Every family is different whether they are married, live together, have children, are childless or same sex. Why then should there be Collaborative Law Team Sydney Mitchell LLP 0121 700 1400only one option i.e. the court, to help families when relationships come to an end or when families want to agree what should happen if a relationship comes to an end.

Collaborative law has been around for over 10 years. It puts families in control of how children and assets are going to be dealt with if the family are no longer going to live together. It excludes court involvement, except to approve what the parties have agreed. It is entirely private.  It is non-confrontational, but it still involves lawyers and other professionals in helping families make arrangements. It is completely transparent. Discussions take place in meetings with all parties including lawyers so.

Frankly, it works. It is harder to lose sight of trying to reach an amicable solution when you sit in a room together. You are in control of the agenda so that you can prioritise matters that are important to the family.

The collaborative process can also be used at the start of a relationship in order to negotiate and agree a pre-nuptial agreement or living together agreement in anticipation of marriage, cohabitation or a civil partnership.

We have a collaborative lawyer at each of our offices.

If you wish to discuss this process in any more detail or to see if it is suitable for you please look at  the video on the attached link https://www.sydneymitchell.co.uk/services-individuals/family-law/separation-and-divorce/collaborative-law or contact Judi Wood, Amanda Holland or Teresa Mannion on 0121 700 1400.

Former couples can obtain divorces in almost any country to which they have a sufficiently close connection and that is a frequent source of jurisdictional disputes. In one case, the High Court found that a woman had wrongly been granted an English divorce after her marriage had already been brought to an end by a French court.

The ex-couple, who had two children, were French nationals but had homes in both England and France. Some years after their separation, the husband obtained a divorce in France. The wife, who had settled in England, obtained a decree nisi from an English court about a year later. That decree was later made absolute.

The husband’s application to have the French divorce recognised in England was subsequently upheld by a district judge. The wife, however, appealed on the basis that she had not received proper notice of the French proceedings and that the husband was aware of the proceedings in England. She argued that, in those circumstances, the English decrees should be allowed to stand.

In dismissing her appeal, however, the Court found that she had chosen not to take part in the French proceedings, although she had known about them several months before the French divorce was finalised. There was evidence that the English court did not have all relevant information before it when it granted the decrees. In those circumstances, the French divorce had rightly been recognised in England and the decrees nisi and absolute were null and void.

For help or advice on divorce related matters, contact Teresa Mannion or a member of the Family Law Team on 0121 756 3300. t.mannion@sydneymitchell.co.uk

On 8 February, the Employment Rights Act 1996 (Itemised Pay Statement) (Amendment) Order 2018 was laid before Parliament. The Order, which is due to come into force on 6 April 2019, makes changes to the information that must be shown on the payslips of employees whose wages vary depending on the amount of time they have worked.

Currently, payslips need only show details of the employee's gross wages or salary, any deductions made from the gross figure, and the net amount of wages or salary payable. From 6 April 2019, where the employee's wages are dependent on how much time they have worked, the total number of hours worked must be shown either as a single aggregate figure or as separate figures for different types of work or different rates of pay.

The change should make it easier for employees to check the accuracy of their pay and to easily identify if they have been paid the National Living Wage or the correct rate of the National Minimum Wage for the hours worked.

In addition, the Government has introduced the Employment Rights Act 1996 (Itemised Pay Statement) (Amendment) (No. 2) Order 2018, which extends the right to receive a payslip to all workers from 6 April 2019.

For help or advice on this or other related employment law matters, please speak to Samantha Glynn on 0121 698 2200 or email. s.glynn@sydneymitchell.co.uk

The Employment Rights (Increase of Limits) Order 2018, which details the annual inflation-linked changes in limits on the compensation amounts which can be awarded by an Employment Tribunal (ET), has been laid before Parliament. The new rates will apply where the appropriate date falls on or after 6 April 2018.

The main changes are:

  • The maximum amount of a week's pay for the purpose of calculating a redundancy payment, or for various awards including the basic or additional award of compensation for unfair dismissal, increases from £489 to £508. The maximum award of an employee's statutory redundancy pay therefore increases from £14,670 to £15,240;
  • The minimum amount of compensation where an individual is found to have been unlawfully excluded or expelled from a trade union increases from £9,118 to £9,474; and
  • The statutory maximum compensatory award for unfair dismissal increases from £80,541 to £83,682.

There is no statutory cap on the amount an ET can award in discrimination cases.

See http://www.legislation.gov.uk/uksi/2018/194/pdfs/uksi_20180194_en.pdf for full details of the changes.

For Legal help and advice on employment matters, please contact Samantha Glynn s.glynn@sydneymitchell.co.uk

Buying a printed will form from a shop and filling it in yourself may sound like a smart way of saving a little money on lawyers’ fees – but it most certainly is not. The point was made by a High Court case in which a woman fed the fire of a family dispute by signing three such forms without taking any legal advice.

The woman signed the three purported wills four years apart. By the time she made the last one, she was said to have been diagnosed with Alzheimer’s disease. All three wills were in similar, but not identical, form. After gifts to her children, she directed that her home be sold and the proceeds paid to her brother.

The brother applied to the Court for a grant of probate, but without specifying which of the wills he considered to be valid. The woman’s son disputed the validity of all three wills on the basis that they had not been executed in accordance with the strict requirements of the Wills Act 1837. In particular, it was argued that two witnesses whose signatures appeared on the wills had not been present when the woman herself signed them.

In ruling on that issue, the Court noted evidence that the woman was entirely housebound when she signed the two later wills. It found that her brother had fabricated evidence that she had travelled by car to the witnesses’ home in order to sign the wills in their presence.

