It is important for anyone considering taking final steps to end their marriage to be aware of how separation and divorce is regulated in Scotland.

When a married couple separates, the first exercise conducted by your solicitor is to identify what constitutes matrimonial property. Broadly speaking this is property acquired during the period of marriage or property used for the sole benefit of the marriage. Matrimonial property is likely to comprise of the matrimonial home, other property bought during the marriage, bank accounts, loans, pensions, cars, etc.  There could also be matrimonial debt which must be included in the overall calculations.  There are assets that are excluded from the ‘matrimonial pot’ such as gifts from third parties, inheritance or property acquired prior to marriage. Property acquired following the date of separation is not usually included within the ‘matrimonial pot’.  Parties may have special circumstances to argue the value of certain assets should be excluded from the matrimonial property.

The division of matrimonial property, as well as care arrangements for any children of the relationship, including where they will reside and contact with the non-resident parent, are significant points that must be dealt with during a separation.

Before instructing a solicitor, you may have already reached an agreement with your ex-spouse on how to regulate the finances of the marriage and childcare arrangements.  A very helpful tool in the family solicitor’s arsenal to do so is a Minute of Agreement. This is a legally binding document and when both parties have signed the Agreement, the finances and/or childcare arrangements will be regulated in line with the Agreement.

If a Minute of Agreement cannot be agreed between parties, then there may be no alternative but to seek court intervention and a Sheriff will determine how the matrimonial property is divided between parties.  It is important to note that whilst there is recourse to the Sheriff Court, court action will be significantly more expensive than the negotiation of a Minute of Agreement.

Under Scots Law, you cannot divorce until the matrimonial property and finances have been dealt with either by agreement or by judicial determination. You must have grounds for divorce and the most common ground for divorce is that the marriage has broken down irretrievably.  The more straightforward ways to prove this ground is either parties must have been separated for at least one year (with consent of the other party) or two years (without consent of the other party) before divorce can be granted.

Deciding to separate and/or divorce is a difficult time for all involved and it is a decision that should not be taken lightly. If you are thinking of taking steps towards separation and divorce, it is essential that you seek legal advice at the earliest opportunity.  Contact our Court Department today and speak to our team who specialise in family law matters.

In March 2021, I started my two-year legal traineeship at Miller Hendry to become a solicitor.  With some restrictions still in place when I started and most staff working from home, the traineeship has been a bit different to how I initially pictured it when I was first offered the position.  However, Miller Hendry quickly adapted to the new working restrictions, and this has also been reflected in my traineeship.

Although I was used to working from home in my previous job, I was slightly worried about how I would be able to meet and communicate with my new colleagues.  Thankfully my concerns disappeared quickly as from the first day, I received video calls, messages and emails from my colleagues introducing themselves and welcoming me to Miller Hendry, which allowed me to introduce myself as well.  I have also been able to work in the office two days a week, which I have really enjoyed as I have been able to meet some of my colleagues in person whilst also learning the internal processes.

Thanks to the help of our IT services, I have been able to attend meetings with clients over Zoom and observe how solicitors in the firm conduct client interviews, whilst also building relationships with our clients.  This was one aspect I was concerned I would not have much experience in but instead, I have been able to attend several client meetings and have even led my own meetings in person, when restrictions have allowed this.  Also, the communication I have had with colleagues has been stellar.  Whether it is feedback from work I have produced or asking a quick question about a matter I am working on, I have always been able to speak to my colleagues to ask for their help with this.  Regardless of whether I am working from home or in the office, I have had no issues with receiving help or advice, which has aided me to complete my work.

One year on from when I first started, I have, so far, undertaken a seat in the firm’s Private Client department and Residential Property.  I am currently working in the Commercial Department. It has been very beneficial to work in different areas of law to see what work is involved and to gain a better understanding of the day-to-day tasks in each role.  I am thoroughly looking forward to completing my seat in the Commercial Department and Court Department in the second year of the traineeship.

The traineeship has challenged me and there has been a lot to learn but I have been grateful to receive such amazing support since starting at the firm.  Everyone has been very welcoming and friendly, which has allowed me to settle into the job.

Applications are now being accepted for two Traineeships commencing  September 2022. For more information and to apply https://www.millerhendry.co.uk/about-miller-hendry/careers/traineesolicitor/

 

When I commenced my Traineeship with Miller Hendry, I was quite unsure as to how it would work in light of COVID-19. After nearly a year, however, I can say that it has been much better than I could have ever predicted.

The Firm’s support system has been of a very high calibre, especially the support staff, the IT department, and the Estates team.

