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divorce

New year, new beginnings – changes to the divorce process in 2022

By | family, Legal, Relationships
by Julian Hunt
Head of the Family department Dean Wilson LLP Solicitors

The government’s Divorce, Dissolution and Separation Act 2020 was passed in June 2020 and aims to implement major reform to the divorce process, becoming law on 6 April of this year.

Julian Hunt, Head of the Family department and member of Resolution, has been an active campaigner in the move toward no-fault divorce and has lobbied local MP’s in favour of the same.

What is the legislation’s main reform?
The Act will remove the concept of ‘fault’ in divorce proceedings – a welcome change to the divorce legislation that has not been amended in any significant way for over 50 years.

What is the current regime?
If a couple want to divorce, they have limited options to choose to present their petition on. Set out as five ‘facts’, these are: adultery, unreasonable behaviour, desertion, two years’ separation with consent, or five years’ separation without consent.

If a couple wish to divorce quickly those options are limited to the grounds of adultery and unreasonable behaviour, with the less contentious divorce routes only achievable after two or five years separation.

The prospect of a long and unnecessary wait often means that parties will choose the blame route with the unwanted result of intensifying conflict and causing long lasting damage, particularly impacting future co-parenting.

Why doesn’t the current regime work?
The current regime fosters animosity between parties by encouraging the assignment of blame, which can lead to delays in obtaining the end goal of a divorce and can have a knock on effect if the parties have children related matters to resolve at the same time.

The need for a no fault divorce process was highlighted in the recent case of Owens v Owens.

Mrs Owens issued her petition based on Mr Owens unreasonable behaviour in which she stated she could not reasonably be expected to live with Mr Owens anymore. Mr Owens defended the petition on the basis that his behaviour had not been unreasonable when looked at in the context of their marriage and the Court agreed with him. The Court found no behaviour that Mrs Owens could not reasonably be expected to live with and as such the marriage could not be said to have irretrievably broken down and her petition was dismissed. Although Mrs Owens appealed, it was held that judges could only interpret and apply the law handed to them and that under the current regime the petitioner is required to find fault in the respondent.

This decision highlighted the need for a no fault divorce process. Mrs Owens was left in the unenviable position of having to wait out a five year separation in order to proceed with a divorce without her husband’s consent.

What is the aim of the reform and why is it needed?
An acrimonious divorce consumes parties’ lives, and that acrimony usually spills over, even once the Decree Absolute is finalised, especially where children are involved. The fault system encourages discord which often affects the parties’ mental health, as well as the mental health of any children (especially if they are old enough to understand what’s going on). Therefore, divorces using one of the fault-based facts are usually quite traumatic to the parties.

A common misconception under the fault based regime is that the bad behaviour of one party will affect the financial outcome of the divorce, when in fact one has no bearing on the other, unless the behaviour is sufficiently extreme but, these cases are extremely rare.

Parties tend to settle finances subsequent to issuing their divorce petition and the tone of blame is usually carried over so as to frustrate and slow down the financial proceedings which in affect helps no one, including the Family Court whose resources are overwhelmed already.

The proposed changes should simplify the divorce process and reduce conflict from the very start. Parties will then be able to focus on the important issues like children, property and finances bringing resolution more quickly and amicably so that both can heal and move forward.

What will be the new regime?
The new legislation aims to make a number of significant changes, such as:
• Replace the ‘five facts’ with a new requirement to provide a statement of irretrievable breakdown (the Court then must take this statement as conclusive evidence that the marriage has broken down irretrievably);
• Remove the possibility of contesting the divorce;
• Introduce an option for a joint application;
These changes will also apply to the dissolution of civil partnerships.

Family law – what’s next?
The Law Society are currently campaigning for legal aid to be reintroduced for early advice, particularly in family law and we at Dean Wilson LLP believe this would be a further welcome step to focus parties’ minds on the practicalities at hand of separating joint lives into separate healthy and happy futures.

Dean Wilson LLP’s reputation has been built upon our ability to deliver and exceed our clients’ expectations. For over 100 years our success has been founded upon our client focused approach, backed by the knowledge and expertise of our lawyers. www.deanwilson.co.uk

Choosing the right primary school for your child

By | Education, family, Legal, Relationships
by Emma Willing and Antonia Felix
Mishcon de Reya law firm
www.mishcon.com

The choice of a child’s school is one of the most important decisions parents will make. For separated parents in particular, the decision can be more challenging, especially if living arrangements are not settled or if there is divergence of views as to the best educational setting for a child.

