Category

Legal

No fault divorce

By | Education, family, Finance, Legal, Relationships
by Carrie Crown
Mackrell Turner Garrett Solicitors

Under the current law, if you and your spouse have separated within the last two (or sometimes even five) years you must provide evidence that your spouse has either committed adultery or otherwise behaved in a way that you cannot tolerate to live with before the Court will grant permission for you to get a divorce.

These ‘fault-based’ divorces were thrust into the public eye last year when the case of Owens vs Owens, came before the Supreme Court to consider whether Mrs Owens could divorce her husband on the basis of his unreasonable behaviour towards her. Mr Owens defended the divorce.

Ultimately, the Supreme Court reluctantly agreed with Mr Owens that his behaviour during the marriage had not been unreasonable and therefore Mrs Owens is forced, for the time being, to remain married to him.

As a result, neither Mr or Mrs Owens can ask the Court to make a decision regarding the division of the assets of the marriage, as a financial application in divorce can usually only be dealt with once the Court has declared that the divorce can proceed and decree nisi, often called the ‘first stage’ of the divorce has taken place.

Although Mr and Mrs Owens had no dependent children, the law as it currently stands can be particularly onerous for parents of young children who find themselves unable to divorce and therefore unable to sort out the matrimonial finances for several years after separation has taken place. This can result in significant delay in being able to provide a stable home for children and suitable arrangements for their ongoing care. All of this will inevitably impact upon the emotional wellbeing of the children.

People are often therefore forced to petition for divorce for one of the ‘fault-based’ reasons, submitting evidence to the Court as to why the behaviour of their spouse has led to the breakdown of the marriage. This often results in hurt feelings, anger and increased tensions between the parties.

Over the years, the Government have been reluctant to reform the UK’s divorce law, believing that making it easier for couples to divorce would somehow undermine the sanctity of marriage and increase the rates of divorce.

In 2017, a national survey carried out by the Nuffield Foundation found that 62% of petitioners and 78% of respondents in a divorce said that using fault had made the process more bitter, 21% of fault-respondents said fault had made it harder to sort out arrangements for children, and 31% of fault-respondents thought fault made sorting out finances harder.

In 2018, Resolution, an organisation which consists of 6,500 family lawyers (myself included), declared that there was a ‘divorce crisis’ in the UK and in November launched it’s ‘Good Divorce week’ seeking to highlight the impact upon children in particular of a system of divorce which attaches blame to one party.

Finally, following a 12 week public consultation, on 9th April 2019, Justice Secretary David Gauke announced that divorce law in the UK would be reformed and that, in future, the only ground for divorce would be that the marriage had ‘irretrievably broken down’ commenting that ‘hostility and conflict between parents leave their mark on children and can damage their life chances.’

The proposals will also dispense with the requirement to provide evidence of the ‘fact’ of adultery or unreasonable behaviour and substitute it for a ‘statement of irretrievable breakdown.’ The current two-stage process, Decree Nisi and Decree Absolute, will remain and a minimum timeframe of six months will be set from the date of the petition to decree absolute. The option will also be made available for parties to issue a joint-divorce petition.

Currently there is no set timetable for the legislative reforms to take place. Let’s face it, the Government have been somewhat busy of late! David Gauke has said, however, that
he intends the reforms to take place as soon as parliamentary time allows.

The changes do not, in my professional opinion, make the process of divorce any ‘easier’ and certainly no quicker than the current system. It will, however, make the process far less adversarial and emotionally damaging for all those involved.

Carrie Crown, Family Associate Solicitor at Mackrell Turner Garrett, Surrey, is a resolution-accredited specialist and is therefore committed to resolving family disputes in a non-confrontational and constructive manner wherever possible.

Email: Carrie.Crown@mtg.uk.net
Telephone: 01483 755609
www.mackrellsurrey.com

Flexible working

By | Legal, Work employment
by Emma Cleary
Ten2Two Sussex

Five steps to making a flexible working request – when you’re already in a role.

If you’re in a current job but you’d like more flexibility, what should you do? Well, there’s a set procedure as outlined by ACAS that both you and your employer must adhere to when making a flexible working request. The same goes for asking for Shared Parental Leave.

