Skip to main content
Am I able to challenge evidence provided by speed cameras?

Yes, although this is very challenging and can be extremely expensive particularly if you need to call expert evidence to support your case.

The speed camera in question must have been approved by the Secretary of State. A record of its use has to be signed by the police and you have to be given notice at least 7 days before the court hearing of the intended use of a signed record in evidence.

You are able to have the record examined to determine whether there has been any defect in for example the calibration or its correct use. The court will usually assume that the evidence provided by the record is correct unless there is evidence to persuade otherwise. 

Am I able to challenge the police measurements of the alcohol level?

In the case of blood or urine tests you are required to be informed before leaving the police station of your entitlement to take one of the samples taken in order to have your own tests carried out by an expert.

If a breath test was taken at the police station you must be given a print out of the result. This will allow you to appoint an expert to consider the reading against the amount of alcohol consumed and to establish whether the correct procedures were followed.

Am I able to make a job offer conditional say for example I am waiting on a medical or references?

Yes we would advise you to do this. If you don’t you are bound by the contract even if the reference is unsatisfactory meaning you will have to give full notice to terminate.

Make sure that your requirements are not discriminatory, especially in regards to the medical evidence as you could be subject to the equality legislation. Under the equality act you are able to ask health related questions of a potential candidate under specific circumstances. However questions should only be asked to decide whether or not an applicant is able to carry out the functions of the job.

It may also be worth noting that the retirement age has now been abolished for all employees- this means it is illegal to require any employee to retire unless it can be justified where you would have to give evidence of why it is appropriate.

Do not ask for excessive information on the potential candidates work history and make sure you get their consent to take up references. If you don’t you could fall foul of the Data Protection Act 1998. 

Am I able to make a job offer subject to successful completion of a probation period?

Yes you are able to do this. Three to six months is a typical probationary period and this should give you enough time to judge whether the employee is willing and able to do the job. Since April 2012 employees have been able to claim unfair dismissal if dismissed after two years of continuous service.

For employees who began employment before 6th April 2012 the qualifying period before an employee is able to make an unfair dismissal claim remains at 1 year. 

Am I able to pay workers less than the minimum wage if they choose to accept it?

No you are not able to do this. If a worker is over the age of 18 and not a family member living in the family home and working within the family business you are not able to pay them, any less than the minimum wage unless they are working for therapeutic reasons with no contractual obligation to work. As well as no right to any payment or benefit. 

Am I able to recover sick pay?

If you have a high proportion of employees that are sick you may be able to recover some of your pay under the Percentage Threshold Scheme. Under this scheme you may be able to recover the excess if you are paying more than 13% of your gross National Insurance Contributions in sick pay in the month. Please seek legal advice on how to do this. 

Am I able to stop my children from being taken to live abroad by my spouse who they now live with?

Your spouse is legally required to obtain your permission or a court order to take the children to live abroad. Your spouse is however allowed to take your children abroad for holidays of up to 28 days.

If you believe that your spouse plans on taking your children to live abroad regardless of your opinion you are able to apply for a prohibited steps order, this will stop your spouse from taking your children abroad at all. Your spouse is able however to apply to the court for an order allowing them to be relocated abroad if it is in their best interest. 

Am I able to stop my ex from seeing my child?

In most circumstances it is considered in the best interest of the child to have contact with both parents. This will not be changed by your own personal feelings towards your ex.

If there are genuine reasons as to why it is not in the child’s best interest to have contact with your ex, say for example the child is at risk of abuse or violent behaviour you are able to apply for the court to prevent a contact order.

Am I required to tell the police who was driving my car?

This obligation arises when you the registered owner of the vehicle have received a notice which requires you to identify the driver who is alleged to be guilty of an offence. The notice is often combined with a prosecution notice.

You are required to provide this information even if it incriminates you.

If you genuinely do not know who the drive of the vehicle was you may be free of the obligation this is providing you can show you could not with reasonable diligence have ascertained who the driver was. 

An employee has recently returned to work after sick leave. Are they still entitled to their full 5.6 weeks paid holiday for the year?

They are entitled to as much holiday pay as they have accrued. The period of sick leave does count towards their accrued holiday entitlement

An employee is leaving 5 months into the year after taking holiday entitlements for the full year. Is there any way we can claim the money back?

Yes you are able to claim the money back however you cannot deduct the holiday pay overpaid from the final wage unless there is a written agreement. If you do not have such agreement it may be in practise difficult to get the money back, unless you are prepared to sue. You are able to decide if that would be worth doing, in terms of the money involved. 

An employee left over 5 months ago and threatened to sue? We haven’t heard anything does this mean they have not made a claim?

An unfair and constructive dismissal claim must be made within three months of the date of termination of employment. It is unlikely that a claim out of time will be allowed to proceed.

However if you were to receive an ET1 form out of time in relation to a former employee you should look to return it but state that the claim is out of the time. You should also request for a preliminary hearing to determine the issue that the claim is out of time.

The Employment Tribunal has the discretion to extend the time if the employee is able to show that it was not practical to present the claim within the 3 months. 

An investor has pulled out causing our chain to collapse, what can we do?

The current market and national economy is so uncertain that people may choose to wait and indeed remove their risk by pulling out of the transaction.  Although there is no reason not to carry on as normal in terms of the legal process we have to consider slower transaction times or hesitant investors or buyers.

Apart from a written statement is there anything else that forms part of the employment contract?

There may be other documents which provide evidence of the contract this can include a job description, correspondence, collective agreements any company policies if they are in the nature of contractual terms. We would also advise that you make clear what is and is not considered to be of contractual status. All contracts also include implied terms whether they are written or not.

Employees also have statutory rights such as the right to become a member of a trade union, employment contracts cannot usually override these rights.

A passenger opened a car door and a cyclist ran into this however I am the one being prosecuted. Is this correct?

The offence arises not just for opening the door but also where this has been caused or permitted. For example you may have parked somewhere unsuitable in the first place, then you can be guilty of the offence.

Are business assets taken into account in a financial settlements?

Yes, there is no presumption that the individual who has built up the business has a greater claim to the business assets. The other partners contribution to the marriage such as looking after the family home and any children may also be considered to be equally large. This may mean each partner is entitled to around half the value of the business.

In many settlements an agreement is made which allows the business to continue.

For example one partner may retain ownership of the business and pay maintenance out of the income of the business.

The partner who retains ownership of the business could borrow against the business to provide a lump sum for the other partner.

In some cases the company may be split into two separate businesses.

Where possible courts do try and avoid coming to an agreement that results in the break up of a business.

Are Post or Pre-Nuptial Agreements binding?

Prenuptial agreements are common place on mainland Europe but the courts in England and Wales have always been reluctant to have their overall discretion as to how assets should be divided upon divorce tied in by an agreement reached between two parties prior to the marriage taking place. 

A gradual shift towards recognising the validity of pre and post nuptial agreements was brought to a head by the case of Radmacher v. Grantino. This case went to the highest court in the land, The Supreme Court, purely on whether a pre-nuptial agreement entered into by the parties in Germany three months before they married was applicable in law in England and Wales.

The Supreme Court decided in October 2010 that it was natural to infer that parties entering into agreements of this sort will intend that legal effect would be given to those agreements. Unless the outcome of the pre-nuptial agreement was unfair to any children of the marriage, in which case the court could still ignore or vary the agreement, the agreement would be upheld by the court.

Are the police allowed to stop the vehicle even if I haven’t done anything wrong?

Yes the police are allowed to do this, the police have wide powers to stop any driver at any time. They do not have to provide you with a reason and if you fail to stop this is an offence.

You may be asked to provide the following documents:

  • Driving Licence
  • Insurance Certificate
  • Vehicle Registration

If you do not have any of these documents with you, you are given 7 days to produce them at a police station.

If the police have reason to believe you have been drinking or committed an offence whilst the vehicle was moving they may breathalyse you.

If you have committed a traffic offence they may issue you with the following:

  • A fixed penalty notice
  • Vehicle defect rectification notice

The police could possibly arrest you for any offence in certain circumstances. Serious road offences such as causing death my dangerous driving may result in imprisonment.

There are extensive rules about how the police can and should use these powers. 

Are there any circumstances that Banner Jones will look to recover fees over and above the fixed price?

The fixed prices are based upon the average cost of a similar case and with the information know to us at the time the fee is agreed. If however, your matter is substantially more involved or complicated than anticipated or if unexpected applications of work is required that was not anticipated at the time the fee was agreed then we reserve the right to either re-negotiate the level of the fee or to revert to our normal hourly charging rates for future work.

Are there any precautions I should take when getting a divorce? Perhaps to stop my spouse taking money from our joint account?

If your spouse is able to draw money from a joint account without your agreement there is a risk that some money will be taken. You will also be jointly liable for any debts which you have run up on the joint account. If you need access to the money or you suspect that your spouse may take advantage of the money in the account you may wish to close the account. This also applies for any other form of joint borrowing including joint credit cards.

If you freeze an account that your spouse needs access to for living expenses this may create hostility. Your spouse will want you to make appropriate maintenance payments, and may apply to the court for an interim financial order.

If your spouse is the sole owner of the family home you may wish to apply to land registry to register an interest in the property. This will stop the house being sold without your permission.

Are there circumstances when I am able to ignore the ACAS code?

The foreword to the ACAS code on disciplinary and grievance procedures suggests that employers may want to deal with issues involving bullying and harassment in a separate procedure. It does state however that if you were to do this the basic principles of fairness should be set out in the code. If you were to make any adaptations you should seek advice.

The code does not apply to grievances raised on behalf of two or more employees by a union or other official workplace representative. A collective grievance should be handled according to a separate collective grievance procedure. 

Are there circumstances where you are permitted to use a mobile phone in a car? What are the penalties for using a mobile phone in the car?

The offence is committed if you were driving on a road whilst using a hand held mobile phone. If you are convicted of this offence the penalty includes endorsement of your licence with 3 penalty points.

The phone is classed as being hand held if it is actually held during the course of using the phone.

You are allowed to use a hand held phone if there is a genuine emergency. This will mean you are phoning the emergency services and it was not possible to stop in the circumstances.

Are we able to negotiate a settlement without using lawyers or attending court?

It may be possible that you come to an agreement amongst yourselves, without the help of lawyers. However if there are significant assets involved it is worth taking legal advice to ensure your interests are being protected. Your lawyer is able to advise you on a fair financial settlement. Your lawyer is also able to give you advice on the best way of structuring a fair agreement.

A good start may be for the two parties to sit down informally and negotiate. At this point you may wish to involve your lawyers or mediators. This will allow you to reach a broad agreement, leaving the lawyers to tidy up the finer details and paperwork. If you do not come to an agreement immediately you will have at least identified the problem areas.

It may be best if you and your spouse can come to a settlement between yourselves, if the courts are asked to impose a settlement it may come up with a solution that suits neither of you. On the other hand if your spouse is being unreasonable you may wish to apply to the court to resolve the dispute rather than allowing negotiations to drag on.

Once you have reached an agreement you should ask the court for a consent order, any settlements if it is to be binding will require both partners to give a full disclosure of their circumstances. 

Are we able to select candidates for redundancy from amongst part time workers, most of whom work for pin money?

Not if you are selecting these employees due to them being part time workers. Part timers are entitled to the same employment rights as full timers. This includes not being singled out for redundancy. It is unlawful to treat part time worker less favourably than full time workers.

 

Are we by law able to sack someone due to poor time keeping?

If you have an employee that has poor timekeeping it is likely this will fall under the misconduct or performance issue. You are still required to carry out a fair procedure which may incorporate appraisals and warnings and providing the employee with a suitable timescale for improvement.