The support staff have been excellent in taking dictations, scanning Letters, printing documents, posting things, and generally providing that much needed assistance on so many random events. In short, their help has been invaluable.

The IT department have been extremely helpful throughout my Traineeship. On my first day, I was given a laptop containing everything that I would need to succeed. I am a longstanding user of Macs, so getting acquainted with Windows and a PC has been a learning curve — but a good one! They have provided quick and comprehensive assistance on everything for which I have required their help, and I can only appreciate their skill.

The Estates team have been very helpful as well, such as by providing me with a second screen and an office chair for working at home. My working life would have been quite uncomfortable without their assistance!

My supervisor and the other solicitors at the Firm have been brilliant. I have been given a wide array of tasks, from filing scans to drafting obscure forms, from writing Letters to utility companies to Letters advising clients of their various courses of action, and from drafting Wills to drafting Executry Accounts. I have even been given some Matters for which I am the main point of contact for the clients. I have learned a massive amount, for which I can only be grateful.

Thus, I have had a fantastic experience as a Trainee Solicitor at Miller Hendry.

Applications are now being accepted for two Traineeships commencing  September 2022. For more information and to apply https://www.millerhendry.co.uk/about-miller-hendry/careers/traineesolicitor/

 

Throughout our lives, we remember our departed loved ones. When we do, we might start to consider our own futures. We may wish for an heirloom or our home to go to a dear friend. We may want to appoint a guardian to our children, or just make things easier for our relatives when the time comes. Whatever the reason, a Will gives you the peace of mind to face the future.

There are three main benefits to having a Will: choosing your Executors, specifying to whom things should be given, and it being much cheaper than dying without having written a Will, in which case, you are ‘intestate’; having a Will means that you are ‘testate’.

Your Executors have the task of ensuring that your wishes are carried out properly in accordance with the instructions in your Will. They will administer your estate and make decisions if something unexpected happens. You can appoint whomever you wish. If you die intestate, an application will have to be made to the Sheriff Court for the appointment of an Executor; it would most likely be the closest relative who applies. Having a Will allows you to pick the best person for this sensitive position.

When you die, everything that you own is referred to as your ‘Estate’. If you die intestate, it will be divided up and go to the people specified by law, and in the obligatory proportions; there is no discretion. A Will avoids such a division and lets you choose the people to benefit from your Estate.

Having a Will is more cost effective for your Estate in comparison to dying intestate. Your family tree might need to be reviewed to ensure that everyone entitled to a proportion of your Estate has received the correct amount if you do not have a Will. As can be imagined, the legal fees can be quite high in this scenario.

Thus, you should have a Will drafted because: you can choose your Executors, you can decide how to distribute your Estate, and you can expect a saving on legal fees.

 

Contact Miller Hendry today to plan for the future by making a Will.

Leases of commercial property are now largely driven by institutional landlords favouring a full repairing and insuring (FRI) lease which originates from south of the border. A commercial lease, even in its shortest form, generally runs on for many pages covering topics including payment of costs other than rent, such as rates and buildings insurance; use and keep open obligations; maintenance and repairs; assignation and sub-letting; tenant’s works and alterations; default and termination. Commercial leases are also subject to underlying principles from the common law as well as regulation by statute. Consequently, there are hidden traps for the unwary.

One such underlying rule is known as “tacit relocation” which provides that a lease continues beyond its contractual termination date unless there is evidence of either party not intending to continue the lease. Ordinarily this is done by service of a formal notice to quit. The operation of this principle and the difficulties it can create were highlighted in a recent dispute between Rockford Trilogy Limited and NCR Limited.

NCR rented a unit in a business park in Woodhead, Motherwell from Rockford under a lease which had an expiry date of 26 March 2020. For around a year or so before the parties had been negotiating terms for a new lease. Ultimately those negotiations were unsuccessful but Rockford took NCR to court seeking payment of rent, insurance and service charge for another year on the basis that, in the absence of sufficient notice to terminate, the lease continued for another year. The court took the view that whilst service of a formal notice to quit was prudent it was not the only way of evidencing an intention not to continue. In this case, the Court concluded there was clear evidence in correspondence between the parties that failure to come to agreement during negotiations meant that the tenant would leave and this was enough to prevent tacit relocation and the lease continuing beyond its contractual termination date.

As noted above and in the case, service of a formal notice to quit is the prudent course of action and except in particular circumstances, would always be our advice. That said, even the service of a formal notice to quit requires attention to detail and careful drafting. Generally, at least 40 days’ notice must be given and the lease often specifies method, place and timing of service. Notices have been deemed invalid where the correct procedure has not been followed.

