A document must, to be a deed, comply with the formalities in section 1 of the Law of Property (Miscellaneous Provisions) Act 1989. It must make clear on its face that it is intended to be a deed and must be validly executed as a deed, which requires that it is signed and witnessed. See Practice Note: Executing documents—deeds and simple contracts. HMRC will not accept a unilateral waiver of a loan (ie one made not for consideration)

The obligation to obtain a mortgage capacity report in preparation for a first appointment in financial remedy proceedings is derived from the Statement on the efficient conduct of financial remedy hearings proceeding in the Financial Remedies Court below High Court judge level (the below High Court judge level efficiency statement), which states (at para [10]) that ‘14 days before the first appointment the following steps should be taken’. These steps include each party using ‘their best endeavours…to file with the court jointly

For procedural issues of this nature the first port of call is the Civil Procedure Rules (CPR), followed closely by any relevant Practice Direction/s. CPR 35.4(1) provides that no party may call an expert or put in evidence a report of an expert without the permission of the court. When applying for permission, a party must identify the field in which expert evidence is required and the issues which the expert evidence will address and, where practicable, the name of the proposed expert. Of direct relevance are the provisions of CPR 35.4(3) which provides that: ‘If permission is granted it shall be in relation only to the expert named or the field identified under [CPR 35.4(2)]. The Order granting permission may specify the issue/s which the expert evidence should address.’ The

Within financial remedy proceedings, both parties are under a duty to make full and frank disclosure both in their Forms E and on an ongoing basis thereafter. It should be noted that the duty on a spouse to make disclosure of their finances only arises at the point when the rules require the Form E to be filed. In some cases, parties become concerned that the other party is failing to provide proper disclosure (or will fail to provide proper disclosure) and so take steps to unearth evidence themselves as to the other party’s finances. Depending on the circumstances such evidence may be considered by the court

The ‘duty of ongoing disclosure’ continues until the court has made its order and is fundamental to the process of financial remedy proceedings. In NG v SG (Appeal: Non-Disclosure), Mostyn J put it this way (at para [1]): ‘The law of financial remedies following divorce has many commandments but the greatest of these is the absolute bounden duty imposed on the parties to give, not merely to each other, but, first and foremost to the court, full frank and clear disclosure of their present and likely future financial resources. Non-disclosure is a bane which strikes at the very integrity of the adjudicative process. Without full disclosure the court cannot render a true certain and just

This response deals with the question of whether a litigant who instructs direct access counsel but who is otherwise unrepresented is obliged to file and exchange a costs budget. CPR 3.13—which creates the obligation for costs budgets to be filed and exchanged—specifically excludes litigants in person. ‘Litigant in person’ is not defined within the CPR. However, in a guidance note published by the Master of the Rolls on 11 March 2013, it was indicated that this term should be used to describe individuals who exercise their right to

Part 35 of the Civil Procedure Rules 1998 (CPR 35) governs the court’s powers regarding the evidence of experts. Expert evidence is restricted to that which is reasonably required to resolve the proceedings (CPR 35.1). No party may call an expert or put in evidence an expert’s report without the permission of the court (CPR 35.4). Expert evidence must generally be given in a written report (CPR 35.5), and by CPR 35.6, a party may put written questions about an expert’s report.

It is not uncommon for financial remedies proceedings and bankruptcy proceedings to be ongoing at the same time, sometimes with the specific intention of the bankrupt party to frustrate financial remedies proceedings. Under section 306 of the Insolvency Act 1986 (IA 1986): '(1) The bankrupt’s estate shall vest in the trustee [in bankruptcy] immediately on his appointment taking effect or, in the case of the official receiver, on his becoming trustee. (2) Where any property which is, or is to be, comprised in the bankrupt’s estate vests in the trustee (whether under this section or under any other provision of this Part), it shall so vest without any conveyance, assignment or transfer.' Therefore, once a bankruptcy order is made, the trustee acquires the interest of the person made bankrupt. If the property is owned by the parties as joint

Special rules apply where foreign lawyers have been instructed The European Communities (Services of Lawyers) Order 1978, SI 1978/1910 is relevant to the work that European lawyers can undertake in the UK. The European Communities (Services of Lawyers) Order 1978, SI 1978/1910, Art 4 has the effect of enabling a European lawyer to pursue their professional activities in any part of the UK under the conditions specified in or permitted by the Council Directive (EC) 77/249 to facilitate the effective exercise by lawyers of the freedom to provide services, services otherwise reserved to barristers and solicitors. The original version of the directive

This Q&A covers the approach to damages in cases of acceptance of repudiatory breach where the contract contains mutual termination on notice provisions. It focuses on damages which may be recovered for breach of contract. Case study Party A and Party B entered into a contract which contained a clause allowing for mutual termination of the contract after a specified period by the service of a notice by one party (such termination being exercisable at will). However, Party A has committed a repudiatory breach of contract. Party B accepts the breach, thus having the effect of terminating the contract with immediate effect. Party B now wishes to claim damages for the breach of contract. Is Party B entitled to claim damages for loss of the chance of the

It is fairly common for disputes to occur where a relationship breaks down over the property in which the couple were cohabiting. Where the parties are unmarried, the courts do not have the power to transfer assets between them, as can be done under the Matrimonial Causes Act 1973. Although the court has certain powers where there are children under Schedule 1 to the Children Act 1989, in most cases, the law relating to the ownership and occupation of property is the law of trusts. In this scenario, the property is owned jointly. All property is held in two ways—legal ownership and beneficial

A decree absolute/final order is equivalent to a judgment in rem and it is in the public interest that it should be unimpeachable where there is no question as to the jurisdiction of the court and there has been no procedural irregularity. No appeal lies to the Court of Appeal from a decree absolute/final order of divorce or nullity/final dissolution order/nullity order by a party who, having had time and opportunity to appeal from the decree nisi/conditional order, has not so appealed (see sections 18(1)(d), (da) and (fa) of the Senior Courts Act 1981 (SCA 1981)). SCA 1981, s 18 is referring to an appeal on the merits. The idea behind the restriction is to stop opportunistic late appeals, or second bites