If the reason behind their poor timekeeping is due to a disability you are able to make reasonable adjustments to fully accommodate that employee or you may become vulnerable to a disability discrimination claim. 

Are we by law able to sack someone who is poor at their job?

If you had an employee that was poorly performing this may be a fair reason for dismissing them. To illustrate that you had behaved in a reasonable way you may have to show that you conducted appraisals on a regular basis and if necessary offered additional training or supervision. 

Are we expected to hire a 60 years old for a job that takes 2 years of training?

This depends both on the job itself and the individual, as this assumes training will take a full 2 years and that the individual wants to retire at 65. You may be able to justify different treatment on grounds of age however the test of justification is a challenging one you would be required to produce evidence to back your claims. We would suggest seeking legal advice due to each case being unique. 

Are we required to go through the redundancy procedure if we can offer employees a job at one of our sites 30 miles away?

Yes as some employees may be happy to take the offer however for others it may mean them moving house. It is unlikely an employment tribunal would consider this as a suitable alternative employment, however this will be dependent on the individual circumstances. 

Are we required to go to court in person to get a divorce?

If both partner agree on a divorce and you are able to reach a reasonable agreement on finances and the dependency of children you should be able to get a divorce without going in to court in person.

Are you allowed to cross double white lines in the middle of the road to overtake a cyclist?

This is only allowed if the cyclist is travelling at no more than 10 miles per hour, this can often be difficult to judge.

At what point in the process is it legally binding?

You can withdraw from a sale or purchase up until the point contracts have been exchanged. Any deposits paid after exchange of contract will then by non-refundable. After contracts are exchanged you are then responsible for the property you are buying and should arrange suitable insurance from this date.

At what stage am I officially divorced and is there any record of it?

Once the Decree Absolute is granted this means you are legally divorced. The Decree is officially recorded in the court where the divorce is granted and in the principal registry of the family division of the courts, you are each sent a copy also. 

Banner Jones have been appointed as the professional executors in the Will. Are you still able to act during the current circumstances?

Dealing with an estate is a complicated, time consuming, and difficult process, so it is common for people to appoint a solicitor as their professional executor, to reduce the burden on family and friends. As a long-standing law firm in the area, we have been appointed professional executors by many people over the years.

Please be assured that, whilst our offices are currently closed, our teams are all still working remotely and are fully able to continue in their roles of administrating the estate. The work involved in administering an estate is carried out by communications through e-mail, phone and post, all of which we still have usual access to. We are working with local contacts to ensure we are still able to deal with funeral and property arrangements, and are liaising with Government bodies to make sure we can still obtain Death Certificates and Grants of Probate.

For more information on our Full Estate Administration service click here.

Before I apply for a divorce do I have to try counselling or other services?

By law you are not required to try counselling or mediation before you apply for a divorce however both have advantages.

Counselling focuses more on the emotional side of the divorce, this is helpful if perhaps it is not a mutual divorce and one partner does not want the divorce to come to an end. Counselling can help take the hostility out of the break up as you learn to try and understand each other’s feelings.

Mediation involves a skilled mediator that help you to solve important issues like finanaces and the care of children. The mediator can help you come to an agreement that is fair for both partners. Mediation can help you reduce the costs of getting a divorce and is a less confrontational approach.

Can I be forced to attend work if a member of my household is a vulnerable person?

If you are living with a person who is pregnant, elderly, or suffering with a disability that means they are in a high risk group, your employer should consider adjustments, such as enabling you to work from home. If your employer still forces you to go to work, you may have a claim for constructive/unfair dismissal, particularly if your work environment does not have social distancing measures in place.

Can I be forced to give up our family home?

If no children are involved the aim is to reach a fair financial settlement, whether you retain the home will depend on how many assets you have between you and what your individual preferences are. If your resources are limited you may agree to sell the home and share the assets so you can both buy a smaller property.

If there are children involved the situation may become more complex. The welfare of any children requires them to have a home where they can live with whichever parent will look after them. If you have plenty of assets it may be ideal if the children were to stay in the family home and the other parent was to buy another property to move into. If you have less resources it will make sense to sell the home so that two smaller properties can be purchased. 

If assets are limited, the parent living with the children may want a larger proportion of the assets, this would leave the other parent with very little. It is unlikely however that a court would agree an arrangement that is not considered fair. 

 

Can I be made redundant when on furlough leave?

Yes. You could be made redundant during or after furlough leave. However, employers are obliged to follow strict procedures when making employees redundant to ensure that you are treated fairly. They must still follow the same procedure if you are on furlough leave.

Can I give different people different shares of my estate?

Yes. By making a Will, you can set out exactly who is to get what amount. For example, if one of your children needs money more than another, you can leave them unequal amounts if you wish.

Can I give money to Charity in my Will?

Yes. The Intestacy Rules don’t allow for any gifts to charity out of your estate. By making a Will you can leave a set amount or a percentage of your total estate. It’s a great way to say “thank you” for the wonderful work they do – and it helps to save Inheritance Tax too!

Can I make financial claims against my civil partner if the Civil Partnership is brought to a conclusion?

Civil partners can make claims against each other’s finances in the same way that heterosexual married couples can.  If there are financial issues stemming from your separation and dissolution of the civil partnership you will need to take further detailed advice and we recommend that you contact one of the family team who can give you specific advice in relation to this complex area of law.

Can I make sure that my partner is entitled to my pension and other benefits if I die?

You partners entitlement to your pension will depend on the pension schemes rules. Your employer may extend benefits like health insurance to unmarried partner. You should speak direct with your companies’ human resources team and make them aware of your wishes that your partner should benefit if you die.

If you are not married or in a civil partnership you partner is not entitled to any of your state pension benefits or bereavement allowances.

If you are arranging a private pension ensuring that your partner is also covered will increase the costs. 

Can I request to be furloughed?

You can request to be placed on furlough leave, but the decision is ultimately your employer’s. If you have a condition that puts you at high risk, such as a particular disability, it would be reasonable for your employer to consider placing you on furlough leave, if this is what you have requested. Failure to act reasonably and fairly in such a scenario could mean you have a claim for discrimination. 

Can I still be prosecuted for driving without insurance if I was led to believe my employer had insured me?

Yes both you and your employer can be prosecuted.

Your company is responsible for insuring all vehicles. If they fail to renew insurance on a vehicle that you are required to drive they are at risk of being prosecuted.

You can also be prosecuted for driving without insurance.

There is a defence against such a prosecution where you were driving in the course of your employment in ignorance of the lack of insurance cover.

You have to prove to the court that you neither knew nor had reason to believe that insurance was not in place. The court will then decide whether you were aware of the insurance cover.

Can I still claim if I don’t know who injured me?

It is not necessary for the person who injured you to be identified, investigated and where appropriate prosecuted, in order for you to get a payment. However, you will be expected to have done everything reasonably possible to help the police catch your assailant, and bring them to justice. While you may be reluctant to bring charges (for example, if you fear a revenge attack or reprisal) the scheme is publicly funded and you will not be eligible for a payment unless you co-operate fully with the investigation into the crime and any prosecution that follows.

Can I switch my investments over to Banner Jones if I’m not happy with my current adviser?

Yes, after an initial meeting we will be able to assess how we can help you, and outline what, if any charges we would need to levy to look after your financial planning needs.  We would then help you to transfer over your plans.

Can I work for my employer whilst on furlough leave?

You must not undertake any work that generates revenue for your employer or provides services to them. You can however, undertake training.

Can my employer dismiss me if I do not want to return to the office?

This will depend on your personal circumstances and the nature of your job role. For example, you may have a claim for unfair dismissal and discrimination if you are dismissed whilst ‘shielding’ following government advice, and you are able to carry out your work from home.

Can my employer reduce my salary?

Unless your employer has specified in your employment contract that it can reduce your salary, then no. If your employer proposes to reduce your pay, they must obtain your agreement. If your employer has reduced your wages without your consent, you may have a claim for unlawful deduction of wages and / or constructive dismissal if you chose to resign .

Can the executors and beneficiaries be the same people?

Yes. In most cases, there is no reason why the people inheriting your estate can’t be the same people as those dealing with the practicalities. We can tell you whether this will cause a problem in your particular circumstances.

Can’t I just give some assets away, so I leave less than the Nil Rate Band when I die?

If you give away large amounts of money, or valuable assets whilst you are alive, you must survive this gift for 7 years otherwise the Inland Revenue will tax you as if you still owned them when you die. This is the case whether you make the gift to an individual or put it into some types of trust.

If you put your money or assets into certain types of trust or give them to a company, however, there is an immediate charge to inheritance tax – even though you are still alive.

Can we apply for legal aid to pay for our solicitors during a divorce?

Legal aid is not available for family cases. However if there is a case where domestic violence has been present you may be able to apply for legal aid.

Can we give our longest serving employees first pick for holiday dates?

Perhaps although legislation does ban you from treating individuals different based on their age. However there is a general exemption when

  • The award is supposed to reflect a higher level of experience, reward loyalty or help improve motivation AND
  • The employer expects greater business benefits from the above AND
  • The criterion is applied similarly to all staff members in the same situation

If you as the employer feel that in the future the business will benefit from the experience of your longer serving employees it may be lawful for you to allow the best pick of holiday dates. However if you give special treatment for some long serving employee and do not offer similar treatment to other long serving employees you could be classed as discriminating. 

Can we still be living in the same house to get a divorce?

If you’re getting divorced on the grounds of adultery or unreasonable behaviour you are able to remain living together. However if you continue living together for longer than six months after finding out about the most recent incidence of adultery or unreasonable behaviour, you are able to use this as a grounds for divorce.

If you’re getting divorced on the grounds of desertion one spouse must have left the home.

If you are getting divorced on the basis of separation you must be living separately. It is possible however to do this whilst still living in the same house however you must not continue to live as a couple. This would mean sleeping in separate bedrooms etc in practise however one spouse usually moves out if separating. 

Can we use an informal cohabitation agreement?

An informal cohabitation agreement is not legally enforceable. Some aspects of the agreement may also need to be supported by legal documentation, for example you may want to ensure your partner inherits in the event of your death.

Can you explain how the penalty points system works?

If you accumulate 12 or more points on your licence within a three year period you are liable for a totting up driving ban. The relevant dates for working out the three year period are the dates of the offence and not the dates that you got convicted.

You can also be disqualified for many offences regardless of the totting up system.

A totting up disqualification is usually for a minimum of 6 months but it can be up to a minimum of 2 years if certain disqualifications exists from your past. You are able to fight your case however and you could avoid a totting up driving ban if you can show this would cause "exceptional hardship." 

Can you explain the divorce process?

The divorce process involves up to 3 separate elements:

  • The divorce itself
  • Financial Agreements
  • Agreement of the care for any children

Your solicitor is required by the Family Law Protocol to consider a range of different issues which they may need to discuss with you. These issues include the prospect of a reconciliation, if there is danger of children being taken aboard, the possibility of abuse and many more.

The divorce process starts when the “petitioner” this is where either you or your spouse files for a divorce petition with the courts. The petitioner’s solicitor is usually the one who completes any necessary documents.

If you have children that are dependable you should at least in the short term agree how they will be looked after.

Your financial arrangements can be agreed at any time, however the financial agreement cannot be finalised until after the Decree Nisi. 

Can you explain the full divorce process?

Once the petitioner has filed for a divorce, the documents will be sent to the respondent. The respondent is then asked to return an acknowledgment, this confirms that the documents have been received and also stating as to whether they intend to defend the divorce. If the divorce is not being defended the petitioner then is asked to swear an affidavit this confirms that all details on the documents are true and fair.