We look at how you can have those tricky conversations with employers about flexibility and work-life balance.

Emma Cleary, Partner at Ten2Two Sussex says, “When you’re in a role, it can be difficult to find the right moment to discuss any changes with your employer. If your company is large, it’s likely to have a Human Resources department handling any changes to an individual’s contract. If it’s smaller, your conversation could be setting a precedent and your employer may be entering new territory for the first time.”

Choose your moment
If you work for a small company, asking for flexibility or Shared Parental Leave may feel uncomfortable but you’re within the law and it’s your right to ask, as long as you fulfil the conditions of service.

Know your rights
Look at what your company’s policy says about how requests should be made. You can find further advice from the Citizen’s Advice Bureau.

To have the statutory right to ask for flexible working arrangements, you must: be an employee and have worked for your employer continuously for 26 weeks at the date on which you make your application. For Shared Parental Leave, this needs to be at least 26 weeks up to the end of the qualifying week (the 15th week before the expected week of childbirth). You must still be employed by the same employer in the week before any Shared Parental Leave is due to start.

Be clear about what you want
There are lots of ways flexible working hours can be packaged. Think about how you want to work the time. With flexible hours, these can be anything from staggered hours to nine day fortnights. If you’re not sure, the Ten2Two website outlines these, so have a think about what it is you really want.

If you’re making a Shared Parental Leave request, who will take what time off, and when will you do it? Are you asking to have time off during a particularly busy period? An employee is entitled to submit three separate notices to book leave. For example, you could choose to come back to work to help cover a particularly busy time for the company before going on leave again afterwards.

Set it out in writing
Flexible working and Shared Parental Leave requests must be made in writing. Follow the guidelines, date it and format it. Set out what you want and when you want it to come into effect.

If seeking flexible working, add how you think this will affect the existing business and how, in your opinion, this might be dealt with. You can only make a request for flexible working once every 12 months, so it’s important to get it right. Remember to provide solutions and benefits rather than present your employer with problems.

Expect a meeting to discuss it
An employer will likely want to talk through your request, although not always. A flexible working process needs to be completed within three months of the request being initially made. You can bring a work colleague to the meeting if you wish. A Shared Parental Leave request needs to be made at least eight weeks before the leave is due to be taken.

What happens if they say no?
Your flexible working request will likely be met by one of three outcomes – either it will be accepted or your employer will suggest a compromise. In the case of rejection, your employer needs to set out clear reasons for doing so. You can appeal this and you should be offered a meeting if you feel the application wasn’t handled responsibly.

When it comes to Shared Parental Leave, leave must be taken in complete weeks and may be taken either in a continuous period, which an employer cannot refuse, or in a discontinuous period, which the employer can refuse.

Emma Clearly, Director at Ten2Two says, “It’s traditionally viewed as simpler to ask for flexible working once you’re already in a role – but that is beginning to change. Many employers are realising that flexible working is becoming accepted as a standard work practice, and a key retention tool. It’s also an important employee benefit for businesses seeking to attract new talent as the skills gap squeeze begins to bite.”

If you’d like to find a flexible career role, talk to Emma Cleary at Ten2Two Sussex today.

Contact Emma at emma@ten2two.org or call us on 07810 541599.
Ten2Two is a flexible and part-time recruitment agency providing professional staff for forward-thinking companies across Sussex and
the south of England.
Register at Ten2Two.org

 

Employing a nanny – things you need to consider

By | family, Finance, Legal

We appreciate that employing a nanny to care for your little ones is a big decision. Once you have found your Mary Poppins, there are a number of things you need to think about from contracts and cars to wages and tax. It can seem a daunting prospect, but it doesn’t have to be!

On hiring a nanny, you will become an employer. As an employer, you have an obligation to pay tax, national insurance and provide a pension for your nanny.

Agree a gross wage
Most people’s salaries are defined in gross terms, but unfortunately in the nanny industry, net salary arrangements, that is, agreeing a take home pay figure, have been the traditional practice.

But beware, agreeing a net salary could end up costing you a lot of money!

If you agree a net wage and your nanny has a student loan or an outstanding debt with HMRC then the nanny’s monthly money in their pocket would remain the same but your costs would increase, as you would effectively be paying the nanny’s student loan or debt on top of their wages!

