The Supreme Court judges' decision to prevent a wife from divorcing her husband, which was made 'without enthusiasm', is expected to lead to calls for a rapid change in the law.

The case arose after a wife's application for a divorce was opposed by her husband on the basis that the marriage had not irretrievably broken down. Slightly more than 1 in 1,000 divorce applications lead to a contested hearing on that ground. Under the law, there is an automatic right to a divorce only under a limited number of circumstances.

These are:

*Divorce without consent can take place where the couple have lived apart for five years;

*A couple who have lived apart for two years can divorce with the consent of both spouses; or

*A couple can divorce where there is an irretrievable breakdown in the relationship. This can be evidenced in several ways, including adultery, but the essence is that the behaviour of the spouse is such that the other spouse cannot reasonably be expected to live with him or her. In this instance, the husband's behaviour, though far short of what might be expected in a normal loving relationship, was not so egregious as to meet that test.

In this case, the husband believed that a reconciliation was possible, and the couple had not lived apart for five years.

When a petition for divorce is made on the ground of unreasonable behaviour, the normal practice is for such behaviour to be dealt with very briefly, as a detailed exposition can increase the ill-feeling at what is always a difficult time and that in turn can make other aspects (such as the residence arrangements for children and the financial arrangements) more difficult to negotiate. The wife's evidence in respect of her husband's behaviour was therefore limited. For example, in regard to one aspect (that he belittled her in front of others) she called no witnesses to the first court hearing to support her claim.

The appeal to the Supreme Court dealt in essence not with the husband's behaviour as such, but the effect it had on his wife.

Our experts in family law are experienced in dealing with all aspects, contentious or not, of family breakdown.

For help and advice please contact Karen Moores, k.moores@sydneymitchell.co.uk on 0808 166 5638.

The law that allows someone who was dependent on a deceased person during their lifetime to make a claim against their estate if there is no, or inadequate, provision for them in the will is one of long standing (the Inheritance (Provision for Family and Dependants) Act 1975). However, many people think it applies only to blood relatives.

That this assumption is incorrect was emphatically confirmed in a recent case in which a 70-year-old woman was awarded £325,000 from the estate of a man with whom she had had a relationship lasting more than 20 years, the last seven of which they had spent together in the man's home, which was the principal asset of the estate.

His will left his £1 million estate entirely to his two daughters, both of whom are comfortably off. When his former partner made a claim under the Act, they opposed it, contending that the relationship was not one of permanence and substance.

The judge concluded that the man had clearly had a responsibility to his partner and made the award.

The case raises the following points. The first is that if you are in a similar situation and wish to leave your assets in a particular way, that can normally be achieved, but success may depend on making arrangements well before your demise. Secondly, if you are in a situation in which appropriate provision has not been made for you, a well-founded and well-argued challenge to a will that cuts you out may produce success.

For help and advice please contact Hayley-Jo, h.lockley@sydneymitchell.co.uk on 0808 166 5638.

In 2016 receptionist Nicola Thorp was sent home on her first day of work at a corporate finance company in the City of London. This was because she refused to wear shoes with two to four inch high heels. She launched an online petition calling for the law to be changed and garnered more than 152,000 signatures. The Parliamentary Petitions Committee and the Women and Equalities Committee did find “potentially discriminatory dress codes are commonplace”. But in March 2017 Parliament announced it would not be changing the law.

The good news is that the Government Equalities Office has now provided clarity to both employers and employees and job seekers with its publication, “Dress Codes And Sex Discrimination – What You Need To Know”, available on the Gov.UK site.

So why is dress code significant? It can present the professional image of a business, or provide consistency, or can be important for health and safety. But it’s also a minefield in terms of discrimination.

The Government Equalities Office publication recognises that employers can set a standard for the dress of employees and suggests this is best done in consultation with unions or employees. Employers should take the opportunity to explain their reasoning. A dress code can become a valid term in an employee’s contract of employment.