The judge then considers the paperwork and decided whether the marriage has broken down irretrievably. The judge will also want to ensure satisfactory arrangements have been made for any dependent children.

Provided that both spouses reach a reasonable agreement the judge will then set a date when the Decree Nisi will be given. Both parties should then wait 6 weeks, after this the petitioner is able to apply for the Decree Nisi to be made absolute. Once this has been granted you are legally divorced.

Can you explain what a fixed penalty notice is?

If you have committed a minor traffic offence like perhaps you weren’t wearing your seatbelt or you were driving with a headlight that was broken, the police may issue you with a one off fixed penalty notice.

Non endorsable offences (ones which do not result in points on your licence) usually incur a fine of £30.

Fines for endorsable offences like speeding usually incur a fine around £60

More serious offences like driving without valid insurance can incur a fine of up to £200.

In the UK police do not have the power to make you pay a fine right there on the spot.

You usually have 28 days to pay a fixed penalty or you are able to request a hearing. If you fail to pay the fine within this time frame it will usually increase by 50% and you will be reported for prosecution.

If you feel like a penalty notice was unjust you can choose to not pay the fine and defend your case in court.

Can you explain what a vehicle defect rectification notice is?

If your vehicle is defective say for example your front headlight is broken you may be issued by the police with a vehicle defect rectification notice. This means you are required to fix the fault on your vehicle and provide proof (this could be a receipt from a mechanics) at a police station within a given time frame. 

Currently we employ people on a seasonal basis, for three months of the years we have over 200 staff the other months we may only have 3. Does the legislation apply to us?

To calculate how many employees you have you need to use the average figure over 12 months. 

Currently we have 27 employees. Will these regulations apply to us at some point in the near future?

The government says not, however the government is encouraging employers irrespective of size and nature of their activity to inform and consult employees in a way that is suited to their circumstances. 

Does a common law spouse have any legal status?

In England a common law spouse has no special legal status, you’re either married (or in a civil partnership) or not.

If a relationship was to breakdown being a common law wife or husband does not give either partner the right to claim against the other for maintenance or a share of their assets. It is possible however for a parent to make a claim on behalf of a child they continue to look after. 

Does having a Will mean my family won't need Probate?

No. If you have any asset worth over £5,000, any stocks and shares or a property then your executors will usually need to apply for probate. If you don’t make a Will, they need to apply for Letters of Administration instead, which is very similar. Unless your assets are all owned jointly with someone else and pass to them automatically, you will need Probate before your estate can be paid out. We can provide detailed advice about this if you need it.

Does it make a difference whose fault the divorce actually is?

It does not make a difference to the outcome of financial agreements or the arrangements of children. However if a spouse has been guilty of violence towards the other there may be consequences. 

Does it make a difference who starts the divorce process?

It should not make any difference to the final outcome of your divorce which one of you starts the initial process.

Of course the person who files for the divorce is the petitioner and the other person is the respondent.

If only one spouse actually wants the divorce they will file for the divorce. This generally means that the petitioner’s solicitor tends to drive the divorce proceedings.

If the divorce is based on adultery the aggrieved parts must be the ones to file for the divorce.

A spouse who has objections to divorce may want to be the respondent as opposed to the petitioner. 

Does the law say I need quotas for each age group within my workforce?

No you do not need quotas for each age group however it was suggested that it would be good practise to determine how many employees they had within a certain age group. This data could then be used to check as to whether they conformed to the age discrimination legislation. 

Does the reason of the divorce have any effect on how the financial settlement is worked out?

Rarely, generally any financial settlements are fair and should give priority to the welfare of any children. If you commit adultery this does not affect this. Your behaviour may however affect the agreement of who looks after any children and the contact that the partner is allowed.

Extreme behaviour may be taken in to account, say if one partners violence has affected the other partner. If one partner acts recklessly in an attempt to deliberately sabotage the financial position this could also be taken into account. 

Do family members have a right to contact a child of mine that may be living with an ex-spouse?

Other members of your family even if they are your parents do not automatically have a right to see your child. The court may allow them to apply for a contact order. As long as the court deems this to be in the best interest of the child the application is more than likely to be passed. 

Do I face an automatic disqualification if I am caught drink driving?

The minimum period of disqualification for driving with excess alcohol is 12 months however this is a minimum and could potentially be increased to three years if you have had relevant drink driving offences in the previous 10 years.

These minimum periods can be reduced by no less than three months and not more than a quarter of the original period if you agree to attend anapproved course. This depends however on if the court offers it to you.

The court is eligible to impose a longer ban, particularly if there are other aggravating factors.

In some circumstances it is possible to persuade the court to not disqualify you for special reasons if they exists. These reasons will relate directly to the offence itself and not to the effect on you of disqualification. An example of a special reason is the driving ban of a short distance.

 

Do I have any obligations in respect to pregnant employee’s health and safety?

You must make sure that all pregnant employees take a minimum of 2 weeks off work following the birth of the child. You must also asses the health and safety risk posed to pregnant employees if the work is of a nature that could involve risk or harm to them or their baby.

If this assessment reveals there is a health and safety risk you should take all reasonable action in order to remove this risk. Otherwise you must suspend the employee on full pay for as long as required to protect the health of her and that of the baby.

Do I have to arrange buildings insurance?

No.  That is done by the landlord/housing association and part of the rent payable reimburses the cost of the buildings insurance.

Do I have to follow the Acas code of practice on grievance procedures?

All employers are required to act fair and in a reasonable manner when they are responding to a grievance claim. There is a Acas code of practise on disciplinary grievance procedures that provides basic, guidance and principles to help you. The code sets out a requirement of fairness and for many cases provides a standard of behaviour.

If the code applies and you do not follow any of its provisions an employment tribunal can increase any award it makes against you by 25%. In discrimination cases this would be extremely expensive as there are no limits on the compensation. However failure to follow the code is not automatically unfair.

When an employment tribunal is deciding whether or not you have failed to follow the Acas code they take into account all circumstances. Sometimes it may not be possible for you to follow all the steps set out in the code. Ensure you take legal advice if for any reason you feel you are unable to follow the code. 

Do I have to pay it all at once?

Ideally, yes. However, we will consider each case on it’s merits and will consider standing orders for an agreed period of time. We can also help you in obtaining a loan to cover your legal fees.

Do I have to put up with a pregnant employee who keeps leaving work for maternity appointments?

Yes a pregnant employee is entitled to time off for ante-natal care, which may include parenting classes. You cannot refuse a pregnant employee time off however you are able to request to see the appointment letters or any other supporting evidence. 

Do we by law have to allow employees to take forward unused holidays?

There is no obligation for you to do so. Some employers have their own policies which may allow flexibility.

Employers cannot demand that an employee carry forward any part of their statutory holiday and must make sure that at least 4 weeks paid holiday is taken each year. 

Do we have to agree a final financial agreement before a divorce settlement can go through?

No you do not however we advise that an agreement is to be reached on financial issues before the Decree Absolute is finalised. Important entitlements can be lost in some circumstances once the decree absolute has been granted. 

Do we have to come to an agreement with what is happening to our children before the divorce can go through?

The court needs to be satisfied that arrangements have been made in the best interest of the child. This however does not been that a final agreement has to be made before you can get a divorce. 

Do we have to do anything else in our recruitment adverts?

You need to be able to justify if you are asking for certain levels of experience. Advertising for a bus driver who is safe and has had previous experience is one thing advertising for a bus driver with 10 years’ experience is another. The first option leaves your job advert open for all ages to apply. The second rules out individuals who may be in their early twenties.

 Other points to consider when recruiting new employees:

  • Ensure whoever is interviewing potential employee’s scores interviewees on their skills and competencies as opposed to their age.
  • Although they are not discriminatory themselves consider removing any reference to age on your job application forms.
  • Don’t ask a potential employee for a physical fitness test unless you require them. 

Once you have selected an appropriate employee ensure managers and staff are trained to monitor and avoid any discriminatory behaviour. Also make sure it is clear within any policies you have that discrimination in any form is unacceptable. Ensure managers are fully trained in diversity issues and that they are able to deal with discriminatory issues that arise within the workplace.

Do we have to give holidays to casual workers? Even if they are with us for a week?

Employees, casual workers and temp staff are all entitled to holiday pay with the entitlement accruing from the start of their employment. If you are an employer that rolls holiday pay for casual workers into their wages rather than paying them for the time off you will need to change your current practise. This is because The European Court of Justice has recently ruled that “rolling up” holidays pay is contrary to the Working Time Directive and is therefore against the law.

If there is no prospect of short term workers taking holidays while in your employment you need to be able to identify the holiday element in their wage, you may even have to amend short term contracts. 

Do we have to go to court in order to get a settlement agreed?

You are not required to get a settlement approved by the court, unless you do get a consent order either of you will be able to change your minds. To get a clean break you are required to have a court order. 

Do we have to include an otherwise suitable job applicant on the short list if we know they have had a recent brush with cancer?

Generally speaking an individual who is able to prove that they have an impairment either physical or mental which can have a substantial long term adverse effect on their ability to carry out daily tasks is protected by the anti-discrimination provisions of the Equality Act.

An individual with a condition that is progressive would also be covered, even if there was no adverse effect or the condition was in remission – if it had produced an impairment which had some effect on their current daily activities and was likely to lead to a substantial effect over time. The act also covers impairments that may go away however can recur.

The definition above covers many forms of cancer, however to remove any uncertainty the definition of disability under the Act specifically includes most cancers.

The Employment appeals has ruled that employers are able to apply their sick pay policy to disabled employees who may be absent from work due to their disability.

The house of lords has upheld this approach, saying that the test of whether disability discrimination has been present is reliant upon whether a non-disabled person would have been treated in the same way if they had done what the disabled person did. It is irrelevant whether the act was due to the person’s disability.

The results here is to try and make it easier for employers to hire people who are disabled however making it harder for them if they were to take time off due to their disability. Good practise is to make sure you base your decision on whether to shortlist on written criteria and to also keep a record of how this criteria was applied to all candidates. 

Do we have to of come to an agreement with what is happening to our children before the divorce can go through?

The court needs to be satisfied that arrangements have been made in the best interest of the child. This however does not been that a final agreement has to be made before you can get a divorce. 

 

Do we have to recruit teenagers for jobs dealing with customers?

Yes you would have to potentially recruit someone in their teens for a job dealing with customers. The fact that they are a teenager is now not a sufficient reason to not consider them for a job. 

Do we have to stop the younger members of our team from making jokes about the older employees?

Yes, there are different circumstances for example if an older worker makes a joke about themselves it would be ok for a younger worker to reiterate this. However from your view point as the employer it is best to deter people altogether. 

Do we need to worry about these requirements if we employ people in their 50’s and 60’s?

Yes you need to be aware of these requirements if you employ anyone of any age. They affect every area of employment as well as the recruitment and selection process. The requirements not only make it unlawful to discriminate on the grounds of age but also harassment whether it be intentional or unintentional or to victimise an individual. 

You need to worry not only about your own actions but also your fellow employees who must be discouraged from making offensive or unkind comments about age or anything in between.

 As with other areas of discrimination if your employee can demonstrate that there has been a difference in treatment which is due to discrimination it is solely down to you the employer to show otherwise or for you to prove that you have done everything in your power to stop such discrimination. There are no limits to discrimination awards and often they include an aspect for suffering, failure to do so can be expensive. 

 

Do you have to get a solicitor to make a pre-marital contract?