We would always recommend agreeing a gross salary as this then protects you the employer from any hidden costs.

But gross can be better for nannies too!

The tax-free allowance increases every year and net agreements will not see the benefit of this. The employer will see the tax saving, not the nanny.

Tax and National Insurance
As an employer, you are responsible for deducting and paying your nanny’s Income Tax and National Insurance contributions to HMRC.
You will need to register as a new employer with HMRC and set up a PAYE scheme but, don’t worry, a good Nanny Payroll company can do this for you.

Pension contributions
If your nanny is between 22 and state retirement age and earns more than £10,000 a year, you must set up a pension scheme for them.

You will have to make a contribution towards this pension scheme each month, based on your nanny’s gross salary.

Again, a good Nanny Payroll company can set up the pension scheme and administer it for you.

Employer’s liability insurance
When employing someone in your home, you will need to make sure your home insurance covers you for people working in your home.

Employer’s Liability Insurance is a legal requirement for all employers in the UK set by the Employers Liability (Compulsory Insurance) Act 1969. This protects the employer from any claim for compensation by an employee for illness/injury sustained as a result of their employment with you.

Nanny share
Nanny shares are becoming an increasing popular way of making nanny employment more affordable and accessible for many families. It can also be a good way of allowing an only child to socialise with other children without going to nursery.

Nannies can often work for two or more families, by caring for the children all at the same time or by splitting the week between them.

It is important to remember that however many families the nanny is working for, each will be considered an individual employer and as such have the individual responsibilities, even if all the children are being cared for at the same time.

Other bits and pieces…
You must provide your nanny with a payslip every week or month, showing their earnings and any deductions that have been made.

You must pay your nanny at least the national minimum wage. This is currently £7.83 per hour for employees aged 25 and older, £7.38 for employees aged 21 to 24, £5.90 for 18 to 20 year olds, and £4.20 for under 18s. However, it’s likely you’ll be paying them much more than this.

You should issue a written contract to your nanny before they start work, or within two months of their start date. It should include the salary, hours, days worked, notice period and holiday entitlement, plus a description of their duties.

All employees, whether full or part-time, are entitled to pro-rata 28 days paid holiday per year including bank holidays. You can offer more than this, as a way of obtaining the best nanny!

You are responsible for paying your employee’s statutory sick pay; statutory maternity pay and holiday pay. If you wish the nanny to accompany you on holiday, then please note that this does not count towards the nanny’s annual leave and she will need to be paid as normal. Also, if you want the nanny to take some of her holiday when you take holiday, this should be specifically stated in the contract.

You must check that your nanny has a legal right to work in the UK. Check your applicant’s identification documents, such as passport, birth certificate or identity card before making a formal offer of employment.

DBS (formerly CRB) checks are essential for anyone who wants to employ a nanny to look after their children. When checking your nanny’s references, always ask to see their DBS check which must be valid within 12 months.

Hopefully, this article highlights all the big things you need to think about when employing your nanny. It may seem like a lot but a good Nanny Payroll company, can handle it all for you from as little as £18 per month.

If you have any further questions or would like to sign up, please email us at payroll@payrollfornannies.co.uk or give us a ring on 01273 446595.

Marriage vs Cohabitation Understanding your legal rights

By | Education, family, Finance, Legal, Relationships, Uncategorized
by Deborah Bailey
Gowen & Stevens Solicitors

Marriage, or indeed a civil partnership, which is treated the same as marriage upon breakdown, is not for everyone. Even though there have been changes in the law allowing same sex partners to marry, a growing number of couples still regard it as old-fashioned and believe they have no requirement for ‘a piece of paper’ to confirm commitment to each other. Living together or ‘cohabiting’ remains the fastest growing family arrangement.

Often, it is only when facing the breakdown of a relationship that unmarried couples realise how that seemingly irrelevant piece of paper could have altered their situation. Furthermore, even if you remain blissfully together, there are still potential pitfalls for cohabiting families as time passes. Read on to find out how you can protect yourself and your children.

