Trustee Act 1925 (TA 1925), section 36(1) enables a trustee to be replaced where he is: • dead • remains out of the UK for more than 12 months • desires to be discharged from all or any of the trusts or powers of the settlement • refuses or is unfit to act, or • is incapable

It is fairly common, in particular in the context of commercial leases, that a landlord requires that a tenant procure a guarantor to guarantee the tenant’s performance of its covenants under the lease. Such a guarantee can either have the effect that the guarantor must ensure that the tenant performs its obligations, or can amount to a covenant of indemnity, making the guarantor directly liable for any breach of covenant by the tenant. It is commonly the case that on assignment of the lease, the landlord will want to ensure that a guarantee continues in place or a fresh guarantor is nominated. However, given that a guarantee is a personal obligation, policy protects a guarantor from being made liable for the breaches

What is a modifying agreement? Section 82(2) of the Consumer Credit Act 1974 (CCA 1974) introduces the concept of ‘modifying agreements’. In broad terms, it says there is a modifying agreement where the parties agree to contractually vary or supplement the agreement’s terms. For more on modifying agreements, see Commentary: The Right to Vary a Credit or Hire Agreement: Goode: Consumer Credit Law and Practice [35.1]. Joint borrowers CCA 1974, s 185 sets out various provisions where there is more than one borrower under an agreement: • CCA 1974, s 185(1) says (in broad terms) that if there are two individual borrowers under an agreement, (a) anything required to be done by a lender under the consumer credit agreement must be done to each

Section 4A of the Children Act 1989 (ChA 1989), inserted by the Adoption and Children Act 2002, provides a mechanism for the acquisition of parental responsibility by a step-parent as an alternative to adoption. It is often assumed that where a parent with parental responsibility and care of a child re-marries (or enters into a civil partnership), their partner will acquire parental responsibility without more, but this is not the case. ChA 1989, s 4A provides that where a child’s parent ('parent A') who has parental responsibility for the child is married to or a civil partner of a person who is

There is no general rule that all expert evidence is disclosable regardless of privilege (see Practice Note: Expert reports, in particular the section ‘Disclosure of reports and privilege’). If this were the case, draft reports and other documents (for example those created to assist counsel for cross-examination) would be disclosable which would be too extreme. In Odedra v Ball, Coulson J held that it was necessary to consider whether the importance of openness under the Civil Procedure Rules trumped privilege or if that would in fact risk injustice. For instance, in Edwards-Tubb v JD Wetherspoon plc, the Court of Appeal recognised that although a pre-action expert report was privileged and a different expert had been instructed post-issue, the first report should still be disclosed as the parties had agreed on using that first expert under the pre-action procedure of co-operation in the selection of experts. Hughes LJ described it as ‘the price the claimant

It is commonly believed that the concept of the ‘common law’ husband or wife gives to cohabiting partners who are not married a right to an interest in property, particularly the family home, on separation. This is however a myth. The starting point where a property is legally owned by one of the parties is that they are the beneficial owner of the whole of the property, and it is for the other party to demonstrate that they have an interest in the property: see, generally, Stack v Dowden and Jones v Kernott. It may be that there is a Declaration of Trust that provides that the property is held on trust by the one party for both

A child arrangements order is an order made under section 8 of the Children Act 1989 (ChA 1989), replacing residence and contact orders. A child arrangements order can provide for with whom a child lives and with whom a child shall spend time or otherwise have contact with. ChA 1989, ss 11A–11P provide for the court to enforce child arrangements order where the court is satisfied beyond reasonable doubt that a person has failed to comply with a provision of the order. Enforcement may be by way of an unpaid work-based penalty or financial compensation. The court will consider the allegations that are made, determine if necessary the truth of them, and then go on to consider whether it would be appropriate

The starting point in financial cases is the checklist set out in section 25 of the Matrimonial Causes Act 1973 (MCA 1973). The court must have regard to the factors set out in MCA 1973, s 25 when exercising its powers, and the checklist is not set out in any particular order of priority. Depending on the facts of a case some factors may be given more weight than others. Two significant factors in a scenario where a party is in a care home may be: • the financial needs, obligations and responsibilities that each of the parties to the marriage has or is likely to have in the foreseeable future, and • any physical or mental disability of either of the parties to the marriage Following the House of Lords decision in Miller v Miller; McFarlane v McFarlane, regard will also be had to the three strands

The position raised by the question does not appear to be addressed specifically in the Family Procedure Rules 2010 (FPR 2010), SI 2010/2955 nor in FPR 2010, PD 7A. It is suggested that initially discussions should take place for the withdrawal of one of the applications. Such withdrawal may take place prior to service simply by giving notice

In the scenario that the non-occupying spouse is entitled to occupy the matrimonial home due to owning it (whether jointly or on their own), or being party to the tenancy agreement, then they have a right to occupy the matrimonial home that is independent of their marriage. Whether they have lived away from the matrimonial home for a period of time or not, the non-occupying spouse is entitled to return by virtue of their interest in it. There are, however, limits to this. If the occupying spouse wishes to prevent the return of the non-occupying

A marriage is void if at the time of the marriage either party was already lawfully married or had a civil partner. It is important to make a distinction between a void marriage and an invalid marriage. Such a marriage has also been referred to by the courts as a non-marriage, or nonexistent marriage but in Akhter v Khan, the court determined that it is preferable to use the expression invalid marriage. Someone who marries another person while still being married, irrespective of where the subsequent marriage takes place, commits the criminal offence of bigamy. The first steps that the applicant would need to take would be to ascertain the status

The charges referred to fall within the Pensions on Divorce etc (Charging) Regulations 2000 (PD(C)R 2000), SI 2000/1049, reg 5 (charges in respect of pension sharing activity). They may be enforced by the party with the benefit of the pension credit in a number of ways, for example: • if the order containing the pension sharing order does not also include a clean break dismissal of the claims of the party with the benefit of the pension credit, an application could be made for a lump sum (where not already made)