Most likely, it is unlikely that a court would follow a pre-marital contract unless both partners had received legal advice from a solicitor on its effect. 

Equity Release costs?

There are all sorts of “hidden” costs including:

  • Completion
  • Arrangement or application fees
  • Valuation fees
  • Insurance
  • Early repayment charges
  • Legal fees


You should also consider the following:

  • If your circumstances change in the future, will you be able to move home? Any equity release scheme will affect the inheritance you are able to leave to your children or grandchildren
  • There could be implications for your entitlement to social security benefits
  • Who will be responsible for repairs and maintenance of the property?
  • Tax implications
He's got to keep a roof over our heads hasn't he?

Non-residential parents have to pay maintenance for their children; hopefully the amount can be agreed though negotiation and if not then the CSA will decide. Each case is different.   If for example the Mum and the children stay in the family home then she may relinquish her claims over any other assets such as pension and savings in return.

How am I able to stop my ex-spouses new partner from replacing me?

If you ensure you maintain regular contact with your children this should prevent you from being replaced in the eyes of your children. It will not stop your child however forming an attachment to your ex-spouses new partner. You should focus on your own relationship with your children as opposed to the new partner.

A common issue which may arise is the child’s surname. If the child continue living with the mother the mother may wish to change the child’s surname to that of her new partner. You are able to object this and can take court action if the mother insists. The courts decisions will be based on the best interest on the child. Usually the court will not allow the change of the name.

How are we able to minimise the upset our divorce proceedings will cause to our children?

The more you are able to agree amongst yourselves the better. Ideally it would be better if you could agree for the arrangement of your children outside of the courts. This will avoid your children having to get involved with any court proceedings. Children who are asked to tell the court what they feel can sometimes feel like they are having to choose between parents.

You should try to avoid involving children in your arguments. No matter how badly you feel towards your ex-spouse. It may be in the child’s best interest for you to remain civil with your ex-spouse.

It may be helpful to contact a support group who are able to offer advice on how to protect your children’s emotional wellbeing. You can find a range of helpful information on the interest aimed both at parents and children. 

How are we supposed to deal with assets like life insurance or endowment policies?

When agreeing a fair settlement life insurance and endowment policies are taken into account. You should agree how the policies will be handled and whether premiums will be paid for regular contribution policies, and whether the beneficiaries of any life insurance cover will need to be changed.

You may choose to sell your policies or retain individual ones. Any policies which you have in joint names will usually be transferred into an individual’s names. You should take advice when considering selling any policies as this may results in a sharp fall in the expected value of the policy; any sale or transfer of the policy may have tax consequences. 

How can I find out more?

If you are considering releasing some of the equity in your home, please book an appointment and we will be happy to discuss your options. We can meet you with your financial adviser if you wish, to make sure the advice is integrated. If you do not already have a financial adviser, we would be happy to recommend a specialist, independent adviser who can discuss your circumstances in detail.

How can I make sure that my rights in relation to the property remain legally enforceable?

You must make sure that what it is you have agreed is written in the cohabitation agreement. You may also wish to draw up an appropriate deed of trust, this will set out your rights to the property and what will happen if you split up. You should also ensure that your wills clearly state what will happen when either of you die.

Appropriately drafted documents of this kind will normally be enough to ensure that your rights are respected. The situation can be much more complex if there are children involved. If there is the children involved they will also have rights which cannot be overruled by an agreement between you and your partner. If you break up and your partner is to continue looking after the children you would be able to apply to the court for an order allowing them to continue living in the property.

How can I raise a pre-marital contract with my partner?

Many couples take the view that divorce may be a possibility. It is very sensible to discuss with your partner pre-marital contract, you can do this in an open and frank manner. If you identify an issue now it could possibly prevent it from becoming a problem later on in your marriage.

 If you have a will getting married will revoke your will, if you do not have a will you will want to ensure your partner is provided for if you were to die. We would advise you to talk to your solicitor about a will with your solicitor before you marry or register your partnership. It may be more diplomatic and less uncomfortable if your solicitor was to raise this issue in a professional manner rather than you raising this issue. 

How does age discrimination requirements effect the recruitment process?

When you are recruiting employees you need to ensure you are not discriminating for or against anyone due to their age. This means you cannot advertise specific age requirements in any of your job adverts unless you can justify them.

How does Equity Release work?

To be eligible for any of the equity release schemes available, you must generally speaking:

  • Be aged at least 60, own your own home, have paid off all or almost all of any existing mortgage over the property.
  • Own a property worth at least £40,000.
  • Own a property built out of brick or stone.
How does Shared Ownership work?

A monthly rent is paid to the landlord in respect of the share you have not purchased.  For the percentage share you buy you will normally require a mortgage.  Certain lenders do not accept Shared Ownership property but the housing association can normally put you in contact with a mortgage adviser who is used to dealing with this type of application.

How does the way in which we share expenses impact our assets if we were to break up?

Ownership of assets is usually determined by who paid for the asset. You can include different rules within your cohabitation agreement. If either partner contributes to the costs of buying and maintaining the home you live in this is likely to give them a claim to a share in the home. In your cohabitation agreement it should be stated that if one of you has the intention that the property should be owned by one of you and that any financial contributions made by the other partner is over general living expenses. 

How do I end my Civil Partnership?

Bringing the civil relationship to an end involves the similar process to having a divorce. A petition is filed asking that the partnership should be brought to a conclusion and showing that the civil partnership has definitely come to an end.  The petition will need to be lodged with a County Court that specifically deals with dissolving civil partnerships.

How do I fulfil my duties as landlord and adhere to social distancing?

You are still required to fulfil your legal responsibilities as a landlord. Providing and maintaining safe and decent accommodation, providing those certificates demanded by law and abiding by your side of the tenancy agreement.


The Government is encouraging landlords and tenants to take a pragmatic, common-sense approach to non-urgent issues and recommends that access to a property is only proposed for serious and urgent issues.


Landlords are still obliged to provide tenants with all necessary gas and electrical safety and any other relevant certifications required. However, there is a little flexibility with this as well.


There are provisions in both regulations to account for situations in which a landlord cannot fulfill their duties but you must demonstrate that you have taken all of the reasonable steps to comply with the law. and also keep records of your actions.

How do I know if the information and consultation regulations apply to me?

The regulations apply to any British undertaking with 50 employees or more which is “carrying on an economic activity whether or not operating for gain.” Limited companies, partnerships, sole traders, charities are all included as long as they are employers.

How do I know if the information and consultation regulations apply to me?

The regulations apply to any British undertaking with 50 employees or more which is “carrying on an economic activity whether or not operating for gain.” Limited companies, partnerships, sole traders, charities are all included as long as they are employers.

How do I pay for the claim?

The majority of the claims we do are No win No fee so there is little financial risk to you.

How do I register a death?

We have been in touch with our local Registry Office who have confirmed that because they are classed as key workers, they will continue to remain open to register deaths.  This will allow us to then progress your matter as normal.

We are however anticipating delays with the turnaround at the probate registry as things progress, but we will keep you updated as we know more.

 

How is it possible for me to ensure we are not liable for each other’s debts?

You will only be liable for your partner’s debts if you agree to. Utility companies have the right to pursue both partners living in a home for unpaid bills.

How is it possible to work out an agreement that’s fair?

Your main concern should be what is in the best interest of your child, but of course you will need to take into consideration your own circumstances.

There are many different models for sharing care of your children from the children living solely with one parent during the week then seeing the other parent at weekends, to the children dividing their time between their parents more equally. Which is right for your family depends on your individual circumstances, whether you both work, where you live and who has been the primary carer for the children.

To support the child financial agreements should be put into place. Separate financial agreements should be made for the division of assets and any maintenance from one spouse to the other.

 It should be kept in mind that the child’s needs may lead to an unfair arrangement. In many divorces one parent will continue to live in the family home with the child whilst the other parent has relatively limited time with the child, lives in separate accommodation and continues to pay maintenance. This may be a consequence of the priority that must be given to the child’s welfare. 

How long after my injury can I make a claim to the CICA?

You have 2 years from the injury to make the claim, however, in cases of historic sexual and physical abuse there are special rules.

How long are local searches valid for?

A local authority search completed for a house purchase is valid for 3 months.

How long by law do I need to be married for before I can get a divorce?

There is a 12 month barring rule which means you can start the divorce process after being married for 1 year.  If your marriage does break down you are able to separate in the meantime and possibly agree on financial issues and the care of any children.

How long does it generally take to get a divorce?

A divorce typically takes around 6-8months, this is provided that both spouses deal with court papers promptly. It may be possible to speed up this process if you want to get remarried as soon as you have been divorced, however this will incur a higher cost.

In practise negotiations over financial agreements can take longer than this. It is usually possible to get a divorce before a financial agreement has been fully finalised, your solicitor will advise you when this is not advisable. 

How long does Mediation take?

This depends on the complexity of the case and on the parties' willingness to reach an agreement.It usually takes place over half or full day sessions, and very often a ‘Mediation Settlement Agreement’ is agreed in one or two meetings.

How long does the conveyancing process take on average?

We usually say 4-6 weeks for an average sale or purchase. Queries and concerns can often come out of the local authority searches which need further investigation and sometimes this leads to re-approval from the Mortgage lender. This can add further time into the process.

How long will I have to wait for my compensation?

All eligible claims will be paid, but you can expect to wait up to 12 months.

How long will I have to wait for my compensation?

Straightforward claims can take around 12 months to be paid, however, we have known them take considerably longer.

How long will it take before I get compensated?

In most cases, the limiting factor is the length of time which has to pass before a final opinion can be obtained from a medical expert as to the extent to which an injured person has effected a recovery. In the simplest of cases a conclusion may be reached in around 6 months. However, where more severe injuries are sustained then it may take a number of years to get to a point where the medical eveidence is sufficiently clear to enable the case to be concluded.

In cases where liability is admitted but the case cannot be concluded quickly because of the nature of the injuries then it may be possible to obtain an interrim payment on account of the final award of compensation to be paid.

How long will it take for the divorce to be sorted?

The divorce process usually takes any time between 4-6 months. This includes a dealy from the date of the Decree Nisi to the Decree Absolute. The process can of course take longer if any spouse fails to deal with various paperwork.

Arrangements for any children are dealt with at the same time of the divorce. You are not able to obtain a Decree Absolute unless you have satisfied the court that satisfactory arrangements for the children’s welfare are in place. Reaching a financial settlement is a separate matter. This process depends on your relationship with your spouse and the complexity of your financial affairs. Often the financial settlement can be negotiated over the same period as the divorce proceedings, this is then confirmed by a consent order. If this is not the case it is normally possible to reach a financial settlement in a matter of months as opposed to years.

How long would a traffic offence remain on my licence?

An endorsement will stay on your licence for four years from the date of conviction, with the exception of these three types of offence which will remain on your record of 11 years:

  • Drink, drug and driving
  • Causing death by careless driving under the influence of drugs or alcochol
  • Causing death by careless driving then failing to provide a specimen

This four year period contrasts with the totting up driving ban where the penalty points no longer count after just three years in most cases.

How much does it actually cost to get a divorce?

The cost of the divorce includes court fees as well as any solicitor fees. In normal circumstances where a divorce is not defended solicitors are likely to charge in the region of £750 plus court fees and VAT however this figure is only an estimate.

Your solicitor will advise you on financial agreements and the care of any children, the more discussion you have with your solicitor the more costs you will incur. If you and your spouse are not able to come to an agreement and you have to ask the court to make decisions your costs will increase. Protracted disputes can result in very substantial costs.

