Clare’s Law is to be extended across Scotland

A trial scheme which allows people to be told if their partner has been violent in the past is to be extended across Scotland.

The trial scheme has been running in Aberdeen and Ayrshire for the past six months. In this period 59 applications were made for information with 22 people being warned their partners had a history of domestic abuse. Following on from the success of the trial Nicola Sturgeon announced that the scheme would be rolled out throughout Scotland later this year.

The initiative is called ‘Clare’s Law’ after Clare Wood who was strangled and set on fire by George Appleton, her violent and obsessive former boyfriend, in Salford, Greater Manchester in 2009.    Appleton had a history of violence and harassment against women which Ms Wood did not know about. Her father, Michael Brown, has been campaigning for people to have the right to ask for information about partners. He said “I very much welcome the national roll out of the disclosure scheme across Scotland. It is heartening to see the success of the pilots and to know that the people given these disclosures will now hopefully not be victims of domestic abuse.”

Clare’s Law : How to use it.

Any person can make an application about their partner if they are concerned that that partner may harm them; and any concerned third party (such as a parent, relative, neighbour or friend) can also make an application.

So what do you do?

  1. The first step is quite simply to contact the police. You can do this online, in person at a police station, by phoning 101 or by even speaking to a police officer in the street.
  1. At this initial contact with the police you will need to provide details about yourself and what prompted your enquiry. If when speaking to the police you allege a crime by your partner – for example- that your partner punched you- the police will investigate this as a crime and may arrest your partner. The police will run initial checks to establish if there is an immediate risk.
  1. You will then have a face to face meeting to complete the application. At this stage you will need to provide 2 forms of identification. The police will run more checks and speak to other services such as the Social Work Department and Prison Services. Once the police have gathered all the information available they will do a risk assessment to determine if anyone is likely to be harmed. The maximum amount of time from this step until potential disclosure should be 45 days.
  1. If the police do not think abuse is likely they will not make a disclosure. The information the police and other agencies hold on individuals is private and there has to be a pressing reason to share it.
  1. If the police feel that abuse is likely a multi- agency meeting will be held to consider disclosure and whether any disclosure is ‘lawful, necessary and proportionate’ to protect you from your partner.  If at the meeting a decision is made to disclose information, it will then be decided who should receive the information and a safety plan will be put in place to provide you with help and support. The person to whom the disclosure is made is not allowed to disclose this information to anyone else without the explicit permission of the police.
  1. If you request a disclosure about your partner, it is likely that you would be given any details directly. If a third party has requested a disclosure the police may well go straight to the victim of abuse to make the disclosure. This means the third party might not be told the outcome.

If I can help or you would like further information then please contact me by email pdn@mitchells-roberton.co.uk or by phoning me on 0141-552-3422.

Scottish Property Prices are Predicted to Rise

In a recent survey carried out by the Royal Institution of Chartered Surveyors (Rics) it was predicted that property prices will continue to rise over the next few months.

Supply is still falling behind demand with a decline in the number of houses coming on to the market. Rics Scotland director Sarah Speir said “With supply restrictions continuing to impact the market in Scotland , it is imperative that the Scottish Government and industry look at viable solutions to the lack of housing and increase new-start targets in order to meet needs.”

Meanwhile a report by Bank of Scotland has suggested that Scotland’s largest cities need thousands of new family homes, partly because the number of “downsizers” is dwindling.

The Bank found that only 8% of over 50s had any plans to move to a smaller home which in turn means it is harder for “second-steppers” to move up the property ladder.

Alasdair Gardner the managing director of Bank of Scotland commercial banking said “This study identifies the major pressures facing Scotland’s housing market with demand for new rental and privately owned homes going to increase in the coming years.” He added “All parts of the housing industry-government, local authorities, investors and house builders must work together to ensure we build the homes Scotland needs.”

I specialise in property law and if I can help you with any property transaction please get in touch and I will be delighted to help you. My contact details are 0141 552 3422 or ajg@mitchells-roberton.co.uk

Lost someone close to you? We can help

You don’t need to enlist professional help when someone dies but an experienced solicitor can greatly assist in dealing with the deceased’s affairs promptly, properly and with the minimum of fuss.