Whilst such a code does not have to be identical for women and men, there should be equivalence.

So it would be hard justifying women wearing formal black clothes when the men can make do with sweatshirt and jeans. But it’s acceptable for men to be required to wear ties if women are expected to be equally formal.

Female employees should certainly not be expected to dress provocatively. Dress can lead to harassment especially in retail situations.

So what’s a safe dress code?  This might for example be a supplied uniform, or a black suit and low heeled black shoes. Transgender staff should be given the option of interpreting the dress code, or wearing the supplied uniform, for whatever gender they choose. It’s a question of requiring similar standards from all employees, whether they be male or female or transgender, and treating the requirement with equal rigour in each case.
 
And finally, gender specific clothing or appearance is to be avoided, and that, of course, includes two to four inch heels.

Important agreements, even between close family members, should always be put into writing by a lawyer as the best means of heading off future discord. The point could hardly have been more clearly made than by a High Court dispute concerning a ramshackle football ground that set father against son.

A businessman had stepped in to save his struggling local football club when it was heavily in debt and had only 109 members. Many years later, however, the fortunes of the club were transformed when its ground was earmarked for development as part of a major urban regeneration project. As a result, the site was estimated to be worth at least £10 million.

The businessman’s son and nephew argued that, before the club’s purchase, he had agreed that they would have a 20 per cent stake in the business. A former boyfriend of his daughter also claimed a 10 per cent share. They argued, amongst other things, that the club would not have thrived had it not been for their extensive and gratuitous assistance in running it. The businessman, however, resisted their claims.

In ruling in his favour, the Court was not satisfied that he had promised the three men that they would be part-owners of the club. They had neither been answerable for the club’s debts, nor had there been a partnership or joint venture agreement. In the absence of written records, it was also impossible to identify any definite and material financial contribution made by any of them to the club’s purchase.

Whilst the Court accepted that they had worked with a view to improving the fortunes of the club, their contribution had not been exceptional and had not been linked to any assurances given to them by the businessman. Following strife within the family, they had some years ago ceased their involvement in the club. The Court concluded that they had no beneficial interest in the club, or its ground.

Contact Kam Majevadia K.Majevadia@SydneyMitchell.co.uk / Hayley-Jo h.lockley@sydneymitchell.co.uk for help and advice on 0808 166 8860

Those who doubt the legal advantages of getting married should take note of a case in which an elderly man was left facing homelessness after his partner’s unexpected death and had to go to court to seek reasonable provision from her estate.

The unmarried couple were of similar age and the man expected that, in the natural course of things, he would probably die first. They lived in a house that was in her sole name and, after she died suddenly, her son – to whom she had left almost all her estate – took steps to make him leave the property.

After the man consulted solicitors, they launched proceedings on his behalf under the Inheritance (Provision for Family and Dependants) Act 1975. The claim was hotly resisted by the son, who argued that the relationship between the man and his mother had become more akin to that of a lodger and a landlady by the time she died.

In upholding the man’s claim, however, a judge noted that the circumstances of the case provided an example of the vulnerable position in which cohabitants can find themselves if they unexpectedly survive their partner. The couple’s relationship had lasted for about 20 years and they had lived openly as husband and wife for more than a decade.

The judge noted that the woman died on board an aircraft as the couple were going on holiday together. She had complained to friends about his lifestyle and that she had to do everything for him, but it was unfair to characterise him as a mere lodger. She had made it clear that she had no wish to live alone and the relationship contained an element of mutual support. Although they had not married, their commitment to each other was equivalent to engagement. Believing that he would be the first to die, the man had made a will leaving her half of his estate.

He had, in the circumstances, established that he was dependent upon the woman for accommodation and was entitled to reasonable provision from her estate. The judge ordered a sale of the home they once shared and ruled that half the proceeds should be invested in purchasing a new home for the man. That sum would revert to the woman’s estate on his death.