If your divorce is likely to be straightforward your solicitor may offer a fixed fee. It is not possible to estimate the full cost of a divorce as it will depend on the circumstances of the case. However once the circumstances are known your solicitor will give you an indication of the cost. 

How much does it cost?

Before you commit to mediation you will be told the fixed cost per session and how many sessions are likely to be required. The costs are often split between the parties.

How much does it cost to make a pre-marital contract?

Solicitors are charged on the hours spent on the case this would mean that the cost really does depend on your circumstances and the complexity of your case. If you have children from a previous relationship or your marriage has an international element it may be more complex. 

How much is statutory sick pay?

As of 2013-2014 rates the statutory sick pay was £86.70 per week.

How much maintenance am I required to provide for the children?

The welfare of children is a priority this includes providing them with a home. This applies to children under the age of 16 and children under the age of 18 who are still in full time education. The courts can request that you provide maintenance to older children who are still in full time education or who have special needs.

The Child Support Agency calculates the amount of maintenance that non-resident parents must pay by using a formula. This is usually 15% of the net income for a single child. This then increases to 20% for two children and 25% for three or more children.

This amount may be reduced if the non-resident parent has extra costs or other children to support. There are a number of other circumstances in which the CSA can vary the amount of maintenance a non-resident parent is required to pay. For example if the child was to spend time at the non-residents parents’ house.

In many cases either parent can apply to the CSA to assess the level of maintenance to be paid. This overrides any agreement set out between the parents.

Either parent is also eligible to apply to the courts for a top up in the level of maintenance this may be for example to help fund private education. 

How much will I be paid on furlough leave?

This will depend on what you agree with your employer. Under the CJRS, HMRC will pay 80% of your wages (subject to a cap of £2,500). Provided your employer does not have a contractual right to reduce pay in your employment contract, if your employer intends to only pay you 80% of your wages, they would need your agreement to do so.

How much will I get?

It all depends on the nature of your injury and for straight forward cases it may be around £1-2000.  We’ve dealt with some very complex cases recently that have resulted in the maximum amount being awarded of £500,000.

How much will I get?

The amount of compensation to be received is determined by an assessment of the extent to which you have been injured and have effected a recovery from those injuries. Each case is considered in the light of other cases which have been dealt with by the Courts so as to reach an appropriate level of award.

In addition to the award for the injuries sustained you can also claim for other financial loss such as lost earnings, travelling expenses and the cost of medication.Further and where appropriate a claim can be made for the value or cost of care required or the loss of benefits such as a pension.

How much will I get for a CICA claim?

The CICA have a published tariff system so it does depend on the nature of your injury and for straight forward cases it may be around £1-2000.  We’ve dealt with many very complex cases recently that have resulted in the maximum amount being awarded of £250,000 for the injury itself and £250,000 for the special expenses claim.

How often do you check and review my investments?

This depends on how you wish to engage us.  Most of our clients wish to benefit an annual review, where others wish us to establish the transaction, and then come back to us when/if they choose they need further assistance.  This will be discussed at the initial discovery meeting and confirmed in the client engagement letter and the suitability report.

How soon can I file for Divorce?

There is a 12 month barring rule which means you can start the divorce process after being married for 1 year. In England you can get divorced if your marriage has broken down irretrivably, usually proved by allegations of adultery or unreasonable behaviour, or if there has been 2 years' of continously living apart.

How will I fund my case?

We will before an action is taken advise on the possible methods of funding a case.

We will advise on :

-Private fee agreements

-Conditional Fee agreements

-Legal expenses insurance

-Legal Aid

-Trade Union funding

Following our advice we will then pursue your case based upon your chosen method of funding.

 

How would a judge decide which parent a child would live with?

The judge will look at what would be in the best interest of the child. The court does take into account other factors including which parent the child wishes to live with and the ability of each parent to look after the child.

I am being prosecuted for not stopping at a stop sign, however the road markings were barely visible. Do I have a defence?

If the sign itself is the correct sign and is in working order and the road marking were once compliant with the regulations which state how they should appear the court is likely to conclude you do not have a defence.

I am due to retire next year and don’t have a financial plan in place, is it too late?

It is never too late – make an appointment we would be delighted to help you.

I am getting a divorce but do I have to use a solicitor?

If your divorce involves children or any significant assets or money we would strongly advise you to get a solicitor.

Your solicitor is able to advise you on your rights and what would be a reasonable settlement. They can also help you negotiate an agreement on financial issues and the care of any children. Solicitors also take care of the court documents.

Your solicitor is there to advise you, it is up to you to choose how you would like to use a solicitor. It may be that you and your spouse try and reach a preliminary agreement between yourselves. It is important to highlight that each partner should have their own solicitor. 

I am getting married soon, should I have a pre-marital contract?

A pre-marital contract is an agreement which is written out before your marriage (or civil partnership) which sets out what should happen if you were to get a divorce. It is often referred to as a pre nup. We would suggest you to take legal advice about pre-marital contracts if:

  • You have substantial assets which you would like to keep out of the reckoning if your marriage was to break down.
  • You have been previously married or in a civil partnership before and you are taking property into the marriage which you would like to keep for your family.
  • There is an international aspect to your marriage, where you might find financial rewards made against you in the courts in another country.
  • Your circumstances are unlikely to drastically change, such as it is unlikely you will not have any more children
I’d prefer to meet someone in person, is that possible during the Coronavirus measures?

We are making every effort to ensure that all work can be carried out remotely through phone calls, video conferencing, e-mail, etc, meaning you are not required to attend our offices as part of the process. That being said, we do understand that some clients may prefer a face-to-face meeting.

Whilst we are not currently in a position to meet clients in person, the process of administering an estate is quite complicated and can take several weeks to complete. Whilst we may have to speak to you remotely during the early stages of the process, we hope that the current restrictions may start to be lifted by the time we reach the later parts of your matter.

As soon as it safe for us to do so, we would then be more than happy to meet with you to talk about any matters you may prefer to discuss in person. In the meantime, we can still work on your matter and speak to you remotely, but hope to be able to see you in person soon.

If I am not the children’s father am I still required to provide maintenance?

If you have been treating the child as if they were your own then the child is classed as a child of the family and you will have parental responsibility.

This would mean if you were to separate the child may continue to live with either parent and the other parents could be ordered to pay child maintenance. Your ex-spouse could ask the court to provide maintenance for your step children and to continue paying for what you were previously paying for before you divorced. The court would however take into account the ability of the child’s natural parents to provide financial support.

 

If I decide to leave the family home while the divorce is being negotiated will this put me in a weaker position during other negotiations?

Leaving the family home should not affect the results of any negotiations or settlements. It could however put you in a weaker position financially if you are having to pay out for accommodation and therefore you would like to negotiate the sale of the house as quickly as possible.

If I do decide to give a large amount to my children now, is there anything I can do to reduce the tax?

You can insure the inheritance tax liability which would arise if you were to die within 7 years of the gift. Please ask for more information and one of our specialist advisers will be delighted to explain how this works and, if you wish, put you in touch with a trusted financial expert to help you choose the right policy for you.

If I dont have legal Expenses Insurance can I get it?

In most case where we represent a Claimant under a conditional fee agreement we will advise in relation to the obtaining of a policy of after the event legal expenses insurance and if appropriate we will make an application for such cover.

If I have a pre-nuptial agreement will my assets be protected?

A financial settlement should be fair, this is based on the needs of both partners and the welfare of any children involved.

Where there are plenty of assets you should consider having a prenuptial agreement. You may be able to use a prenuptial agreement to provide some protection to your assets that you bring into the marriage. 

If I have to pay maintenance how much is a spouse entitled to?

This will depend on each individual’s circumstances. Factors that are taken into account include:

  • Both partners assets and ability to learn
  • The standard of living before the break down of the marriage
  • Your age and the length of time you have been married
  • Special requirements such as a disability
  • Contributions each partner has made to the marriage

It may be if a couple who haven’t been married long and have no children together were to file for divorce neither of them would pay each other maintenance and they would each walk away with the assets they brought in to the marriage.

On the other hand a couple who have been married for 35 years with the wife bringing up the children and the husband working. A fair financial settlement may be to award the wife half of the assets, this may include half of her husband’s pension entitlement and maintenance of half her husband’s income.

If there are children involved within the marriage their needs including maintenance are dealt with separately. 

If I invest all of my funds I am able to access them should I ever need to?

This depends on the type of investment you put the money into – it is important to set aside a level of emergency fund, say 3 to 6 month income on deposit, and then consider a manner to vest additional monies which take account of your financial needs.  Part of the initial fact finding processes are to assess which styles of invests are appropriate to your needs.

If I make any payments to my spouse whilst separated will this affect the final settlement?

Usually no, it may not be wise to make excessively large payments to your spouse as this might be argued that this shows both their needs for such payments and your ability to pay. Any financial settlement should be taken into account the longer term history of the marriage and any future financial prospects.

If your spouse does not need maintenance whilst separated it would be sensible to provide it.  If you fail to provide it, this may cause your spouse to be hostile towards you. Your spouse may apply to the court for an interim financial order this requires you to pay an appropriate level of maintenance. Both of these are likely to increase the hostility in reaching a final agreement.  

If I was to leave the family home whilst the divorce is being negotiated will I still be able to enter the house if I want to?

Whilst you and your partner are married the family home is an asset and therefore you are entitled to enter.

There may be practical difficultieshowever if your spouse decides to change the locks. 

If my children live with my ex-spouse am I able to have a say over how they are brought up?

You continue to have parental responsibility even though your children are living with your ex-spouse, therefore you have a say in how your children are brought up. If you are unable to reach an agreement with your ex you are able to apply to the court for a specific issue order. The courts decisions will be based on what is in the child’s best interests. 

If my circumstances change am I able to get the arrangement changed?

You would have to apply to the court, if the court considers that a change is in the best interest of the child it will grant an appropriate order.

It would be unusual for a child who has been living with a parent for some time to now live with the other parent. It is more common to go to court to get an order covering a particular issue like where the child should be educated.

Should your financial circumstances change child maintenance agreements can be changed to reflect this.

If myself and my partner do end up getting a divorce does the pre-marital contract automatically apply?

In England and Wales pre-marital contracts are not always automatically enforced they are becoming extremely influential when the court is deciding on an appropriate financial award in the divorce.  

Areas that you need to look out for are:

  • Your pre-marital contract must have been made a reasonable time before your marriage. If it was made immediately it may be of concern that one of you has put pressure on the other.
  • The pre marital contract must have been made with no pressure from either partner.
  • Each partner must have been given the opportunity to seek independent legal advice on the contract.
  • Each partner must provide full details of your financial circumstances.
The terms of the pre-marital contract must remain fair, although that can be difficult to define what is “fair."

 

If one of us suffers from major long term illness what should we do to protect ourselves?

You should make appropriate financial agreements. This will depend on your circumstances if one of you is a major earner you may wish to take out insurance in case you cannot work any longer.

If you wish for your partner to take responsibility if you become incapable you should draw up a lasting power of attorney.

You may wish to consider drawing a living will, this will express your preferences should you become terminally ill. Neither of these steps will have any legal effect they should help you to ensure that medical staff treat your partner as if they were your spouse.

 

If only one of us is the child’s parents what are the rules?

If both partners have been treating the child as their own then the child is treated as a child of the family. This means if you separate the child may continue to live with either parent and the other parent would have to pay child maintenance. The key issue is what would be in the best interest of the child.

If we agree on a settlement outside of court is there any way in which we can prevent the employee from coming back to make another claim?

Yes if you reach a settlement through ACAS you are able to go for a legally binding agreement which states that neither side are able to come back later for a second bite of the cherry.