If you are a landlord or a tenant of commercial premises and are considering bringing a commercial lease to an end, a little time spent in consultation with your solicitor may be worthwhile saving you worry and unwanted expense.

The Children (Scotland) Act 2020 (‘the 2020 Act’) is a welcome update and goes some way to bring the law governing decisions about children into the 21st century.  The changes apply to the primary legislation, which is The Children (Scotland) Act 1995 (‘the 1995 Act’).  The Scottish Government have now listened to children, families and organisations who have in the past criticised the practical implementation of the 1995 Act in court cases involving children i.e., contact disputes, residence orders or other section 11 orders.

We will therefore highlight the main changes in the new legislation to help you understand what parents and children involved in court proceedings can now expect.

Removal of age 12+ presumption for child’s views

The purpose of this change is to ensure younger children who can form a view on contact etc, and wish to give their views, can do so.  Under the 2020 Act, the presumption will be that any child can form and provide the court with a view, unless the contrary is shown.  We have already seen cases appealed where the relevant courts have not provided a child with the opportunity to express a view and have done so in the absence of evidence that the child was unable to form a view due to his/her age and maturity.

Abandonment of the F9 

The 2020 Act goes further in obtaining the views of children and abandons the ‘one-size fits all’ approach of gathering the views of a child through the F9 Form.  Children are now encouraged to provide their views in any manner they prefer, such as drawings, video recording, letter writing or play therapy – whatever the child feels comfortable with.

Duty of Court to explain the reasons for a decision 

Once the court has reached a decision in relation to contact, residence or other section 11 orders, the Sheriff will be required to communicate that decision to the child, in a way the child can understand.  This could be conveyed face-to-face, electronically, in writing or the Sheriff can request a Child Welfare Reporter to explain the decision.  This change provides a child with the opportunity to hear why a decision has been made from a neutral party, and in language the child understands, rather than having both parents explaining it to them differently. 

Failure to Obey Order 

The 2020 Act introduces section 22 where a party fails to comply with a court order such as a contact order.  When the court is considering finding a person in contempt of court for failing to obey a s.11 order or varying such an order where a party has failed to obey it, the court must seek to establish the reason for the failure, must give the child an opportunity to express a view and must give regard to any views expressed.  It is not clear how this new section will encourage parties to adhere to contact orders or how many parties will seek recourse under this section due to additional litigation costs.  Only time will tell whether this section proves useful or not.

If you require advice on any of the issues mentioned in this article, please contact a member of the Miller Hendry Court Department.

Traditionally, November is the month during which our minds turn to our departed loved ones. We might start to consider our own future. We may want an heirloom to go to a dear friend, or for our home to go to someone specific. If we have children, we may want to appoint someone whom we trust as their guardian. We may just want to make things easier for our relatives. Whatever the reason, having a Will drafted will give you the peace of mind to face the future in confidence.

This November, we at Miller Hendry are delighted to be taking part in Will Aid, which involves our Solicitors drafting free, simple Wills for members of the public. In 2019, we raised the second highest amount of funds in Scotland!

Instead of a fee, you are encouraged to donate to one of nine participating charities:

  • ActionAid;
  • Age UK;
  • British Red Cross;
  • Christian Aid;
  • NSPCC;
  • Save the Children;
  • SCIAF;
  • Sightsavers; or
  • Trócaire.

The recommended donation is £100.00 for a single Will, or £180.00 for ‘Mirror’ Wills (for a couple). The Will must be basic, so if you require a more complicated one, please contact us to arrange a regular appointment.

The appointments for Will Aid must be in November, but we are now taking bookings. There is a limited number of available appointments, so booking early is essential. You can book by going to <www.willaid.org.uk>. We are offering appointments at our Perth, Dundee, and Crieff Offices. The appointments can be done entirely virtually.

Miller Hendry would be delighted to help you, your family, and Will Aid’s charities!

Leading Tayside solicitors and estate agents Miller Hendry has announced promotions and new appointments to its teams in Dundee and Crieff.

Fiona Kelly has been appointed as a solicitor in the Court Department Dundee. Fiona graduated from Abertay University with a LLB(Hons) in 2015, before completing the Diploma in Professional Legal Practice at the University of Dundee in 2016. After working at the Ministry of Justice, Fiona undertook her traineeship in 2018 and qualified as a solicitor in June 2020.

Erin Peoples has also joined the firm’s Residential Property Department.  Based in the Dundee office, Erin graduated with an Honours Degree in Law from the University of Aberdeen in 2017 before going on to complete the Diploma in Professional Legal Practice at the University of Dundee in 2018. Erin completed her traineeship in Fife before joining Miller Hendry as a Solicitor in August 2020.