Even if you have lived together for a long time or have children together, the law will not protect you if you break up. Despite the media’s love of the term common-law wife, or indeed husband, this is not a recognised term in law. The fact that your relationship even existed, when it comes to the law, may be irrelevant. Often, the only issue to resolve in a breakdown of a cohabiting relationship will be what happens to the home. The fact that there may be children to re-home may not be a consideration and you could end up in a desperate situation.

Conversely, when looking at how to distribute a family’s assets on divorce, a spouse can call upon the matrimonial law to look at all the relevant circumstances of the relationship, often before but certainly during and after the marriage. The goal in these circumstances is to seek a result that is fair to both spouses with the welfare of the children being treated as a primary consideration. The future living arrangements of all involved will be a concern as will the financial position of each spouse following the divorce.

Whilst campaigners are lobbying for a change in the law to protect unmarried families, until this happens, people need to be aware and take steps wherever possible to protect themselves and their children. So what can you do?

Property
If you own property together and both names are on the property register, then you probably had a discussion with your conveyancing solicitor about how you would own the property so there is a chance that your ownership will already be clearly defined.

Matters become more complicated if the property is owned by only one of you. However, the non legal owner may still have an interest in the property dependant upon how finances were arranged during the relationship and what agreements you had. Seeking legal advice in this scenario is essential and can help determine your interest and how you can realise this.

If you are buying a property in which you intend to live together, speak to your solicitor about the ways in which you can own the property and how you can protect yourself.

Maintenance
If you are looking after the children, you can claim maintenance following a break-up from your former partner for your children. If this cannot be agreed, apply to the Child Maintenance Service.

Unlike divorce, unmarried former partners cannot claim maintenance for themselves from the other partner, even if they are the stay-at-home parent looking after the children.

Inheritance
As cohabiting partners, unlike married couples, there is no automatic right of inheritance if your partner dies without making a will. Whilst you and your children could make an application against your partner’s estate if they were maintaining you prior to their death, this could be a stressful experience at an already difficult time. Making a Will could avoid a lot of anxiety and uncertainty for your loved ones.

Partners should also think about taking out life assurance.

Consider also making Lasting Powers of Attorney. If you become ill and incapable of managing your own affairs a cohabiting partner has no legal right to make decisions on your behalf. This could cause difficulties with the wider family who may or may not know your wishes. Appointing your partner as your Attorney could avoid such difficulties.

Cohabitation Agreements
It’s not very romantic but thinking about your arrangements before you buy a property or move in together can save a lot of heartache if things go wrong. A cohabitation agreement is strongly recommended and a solicitor can help you consider all the issues that could arise and, provided it is properly drafted, could protect against costly court proceedings.

Ultimately, every situation is different but being aware that living together is very different from being married means that you can take steps to avoid problems later if things go wrong. Always seek advice from an experienced solicitor who specialises in this complex area of family law.

An established practice for over 120 years with offices in Cheam, Banstead and Sutton. Offering a highly personal service tailored to all aspects of your family and business life.
www.gowenandstevens.com

What you need to know before considering mediation

By | Education, family, Finance, Legal, Relationships, Uncategorized
by Sarah Brookes
Brookes Family Mediation

The mediator will not tell you what to do or make any decisions for you
The mediator’s role is to support you both towards reaching joint decisions, on the issues that you each identify as needing resolution. Whilst the mediator will help you to reality test any proposed agreements; to ensure that they will work as intended, in meeting and protecting each of your needs; they will not seek to influence the final decisions that you make. You will be supported to jointly take responsibility for the shape of your future. This approach reduces conflict and minimises the need to compete; unfortunately, the exact opposite is true of court proceedings. It is for this reason that mediated arrangements have proved less likely to break down than court ordered arrangements.

Mediation is more likely to be successful if you keep an open mind
Whilst it is helpful to give some thought to what you would like to achieve through mediation; you will also need to be able to consider ideas and proposals put forward by the other person. This approach enables all options to be explored, in order to find the best solutions for you both. Agreement is usually reached quickest when both people feel that they have been fully and equally involved and listened to within the process.