The other option is for you to get a settlement agreement under which the employee waives his or hers statutory rights in return for an agreed settlement which they have received independent legal advice. If an employee was to accept such a settlement it would make it impossible for them to return for another go.

Settlement agreements have to be drafted carefully as various legal decisions on the effectiveness or scope of a particular settlement agreement have in the past gone against employees based on the precise wording in the agreement. 

If we agree on a settlement outside of court is there any way in which we can prevent the employee from coming back to make another claim?

Yes if you reach a settlement through ACAS you are able to go for a legally binding agreement which states that neither side are able to come back later for a second bite of the cherry.

The other option is for you to get a settlement agreement under which the employee waives his or hers statutory rights in return for an agreed settlement which they have received independent legal advice. If an employee was to accept such a settlement it would make it impossible for them to return for another go.

Settlement agreements have to be drafted carefully as various legal decisions on the effectiveness or scope of a particular settlement agreement have in the past gone against employees based on the precise wording in the agreement. 

If we buy an asset together does that mean we jointly own it?

If you buy something together as a couple it will be jointly owned however that does not mean 50/50.

If you purchase an asset using a joint bank account this will normally mean you own equal shares. However in your cohabitation agreement you can set out shares of the joint bank account therefore you will each own that share of the asset.

If your purchase an asset together but you pay separately you will normally own the same proportion of the asset, as the price you both paid for it.

In your cohabitation agreement you can set out different rules, which can be agreed by both partners.

If we buy an asset together does that mean we jointly own it?

If you buy something together as a couple it will be jointly owned however that does not mean 50/50.

If you purchase an asset using a joint bank account this will normally mean you own equal shares. However in your cohabitation agreement you can set out shares of the joint bank account therefore you will each own that share of the asset.

If your purchase an asset together but you pay separately you will normally own the same proportion of the asset, as the price you both paid for it.

In your cohabitation agreement you can set out different rules, which can be agreed by both partners.

If we find there are certain age groups that are underrepresented in our workforce can we advertise jobs for this age group?

Yes you can but only under the following circumstances:

  • The age group suffers from disadvantages due to their age
  • You reasonably expect by encouraging them to take advantage of employment opportunities to compensate for these disadvantages 
If we get rid of a fixed retirement age altogether and need to get rid of someone of the age of 69 does this mean we could get done for unfair dismissal?

In theory yes however you are unlikely to be sued for unfair dismissal if you retire an old worker if it can be justified and you have followed the correct procedures.

If we have a dispute relating to our cohabitation agreement how is this resolved?

We would advise to include a dispute resolution procedure as part of the cohabitation agreement. You might agree to try mediation rather than going to court.

It is always better to try and negotiate a resolution to any dispute rather than attending court as this can incur high costs.

If we have assets overseas how are these treated?

Assets which are held overseas are taken into consideration similar to any other assets.

A spouse may seek to hide overseas assets or to transfer assets overseas to make them more difficult to recover. You should seek immediate legal advice if you suspect your spouse may be doing this.

I have a few different pension plans, I’ve heard they can be combined, is that right?

In some circumstances that maybe the correct option, but before a decision is made a full review would need to be undertaken.  This review would amongst other things look at the type of pension it is, you’re financial planning objectives, the death benefit requirements, charges and your attitude to risk/ability for loss.  Only when this review had been undertaken would any recommendations be made to you in writing.

I have a grievance procedure in place. Do I need to make a new one?

This all depends on whether or not your current grievance procedure follows the Acas code of practise on disciplinary and grievance procedures.  If not and you think that an employment tribunal could decide your failure to follow it is unreasonable you could face a 25% uplift in any award made against you in a tribunal claim. Your procedures should always be reviewed at the minimum once a year to ensure they remain relevant and up to date. Any proposed changes to the grievance procedure should be discussed with employees and any representatives like Trade Unions. 

I have a pregnant employee who seems to be permanently sick. How much time off is she entitled to?

You should treat her the same way you would treat any other sick employee, this will most likely mean allowing her to take sick leave. If her illness is pregnancy related you should avoid taking any unfavourable action against her during her pregnancy and maternity leave. If you do so you leave yourself vulnerable to a sex discrimination claim. If an employee is absent from work partly or wholly because of pregnancy during the four weeks in which the baby is due then the normal maternity leave will start even if the employee intended to start it at a later date. 

I have a pre-marital contract however it is 5 years old, do we need to keep reviewing it?

If you do get a pre-marital contract you must ensure it is reasonable and fair. If you have a significant change in your circumstances such as the birth of a new child you should speak with your solicitor to see if this would affect the award a court would make if you were to ever divorce. You should regularly keep checking with your solicitor to ensure the law has not changed in a way that stops pre-marital contract from being fair. For example they may give more rights to a particular spouse. 

I have a summons for leaving a vehicle in a dangerous place however there were no signs informing me that I couldn’t park there. Do I have a defence?

There has to be a yellow line or a no parking sign for this offence to actually be committed. The issue here is whether you caused danger or injury to other persons using the road. For example if you were to leave your vehicle round a blind corner as this can cause danger to other road users.

I have inherited a property. Do I need to do anything?

You will need to arrange for the formal transfer documents to be prepared. If the property has been left to more than one person it can be complicated, so it would be best to seek the services of a solicitor.

I have made a Will with a different firm of solicitors. Can you update it for me or do I have to go back to them?

If you bring your existing Will to us, we can offer you a fixed-fee initial meeting to discuss whether it still carries out your wishes or not. If not, we would be happy to update it or to make a new Will. It does not matter who wrote your Will originally.

I have taken on a 24 year old who has had no previous experience. Do I have to pay them the adult wage rate?

Yes you are required to pay them the adult wage rate unless they are undertaking an accredited training under a written agreement, in this case you can pay them the training rate. The definition of accredited training varies if you are in England, Scotland or Wales but the individual must train at least 26 days during the first 6 months. The training however can take part of the day. You are only able to pay them the training rate for 6 months. 

I have taken on some 17 year olds. Do I pay them the development rate or are there no restriction on what I pay them?

You should pay 16 and 17 year olds the minimum wage rate which as of 1 October 2013 is £3.72. The development rate which is as of 1 October 2013 £5.03 only applies to:

  • Individuals aged 18-20 who are not undertaking an apprenticeship
  • Apprentices aged 19-20 unless they are in the first year of their apprenticeship
  • Apprentices under the age of 19 or older than this but in their first year of an apprenticeship are entitled to a minimum rate of £2.68 per hour.
I’m going through a divorce and am worried about my pension, is this something you can help with?

Yes, we are able to offer you support and advice, and provide backing to your solicitor on you gaining the right outcome.  There are several option available to you, and all these will be explained.  It is important to not only consider what is relevant today, but also into your retirement.  Just a thought, don’t forget your State Pension when looking at this aspect, you can get a forecast here www.gov.uk/government/publications/application-for-a-state-pension-statement

I’m not sure how I feel about risk, can you help me decide?

This is one of the most important aspects of financial planning.   We will assist you in determining your appropriate attitude to risk, and as important your ability for loss.  For example you may wish to have a higher risk tolerance for regular contributions to take account of ‘pound cost averaging’, and/or phase lump sums out of higher risk funds coming up to retirement.

In a divorce do we have to get a court order to say what is happening to our children?

In many cases a divorcing couple will agree amongst themselves what will happen to the child and a court order is not required. However the court must be made aware what your plans are to consider whether they are in the best interest of the child. There are restriction on changing a child’s name and taking them out of the country. 

In cases of collective redundancy, what information are we required to provide for employee representatives?

During the consultation process you have to disclose the following in writing to the appropriate representative.

  • Reasoning for your proposal
  • The number and description of employees you propose to make redundant
  • The total number of employees that are currently employed with that description
  • The method which you are going to use to make people redundant
  • The method in which you propose on carrying out the dismissal including the period in which the dismissals are going to take place
  • The proposed method of calculating the amount of redundancy payments 
In order to get a divorce what do I need to show?

You will need to show that the marriage is irretrievable. You can do this by establishing one of the following:

  • Adultery
  • Unreasonable behaviour
  • Desertion (for at least 2 years)
  • Two years separation and agreement from both spouses to a divorce
  • Five years separation

Irreconcilable differences is not an acceptable grounds for divorce. However in these circumstances you may be able to establish unreasonable behaviour. 

In the past we have been retiring people at 62 are we still allowed to do this?

Unless you can justify your actions you cannot compulsorily retire your employees. In some industries where the work requires you to be physically fit you may be able to justify retirement however each case is unique. 

I own a business; can you look after my business investments as well as my personal ones?

We provide a generic advice service, with most of our clients asking us to look after all their financial affairs.  This means that we can oversee all aspects of the planning.

Is a cohabitation agreement legally enforceable?

A cohabitation agreement is a contract between both partners. To make the contract legal the agreement must have been made with the intention of having legal force. The cohabitation agreement should use specified language to make it clear what it is you are agreeing. It must also be signed in the presence of witnesses.

If a cohabitation agreement is unfair it may not be enforceable, to maximise the chances that your agreement is enforceable it is advised that both you and your partner take independent legal advice. You must also be honest about your individual finances when you enter into the agreement. 

Is an employee entitled to ignore my grievance procedure and go straight to an employment tribunal?

Yes an employee is entitled to bring a claim arising from grievance before an employment tribunal even if they have not followed your grievance procedure.

If the employee however has unreasonably failed to follow the provisions of the 2009 Acas code of practise the tribunal may reduce awards made against the employer by 25%.

Employees are now required to pay an upfront fee for any claim with further charges if the case was to go to court. 

Is Equity Release right for me?

It may be that you could consider other options instead, such as moving to a smaller property or cashing in other “nest eggs”, such as premium bonds or savings.

Is Equity Release right for me?

It may be that you could consider other options as opposed to equity release, such as moving to a smaller property or cashing in other “nest eggs”, such as premium bonds or savings.

Is it acceptable if I give jobs to older women who are not likely to get pregnant?

You are able to give jobs to older women however you must have reasonable grounds for believing they are the best candidate. If you are looking to take them on due to their age and not their skills and competence you are practising age discrimination. This discrimination is unlawful unless you are able to prove that your actions can be objectively justified.

Objective justification requires the use of proportionate means in pursuit of a legitimate aim. A legitimate aim is not defined and can differ from each business therefore it can be challenging for someone to judge where it is worth defending a case. This could result in your recruitment policy becoming very expensive. 

Is it best to settle a claim outside of court or is it worth fighting in court?

It makes more sense to settle a claim outside of the courts, in reasonable terms. You should consider fighting for a case if:

  • The party is plainly in the wrong but can’t be brought to see it
  • There are mitigating circumstances which are more than likely to have a big effect on any award you may have to pay
  • You believe a settlement would send the wrong message to other employees and possibly give rise to more trouble in the future
Is it necessary to go through the whole of our disciplinary procedure every time?

Yes we would advise you to. It is important that employees have an opportunity to state their case at a disciplinary meeting.

Don’t assume that you can act more casual with employees with less than two years’ service. They are also entitled to the same disciplinary standards as other employees.

They will not usually be entitled to sue for unfair dismissal because of an unreasonable failure to comply with the Acas code of practise unless they have had at least two years service. They may however be able to sue for unfair dismissal if one of the exceptions to the general rule requiring a minimum of period of service applies. Or if they are suing for discrimination. 

Is it possible for a child to live with both parents on a part time basis?

Yes it is possible however the parents must agree this amongst themselves, the court will almost always approve this.

If the parents cannot agree amongst themselves the court will make a decision to determine the issue.