Obviously when someone close to you passes away you will be upset and you may find it hard to know what to do. Here are a few points to guide you.

Firstly you will need to ascertain whether there is a Will. You should check through the deceased’s papers or contact their solicitor to see if they hold a Will. If there is a Will then the person named as executor in the Will can give instructions about the estate.  If there is no Will a Petition will often require to be lodged in court to have someone, usually the closest relative, appointed as executor. A solicitor will be able to advise you.

Once you have clarified the position regarding the Will you should arrange to meet with your solicitor. You should take to that meeting  the Death Certificate, the original Will if available, title deeds to the deceased’s property, again if available, together with any paperwork that confirms or gives a clue to what assets and debts the deceased may have had.

Thereafter, in most cases you will need to apply to court for what is called Confirmation. This is necessary if there is heritable property in the estate or if there are bank accounts and investments of around more than £10,000-£15,000 held with a single asset holder. To get Confirmation your solicitor has to prepare a detailed list of everything the deceased owned with values as at date of death. This list of assets is then signed by the executor together with the deceased’s Will (if there is one) and HMRC papers. These documents will then be lodged at Court in order to obtain Confirmation.

If there is no Will then a solicitor can apply to court to have an executor appointed.  This is usually a spouse or child but anyone entitled to the estate can be named. If you need Confirmation and there is no Will then it is necessary to get a Bond of Caution (except if the spouse is inheriting the whole estate) which is a type of insurance policy to protect the estate from any wrong doings by the executor.  You may find it difficult to get a Bond of Caution unless a solicitor is dealing with that for you.

Once Confirmation has been granted by Court this can be used to sell or transfer title to any heritable property owned by the deceased and it will enable banks, building societies, insurance companies etc to release monies.

I can provide practical, sympathetic legal advice and support. If I can help please contact Lauren Hill on 0141 552 3422 or by email lauren@mitchells-roberton.co.uk

Stamp Duty Reforms – The New Facts

George Osborne, the Chancellor of the Exchequer, in his autumn statement on the 3 December 2014 made unexpected and radical reforms to the Stamp Duty system, these new rules coming into effect from midnight of that day.

What is Stamp Duty ?

Stamp Duty Land Tax, to give it its full name, is a tax you pay when you buy a house. The tax is calculated according to the purchase price of the property.

What are the changes ?

The changes apply to you if you are buying a home in the UK for over £125,000. These changes do not affect commercial properties.

Under the old rules you would have paid tax at a single rate on the entire purchase price.

Between £125,001 – £250,000  1%
Between £250,001 – £500,000  3%
Between £500,001 -£1m  4%
Between £1m -£2m  5%
Above £2 m  7%

Under the new rules you only pay the rate of tax on the part of the property within each tax band just like income tax. Below are the new rates.                            

Between £0 – £125,000 0%
Between £125,001- £250,000 2%
Between £250,001 – £925,000 5%
Between £925,001-31,500,000 10%
Between £1,500,001-over 12%

Therefore if you bought a house for £150,000 under the old regime you would have paid 1% of tax on the whole amount- a total of £1500 whereas buying the same house under the new rules means you will not pay any tax on the first £125,000 and 2% on the remaining £25,000. This works out at £500, a saving of £1000. If you were buying a house at  £300,000 before 4 December 2014 the Stamp Duty would have been  £9000 but now there would be no tax to pay on the first £125,000 , then 2% on the next £125,000 (£2500) and 5% on the last £50,000 (£2500) making a total of £5000.

Is this good news for everyone?

HM Treasury advises that Stamp Duty will be cut for 98% of people who pay it. However, anyone spending more than £937,000 will face a higher bill. If you are purchasing a home for £2.1m you will be liable for tax of £165,750 under the new regime versus £147,000 previously.

Changes in Scotland

In Scotland the new rates will apply only until the 1 April 2015 when the Land and Buildings Tax replaces Stamp Duty. This will also be calculated like income tax. There will be a tax free allowance of £145,000 on each transaction. Above that there will three bands:

Between £145,001 – £250,000 2%
Between £250.001 – £325,000 5%
Between £325,001- £750,000 10%
£750,000 and over 12%

If you would like to discuss the impact of this new land tax please contact me on 0141-552-3422 or by email rjl@mitchells-roberton.co.uk and I will do my best to help.

