacje na temat przejrzystości naszych opłat znajdują się pod tym linkiem.
Artykuł ten zawiera jedynie informacje i nie stanowi porady prawnej. Aby umówić się na darmową konsultację, prosimy o telefon pod numer 01244 478 730 lub maila na adres email@example.comRead More
If you’re self-isolating due to the coronavirus lockdown, you may be wondering how to get your will witnessed and signed. Here are a few steps you can take to keep yourself and your loved ones protected.
Why your will needs to be witnessed
Your will isn’t legally-binding unless it has been signed with wet ink alongside two witnesses. Until that point, it’s simply a list of your wishes. This means that, if you were to die without getting your will signed and witnessed, you would effectively be dying without a will – otherwise known as dying intestate.
In these circumstances, the wishes in your will would be regarded as invalid, so your estate would have to be divided up following the rules of intestacy. These are a set of generic laws in England and Wales that define who inherits your estate based on their relationship with you.
How to get your will witnessed when you’re self-isolating
Over the last few weeks, millions of people have been self-isolating to minimise the chances of catching the coronavirus – many of whom have pre-existing health conditions that put them at higher risk.
This has caused a lot of people in self-isolation to write their will using our online service. However, an essential part of making a will legally binding is signing it alongside two witnesses. According to the law in England and Wales, a will must be signed with wet ink, so there’s no way for this process to be done digitally.
If you are self-isolating but need people to witness and sign your will, it’s incredibly important that you don’t put it off.
To get around this, you could arrange for both of your witnesses to watch through a closed window as you sign your will – it’s important that they’re present at the same time for this.
- Please sign the will where indicated. You must also write their initials on each page in the right bottom corner. Please do not initial the very last page as it will be signed in any event.
- After ensuring that your witnesses have recently sanitised their hands, you can pass your will through your letterbox. You’ll then need to return to the window to watch them both add their details and signatures to your will – ideally, they should use their own pens for this. The two witnesses must sign where indicated, print their name and state their address and occupation. They must also write their initials on each page in the right bottom corner. Please ask them not to initial the very last page as it will be signed in any event.
- NO-ONE PRINTS BLOCK CAPITALS (UNLES WHERE INDICATED) BUT WRITES IN NORMAL STANDARD JOINED UP HANDWRITING.
- The final person who is signing then has to date the Will where indicated.
- After sanitising their hands again, they can return the will to you through the letterbox, allowing you to put it away somewhere safe.
Who can witness your will?
Your will can be witnessed and signed by anyone over the age of 18 – they don’t need to be a solicitor or legal professional. However, there are a couple of rules that need to be followed:
- Your witnesses can’t be beneficiaries of your will. This means that, if you’ve chosen to leave your estate to your partner and children, they can’t witness your will.
- Your witnesses can’t be the spouse of one of your beneficiaries. This means that, if you’ve chosen to leave part of your estate to your daughter, your daughter’s husband can’t witness your will.
- Your witnesses can’t be blind as it’s important that they see you sign your will.
How to choose witnesses for your will?
When choosing witnesses for your will, it’s important to think about how far they’ll need to travel in order to witness and sign your will.
If possible, you should choose people who are close to home, or even those in your household. But remember, your witnesses cannot be beneficiaries of your will, married to beneficiaries, or blind.
If you live alone or don’t have anyone in your household who can witness your will, here are some other people you could ask:
- Your neighbours: Neighbours are a great option as they won’t have to travel very far to help. If possible, you should ask neighbours from the same household so they don’t have to worry about distancing themselves from each other.
- Your friends: If you have friends living close by, you could ask them to come and witness your will. Again, you should choose two friends from the same household if possible. If your friends are also self-isolating, you could ask if their children could witness your will – as long as they are over 18.
- Your relatives: If you can’t get any friends or neighbours to witness your will, you could ask some of your relatives instead – as long as they aren’t a beneficiary of your will, or married to beneficiaries. This could be a great choice if you have family members bringing you food, drink or medicine during the coronavirus lockdown.
