1. Such discussions are sometimes prompted by the intention of protecting assets which have been given to you or protecting assets handed down to you by family. So use the family as a reason to explain why it is important to have such an agreement in place.
2. Such discussions should be straight forward and hidden agendas are not a good idea. It should be frank, sincere and cards on the table.
3. Like with any discussion which involves money or assets, it should be done in a neutral setting, at a neutral time. For example not at a time when so much is going on.
4. Such discussion are a great skill and being brave about such matters will also give both of you a skill set that you can use later to grapple with uncomfortable subjects.
5. Getting generic advice from one solicitor may help before broaching the subject. Or simply get two new solicitors for both of you. Such initial advice will clear the air and give the parties an opportunity to listen to what prenuptial agreements are, rather than fear them.

Where do I find a specialist firm which deals with Pre-nuptial agreement?

The first is to find a member who is a member of Resolution. www.resolution.org.

These are experienced family practitioners who both have a wealth of knowledge but also have a code of practice which reduces costs and acrimony between the parties. They are trained to high level and most of the work load is such family cases.

The next is to talk to the solicitor on the phone. You need to feel right about someone whom you are going to confide in. If a solicitor does not come on the phone, he/she may not have time to deal with your case. If the solicitor simply tries you to commit to a meeting and not give general advice over the phone, then that solicitor may not be right either.

For more information on Prenuptial Agreement feel free to browse our prenuptial section for some free advice.

Who are we?

I am a litigation paralegal at Garner and Hancock LLP and specialise in residential possession cases. This article briefly summarises and considers the protection of tenants’ deposits, highlighting the dangers for Landlords or their agents who fail to follow the new guidelines being brought into force under the Localism Act 2011 s.184.

Why do I need to comply with tenancy deposit rules?

Under the Housing Act 2004 s.212-215 landlords are penalised for not properly securing deposits.  Pertinently, under those provisions the landlord or his agents are required to:

• comply with the ‘initial requirements’ of a tenancy deposit scheme within 14 days of receiving a deposit and give the tenant any ‘prescribed information’ required by the scheme (please see: http://www.rla.org.uk/docs/RLA_My_Deposits_Prescribed_Information.pdf).

What happens if you do not comply?

• Failure to do so would require a landlord to pay up to three times the deposit monies back to the tenant.*

• Further, under s.215 a valid s.21 notice cannot be served on a tenant and this may prejudice other applications for possession (e.g section 8 possession proceedings based on rent arrears).

*However, the courts were acutely aware of the potential harshness of this rule for ‘innocent’ landlords who would be harshly punished for not complying with the rules. Therefore decisions such as Tiensia v Vision Enterprises Ltd [2011] 1 All ER 1059 and Gladehurst Properties Ltd –v- Farid Hashemi [2011] 4 All ER 556 sought to soften the impact of the penal element of the legislation, requiring a Landlord to protect the deposit before a hearing date in order to avoid punishment. As discussed below new legislation attempts to redress this issue and clarify the provisions, addressing the concerns raised in the above cases.

What is the current position?

The Localism Act 2011 s.184 amends some provisions of the Housing Act 2004 and reinforces the strict approach taken for any failure to comply with the initial requirements of a scheme, effectively reversing the decisions in Tiensia and Gladehurst Properties Ltd above. The new legislation should mean fairer and more proportionate action is taken against landlords who fail to comply with the new provisions.

In summary the new provisions require all landlords and agents to:

• Protect the deposit and provide information to the tenant in the prescribed form within 30 days (previously 14 days) of receiving the deposit monies.
• The court has a discretion on setting the financial penalty for non-compliance between one and three times the deposit. Although we are not told on what basis they will exercise this discretion.

However, at the time of writing the above provisions are yet to come into force and will only come into force ‘on a date to be appointed’. Nevertheless the intention of Parliament is clear and agents and/or their landlords should ensure they take heed of the new rules and do not accidentally fall foul of the provisions.

Amandeep Gill LLB, LLM

© GARNER & HANCOCK, January 2012 

Courts usually take them into consideration if the marriage is short (usually under 6 years, this is a rule of thumb) and no children. But otherwise they are difficult to ring fence.

Can I take my heirlooms passed onto me in my family?

It could be possible to take specific items which you brought into the marriage, but they may be deducted from the money/assets you receive so the overall percentage is not affected.

Can I have the wedding ring back?

As it was given as a gift, it cannot be taken back.

Can I have the engagement ring back?

This may be possible as this could be seen as a conditional gift upon getting married.

The children needs and the spouse looking after them have priority need, but the judge takes into account the other spouses needs also, although these may be postponed in favour of the spouse with the children. It is also an important factor as to how much contact each parent has. You may not have residence of the children but you may have more contact than the other spouse. Such considerations are taken into account by the judge.

Should I fight for the children so that I get more from the family finances?

Residence (custody) of the children under the Children Act is decided on applying the test of “paramount interest of the child/ren”. The wishes of the children and parents are only one factor of many. Factors which the court take into account  are contained in the Welfare Checklist.