The deadline for parents (of children due to start primary school in September 2022) to apply for a state primary school place is 15 January 2022. Following the making of an application, the offer of a school place will be received from the relevant Local Authority on 16 April 2022.

Emma Willing and Antonia Felix from Mishcon de Reya’s Family and Education teams consider some of the common issues and questions which can arise when choosing the right school and making the application as parents.

Who has the ability to make a decision about where a child goes to school?
Provided both parents have parental responsibility, any important decisions in respect to a child, including regarding education, must be made by the parents jointly.

If agreement cannot be reached, or one parent has acted without the other parent’s agreement, it may be that a method of dispute resolution such as those discussed below can assist. Ultimately, if parents cannot reach an agreement, an application can be made to Court to determine the issue in dispute.

The Court’s primary focus in determining such a dispute will be an assessment of what is in the child’s best interests.

What is ‘parental responsibility’?
Parental responsibility defines the rights and responsibilities that an individual has in respect to a child, and determines who has decision-making power in matters such as education, religion and medical treatment.

The birth mother of a child automatically acquires parental responsibility at birth. This does not apply to the father or non-birth mother (in the case of a same-sex female couple), unless they were married or in a civil partnership with the mother at the time of the birth.

If the parents are unmarried, the mother is not required to enter the father or non-birth mother’s name on the birth certificate and if she does not, the father or non-birth mother will not then have parental responsibility. Despite this, if agreement cannot be reached, there are Court applications which can be made in order to obtain parental responsibility.

How can a disagreement about schooling be resolved?
While some separated parents will be able to reach a decision about the choice of schooling between themselves, others may encounter difficulties and the situation can become increasingly stressful as the application deadline looms.

There are various ways in which to resolve a disagreement:
Family member / mutual friend – A trusted family member or mutual friend may be able to assist parents in discussions. This can be particularly useful to diffuse a situation of conflict and involve someone neutral in the discussions.
Mediation – A mediator is a neutral facilitator. The mediator will be entirely independent from the parents and their respective solicitors (should the parents have them). While the mediator can facilitate and encourage discussions between separated parents, overall resolution can only be reached by agreement. Following an agreement reached by mediation, it is then advisable for both parents to consult with their own solicitors in order to formalise any agreement reached.
Arbitration – An arbitrator can be jointly appointed by the parents to make a decision in respect of the dispute. The advantage of arbitration is that resolution can normally be reached far more quickly than through the Court process. The arbitrator can impose a final outcome on the parents. However, unlike mediation which may result in an agreement, the parents may feel that they have less control over the eventual outcome.
Round table meeting/discussions between solicitors – There can be discussions between the parents’ respective solicitors either via correspondence or at a so-called ’round table meeting’ (which does not, despite the name, have to involve the parties sitting together) to resolve the issues.
Court – If agreement cannot be reached and parents do not want to use arbitration, an application can be made to Court. This should however be seen as a last resort.

What other planning can be put in place to avoid future disagreements?
It is advisable for parents to engage in discussions about the choice of a child’s school early. Where possible, parents should seek to meet or engage a third party to facilitate discussions around six to twelve months in advance of a school application deadline. Careful planning and thought is required, including attending school open days, considering up to date Ofsted reports and speaking to other parents. The earlier discussions commence, the sooner any areas of disagreement can be identified.

Parents should consider diarising future dates when applications are required to be made or assessments taken throughout their child’s education, and seek to approach the process together wherever possible.

Deciding between a mainstream school or a special needs school
Some children need more support than others to gain as much as they can from their education. A child may have been diagnosed with a medical condition, disability or special educational needs and there may be a professional assessment setting out what kind of educational help they need.

For children who need more help than a mainstream school would normally be able to provide, a plan in England called an Education Health and Care (EHC) Plan will be issued (following a formal assessment) by the local authority where a child lives. This will detail the child’s educational needs and the support they will receive.

Many children with an EHC Plan in place will go to a mainstream school, and the law gives children a right to a mainstream education if parents want this. However, parents may decide a child will be better supported in a specialist needs school. The local authority will discuss schooling options with parents when a child’s plan is drawn up, or reviewed, and must consider the parents’ views. The final decision rests with the local authority, however, if the level of provision is not agreed, an appeal to the First-tier Tribunal may need to be considered.
All mainstream schools in England and Wales will have a staff member, known as a Special Educational Needs Co-ordinator (SENCO), who is responsible for arranging support for pupils with special educational needs (SEN).

