The No-Sex Agreement

There are couples who wish to marry or enter into a civil partnership without the sex. More than you may think. This can be for a variety of reasons, the most likely to be age, incapacity, repugnance or simple disinterest in sexual activity. Companionship may be quite sufficient.

The courts have recognised that some degree of sex is the norm in a marriage between parties of the opposite sex and there is no reason to suppose they would take a different view with a same sex marriage or civil partnership.

In a 1964 case on the ground of cruelty - the precursor, and less onerous ground, of the modern unreasonable behaviour - the parties married when the wife was 18 and the husband 33. They had a child soon afterwards but sexual intercourse ceased about one year later. After 15 years of the husband refusing intercourse, the wife left home. She alleged   her health had suffered. She was refused a divorce and her appeal was thrown out. “I’m not satisfied,” said the appeal judge, “that the husband was guilty of inexcusable conduct. In view of his natural disinclination for sexual intercourse, to find him guilty of cruelty is rather like beating a dog because it will not eat its food.”

And in a 1977 case, the wife was refused a divorce because of her husband’s alleged unreasonable behaviour which was based on an unsatisfactory sex life. She said he had been cold and indifferent to intercourse. This had taken place about once a month and, when it did, the husband quickly withdrew. There were upsets and this wife also left home. Even though her word was accepted, the judge hearing the case decided that unreasonable behaviour had not been proved and an appeal court came to the same conclusion.

In 1980 the Court of Appeal ruled that sexual intercourse once a week over a three month period did not amount to unreasonable behaviour when the 30 year old husband used this as the foundation for his divorce petition against his 31 year old wife. The couple had two children during a ten year marriage. The couple had has sexual difficulties over the years and the husband had undergone a vasectomy. The wife’s rationing had followed that procedure. Lord Justice Ormrod said: “I find it wholly unreasonable to say that she (the wife) was behaving unreasonably.”

If these first two cases were to be rerun now, I would be surprised if the results would be the same. So it is that the party for whom sex is off the matrimonial agenda is vulnerable to their spouse or partner using this as justification for seeking a marriage annulment, a divorce or a partnership dissolution and to the financial consequences which could follow. It all depends on the circumstances of each individual case but vulnerability does exist.

My no-sex agreement which you will find in Breaking Law can be adapted to a civil partnership and to cater for some sex between opposite sex parties which falls short of intercourse. It could scupper an attempt at an annulment of an opposite sex marriage or divorce or civil partnership dissolution on the basis of no-sex  However, in some situations it might not work. Take this one. A healthy and young opposite sex couple enter into an agreement and marry. Later, the wife changes her mind about sex and wants a child through intercourse. The husband though perfectly capable of the act refuses her. The court might well say that the husband’s conduct amounted to unreasonable behaviour despite the agreement. There is also a risk that the court would say that the agreement had to be ignored on the ground that it was contrary to public policy and unreasonable. Be that as it may, in the right circumstances, worth  a try and, at the least, the agreement could well deter both parties from bringing the bedroom into their matrimonial dispute. That cannot be a bad thing: bedrooms are better left as places of privacy.

How Assets should be Split on a Short Marriage Divorce

I put together an accumulator: Boris would have a haircut, Theresa May would win Maidenhead  and the Court of Appeal would decide that the shortness of a marriage would justify disapplying the usual practice of dividing assets equally between the parties when the relationship breaks down. But I forgot to go to the betting shop which was a pity because that is exactly what the Court of Appeal did decide yesterday.

But before you get carried away, let me tell you that yesterday's decision * will only apply in a very limited number of cases. Here were the ingredients for the wife's successful appeal against an order which would have split the assets equally after they she and her husband had been together for just six years which included 18 months of premarital cohabitation. Apart from the short marriage, there were no children, both parties worked and they maintained their separate finances and the wife had been paid some £10.5 m in bonuses by her employers during the marriage. If you reckon you are in the wrong job, apply to become  trader in the wholesale fuel trade. It's unlikely that all those factors or the equivalent of some of them will be present in many other cases. However, I foresee the argument being advanced in future that a short marriage plus no children plus a much greater contribution to the assets by one party as against the other would justify a departure from a 50-50 split.