A mediator does not make moral judgements
Mediation is not about raking over the past to decide who was right and who was wrong. It is about dealing with the here and now, and the practical arrangements and decisions that need to be made, to enable you both to move forward in the best way possible. The mediator will remain impartial and committed to helping you both equally, throughout the process. Emotional outbursts are fairly common within mediation, and will not affect the mediator’s ability to remain entirely impartial.

A mediator is not a passive observer
The mediator will take an active part in your discussions, and whilst they will not give advice, they will often make suggestions, flag up points that have not been considered, and give relevant information. Where necessary, the mediator will also refocus the conversations, to ensure that they are constructive and moving forward towards solutions and agreements.

Where there has been domestic abuse, mediation may still be
the best option
It is the mediator’s duty to provide a safe environment where you are able to freely express your views, without fear of harm. If you do have concerns relating to your safety, the mediator will be able to asses and advise as to whether or not mediation is appropriate in your circumstances. If you don’t feel able to sit in the same room as your former partner, mediation can take place on a ‘shuttle’ basis, which is where you will sit in separate rooms, with the mediator moving between you. The mediator will usually also arrange staggered arrival and departure times. There is even the possibility of mediation taking place through Skype, so that you do not have to be in the same building.

Sarah Brookes spent 16 years working as a family lawyer in Eastbourne, before setting up Brookes Family Mediation. Sarah is passionate about the benefits of mediation. If you are uncertain about whether mediation is right for you, or if you have any questions, give Sarah a call on: 01323 411629 or email her: sarah@brookesfamilymediation.co.uk
Or for more information go to: www.brookesfamilymediation.co.uk

What is a celebrant and what do they do?

By | family, Legal, Relationships

by Alexandra Harrison
Celebrant

You might ask, “A what-a-brant?” A celebrant is someone who writes and leads personalised ceremonies. An example is a naming ceremony, which is a special way to celebrate the birth of a baby or officially welcome your child/children into your family. It is a secular (non-religious) event, and an opportunity to gather friends and family for a beautiful and memorable gathering.

A celebrant can lead a ceremony anywhere, any time. It does not have to be at a licenced venue (but it can be!)

In the 21st century, many people are moving away from traditional christenings or baptisms and are choosing a naming or welcoming ceremony instead – sometimes known as a civil ceremony. These are led by an independent celebrant.

When your child is born you may have already chosen their name, but for some parents it may take a while. The name you choose may have personal meaning but whatever the reason it is one of the first gifts you will give your child – after life itself!

What makes up a ceremony?
Well, it is really up to you and what you want. During a naming ceremony, there is no set script or structure. You can include many different elements or options to make it personal to you and your family. With a celebrant, the ceremony is designed around what is important to your family – and what you want to say to your baby/child/children. You may have different beliefs or faiths and wish to incorporate something from both. A celebrant will guide you through all the different options.

Can I have my own vows or promises?
Yes, of course. A celebrant can help you write these.

Can I include other people in the ceremony?
Definitely. It is a lovely idea to include other people. These could be grandparents, aunts, uncles or other guiding adults (known as guardians or supporting adults). Or it could be brothers and sisters who want to welcome their new sibling. In fact, involving them can play a really important part in giving them their own sense of importance and responsibility for their new sibling. Giving other children a role in the ceremony can even help with jealousy issues.

Can I have symbolic elements or rituals?
Yes definitely! For instance, a ‘sand ceremony’ is a powerful way to represent the joining of
a family, where different coloured grains of sand are poured into a single vase representing the blending of a family never to be separated. The ideas are endless.

Your celebrant will guide you through and help create both an order of service and the ceremony itself, linking together all the different elements you have chosen. A service will normally contain (but not necessarily in this order):
• Introduction and welcome
• Information about the child
• Readings, music, poems
• Words about the importance of parenting
• Parental vows/promises (a celebrant can help with these)
• Words around the importance of wider friends and family
• Appointment of Guide Parents
• Reason for the name(s) and the naming itself
• Concluding words.

But it is important to remember that a naming ceremony is not just for babies. It can happen at any age. It could also be a wonderful way to welcome a child that you are adopting – creating a special bond as you acknowledge and welcome them into your family.

Some celebrants can even help with organising the whole event from finding your ideal location, creating the invitations to organising the catering. This really helps, taking the stress
and strain away – especially when you will have your hands full already!