Before making a decision – whether you are separated parents, a single parent or two parents together – the key is to do research in advance, and discuss your child’s needs. Try to talk to other parents at the school, and ensure you visit the school to see first-hand how it is run.

What steps should parents take if issues arise with a Local Authority once the offer of a school place has been made?
First, it is important to remember that there is movement with school places after offers have been made during the spring and summer period. If a child does not have a place in one of the schools selected on 16 April 2022, then contact should be made with the local council to obtain details of schools with places. The council may be able to assist, avoiding any need for parents to engage the appeals process.

It is also possible to put a child’s name down on a waiting list at a preferred school via the school or the council (the ‘admission authority’ for each school must keep a waiting list open for at least the first term of each school year).

Even if a child has a school place, it is possible to go on the waiting list for another school. Parents should not automatically reject the place offered, in case doing so may result in a situation of a child having no school place. It is important to be aware that for Reception, Year 1 and Year 2 the class size is limited to 30 so the school can refuse the appeal if the limit has been reached.

Legal Solutions

By | family, Legal

All Your Legal Worries Answered

In each issue of ABC, one of Brighton’s leading firms of Solicitors, Dean Wilson LLP, covers a topic of interest to parents everywhere. In this issue, Jennie Apsey, Solicitor in the Family Department, discusses the impact of Covid-19 on Child Arrangements.

As Family lawyers, of all the issues we have been asked to advise on over the last year, the issue of child contact arrangements throughout the Coronavirus pandemic has come up time and time again.

What are the Government guidelines concerning child contact arrangements during the pandemic and can parents alter contact arrangements even if they are the subject of a Child Arrangements Order?
Government advice throughout the pandemic and lockdowns has been that children may move freely between parents’ households, including between households situated in different Tiers. However, the President of the Family Division of the High Court noted that the guidance did not mean that children must move between homes, the decision being one for parents to take after assessing their individual circumstances, for example, the child’s health, the risk of infection and the presence of any recognised vulnerable individuals in either household. Furthermore, the Department of Health and Social Care advised that if a child was instructed to self-isolate by NHS Test and Trace, where possible the child was to remain at the same address throughout the period of isolation.

The President of the Family Division gave further guidance that where Coronavirus restrictions caused the letter of a Child Arrangements Order to be varied by a parent, the spirit of the Order should still be delivered by making alternative arrangements for contact including facilitating video calls through FaceTime, Skype or Zoom.

What child contact issues have you encountered as a result of the pandemic?
Perhaps inevitably, the Government guidance gave rise to some uncertainty with parents questioning what they were permitted to do, and whether they could insist on usual contact arrangements being adhered to. A minority of parents attempted to exploit the situation to exclude the other parent from their usual contact.

What can I do if the other parent breaches the terms of our Child Arrangements Order?
Child Arrangement Orders made since 2008 contain a Warning Notice which explains the consequences of breaching an Order. The penalties that the Court can impose include fines or imprisonment for contempt of court, orders to undertake unpaid work in the community or orders for financial compensation. However, for those parents wanting to bring such breaches to the Court’s attention, an application for enforcement must be made, for which a Court fee of £215 is payable. Parents should also bear in mind, that under section 11J of the Children Act 1989, the Court can decide not to make an enforcement order “if it is satisfied that the person had a reasonable excuse for failing to comply with the provision.” Unfortunately, “reasonable excuse” is not defined within the legislation and is therefore open to interpretation and the Court’s discretion.

Other than making an application to the Court for enforcement, what can I do to ensure that I continue to see my children?
We cannot emphasise enough that now more than ever there is a need to work with the other parent and to look at alternative means of resolving issues that arise between you in relation to care of the children. In our experience, the Court system is currently so clogged up, you are very unlikely to obtain a swift resolution to your contact problem by making an application to the Court. The effects on the Court system of the Coronavirus pandemic are ongoing. Therefore, we would strongly advise only making an application to the Court as a last resort once all other avenues of communication and alternative dispute resolution have been explored.

In the first instance, we would suggest mediation as a means of attempting to resolve matters with the other parent. Mediation is likely to be cheaper, less stressful, and far quicker than the Court process. Furthermore, since you will need to continue to co-parent your children for the duration of their minority, minimising conflict and animosity between you is likely to be hugely beneficial, not only to yourselves as individual parents, but also to your children.