Contact Kam Majevadia K.Majevadia@SydneyMitchell.co.uk/ Hayley-Jo Lockley h.lockley@sydneymitchell.co.uk for help and advice on 0808 166 8860

Letters of appointment do not always reflect reality and are sometimes couched in terms that are deliberately designed to disguise an employment relationship. As a recent decision of the Employment Appeal Tribunal (EAT) showed, however, their impact can be decisive if they are not proved to be a sham (Hafal Limited v Lane-Angell).

The case concerned a woman who worked for a charity that provided appropriate adults to assist those detained in police stations. She was initially taken on as a volunteer but later began to be paid for her work. Her letter of appointment stated that her engagement was on a 'bank basis', that there were no guaranteed hours and that the charity would use her services as and when required, and only if she were available.

The charity operated a 'three-strikes' rule, whereby it dispensed with the services of those who had given notice of their availability to work but who failed to answer telephone requests to do so on three occasions. After that rule was applied to her, the woman launched an unfair dismissal claim. Following a preliminary hearing, an Employment Tribunal (ET) found that she was an employee and so her claim could proceed.

In upholding the charity's challenge to that ruling, the EAT noted that the ET had paid little or no regard to the woman's letter of appointment. There was no evidence that it was a sham designed to create the impression of casual work where an employment relationship in fact existed. The woman acknowledged that she worked on a bank basis, her argument being that the position evolved over time to become something more formalised.

The woman had not been under an obligation to provide any or any minimum number of dates on which she would be able to work and the three-strikes rule, although in the nature of a sanction, was clearly only applicable to those who had expressed their availability to work but who could not be contacted. The mutuality of obligation required for an employment relationship was not present and the EAT substituted a decision that the woman was not an employee.

Please contact Samantha Glynn on S.Glynn@sydneymitchell.co.uk or call 0808 166 8860 for advice on any contractual matter.

Everyone is entitled to seek justice from the courts, but perhaps the most crucial role played by professional litigators is to advise their clients when it is wise to settle and cut their losses. In one case exactly on point, minority shareholders whose interests were unfairly prejudiced nevertheless came away severely out of pocket.

The shareholders owned 13 of the 100 shares in a company that sold advertising space on open air cigarette bins that were provided in response to the workplace smoking ban. The business was signally unsuccessful, virtually no third party advertising having been obtained, and eventually folded.

The shareholders argued that the company’s guiding mind and managing director had run the business in a manner contrary to their interests, in that he had arranged for the provision of heavily discounted, and eventually free, advertising space on the bins to an unconnected company of which he was chairman.

Their unfair prejudice claims, brought under Section 994 of the Companies Act 2006, were upheld by a judge on the basis that the managing director had behaved in an intransigent and arrogant fashion and had entirely abandoned the best interests of the company. He was required to buy out the minority shareholders.

Following a further hearing, however, another judge found that the venture had in any event been doomed to failure and that those shareholdings were effectively worthless. The managing director was nevertheless ordered to pay the six-figure legal costs run up by the shareholders in pursuing the case.

In upholding the managing director’s challenge to the latter ruling, the Court of Appeal found that the shareholders had, as a matter of substance and reality, lost the case. They had brought the proceedings not simply to make a point but in the hope of obtaining a seven-figure sum for their shares. In the event they had come away empty-handed.

The Court noted that the shareholders had also turned down pre-trial offers to settle their claims for up to £400,000. In the circumstances, they were ordered to pay the legal costs of the managing director and three other directors who had defended the action, but who had previously been left to pay their own bills.

For help or advice on this or other litigation matter, please speak to Kam Majevadia K.Majevadia@SydneyMitchell.co.uk  or Preena Lal p.lal@sydneymitchell.co.uk on 0808 166 8860.