Is it possible for a man to claim maintenance from his wife?

Yes it is possible for a man to claim maintenance from his wife, say for example if the woman is a high earner. A fair settlement should take into account these factors regardless of the gender. 

Is it possible to challenge a will?

Yes.  There are a number of circumstances in which it is possible to challenge the validity of a Will.   These include a lack of capacity or knowledge or approval of the testator, undue influence or fraud.  Should you have any concerns regarding the validity of a Will, you should obtain legal advice as a matter of urgency.

Is the legal position on cohabitation likely to change any time soon?

It is becoming increasingly popular for couples to cohabit rather than to remarry. It is generally accepted that the current legal position is far from ideal. We are likely to see changes to the law over the coming years.

It is a good idea to review your cohabitation agreement periodically, even if your circumstances have not drastically changed. This will ensure your agreement is still appropriate given any changes to the law. 

 

 

 

Is the legal position the same for same sex couples as it is for heterosexual relationships?

If you live in rented accommodation and it is under your partners name your will not have the right to take over the tenancy should your partner die unless you have formed a civil partnership.

Cohabitating same sex couples are generally treated as single individuals as far as tax and benefits are concerned. In the event that one member of a civil partnership dies, the other member is treated in the same way as an unmarried person for the purpose of state benefits and pensions.

Some private pension schemes will not cover same sex couples unless they are in an civil partnership. Your employer however is not allowed to discriminate on the basis of sexual orientation.

You can use a cohabitation agreement and wills in the same way as heterosexual couples.

Is there any circumstances where I should pay more statutory sick pay?

There is no legal obligation to pay more statutory sick pay. Many employers have their own sick pay schemes which either replace the statutory sick pay or top up the sick pay. Details of your own company’s sick pay scheme should be highlighted in your contract of employments or company handbook. Generally sick schemes usually provide the employee with full pay for a certain period which will then be followed by half pay for the other period. This sick scheme can be expensive for employers however it can help recruit employees and specifically help retain valued employees. 

Is there any other circumstances where I can qualify for Legal Aid?

For most people, where there is no domestic violence within the relationship, or domestic violence that can be proved to the standard required by the Legal Aid Authority, there is no Public Funding available for Divorce, Dissolution of Civil Partnerships, financial matters and children matters.

Is there a specific time limit for prosecutions?

Generally the Crown prosecution service have around 6 months from the start date of the offence in which to issue a proceeding although some further time can elapse before you actually receive a summons.

For some offences you have to be given a warning of a possible prosecution at the time that the offence occurred, or the registered owner of the vehicle must receive a notice of intended prosecution within 14 days of the offence.

Is there a time limit in which I need to claim?

Abuse cases are in the main treatedlike a normal injury claim and have a three year limit within which claims should be brought. It is common however, for persons not to take any action within this time and in many cases the courts are able to assist by exercising their discretion to allow a claim to be brought outside of this time limit in accordance with Section 33 of the Limitation Act 1980.

I’ve accumulated various investments and pensions over the years. How can I be sure they are all tax efficient?

There are many taxes, for example income tax, capital gains tac, corporation tax, inheritance tax etc.  Investment tax wrappers work in different ways, and it is important to establish a linked up investment structures which work together to establish the outcome you need from your financial plan.  We will review these for you, and at the same time make sure that the charges are the most competitive you can access and that the funds you are investing into are appropriate to your attitude to risk and ability for loss.

I've bought a buy-to-let property to rent out. How do I sort out tenancy agreements and other legal issues?

Becoming a landlord involves a considerable amount of paperwork to ensure that you are fully protected. We have the expertise to help you.

I've heard using a solicitor can be expensive?

Can you afford not to have one?  Yes, Divorce can be expensive, but without sound legal advice to help you negotiate the pitfalls and help you achieve a fair outcome it can be even more so.

I want matters resolved quickly, how can I ensure this happens?

Ideally if you and your spouse were to reach an agreement between yourselves this will speed up the process. If one parent is stalling you may wish to point out that it is in the interest of your children to come to an agreement quickly.

If parents are unable to come to an agreement between themselves it may be helpful for a family mediator to assist. This can help speed up the process and can be much more cost effective than attending court.

Otherwise it would be necessary to apply for the appropriate court orders, this will cover who the child will live with and what contact rights the other parent will have. This process requires many stages again it may speed up the process if parents are able to come to an agreement amongst themselves. 

I want to make sure my partner inherits when I die how do I do this? I also want to minimise my inheritance tax?

Your partner will not automatically inherit. You must have make a will outlining what it is you want your partner to inherit. You should make sure that this protects your partner’s rights to continue living in your home. (if this is the case)

If the value of your estate is above the inheritance tax threshold your partner will be liable to inheritance tax. You can minimise this liability by jointly owning the home or you can use potentially exempt transfer by gifting assets while alive.

The most effective way to reduce inheritance tax is to marry or register a civil partnership. Any assets your spouse or civil partner inherits will be free from inheritance tax.

If you have children you may wish to consider if you want to pass assets on to children or if you would like to pass them on to your partner.

If you own the house you could leave it for your children however give your partner the right to live there until death. 

I would like to give my partner the same rights and responsibilities for my children as a natural parent how do I do this?

You would have to apply to the court for a residence order. This requires consent for anyone who has parental responsibility for the child. The court also has to be satisfied that this is in the best interest of the child.

It may be possible for you to get a residence order if you have been living with the child with your partner for 3 of the last 5 years. Residence orders can be expensive if an individual who has parental responsibility opposes your application.

If you can’t get a residence order or if it is too expensive you are able to appoint your partner as a guardian. This will help to make sure that your child should you die would stay with your partner, unless an individual with parental responsibility decides to dispute this.

I would like to make a pre-marital contract, can we both use the same solicitor?

No it is extremely important that each partner receives independent advice on the pre-marital contract, otherwise the court will give less weight to your pre-marital contract. 

My aunt only has one bank account. Can I deal with this on her behalf?

If the bank allows, it is possible for your aunt to name you as a third party on her bank account. This will allow you to withdraw funds and sign cheques on her behalf. We can help your aunt complete the mandate form required to put this in place.

My aunt receives state benefits. Is it possible for me to collect these on her behalf as well?

It is often possible for you to be named as “appointee” to receive your aunt’s benefits on her behalf. Again, we can help your aunt to complete the forms required for this

My father is elderly and has said that he would prefer me to deal with his bills and finances for him. Can I do this?

As long as your father has mental capacity he could do this by giving you “power of attorney” which will allow you to look after things for up to a year for him. If he later loses mental capacity, however, then the power of attorney will come to an end.

Alternatively, your father could give you Lasting Power of Attorney (LPA). This would not come to an end if your father were to lose mental capacity later on, and will last indefinitely, not just for one year. We would need to see your father personally so we can explain the LPA to him and make sure this is what he wants. We would then be able to prepare a document for him to sign, which would give you power to deal with his finances on his behalf.

We will tailor-make the LPA to suit your father’s wishes and we can discuss his options with him at the initial appointment. It cannot be used until it is registered with the Office of the Public Guardian, and we would be happy to deal with this too.

My MOT has expired am I still able to drive to the garage for the test?

You may only do so if you have pre-arranged this with the garage. It is not enough to drive to a garage that advertises MOT tests. You must have phoned beforehand to confirm the arrangements of the test.

My mother has dementia and would not be able to tell you who she wants to look after her affairs. What can I do?

If your mother is not able to make a decision as to who she wishes to look after her affairs herself, and you are willing to take on this role, then we can apply to the Court for Deputyship. This would mean that you would be appointed by the Court to be your mother’s Deputy.

We will guide you through the whole process including giving the Court details of your mother’s financial situation. As the Court requires we will also notify other members of her family of the application.

Once the Court has all of the information they will consider the application and if they believe that you are suitable to manage your mother’s affairs then they will appoint you as her Deputy. You will then be responsible for dealing with all of her finances, under the guidance of the Court.

This means you can pay her bills, provide for her day-to-day needs and take care of any problems that arise. You must keep careful records of everything you do on behalf of your mother and we can help you prepare the annual accounts required by the Court.

My relative has made a Will with Banner Jones and they have passed away during the Coronavirus pandemic. What do I do?

Whilst our offices are currently closed, please be rest assured that our Wills & Probate team are still working remotely from home as per Government guidelines. Any Wills, Deeds, or other documents that we may hold for your relative are also still accessible from our secure, off-site storage facility. Please contact us on 01246 560560 or by e-mail at Wills@bannerjones.co.uk  and a member of the team will be able to talk you through the next steps.

My relative has passed away and the executors named in the Will all live in different locations across the country. How do we all make contact with Banner Jones during the lockdown?

When a relative passes away, there will be a number of matters to discuss, and usually a large amount of paperwork and documentation to work through. Given the current circumstances, the logistics of getting everyone together to review and discuss everything can be quite challenging. Whilst our team are not currently able to meet you in person we are now arranging video appointments, through apps like Skype, Zoom and Facetime, where we can still speak to you from the comfort of your own home. These programs also allow for multiple people to be a part of the same video meeting, meaning that all executors can join-in, no matter where they might be in the country.

When it comes to documentation, our offices are closed to clients but we do still have a small team who are handling incoming post and ensuring it is passed on to the appropriate person. This means we are still able to take receipt of any documentation you send to us through the mail as usual. If you are worried about having to collect paperwork from the deceased’s home, we are also able to have your relative’s mail re-directed to ourselves, where we can take receipt and deal with everything for you.

Myself and my partner do not own very much therefore is there any point us making a pre-marital contract?

Unless there is an international aspect to your marriage it is unlikely you will need a pre-marital contract. However consider if your circumstances change. Perhaps your business may take off or a wealthy relative leaves you a substantial bequest in their will. You may wish to consider these things if they actually happen rather than stirring up potential trouble. 

Myself and my spouse run a business and sometimes our teenager works a few hours do we have to pay them the minimum wage?

No if you are the employer they are members of your family and live in the family home you are not obliged to pay them the minimum wage. If your child had moved out of the family home you would be obliged to pay the minimum wage. 

My spouse is being unreasonable during the divorce proceedings is there anything I can do?

If you and your partner are still on speaking terms it is important to remain calm and sympathetic. You should try and reiterate to your spouse that the longer the negotiations continue the higher the costs of your divorce. If you have children together negotiations will also impact them.

It will be beneficial to you both if you can reach an agreement without involving the courts. An experienced family solicitor is able to advise you if negotiations are not going as effectively as they could be. The solicitor may then suggest going to court as this is the most cost-effective.

If you do have to apply to the courts, it will set a court-driven timetable. You doing so may help your spouse to focus on the issues.

Once we divorce can I settle any financial claims?

Yes you can for example a spouse who may be paying maintenance is able to agree on a appropriate lump sum and/or other assets. If there are not sufficient assets available this may not be possible.

Once you have agreed a clean break agreement and this has been ratified by the court neither of you will be able to go back to the court in the future to ask for maintenance or a transfer of other assets. This gives partners a much greater degree of certainty and allows them to completely disentangle their individual affairs.

It is not possible to agree a clean break in respect of your obligation to provide maintenance for your children.
On special occasions like birthdays do I have the right to see a child that is living with my ex-spouse?

It is normal to agree that a non-resident parent should have contact on these occasions. Your ex may agree that you are able to see the child for a longer period of time. Specific contact rights for special occasions can be included in contact orders. 

On special occasions like birthdays do I have the right to see a child that is living with my ex-spouse?