Looking forward not back is the way to help solve family problems

By | family, Legal, Relationships
by Marcus Stanton
Kingston & Richmond Family Mediation Practice

There is a popular TV programme that ends each week with a catchphrase I’m going to borrow, adapt, and use here: ‘Keep talking’. Parents who separate can achieve so much by talking and listening to each other. You might say, ‘well if they had been talking and listening to each other in the first place they wouldn’t now be separating,’ but parents separate for a number of reasons and just because they are no longer together doesn’t mean they should no longer work together to sort out their family finances and any future plans for their children.

The difficulty is that when a relationship ends it’s very easy to adopt a position in negotiations based on how the relationship has ended, how you feel you have been treated and your immediate concerns and worries. This can hamper your ability to have useful discussions with your former partner and can be made even worse by solicitors’ letters in place of face-to-face discussions. Getting entrenched in a position can of course slow down any progress towards a resolution.

It is much more helpful to move away from taking positions based around the past and instead to start discussing what each of your priorities, interests and concerns are now. Don’t be afraid of frank discussions revealing what have been, up to now, unspoken emotions. Getting out all those unsaid things usefully clears the air. Priorities, options and concerns give a starting point for you and the other parent to work on the possible options that exist to resolve matters mutually.

The advantage in getting to a position where you can explore options together is that you both remain in control of your future rather than giving the decision making to the court. This can be fundamental. Moving you from having to live with a decision, to working out the outcome for yourselves. An outcome reached together has more chance of lasting, and is usually better financially and emotionally for all members of the family.

Talking through options and problem solving are important for parents. That can be tough particularly when you have recently separated, but with the help of a family mediator to facilitate discussions it is a lot easier to achieve. A mediator can help you to identify those areas where you agree, where you might reach a mutually acceptable decision, and where there is no room to budge (just being clear about what’s not possible is a help in itself in moving forward!). This often means recognising what your former partner needs and feels. By looking behind any potential barriers you can often find common interests. As an example, A wants to be sure B doesn’t just leave the children with his sister when he has them, B meanwhile wants A to be less controlling when he has the children. In essence there is no disagreement over B spending time with the children and each knows the children will benefit in spending time with both parents, there is just a difference as to how that time is spent. There is clearly a starting point for discussions and the opportunity to reconcile differences.

You can work together to narrow down the options to reach an outcome that will work in reality and that both of you are comfortable living with. As well as facilitating these discussions a family mediator will reality check the outcome with each of you to see that it can work in practice. That is helpful, as you will want to have the solution you reach taken to your solicitors to be made into a Consent Order
so that it’s enforceable.

All of this means of course talking and listening to the other parent. Where there are young children, with the exception of particular cases, you are likely to have to communicate with them for some time to come. So, starting discussions in the room or face-to-face on Zoom is so much better than communicating through WhatsApp, text, email or solicitor’s letter. It’s very easy for words in a text or email to be misunderstood or meanings read into them.

Putting your priorities and concerns on the table for both of you to see and discussing them might help begin the process of moving forward.

Marcus Stanton is a Family Mediator at Kingston & Richmond Family Mediation Practice providing online mediation for separating couples in Surrey. www.kingstonandrichmondfamilymediation.co.uk
For further information email info@krfamilymediation.co.uk or call 020 8617 0210

Divorce is changing for the better

By | family, Finance, Legal, Relationships, Work employment
by Rachael House
Senior Associate Solicitor, Family Law, Mackrell Turner Garrett Solicitors

What is the current divorce law in this country?
Under current divorce law, if you and your spouse have not been separated for two years or more you can only get divorced by showing that your spouse has committed adultery or behaved in such a way that you cannot tolerate living with them (known as unreasonable behaviour). Only then will a court grant you a divorce.

Adultery and unreasonable behaviour divorces are known as ‘fault-based’ divorces and usually increase acrimony between spouses. For example, to demonstrate that your spouse has behaved in such a way that you cannot tolerate living with them, you have to write some unpleasant words about them and their behaviour. For your spouse who is at the receiving end of these unkind words it can cause them distress and make them even more unhappy with you, when tensions may already be running high. This type of divorce is especially unhelpful where there are children of the family, as relationships between parents can deteriorate further at a time when it is more important than ever for parents to work co-operatively.