And did you know a celebrant is not just for naming ceremonies? A qualified celebrant can write a completely tailored wedding or commitment ceremony, renewal of vows or celebration of life ceremony. And, like a naming ceremony, these can be held anywhere – they do not have to be at a licenced venue.

Alexandra Harrison is a qualified independent celebrant.
Contact Alex for a friendly informal chat about your ceremony on 07983 415 784 or visit her website
for more information www.alexandra-harrison.com

Alexandra also runs a baby naming facebook page see www.facebook.com/BabyNamingWithAlexandra/

A guide to international child relocation

By | family, Legal, Relationships, Uncategorized

If following a relationship breakdown you are thinking about relocating abroad with your children, you will need to be aware of the relevant legal rules. You will need specialist advice from a solicitor to help the relocation to take place smoothly. In the excitement of a move abroad, taking legal advice may not be the first thing that comes to mind. However, making sure the legal boxes have been ticked will mean that there are fewer complications following the move, leaving you and your family to enjoy your new home.

When do situations of child relocation arise?
The desire to relocate with children often occurs in international families where one parent is from another country and wishes to return to their home country following a relationship breakdown. This commonly happens when that parent wants to be closer to their family or maybe they have a new job offer abroad. Sometimes the parent has a new partner who lives aboard or they together decide for lifestyle or other reasons that a relocation is the best thing for their new family.

Can I just leave with my children if I want to relocate abroad?
Relocation to outside of England and Wales requires permission of the other parent and anyone else that has parental responsibility (as indeed does a holiday unless there is a relevant Court Order already). Parental responsibility gives a person rights and responsibilities for the children which includes the right to decide whether a relocation takes place. A mother will automatically have parental responsibility. A father will also have it if he meets certain criteria. Sometimes, others may have parental responsibility too, such as grandparents. Your solicitor will check all this for you.

How do I seek permission to relocate with my children?
You can seek permission directly or with the assistance of a solicitor. Seeking specialist legal advice at the earliest possible stage is sensible as your solicitor will provide you with lots of useful advice about how best to increase your chances of gaining permission. At the beginning, you may not want the other parent to know that you have a solicitor. Therefore your solicitor will guide you on how best to ask for permission yourself. It is always a good idea to get the permission in writing and your solicitor will advise you about this.

Relocating with children without the necessary permission is child abduction and this is why it is really important that you have specialist legal advice early.

What do I do if the other parent refuses their permission to the relocation?
Unless some exceptions apply, you would need to attempt mediation with the other parent. Mediation is an alternative way of resolving a dispute without going to Court. An impartial and professionally qualified mediator will assist you to reach a mutually acceptable settlement after exploring the issues around the relocation. Your solicitor can recommend an appropriate mediator and you can continue to consult with your solicitor in between mediation sessions. If mediation is successful and you reach an agreement with the other parent then it will be possible to make that agreement legally binding so that once you have relocated, you cannot be accused of child abduction. If mediation is not successful, your solicitor will advise you about making a Court application for the Court’s permission for the relocation.

Is my Court application to relocate with my children likely to succeed?
The success of your application will depend on very thorough planning. You will need to show the Court that the relocation is in your children’s best interests. Most parents will only be considering relocating if they truly believe it is best for their children. One of the things your solicitor will do to show this to the Court is to prepare extremely detailed written evidence setting out why your relocation is important to your family, how it is in your children’s best interests and how it can work taking into account the practical factors such as the children’s development, schooling, housing needs and contact with the other parent. This is a very involved part of the legal process and you will need to work closely with your solicitor on this.

What happens when I have successfully relocated with my children?
You may have some things to tie up either just before you relocate or shortly after, depending on what the relocation Order specifies. This might be registering the English Order in the country to which you relocate, this can be helpful for both parents. Your solicitor will help you and put you in touch with a lawyer in the other country if needed.

Permission to relocate will give you peace of mind that you have legally done what is needed and so your move cannot be undone.

Mandeep Gill is a specialist Family Law solicitor at Venters Solicitors in Reigate. Mandeep’s particular expertise is in international children cases.
She can be contacted on 01737 229610 or via email,  mandeep.gill@venters co.uk or visit www.venters co.uk