Proposals to bring the Scots Law of Contract into the Modern Era

The Scottish Government has introduced a bill into the Scottish Parliament which will change the Scots law of contract in two major respects.

When passed, the Legal Writings (Counterparts and Delivery) (Scotland) Bill will bring Scots Law on the formation of contracts into a modern era.

The first major innovation the bill will make is to allow a document which requires to be signed by two or more parties to be “executed in counterpart”. This means that each party to the contract can sign their own copy of the document remotely from each other, rather than the one document being circulated round all the parties of the contract needing to be signed. The subscribed counterpart will then be delivered to the other party or parties.

The second important change is that the Bill will permit delivery of paper legal documents by electronic methods, meaning that the document will take legal effect upon such delivery.

The two advances will promote confidence in using Scots law to form contracts and hopefully will make Scotland a better place to do business.

Professor Hector MacQueen, the lead commissioner on the contract law reform team stated “This bill is the end product of a great deal of consultation with legal practitioners which has helped to produce innovations that are both principled and pragmatic in allowing the swift completion of documents in accordance with international best practice. I look forward to helping its speedy progress on to the statute book.”

The Law Commissions review can be seen at:

http://www.scotlawcom.gov.uk/index.php/download_file/view/1149/138/

Mitchells Roberton Solicitors & Estate Agents in Glasgow are happy to provide advice in relation to commercial contracts.

If you have any questions please contact Ross Leatham on rjl@mitchells-roberton.co.uk or telephone 0141 552 3422.

A Lawyer for other Lawyers

One of the services provided by our firm is a Solicitor Support Service.

Ian Ferguson is a Director of the Legal Defence Union. He deals mainly with complaints arising from Conveyancing and Chamber work. Ian has been providing LDU advice since 1997 and has acted in a large variety of different cases.

These are the services he covers :-

  1. Advice under the LDU Advice Helpline. To use this service please contact Professor David O’Donnell on 01356 648480. You can ask for a named LDU advisor to be appointed.
  2. Defence at Disciplinary Proceedings  including:-
  • Service Complaints by the SLCC
  • Conduct Complaints by the Law Society of Scotland
  • Guarantee Fund Committee appearances
  • SSDT proceedings

Ian also acts for non LDU cases on a private fee paying basis.

Donald Reid is a recognised expert witness listed in the Law Society of Scotland’s approved Directory of Expert Witnesses relative to professional negligence claims. He appears in Court for Pursuers and Defenders. He is consulted regularly to give formal or informal opinions in his field covering Commercial and Domestic Conveyancing, Security work and property related Company work. Donald is also an accredited mediator.

These are the services he covers:-

  1. Expert witness appearance
  2. Opinion Work
  • Formal Opinions
  • Informal Opinions
  1. Arbitration and Mediation

It is a lonely place at the wrong end of a complaint-we can help.

Donald Reid dbr@mitchells-roberton.co.uk

Ian Ferguson icf@mitchells-roberton.co.uk

0141 552 3422

How quickly can I get divorced?

Divorce can be extremely distressing yet surprisingly a question often asked is how quickly can a divorce be obtained. Of course the answer is: it depends.

For a divorce to be granted there has to be an irretrievable breakdown of the marriage with no prospect of a reconciliation. If you cannot demonstrate this then you cannot get divorced.

The irretrievable breakdown of marriage can be established if one of the following is true:

  1. Since the date of the marriage, your spouse has committed adultery and you thereafter ceased to cohabit together as husband and wife (this is and will continue to apply exclusively to heterosexual relationships even after same sex marriage is introduced).
  2. Since the date of the marriage, your spouse has behaved in such a way that you cannot reasonably be expected to cohabit with them.
  3. You have not cohabitated with your spouse for a period of one year and your spouse consents to the granting of the divorce.
  4. There has been no cohabitation for a period of two years.