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

What is changing?
In 2017, a national survey carried out by the Nuffield Foundation found that in fault-based divorces 62% of petitioners (those instigating the divorce) and 78% of respondents (those at the receiving end of a divorce) said that using fault had made the process more bitter, 21% of respondents said fault had made it harder to sort out arrangements for children, and 31% of respondents thought fault made sorting out finances harder.

In 2020 the Government passed the Divorce, Dissolution and Separation Bill following lengthy campaigning by family lawyers. The Bill paves the way for a new divorce process where blame does not have to be attached to one party.

The general consensus amongst family lawyers is that the changes do not make the physical process of divorce any easier and certainly no quicker than the current system. The huge benefit of the changes, however, is that the process will be far less acrimonious and emotionally damaging for all those involved.

When can I get divorced under the new law?
The new law will come into force in autumn 2021 (no exact date has been set as yet) so there is still some time to wait.

Once the new law is in force, you will be able to proceed with a divorce by providing 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. There will also be an option for you and your spouse to issue a joint divorce petition.

What if I still want to get divorced now without blaming my spouse?
If you want to press ahead with a divorce now without attributing blame, then if you have been separated for two years or more you can get divorced on the basis of ‘two years separation’ – provided your spouse consents. If your spouse is not going to consent then you can only get divorced without attributing blame if you have been separated for five years or more.

If the above routes are not a viable option for you but you still wish to formalise the financial matters of a separation immediately, then you can enter into a separation agreement with your spouse – provided they co-operate – to divide up the finances of the marriage with a view to divorcing once the new law comes into force. At the point of divorce, your separation agreement can be converted by a family lawyer into a court order. It will then become legally binding under matrimonial law once a judge approves the order.

What shall I do next?
If you are unsure as to whether to press ahead with your divorce or to wait a while, it is important to find out more about the legal options available to you by contacting a family lawyer for advice.

Rachael House is a specialist family solicitor at Mackrell Turner Garrett, an established firm of experienced Solicitors based in Woking. www.mtgsurrey.co.uk

Legal Solutions

By | family, Legal, Relationships, Uncategorized

All Your Legal Worries Answered

In each issue of ABC one of Brighton’s leading firms of Solicitors Dean Wilson LLP, covers a topic of interest to parents everywhere. In this issue, Julian Hunt, Partner of the Family Department, aims to set out some of the practical issues you should consider if your relationship has broken down.

The breakdown of your relationship is a distressing and emotional experience. The following summary aims to set out some of the issues you should consider if your relationship has broken down. Of course, every individual case is different and therefore it is advisable that you discuss the situation with your Solicitor.

Here are some general tips about issues, which you will need to consider right away:
• Children – decisions need to be made about who will care for the children. Many parents are able to make arrangements between themselves which is always the best way. If you encounter difficulties consider a referral to Mediation. Court proceedings should only be a last resort.
Take note that the Children Act provides a presumption that the involvement of each parent in the life of the child will further the child’s welfare. ‘Custody’, ‘Residence’ and ‘Contact Orders’ are terms which no longer apply. Instead the Court will make a ‘Child Arrangements Order’ to define the amount of time that the child would spend with each parent.
• Inform your children jointly of the decision to separate and emphasise that it is not their fault and that both parents love them equally.
• Child Support – try to reach a voluntary arrangement with your ex-partner for a weekly or monthly payment. Go to www.gov.uk/child-maintenance and use the child maintenance calculator to assess how much your ex-partner should pay.
• Ongoing financial Support – (‘spousal maintenance’) – if you are married you could apply for maintenance for yourself. If you are not married your partner does not have a duty to support you once the relationship ends, only to pay child support if applicable.
• Property – if there are children involved it is always better for parents to come to a mutual decision about who will leave
the home so that it will cause the least disruption for the family. If you jointly own the property you cannot simply change the locks and exclude the other from the property. If you are a non-owning spouse you have rights of occupation and a right not to be evicted from your home. Application can be made to the Land Registry to protect your occupation and prevent your spouse from disposing of the property.

If you have been subjected to
or threatened with physical abuse by your partner you may need to consider making application for a Court Order
to have them excluded.

If you are in rented accommodation and you are moving out of the property, you should see if you can be removed from the Tenancy.