Should you have any questions please do not hesitate to contact me.Read More
It is never easy to think about what could happen to us and our families should we ever lose our faculties. Yet it is important to consider how much worse the situation would be if you were to suffer a stroke, serious accident or dementia without dealing with it first.
What is Lasting Power of Attorney?
A Lasting Power of Attorney (LPA) is a legal document which allows someone you trust to make decisions on your behalf if you can no longer do so.
“LPAs are recognised by financial institutions, hospitals, care homes, legal sectors and local authorities as well as tax, benefits and pension authorities”.
It is a common misconception that LPAs are only needed by elderly people and while it is correct that more people of advancing years do take out an LPA, an LPA is equally essential for a young person as it is for an elderly one.
This is because anyone could lose mental or physical capacity at any age.
Solicitors often refer to LPAs as a basic insurance for adults. You pay for an LPA once and the document then acts as a safeguard throughout your life (unless you decide to cancel it of course). It gives you and your family reassurance that, should the tragedy strike and you be unable to make your own decisions, there is someone legally authorised by you to act on your behalf with minimum disruption and trouble.
An LPA doesn’t mean a loss of control of your affairs, it simply offers peace of mind to you and your nearest and dearest. You choose whether it can be used either before, or only when, you lose mental capacity.
Types of Lasting Power of Attorney
There are two different forms of Lasting Power of Attorney that can be made. One deals with your property and financial affairs and the other deals with your health and personal welfare issues. You can make one form of Lasting Power of Attorney without making the other. The Office of the Public Guardian will maintain a record of all registered Lasting Powers of Attorney.
When to Make a Lasting Power of Attorney?
You need to have sufficient mental capacity to understand the implications of the LPA at the time it is made. If you lack sufficient mental capacity as result of an accident or an illness, you will not be able to create your own LPA and ultimately the Court will need to make one on your behalf.
You can only set up a Lasting Power of Attorney when you have mental capacity. Once you’ve lost capacity, it’s too late.
Without a Lasting Power of Attorney your spouse or partner will not be able to access your assets or manage your financial affairs and/or welfare needs. Your Joint accounts could also be frozen. Your family would then have to apply to the Court of Protection to become a Deputy. This process can be lengthy, costly and very stressful for those concerned; it is therefore prudent (and considerably cheaper) to make and register an LPA sooner rather than later.
Matters to Consider When Making an LPA
The decisions you make will have significant legal implications as to how your affairs are managed after you become incapable. Your representative should only ever make a choice for you if you’re unable to make that specific decision at the time it needs to be made. For example, if you fall into a coma, your representative would start looking after your affairs. Yet if you wake from the coma, you should be able to make your own decisions again.
You will be required to consider the following points:
- Whom to choose to be your attorney.
- The number of attorneys to appoint.
- How the attorneys are to act.
- Whether replacement attorneys will need to be appointed.
- Whether there are any special instructions you wish to include for your attorneys.
- The indication to others of any preferences or wishes you have in the event that you lose mental capacity.
- If you want your attorneys to be paid.
- Whether you want anyone to be notified about registration of the LPA.
- You will need a Certificate Provider. A Certificate Provider is a person who confirms so far as he/she is aware that you understand the nature and scope of the LPA and was not induced to make it by fraud or undue pressure. Your Certificate Provider must be an independent and impartial third-party. Solicitors are often requested to act as a Certificate Providers due to their impartiality and knowledge of the law concerning LPAs.
- The completed LPA forms will include your full details and those of your attorneys and must be signed by you, your attorneys and your Certificate Provider. Your LPA will not be valid unless it is in the prescribed form and properly executed.
How Much Does a Power of Attorney Cost?
There’s a compulsory cost of £82 to register a Power of Attorney (in England and Wales). If you earn less than £12,000 per year, you can provide evidence to have a reduced fee of £41. In addition, those on certain benefits could be exempt from fees.