A Simplified Divorce is the fastest way to obtain a divorce and is essentially a form filling exercise. You must not have cohabited with your spouse for one year and have your spouse’s consent or been separated for at least two years. This simplified procedure can only be used if there are no children of the marriage under the age of 16 and no financial issues to resolve. The relevant form can be downloaded from the court website and is completed by the individual raising the action who must then sign an affidavit at the end of the form stating that everything in the form is true. This affidavit can be sworn before a notary public (most often a solicitor), a Justice of the Peace or a Commissioner of Oaths. The form is then submitted to the court along with the appropriate fee (currently £107). A divorce order is usually granted within 4-6 weeks of lodging the relevant paperwork with the court.

If there are financial issues still to be agreed upon or there are children of the marriage under the age of 16 you must use the Ordinary Procedure, which will require the assistance of a solicitor. A list of the parties’ assets requires to be lodged with the initial paperwork when a financial order is sought. If the action is not defended by your spouse a court order may be passed within approximately 6-7 weeks from raising the action.

If the action is defended because there are young children and custody and contact are disputed, or a financial order is requested or indeed the allegation of adultery or unreasonable behaviour is denied then it is extremely difficult to state with any certainty how long proceedings will take.

If you have any queries regarding divorce please contact Fiona Wayman on fhw@mitchells-roberton.co.uk or phone 0141 552 3422 to talk to her.

Employment cases drop dramatically after the introduction of tribunal fees.

In May 2013, we blogged about the introduction of charges from 29 July 2013 to raise or appeal a claim at the Employment Tribunal.  The Law Society of Scotland has since noted that new cases lodged with the UK’s Employment Tribunals have plummeted by about three quarters.

The new fee structure involves payment of an issue fee when the claim is submitted and a hearings fee to be paid prior to the full merits hearing.

The Ministry of Justice’s Tribunal Statistics Quarterly for October to December 2013 reveal that 9,801 claims were received in that period, some 79% fewer than in the same period of 2012 and 75% fewer than the previous quarter.  Clearly, the introduction of fees is having a dramatic impact.

Claimants on a low income may not be required to pay the full fees and the Government has stated it is committed to reviewing the fee structure once implemented to assess its impact, in order to consider if changes are needed.

The Government’s reasons for the reforms are said to be to avoid “drawn-out disputes” which are “very emotionally damaging for workers and employees, as well as being financially damaging for employers”.  Few would argue with that but those aims might have been achieved by more robust case management, weeding out weak cases and striking out cases for unreasonable behaviour, rather than introducing a system which potentially deters those with genuine cases from enforcing their rights, purely for financial reasons.

Let’s have that conversation about why everyone should have a Power of Attorney!

We can present statistics, production efficiency models, delivery times and accurate numbers of this and that as much as we like, but for each and every one of us the twists and turns of life remain unpredictable apart from the inevitability of eventual death.

Many people understand the need to have a Will but fail to recognise the importance of having a Power of Attorney in place. Let me put it simply, a Will covers a deceased person’s wishes whereas a Power of Attorney is for the living. In short, a Power of Attorney is a legal document which gives another person authority to act and make decisions on your behalf if you become unable to do so.

A  popular misconception is that Powers of Attorney are only for the older generation with conditions such as dementia becoming increasingly common. Indubitably all elderly people should grant a Power of Attorney in favour of a trusted friend or family member to manage their affairs if they were to lose capacity. But Powers of Attorney are not just for our respected older citizens; they are for anyone over the age of 16 in Scotland. An accident or illness could happen at any time causing you to lose the capacity to act on your own behalf and unless you have a Power of Attorney in place nobody has the power to act for you, not even your immediate family, causing potential difficult problems with banks, healthcare providers and other organisations.

If a Power of Attorney is not in place and you lose capacity then application may need to be made to court to give others the legal authority to deal with your affairs, an avoidable, time consuming and expensive procedure.

So we must talk about Powers of Attorney. Whilst making a Power of Attorney may be considered solely a pragmatic, legal move to grant peace of mind, I am fully aware of the emotive issues surrounding such instructions. Who would be the best Attorney? Will other members of my family be upset about my choice of Attorney? Will I be giving up my independence of thought too soon? Can I revoke the Power of Attorney at any time?

We are here to have that important conversation whenever you want. Please just call and ask to speak to Kathryn Bready on 0141 552 3422 or email kb@mitchells-roberton.co.uk