You are entitled to object to your neighbours’ building plans, but wise homeowners always seek professional legal advice before doing so. In one case, which a homeowner who opposed construction of an extension next door ended up being ordered to pay his neighbours more than £20,000 in damages.

The man believed that the extension would be too close to his gas flue outlet and sought an injunction against the couple next door. In the event, the couple gave a formal undertaking that they would suspend the works pending resolution of the dispute. A property expert was jointly appointed to resolve the matter and the man promised that, if he turned out to be in the wrong, he would pay the couple damages.

After the expert found that the extension involved no encroachment onto the man’s property, the couple launched proceedings to hold him to his promise. While the building works were delayed by the dispute, the couple had to move out to live with a relative, to whom they paid rent. The costs of the project ballooned and they had to move their belongings into storage. They also had to cancel their Sky subscription and incurred extra costs in driving their children to and from school.

Following a hearing, a judge ordered the man to pay the couple £22,860 in damages. He was also directed to move his gas flue further away from the boundary so as to comply with building regulations. The man challenged the decision, but the High Court could find no flaw in the judge’s ruling and dismissed his appeal.

For help or advice on this or other property dispute matter, please speak to Sundeep Bilkhu, s.bilkhu@sydneymitchell.co.uk  on 0808 166 8827

When money passes between family members without legal advice, it is only too common for disputes to arise as to whether the sums concerned were meant as gifts, or something more. Exactly that happened in one case, in which a mother and son ended up at loggerheads over ownership of properties worth £800,000.

The case concerned a flat and a house which were both held in the son’s sole name. A family row erupted some years after the properties were acquired, and his mother claimed that she had paid the whole of the flat’s purchase price and made a significant contribution to buying the house. She launched proceedings, asserting that she was the beneficial owner of the flat and a proportion of the house equal to her contribution and that both were held by her son on trust for her benefit.

In ruling on the dispute, a judge noted that the son was a successful businessman and would well have been able to afford to purchase the flat for £56,000 without his mother’s help. Although she had made payments to him exceeding £60,000 in the years before the purchase, they were gifts and there had been no intention that she would thereby obtain equity in the property. Her belief that she had made payments to her son specifically to enable the flat’s purchase was erroneous.

The house had been bought for £375,000 and there was no dispute that the mother had paid her son £111,000 prior to its acquisition. The Court found that, in that instance, the payment had not been intended as a gift and that it entitled the mother to a one-third beneficial interest in the property.

For help or advice on this or other related contentious probate matter, please contact Hayley-Jo Lockley, h.lockley@sydneymitchell.co.uk on 0808 166 8860

The Parental Bereavement (Leave and Pay) Bill began life as a Private Members' Bill in July 2017. The Bill is being supported by the Government and is now wending its way through Parliament.

The aim of the Bill is to give parents who are employed and have suffered the death of a child under the age of 18 the right to two weeks' Bereavement Leave in order to give them time to grieve. Employees with 26 weeks' continuous service will also be entitled to Bereavement Pay. Under the law as it stands, employers are not required to give paid leave to grieving parents. Whilst employees have the right to take a reasonable amount of time off work to take action which is necessary for dependants – for example, if they are ill or injured – or make the necessary arrangements 'in consequence of the death of a dependant', there is no right to sickness absence due to grief.

The Government has now published a consultation document seeking views on options for regulations to fulfil certain provisions contained in the Bill, specifically on:

  • the definition of 'bereaved parent';
  • how and when two weeks of Bereavement Leave and Pay can be taken; and
  • the notice and evidence required to take Bereavement Leave and Pay.

The consultation, which can be found at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/695894/Bereavement_Leave_Consultation.pdf closes on 8 June 2018.

The Parental Bereavement (Leave and Pay) Bill can be found at https://publications.parliament.uk/pa/bills/cbill/2017-2019/0164/18164.pdf

Contact Samantha Glynn on employment law matters on 0121 698 2200 or email Sam on s.glynn@sydneymitchell.co.uk

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