There was evidence that, by then, she did not travel in cars and the brother had had several opportunities to procure her signature on the wills when alone with her. In respect of the last of the three wills, however, the Court found that the evidence of defective execution was not powerful enough to overcome the legal presumption that it was valid.

The son also claimed that his mother was not of sound mind when she signed the wills, and that the brother had brought undue influence to bear upon her. Those claims would be tried at a further hearing.

Contact Tracy Creed or Kam Majevadia on non-contentious or contentious probate matters. t.creed@sydneymitchell.co.uk or k.majevadia@sydneymitchell.co.uk

Children thrive best when they have ready contact with both their parents. However, as one case involving the eight-year-old son of Polish parents showed, difficulties frequently arise where one parent wishes to relocate overseas.

The end of the parents’ relationship was acrimonious and their son had suffered a degree of emotional harm as a result. However, they had settled into shared care arrangements in England before the mother formed a new relationship with a successful businessman who lived in Poland. She applied to a family judge for permission to move back to her homeland with her son.

Her proposal was met by the father’s fierce resistance and, in refusing permission, the judge was highly critical of the mother. Amongst other things, he found that, in presenting her son as an ill child, she had deliberately exaggerated or invented his psychological problems in an attempt to add weight to her case.

In upholding the mother’s appeal against that decision, the High Court recognised that it was a difficult and finely balanced case. However, the judge had left various relevant factors out of consideration, in particular the profound difficulties that the mother would encounter in maintaining her new relationship if she had to remain in England and the likely impact of that on her son.

There was a lack of balance in the judge’s findings in respect of the mother’s alleged medicalisation of her son; there had been no assessment of her ability to make a living in England and insufficient weight had been given to her history of promoting contact between her son and his father. In the circumstances, the mother’s application to relocate was remitted to a different judge for reconsideration.

Contact Amanda Holland or a member of our family team on 0121 698 2200

 

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An equal division of assets in divorce is a norm that can occasionally be departed from, for example if one party to a marriage has made a ‘stellar contribution’ to the marital wealth or the marriage is a brief and childless one. However, the Court has made it strikingly clear that such exceptions to the rule are wholly exceptional and in one judge’s words “are as rare as white leopards”.

In one such case, the Court of Appeal decided in a ‘big money’ case that the brevity of a childless marriage, during which the husband and wife largely kept their finances separate, justified a departure from an equal division of the assets.

The primary source of the couple’s wealth was £10.5 million in bonuses that the commodities trader wife had earned in just five years. Her rewards had enabled them to lead a lavish lifestyle and, towards the end of the marriage, the husband had taken redundancy and devoted himself to refurbishing their two homes.

The marriage lasted only four years, foundering after the wife discovered that the husband was having an affair. The assets that stood to be divided in their divorce were worth £5.45 million and a judge decided that the husband should have half of that.

In allowing the wife’s appeal, the Court found that a departure from the equal sharing principle was justified. Effectively all of the marital assets had been generated by the wife. The couple had no children during a short marriage and there had been little inter-mingling of their wealth. The Court found that the husband was entitled to £2 million, made up of a £1.1 million house and a £900,000 capital sum.

The principles applied in this case will not always fit and therefore the question remains, how does one protect one’s assets in the event of divorce? Effective protection can come from preparing well thought out and well drafted trust documents before marrying.  Alongside trusts,  another effective form of asset protection is a pre-nuptial agreement. These have, over recent years, become increasingly popular with couples who have assets owned prior to marriage that they wish to protect in the event of divorce.

For advice on protecting your financial interests in the event of relationship breakdown, contact Mauro Vinti on 0121 746 3300 m.vinti@sydneymitchell.co.uk

Personal relationships are generally considered private matters, but it is sometimes necessary for judges to delve deeply into them in order to discern whether binding promises have been made. One such case concerned a handyman who formed an intimate relationship with his very wealthy employer.

The woman, who was worth about £10 million, had taken on the handyman to do odd jobs around her country estate. However, after their relationship developed, he claimed that they had lived together as man and wife for several years before they parted acrimoniously. He alleged that she had promised him a stake in two residential properties and shares in a company that owned a third. Alternatively, he sought compensation for work he had done on the properties.

She accepted that she had had a dalliance with him, but argued that their relationship never moved beyond that of an employer and employee who became good friends and companions and occasionally enjoyed sexual intimacy. She denied that she had ever promised him any part of her wealth, which was in part derived from her divorce but also from her success as a property developer.

In dismissing the handyman’s claim, a judge found him to be a thoroughly dishonest witness. The woman had never had any interest in forming a committed relationship with him and he had never been any more to her than a kept man, in addition to being an employee or jobbing worker.

She had made him no enforceable promises and he had never genuinely believed that she was his business partner or that he would be entitled to a share of any of her assets. There was also no credible evidence that he had done any work for which he had not been paid. The facts of the case emerged as the Court of Appeal dismissed his challenge to the judge’s decision. Neither the judge’s assessment of the witnesses nor his findings of fact could be faulted.

If you are concerned about family legal issues or have been affected by similar issues to that above, please contact Amanda Holland or a member of the Family Team on 0121 698 2200, email a.holland@sydneymitchell.co.uk or fill in our online enquiry form.

Merry Christmas and Happy New Year from Sydney Mitchell 0121 746 3300

Wishing all clients, contacts, family and friends of Sydney Mitchell LLP a Merry Christmas and a Happy and Prosperous New Year.

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