On Separation:
• Contact the Local Authority Council Tax Section as you may be eligible for a Council Tax reduction, or if you are moving out of the property to ensure that you are not liable for any subsequent payments.
• Contact the Benefits Agency if you are in receipt of benefits, as separation may affect your entitlements.
• Contact the Tax Office if you are receiving Universal Credit or Tax Credits to reassess your entitlements, or otherwise to see if you are now entitled to Child and Working Families Tax Credits.
• Contact your banks, building societies especially if you have a joint account. It may be advisable to consider freezing the account to prevent your partner from withdrawing some or all of the funds without your agreement, or at least change the drawing arrangement so that withdrawals require both your signatures.
• Contact all credit card companies especially if you have joint credit cards because you are jointly responsible for any expenses incurred. You do not want a situation whereby your partner could run up further debts because ultimately the credit card company could also pursue you for these as the card is in your joint names.
• Consider changing your Will if you have appointed your ex-partner as the beneficiary of your Estate. If you have not made a Will then you may want to consider making one to ensure that your Estate does not automatically pass to your spouse, or you may want to make specific provision for any children to ensure security for them.

As an ABC reader you can call the Private Client Department on 01273 249200 to arrange a no obligation telephone discussion and, if required, a fixed-fee meeting.

couple

Marriage, civil partnership or living together?

By | family, Legal, Uncategorized

Here Rachael House, Senior Associate Solicitor in Family Law at Mackrell Turner Garrett Solicitors in Woking answers questions to explain the different options so you can work out what’s best for your own relationship.

Can couples of the opposite sex enter into a civil partnership?
Yes. Since the end of 2019, couples of the opposite sex have been able to enter into a civil partnership to cement their relationship in law. This is something that was previously only allowed for same sex couples.

Why not just get married?
People have their own personal reasons for not wanting to get married but they may still want to have the same legal rights afforded to them as married couples. Allowing opposite sex couples to enter into a civil partnership enables them to benefit from the same legal rights as though they were married. This applies to money matters such as tax benefits, pensions and inheritance.

I am happy living with my partner, why bother with either?
Bear in mind that there is no such thing as a ‘common law’ husband or wife. This means that just because you have lived together for a number of years, you do not have the same legal rights as married couples or those in a civil partnership. This can create financial hardship in the event of death or separation if careful planning is not taken at the outset or during the relationship. There are important matters to consider to protect your legal rights for example, if you own your own home or are going to invest unequal amounts into a property. With legal advice, a co-habitation agreement can be prepared setting out how money will be treated in the event of the relationship ending but it can also include provision about the day-to-day running of the household during the relationship. However, as the law currently stands, you will not have the same automatic benefits as married couples or those in a civil partnership.

What do I need to consider before getting married or entering into a civil partnership?
Whether you are getting married or entering into a civil partnership, it is sensible to consider entering into a pre-nuptial agreement, particularly if this is a second marriage or partnership for you – as you may have assets from a previous relationship you wish to protect should this current relationship break down.

Can I convert my civil partnership into a marriage in the future?
Currently only same sex couples can convert their civil partnership into a marriage. Conversion for opposite sex civil partnerships is not yet available, but it is likely to become law in the future.

What if my marriage or civil partnership breaks down?
You must have been separated for a year or more before commencing divorce or (in the case of a civil partnership) dissolution proceedings. Upon the ending of a civil partnership, you are entitled to the same financial provisions as those available in a divorce. The provisions deal with selling or transferring property, payment of a lump sum of money from one party to the other, ongoing payments to support one party to help them live day-to-day, and entitlement to receive a share of the other party’s pension. These may sound like simple matters but the practicality of applying them to the assets is often complicated, and so legal advice is beneficial. Taking early legal advice can often avoid costly court proceedings.

What if I do not want to go to court?
There are different routes to achieve financial settlement without attending court. Many couples go through mediation (legal aid is still available in some circumstances to cover the cost). Another option is the collaborative route where parties meet in the same room with their respective legal teams and pledge not to go to court. Arbitration can be entered into where couples require a court-like decision without actually going to court. It is also possible to arrange private court-like meetings to obtain the expert view of a person acting as a judge. The ‘judgement’ is then used to guide the parties towards reaching agreement swiftly. Your legal advisor can discuss which route is most appropriate for you.

Rachael House is a specialist family solicitor at Mackrell Turner Garrett, an established firm of experienced Solicitors based in Woking. www.mtgsurrey.co.uk

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.