Incidentally, the same principle will apply on the ending of a civil partnership and the Court of Appeal made clear yesterday that the more fact that one party has committed adultery will have no impact on the decision of the court on how the assets are divided.

In place of an award to the husband of £2.725m, the husband collected £2m.

You will find plenty about finances on the end of a relationship and how not to get stitched up by the other party in my book Breaking Law. And there's  draft pre-nuptial agreement in there too.

* The case was JS v RS [2017] EWCA Civ 408

Revenue Loses over the Returned Return

Again and again, we are seeing the Tax Tribunal (First-Tier Tribunal, Tax Chamber, is its formal and posh title) taking a strict line in what the Revenue has to prove before a penalty imposed on a taxpayer will be upheld on appeal (see http://www.breakinglaw.co.uk/search/label/tax%20penalties ). 

And it has happened yet again as we see in the Tribunal's decision in Pidgeon v HM Revenue & Customs [2017] UKFTT 0438 (TC). Here, the taxpayer was appealing against penalties amounting to £1,500 for putting in a late return.  He did put in a return in November or December 2012. But the Revenue maintained it was unsatisfactory and sent it back to him. A second return was submitted in January 2014 which the Revenue said was satisfactory. The penalties related to the period which elapsed between the Revenue's receipt of the two returns. 

The Revenue cannot chuck back a return at a whim. To justifiably reject, the omissions from it must be so serious as to mean that in reality the document does not amount to a return at all. If you signed and dated the return form but failed to complete any other detail then, in my book, you could not seriously argue that you had sent set in your tax return. If you could there would be a lot of happier folk around.  Whether the document amounted in reality to a return, held the Tribunal, was a matter of fact and degree.

So what was wrong with the taxpayer's first return which had started off the penalties? It was for the Revenue to say but it had failed to do so. What is more, it had failed to produce a copy of the document to the Tribunal. The mere fact that the Revenue had rejected it was not sufficient for the Tribunal to conclude that it was not up to the job. 

The penalties in issue were quashed.

Can't Afford a Lawyer? What to do

Bringing or defending a civil or family case but no legal representation or other legal help? All is not lost. You'll find full details of what help you may be able to access in Breaking Law but here are some routes you can follow. If you've just won the lottery (more than £2 on a scratch card), don't bother.

• Where your landlord or mortgage lender is after getting you out of your home, there is usually a lawyer or other professional at court who you can get advice from on the day and who can probably speak for you in court. It matters not that you haven't seen a lawyer previously.
• Free help from the CAB.  Call 03444 111 444.
• Free help from the RCJ Advice Bureau.  In civil cases where involved in a pending county court, High Court or Court of Appeal case, telephone 020 3475 8996 or for advice on any area of family law, telephone 020 3137 6935. The Bureau may be able to organise free representation in court for you from the Bar Pro Bono Unit. 
• Free help from Law Works, particularly advice on employment, housing, consumer, debt and finance problems. Go to lawworks.org.uk
• Free advice from a law centre. Each centre focuses on core areas which are normally within social welfare law and they may be able to give extra help via legal aid.
• Free advice from the Legal Aid Agency if you pass a means test on debt, housing, education, and discrimination disputes. Telephone 0345 345 4345.
• Check any insurance policy you hold. It may extend to legal representation in a dispute. You could be pleasantly surprised.
• Free legal help from a law school or university law faculty overseen by a qualified lawyer. Google "legal advice from law school students"
• Free legal advice from a solicitor for usually up to 30 minutes. Many firms will offer this. Google the website for your local law society (for example, Hampshire Law Society and see what is on offer or email them). You may also find details of many pro bono (free of charge) initiatives run by many solicitors up and down the country for those in need of legal help who cannot afford to pay for it.
• No win, no fee agreements. You won't have to pay the lawyer if you lose but the solicitor will charge more if you win.
• Damages based agreements. The lawyer acts for you in return for a cut of the damages you are awarded.
• Third party litigation funding where your legal fees are paid in return for a cut of the damages you are awarded if bringing a claim or you are lent fees in cases including matrimonial financial remedy applications. See, for example, www.the judge.co.uk  novitasloans.co.uk  www.augustaventures.com
• In exceptional cases, you may be able to obtain legal aid for the whole case which would not normally be available but, be warned, it is very difficult to secure. publiclawproject.org.uk may help.