In summary it costs £82 each for the property and finance LPA and the health and welfare LPA, so if you get both, the amount payable to the Office of the Public Guardian will be £164.
Above and beyond that, if you decide to use a solicitor, you’ll also have to pay legal fees, though it’s possible to set up a Power of Attorney on your own.
Do You Need a Solicitor to Assist You with Creating LPAs?
The answer is NO. In fact, the Government has made the process of making and registering the LPAs easier than it used to be. Having said that an LPA is a powerful document and so it is extremely important that you understand its legal implications and consider it properly. Subsequently, you may wish to instruct a solicitor to make sure that your LPA will work for you. It is more than advisable to instruct a solicitor should you feel unsure about anything, the family does not get on or there are complex assets, such as businesses or overseas property.
Get in touch today to discuss your lasting power of attorney options.Read More
Our solicitors at My Local Solicitor Ltd are specialists in the provision and execution of Lasting and Enduring Powers of Attorney.
Central to the registration of LPAs is the donor’s capacity.
How does the law define a person’s capacity to make a decision and how should capacity be assessed?
Presuming someone has capacity
- The starting assumption must always be that a person has the capacity to make a decision, unless it can be established that they lack capacity.
Understanding what is meant by capacity and lack of capacity
- A person’s capacity must be assessed specifically in terms of their capacity to make a particular decision at the time it needs to be made.
Treating everyone equally
- A person’s capacity must not be judged simply on the basis of their age, appearance, condition or an aspect of their behaviour.
Supporting the person to make the decision for themselves
- It is important to take all possible steps to try to help people make a decision for themselves.
Anyone assessing someone’s capacity to make a decision for themselves should use the two-stage test of capacity.
- Does the person have an impairment of the mind or brain, or is there some sort of disturbance affecting the way their mind or brain works? (It doesn’t matter whether the impairment or disturbance is temporary or permanent.)
- If so, does that impairment or disturbance mean that the person is unable to make the decision in question at the time it needs to be made?
- Does the person have a general understanding of what decision they need to make and why they need to make it?
- Does the person have a general understanding of the likely consequences of making, or not making, this decision?
- Is the person able to understand, retain, use and weigh up the information relevant to this decision?
- Can the person communicate their decision (by talking, using sign language or any other means)? Would the services of a professional (such as a speech and language therapist) be helpful?• Is there a need for a more thorough assessment (perhaps by involving a doctor or other professional expert)?
- Only qualified solicitors at My Local Solicitor Ltd conduct meetings with prospective donor’s and their family and so you can be assured that the best possible service is being provided to assist at those important moments.Contact us on 01244 478 730 if you have concerns about capacity and what it may mean for you.
- I am too young to have an LPA…
In ideal world everyone over the age of 18 would have an LPA in place. The reason for it is harsh but true: we simply don’t know what’s around the corner.
Although having an LPA is not mandatory, it probably should be.
Let’s think about it for a minute. If you drive a car, you are legally required to hold a valid car insurance policy. This is because accidents can happen to any of us; the 18-year-olds and the 80-years-olds. Agreed? I thought so.
If accidents can happen to any of us and at any given time, then it is logical to conclude that insuring yourself against the unwanted consequences of such accidents makes a lot of sense.
We think of an LPA as an insurance policy (with a sweet added bonus of just one single payment that lasts for a lifetime). LPAs allow you to relax in the knowledge that your affairs will continue to flow smoothly even if (for whatever reason) you are unable to tend to them yourself.