Shona Douglas has recently been promoted to Paralegal after becoming a Law Society Accredited Paralegal. Based in the Residential Conveyancing Department of our Crieff office Shona joined Miller Hendry in 2014 as a legal secretary and became a Law Society Accredited Paralegal in 2020.

Chairman John Thom said: “I am delighted to congratulate Shona on her well-deserved promotion. We are also delighted, at last, to welcome both Fiona and Erin into the Dundee office after a delayed start due to the Covid-19 pandemic.  Here at Miller Hendry we remain commitment to developing talent and growing our services, despite what the world throws at us, to ensure clients receive specialist legal advice of the highest quality.”

Tayside based solicitors and estate agents Miller Hendry today (12 March) celebrated raising over £10,000 for nine of the UK’s best loved charities through its Will Aid campaign activity in November 2019, ranking it the second highest fundraising firm in Scotland.

Representing the nine charities, including SCIAF (Scotland), ActionAid, Age UK, Christian Aid, NSPCC, Save the Children, Sightsavers, Tro̓caire (Northern Ireland) and the British Red Cross, Stephen Gillies, Community Legacy Manager at the British Red Cross, was present at the company’s office in Perth to present the firm with a certificate for the £10,885 raised for charity.
Miller Hendry is the second highest fundraiser in Scotland and the twelfth highest donating firm in the UK for Will Aid, committing itself every year to take part in November’s month-long fundraising drive. The national campaign asks solicitors to waive their usual fees for creating professional Wills, with clients then donating to Will Aid instead.

Having supported Will Aid for several years, the firm has now raised £103,404 to date from 17 Will Aid campaigns, making it the UK’s third highest donating firm in the history of the Will Aid campaign which has been promoted annually for the last 30 years.

Stephen Gillies, Community Legacy Manager at the British Red Cross said: “We’d like to thank Miller Hendry and all the people who made their Will during Will Aid month last November. Contributions like this help charities such as the British Red Cross, who then use those donations to reach people in crisis, both here in the UK and all around the world.”

John Thom, Chairman of Miller Hendry, said: “Miller Hendry has been committed to raising money for these fantastic charities for many years now and we are absolutely delighted to have been able to raise so much during the last campaign in November 2019. We are particularly proud to be the UK’s third highest donating firm in the history of Will Aid!

“Will Aid is the ideal opportunity to make a Will and the campaign has made an amazing contribution to the work of the nine participating charities.
“People are often unaware of the problems they are leaving behind for those closest to them if they pass away without having a Will. Having a Will prepared gives people peace of mind that their families are being taken care of. It is the only way to put you in control of your estate after death. To be able to donate money to these nine worthy charities through Will Aid is the icing on the cake.”

Peter de Vena Franks, Campaign Director at Will Aid, said: “Thanks to the commitment of local solicitors that took part on this year’s Will Aid, many people both in the UK and abroad will have received life-changing support and local people who used the scheme have the peace of mind that having a professionally drawn up Will brings. I would like to offer my heartfelt thanks to Miller Hendry for their incredible efforts this year.”

Tayside based solicitors and estate agents firm Miller Hendry has started the New Year with the promotion of three key staff members.

Mhairi Cage, based in the Perth office has been promoted to Senior Associate, Julie Darroch, based in the Crieff office has been promoted to Senior Associate and Lindsay Kirkwood, based in the Dundee office has been promoted to Senior Solicitor.

A graduate in law from the University of Glasgow before completing a Diploma in Legal Practice at the University of Dundee, Mhairi joined the firm as a trainee in 2010 working within the private client department. Her responsibilities include dealing with Wills, Powers of Attorney, Executries, Guardianships, Inheritance Tax Planning, Trusts and Charities.

Julie, who is the third generation of her family to work for the firm, practised in Edinburgh before starting at Miller Hendry in 2014. At the firm she specialises in all aspects of residential property work including conveyancing, Title Disputes and sale and purchase of property. As Senior Associate Julie will be responsible for helping the growth of the business in Crieff going forward.
A graduate in law from Glasgow University, Lindsay started as a trainee with the company in 2015 within the private client department, qualifying as a solicitor in 2017. Since then has achieved a coveted international industry qualification, the STEP Diploma in Trust and Estates (Scotland), which means she is now a recognised expert in her field of family inheritance and succession planning.

John Thom, Chairman of Miller Hendry, commented:

“We’re delighted to start the year with a series of promotions for our extremely hard-working team, which span all three of our offices in Tayside. Mhairi, Julie and Lindsay are exceptional staff members, who thoroughly deserve their promotions. They will be an integral part of the firm as we move the business forward and realise our ambitious plans for growth in Tayside.”