If you cannot afford to pay for a lawyer to cover the entirety of a case, you may be able to afford to hire a solicitor or barrister to help you with just parts of it or just to represent you at a court hearing. Lawyers call this 'unbundling' and you can now go to many barristers direct, if you prefer, instead of hiring the barrister through a solicitor.

No luck with any of this? Take a friend to court and ask the judge to allow them to assist with taking notes and handling the paperwork. They will not usually be able to speak on your behalf. They are known as McKenzie Friends. Some so-called Friends may provide this service for a fee. Alternatively, the Personal Support Agency may attend the hearing to give you moral support and can assist you with completing court forms. Go to www.the/psu.org.uk or rcj@the psuoorg.uk, telephone 020 7947 7701.

Revenue Slips Up

Here's another one, just like the other ones! See http://www.breakinglaw.co.uk  In a decision just published by the First-Tier Tribunal Tax Chamber *  the taxpayer was told by the Revenue that he was under investigation. After two meetings with him, the Revenue claimed to have sent him a notice to produce information and documents. When there was no response, the Revenue imposed a £300 penalty on him. The taxpayer had never acknowledged the notice or given any indication that he was aware of it despite subsequently writing to the Revenue. The taxpayer appealed against the notice.

The appeal was successful and the penalty quashed. The Revenue had not proved that the notice had been sent and received. Often receipt will be presumed where there is evidence of posting. But the Revenue had failed to prove either that they had posted the notice or that the taxpayer had received it.  Had they proved these facts, the penalty would still have been quashed because the notice had been so poorly drafted that, if received by the taxpayer, he would not have known precisely what was being required of him. The notice also proceeded on the erroneous basis that the taxpayer could be expected to produce documents or information held by third parties including companies of which he is or was a director. Those documents and that information were the property of the companies, nobody else.

I'll leave it there. I've got to get my 2016/17 return completed. Don't want to be late.

* The case is Anstock v HMR&C [2017] UKFTT 307 (TC)

Taxpayers Victorious

I realise that it was only the other week that you had your handkerchiefs out for the tax man (see http://www.breakinglaw.co.uk/search/label/tax%20penalties). Bad news. You need them out again. Tissues will do. 

In a series of more appeals to the First-Tier Tribunal of the Tax Chamber, penalties have been cancelled on the grounds that the taxpayer had a reasonable excuse fior being late doing what had been required of them. Many taxpayers lose appeals  but in two of the successful appeals we will have a look at, the Tribunal was mainly on the taxpayer's side.

In Hindocha v HMR&C [2017] UKFTT 0373 (TC) the Revenue accepted that serious mental illness could be enough to excuse lateness but it went on to argue that where the illness was an ongoing condition the taxpayer should make arrangements for sending in their tax return on time. The Tribunal decided that the taxpayer had suffered from a serious mental  illness which had been ongoing for four years in the form of depression, anxiety and panic attacks. And it went on to decide that it had affected the taxpayer in such a way that he had been unable to arrange for somebody else to get his returns in for him. He had found it impossible to get his menial day to day activities sorted, let alone his finances and taxes. He won his appeal and penalties totalling nearly £1,500 were quashed.

The taxpayer secured the cancellation of a £400 penalty but suffered the the upholding of a £100 penalty in Islam trading as Zainub Takeaway v HMR&C [2017] UKFTT 0337 (TC) so his appeal was well worth the trouble. His tax return went in more than three months late. The Revenue's practice is to penalise on a daily basis if a return is more than three months late. That's where the £400 came in. However, the Revenue came a cropper because it failed to establish that the notice of this penalty it sent out to the taxpayer had specified the date from which it was payable. The £100 stood as although the taxpayer did not speak very good English and his understanding of written English was poor, he knew of his responsibilities. He had engaged an accountant to help him in the previous year but failed to do so for the year in issue. He did not have a reasonable excuse for his default.

PS The Waitrose carpark clock was five minutes late yesterday! See 

http://www.breakinglaw.co.uk