The first thing that I have to do when I am instructed by a new client is to obtain their personal details: name, address, date of birth, information about their finances and children etc. It is surprising how often this proves to a surprisingly tricky exercise.
For most new clients, I now use an online questionnaire called Engage which I ask the new client to complete before they meet me for their initial consultation. This helps them maximise the value that they get from their initial meeting with me; rather than spend the first 30 minutes or so of the consultation laboriously taking this information from the client face to face, they can complete it a few days before we meet. They can take time over the answers and save their progress so that they can go away and find out the answer; it avoids the awkward moment when I ask them a question, they don’t know the answer to off the top of their head (“Who is your pension with?” “Who is your mortgage lender?” “What’s the date of your marriage?” You be amazed how many people struggle to remember that last one.)
This also helps me to marshal my thoughts beforehand. However, over the years I have learned, whether with clients who use Engage or ones where I take details from them face to face, that it is important to sometimes check whether the answer is actually correct.
One thing that some people are surprisingly poor at getting right is what their address is. You would think that it is a very simple question, to which there must be an equally simple answer. However, I have lost count of the number of times that a new client tells me that their address is somewhere where they have not actually lived for some time.
Clearly, I need to know their actual address so that I can write to them. Even in this day and age, there are occasionally documents that have to be sent to the client in the post and cannot be emailed.
Solicitors also have a statutory obligation to “know your client” for anti-money laundering purposes. All new clients are required to provide evidence of their identity and address. Proof of ID is ideally a passport or driving licence. The passport does not show an address and the driving licence is usually more than three months old so although it is proof of ID, it usually isn’t adequate proof of address. (Also, in family cases, people often have often moved house after separating and have not got around to updating their address with DVLA; that risks an additional penalty if they get a speeding ticket.)
The proof of address is usually something like a bank statement or utility bill that is no more than three months old and shows the client’s name and address. That can sometimes be a challenge for clients who have only very recently moved house. Solicitors have a statutory obligation to report suspected money laundering to the National Crime Agency; they can be sent to prison if they turn a blind eye to it. The police need to know where to go to arrest suspected money launderers; hence solicitors have to know their client’s address so that, in thankfully rare cases, they can provide it to the NCA.
However, I don’t think that the reason why some clients give me an old address is anything to do with illegal behaviour. The address they provide is often the family home where they lived until a few months before. They have moved out, but their spouse or former partner is still living there. “It’s my official address” they tell me, and I have to respond, “Ok, but where are you actually living?”
I suspect a lot of people thinking that they need to describe the family home as being their official address has more to do with worrying that because they have moved out, they are at risk somehow of not receiving a fair share. They may think that by moving out they have sacrificed their interest in the property. I have to reassure those clients that moving out does nothing of the kind. The court will not give them less as a result.
May new clients who have not yet separated often describe living arrangements which sound pretty hellish. Arguments, frosty atmospheres, sometimes abuse. Even where the parties in a separation or divorce are able to behave civilly to each other, it must often be very uncomfortable to live under the same roof.
When I encounter a client who is suffering domestic violence and abuse, I advise them about whether they should inform the police and whether they also should make an application to the Family Court for a non-molestation order and an occupation order so that they can live at the property without fear of abuse from their ex.
In cases where there are no grounds for a non-molestation order or occupation order, I often advise clients that they are free to move out if they want to do so and can leave the house without fear that they will prejudice their legal position relation to the financial aspect of their divorce or separation.
However, there are some issues which should be borne in mind before departing the house:
- Where the house is owned in the client’s ex’s sole name, the client will not be able to return to live there without their ex’s consent or a court order.
- If the house is likely to be sold, there can be practical issues to do with marketing it for sale. I have known some people who have remained in occupation to on occasions be less than cooperative about marketing a house for sale, for example, by not ensuring that it is looking its best when a potential buyer views the property.
- Capital gains tax can become an issue. Normally there is no CGT payable by a homeowner in relation to the transfer of the house to their ex or a sale to a third party. However, once a homeowner has not lived at the house for 9 months, they may incur a CGT bill when they transfer the house to their ex or if they sell it. The rules about that can be complex and those clients need the advice of a tax accountant so that, wherever possible, any CGT bill can be factored into our negotiations.
Steps taken in the early-stage of a separation or divorce can have significant consequences later on. Therefore, it is always a good idea to seek legal advice at an early stage from specialist family law solicitor if you are facing a separation or divorce, so that you understand your options fully.
30 April 2022
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