I had a client (Mrs K) who I represented by making an application to the Court of Protection to allow Mrs K to assist her 23 year old son, Luke who suffered life changing injuries in a horrific car accident. All that Mrs K wanted was to be able to access her son’s accounts, pay his bills and claim benefits for him, but she was unable to do so because of the lack of Lasting Powers of Attorney. Luke’s accounts were frozen and she could not get through to any institutions or a banks without the valid LPA. The legal process involved because of the absence of an LPA in this case took almost a year and cost Mrs K a lot in terms of stress and added costs. We obtained the relevant Court Order for Mrs K to assist Luke eventually but she was close to her breaking point by then. The entire painful and lengthy process could have been easily avoided if Luke had an LPA in place. Mrs K could really have done without such immense stress and expense on top of everything else she had to deal with following her son’s accident. She later told me that she wished she knew more about LPAs and that she didn’t understand why there was so little awareness of them. Mrs K told me that she thought LPAs were only for the elderly but I told her as I tell you, they are a basic insurance policy everyone over 18 should consider. She has since “insured” herself and successfully persuaded the rest of her family members to do the same.
If you are in a situation whereby it is too late to obtain an LPA and going through the Court of Protection is a necessity, please give us call. Here at My Local Solicitor Ltd. we will be able to help.
2. My family will take care of me…
This false premise is slightly linked with the one described above. If you are over 18 the “my family will take care of me” statement simply isn’t enough. You need to make your wishes clear in an LPA otherwise your nearest and dearest will not be allowed to make any important decisions about your finances or welfare. Instead, they will have to apply (like Luke’s mum) to the Court of Protection for a relevant order to be made. This is a much more lengthy, complex and expensive procedure.
3. All my money is in joint accounts so I don’t need an LPA for my finances…
Wrong. Without an LPA your joint account could be frozen leaving your spouse/ partner unable to access it. This is because the law is designed to protect vulnerable people from fraud and financial abuse. On balance this is a good thing as it protects those who can’t fend for themselves, but on the other hand it stops many well-meaning and honest people from assisting their loved ones with their most basic financial needs, such as paying their bills.
4. I have been diagnosed with dementia, so its too late…
Not necessarily. Here at My Local Solicitor Ltd. we are experienced in dealing with clients diagnosed with the first stages of dementia. We also run several free drop in clinics when people with dementia could obtain free legal advice on the matter. Please contact us for further details. As long as you fulfil the criteria in relation to the requirement of mental capacity when providing us with your instructions we will be able to assist you in obtaining LPAs.
5. It’s too complicated, I don’t have time for this…
Okay…the forms are rather lengthy and not knowing answers to all your legal questions could make the process of applying for LPAs rather daunting. This is why at My Local Solicitor Ltd. we are committed to making the whole process as smooth as possible for you. One of our fully qualified solicitors will visit you wherever you are, at a time to suit you. The appointment usually takes less than one hour but we can stay as long as you need. We then go away and draft your bespoke applications, provide the relevant certificates, and correspond with the Office of the Public Guardian on your behalf: so you don’t need to. Upon completion of the forms, we forward to you the registered documents for safe keeping. It is that easy. Let us do the hard work so you can relax in the knowledge that your ducks are being put in order.
6. I don’t need a solicitor…
If you are going to pay for someone to prepare your LPAs, make sure he or she is a qualified solicitor. You don’t want to waste your money on a badly drafted LPA which could cause you more problems than it’s worth. Here at My Local Solicitor Ltd. you will only ever deal with experienced solicitors that have your best interest at heart. We are regulated and authorised by the Solicitors Regulation Authority and, of course, fully insured. As solicitors, we are also legally authorised to provide the necessary certificate confirming the Donor’s mental capacity. Many people choose solicitors to act because they do not wish to be “seen” as putting any kind of pressure on a person making the LPA . They welcome an independent and unconnected professional to investigate the matter, provide sound legal advice and prepare the LPAs accordingly.
7. It’s to expensive, I cant afford it…
Bespoke specialist advice that you can trust doesn’t have to be costly. Here at my Local Solicitor Ltd. we are on a mission to provide an altogether better access to properly drafted Wills and LPAs. Please check our fee chart, you will be pleasantly surprised.Read More