It is normal to agree that a non-resident parent should have contact on these occasions. Your ex may agree that you are able to see the child for a longer period of time. Specific contact rights for special occasions can be included in contact orders. 

Our employees are all in their early twenties if we employ someone in their sixties they would be out of place. Do we have to hire someone of this age?

If you interview someone in their sixties and they turn out to be as good or even better than your current employees in their twenties you should not let their age be a determining factor as to whether you hire them or not. Since October 2006 it has been unlawful to reject anyone for an interview based on their age. There is not a lot employers can do to control the age of their workforce therefore you would potentially have to recruit someone in their sixties even if you have a younger workforce.  

Our kind of work requires people to be physically fit this usually rules people over the age of 40 out. Is this acceptable?

No, if you ask for a certain level of fitness you are imposing 'an apparently neutral position, criterion or practice' this would put people of a certain age at a major disadvantage and therefore cannot be justified. If someone over the age of 40 was to apply for a position with you and get rejected they could argue that your fitness requirements are discriminatory. An employment tribunal would most likely find their favour unless you could prove otherwise. 

Should I consider any other legal matters before I get married?

If you have made a will prior to getting married or forming a civil partnership, it will become void when you marry. Therefore it is likely you will need to make new wills.

 If either of you has not made a will, we would strongly advise you to do so. If you die without making a will it is the law that decides who gets your assets not your partner or family.

 Seek legal advice if either of you have been married before as this may affect your new marriage or partnership.

Should our cohabitation agreement include rules for household chores?

You may wish to consider issues like this whilst you are preparing the agreement. If one partner works and the other looks after the home this may be reflected in the way you agree financial issues. You may come to an agreement that the house working partner would be entitled to some form of maintenance and a share of the assets.

It is advised that you should state in your cohabitation agreement how your expenses will be shared. However it may be challenging to include rules on behaviour in the agreement such as who does what housework etc as this is hard to define. You would be expected to come to an agreement on such issues yourselves.

Should we review our cohabitation agreement and if so how often?

We would recommend you review your cohabitation agreement every 5 years. It is also advisable to review your agreement if there are any major changes in your circumstances like the birth of a new child.

So, I can’t give anything away whilst I am alive unless I survive for 7 years?

There are certain gifts you can make which are not subject to this 7 year rule. Everyone has an “annual exemption” for inheritance tax of £3,000 each every tax year. That means you can give away £3,000 in total every tax year and it immediately falls out of your estate for inheritance tax purposes. If you die within 7 years, that gift will not be brought back into account. If you haven’t used your annual exemption one year, you can roll it forward for 1 tax year, so you can give away £6,000 the next year. You can only do this once, however.

All gifts to UK charity, registered housing associations, qualifying political parties, national museums and universities are also exempt form inheritance tax altogether, whether you give to them under your Will or during your lifetime.

If your children or grandchildren get married, you can give them or their new spouse a lump sum of £5,000 or £2,500 respectively, completely free of inheritance tax.

You can give any amount to your own spouse free of inheritance tax (provided you are both domiciled in England and Wales) although you should seek legal advice before doing so, as this could affect other tax planning possibilities.

There are other gifts which are exempt from inheritance tax – please telephone or call into one of our offices to arrange an appointment and we will be happy to discuss these further.

Time to get out?

Exiting a business can be extremely emotional so it’s important to have the right partners in place guide you through the process. As your legal partner we will give you as much or as little advice as you need, but be assured we’ll be with you every step of the way. We can advise you on everything from selling your business premises to raise capital through to full liquidation.

Time to review your business?

Running a business can be extremely stressful so it’s important to have the right partners in place to ensure your business stays on track. As your legal partner we will give you as much or as little advice as you need, but be assured we’ll be with you every step of the way. We can advise you on everything from the renewal of staff contracts through to helping you claim for any unpaid debts.

We are foreign nationals and did not get married in England however can we get a divorce in England?

You are able to get a divorce in England providing that one spouse has been legally living in England for a year leading up to the date that you file for divorce.

You can also get divorced in England if one or both of you are domiciled in England, even if you are not a resident here.

We are looking to hire a new MD, we believe it will take them a few years to settle in and then we want a minimum of 5 years thereafter. Does this mean we have to consider people in their sixties?

This could potentially be an occasion whereby you can justify treating someone different due to their age. The documents which discusses the legislation suggest you need to get a reasonable number of years employment out of an employee before retirement may be a justifiable reason for adding an age limit to a job advert for potential employees. We suggest you to get legal advice before making this decision as justification relies heavily on individual circumstances. 

We are selecting people for a promotion, our current management team is in their 50’s and the potential candidates are also in their 50’s this would lead to a progression problem. Can we select from younger people?

Perhaps, a succession problem can be accepted as a reason to discriminate based on age however as each case depends entirely on the facts of that case we would suggest seeking legal advice. 

We both own separate assets how should this be treated?

Unless you have agreed otherwise:

  • If you owned something before you began living with your partner you still own it
  • If you buy something with your own money it belongs to you
  • If you inherit or are give something that belongs to you
  • If you buy things together they are jointly owned
We employ a lot of part-time workers. How do we calculate if we are affected by the information and consultation legislation?

When working out how many people you employ, you may choose to count anyone contracted to work 75 hours or less a month as a part time employee, for the months during which they worked. Otherwise part-time workers are usually classed as full time employees. 

We have a managerial position available but a suitable internal candidate would be 20 years younger than some of the people they would be managing. What should we do?

Have you identified the characteristics and skills any potential candidate will require and assigned a weighting to each category? Examples could include confidence, leadership skills etc. From October 2006 you may not include age within these categories.

Once you have identified the different characteristics and skills you require the potential employee to have you should begin scoring each candidate for each of the categories. Whichever employee comes out on top should then get the job regardless of their age. You then have to support the decisions you have made even if that is someone who may be younger than the people they are managing. You must ensure your selected candidate has the correct training especially in disciplinary and grievance procedures.

 It would help if you took early steps to introducing your workforce to the idea that discrimination on grounds of age in unacceptable at either end of the spectrum. Posters and training sessions may help protect you, if anyone was to take legal action against you due to unlawful behaviour on the part of your employees. If you think this is going to be a challenge seek professional advice. 

We have an agreement with our union that people with more than 20 years’ service will receive improved redundancy terms. Is this viable

Most likely. The second exemption to the requirement that people should not be treated differently due to their age relates to length of service requirements that mirror a similar requirement in a statutory benefit, as for example contractual redundancy schemes where service related provision is more generous than under the statutory Scheme. We advise you to seek legal advice if you are in doubt. 

We have an employee in his 50’s who we hoped would retire early. We can’t take another 7 years of him what can we do?

If the employee does not take an early retirement it would be better to try and encourage an improvement in better behaviour. This could mean going through a disciplinary procedure if required, with dismissal being the last resort. 

We have an employee that is suing us for discrimination however they do not have a leg to stand on are we able to stop them?

You should look for a pre-hearing review. If you believe your employee has a weak case they will be advised that they have a small chance of winning. They may be asked for a sizeable deposit and they may also be warned that since they have no reasonable chance of success they could risk a large sum of legal costs.

From 29th July 2013 an upfront free is payable by the complainant at the same time they register their claim, along with further charges if they were to go ahead wth the tribunal.

In many cases going to an employment tribunal each party pays its own costs, where one party pursues a case which may be unreasonable the Tribunal now has the power to award costs of up to £20,000. 

We have an employee with a learning disability who is less efficient. Do we have to pay the minimum wage?

Yes. If they are operating under some form of contract, express or implied, oral or in writing to provide you with work or services and you reward this with some sort of consideration then unless you can prove otherwise they will be a worker and all workers are entitled to the minimum wage.

We have an existing agreement on informing and consulting employees, is this OK?

It may be providing that it fulfils the basic legal requirements and all your employees are happy with it. You should seek advice on what the basic requirement are that the agreement should cover. 

We have a part time member of staff who has informed us she is pregnant. What is she legally entitled to?

The employer is entitled to be treated the same as a full time employee. Like a full time employee she has the right to maternity leave and the right to return to her job after maternity leave. She may be entitled to maternity pay.

She is also entitled to her normal terms and conditions of employment except remuneration during the period of her maternity leave. 

We have assets held in a trust, are these taken into account?

This depends on the circumstances. Divorcing parties are required by their lawyers to disclose any trusts which they benefit or may benefit in the future, the value of these assets are taken into consideration. There may be an area where trustees of the trust have discretion over who will benefit.

If a spouse in the divorce has placed assets into a trust these may be taken into account. It may be possible to claim against the trust if it can be shown that assets are still under the settlor’s control, or that the settler created the trust once the marriage had started to break down with the intention of sheltering the assets for a claim.

Trust law is extremely complex and we would advise you to take legal advice.

We have employees in our workforce who want to retire at 55, do we have to stop them?

It is entirely their choice, if the employee feels they can afford to retire at 55 there is nothing you can do to stop them. The new legislation only prevents you from retiring them unless you come up with a justification. 

We have some good workers in the 50’s who we would be happy to continue employing however they do not want full time. Are we ok to amend their contract?

Yes you can by agreement. You cannot amend them unilaterally to any degree such as hours worked or level of pay without running the risk of a suit for constructive dismissal. If you recognise a trade union working on behalf of the employees you are able to renegotiate the terms with the union or else you would have to get agreement from workers on an individual basis. 

We live in rented property is the situation the same?

If you are joint tenants you both will have equal rights.

Problems arise if the tenancy is in just one of your names. The partner whose name is not on the tenancy will usually have no right to stay in the property if the named tenant asks you to leave. In the short term it is sometimes possible to apply to the court for short term protection.

If the named tenant dies usually the other partner will have the right to take over the tenancy. For same sex couples this may not be the case however unless they have been registered in a civil partnership or it is permitted by the tenancy agreement.

The best case is if you have a named tenancy to convert to a joint tenancy. 

We plan to use length of service as criterion when selecting employees for redundancies. Is this classed as age discrimination?

It is likely that older employees are likely to have been with you for longer therefore using length of service as a criterion could potentially be classed as age discrimination. Men may have longer service than women so it could potentially be sex discrimination also.

The high court has said in a previous case that using length of service as a criterion for selecting employees for redundancy can in some circumstances be justified.

In that case, the employer argued that taking long service into account was a benefit. The age discrimination rules contain an exception that allows an employer to use length of service as a criterion in relation to the award of a benefit that is potentially discriminatory where it fulfils business needs. Do seek legal advice as each case is unique and has different circumstances. 

We prefer to employ younger workers, even though sometimes we do get applications from older workers who are better qualified. Is this illegal?

Most likely, legislation came into force in October 2006 which made it unlawful to treat people differently based on the grounds of their age, unless this treatment can be objectively justified. Half of the exemptions relate to differential treatment of people who are already on payroll. There is a general exemption which allows you to reward loyalty and experience provided that:

You expect business benefits from doing so or the criteria applies equally to all employees in the same situation.

Other exemptions are very tightly defined for instance, there is an exemption where it is necessary to comply with other legislation, or where there is a genuine occupational qualification. If there is a certain age group that is under employed in your particular area you may be able to rely on the exemption for positive action. 

We require people to have at least a years’ service before they qualify for a season ticket loan. Is this classed as discrimination?

No this would not be classed as discrimination, it would be difficult to argue that a requirement for a years’ service counted as an age-based criterion for benefits. In any instance a specific exemptions to the legislative requirement that people should not be treated differently due to their age related to a specific length of service of 5 years or less. Where eligibility for a benefit depends on up to 5 years’ service, you are able to offer it. 

We've sorted it ourselves, it's binding isn't it?

Almost certainly not.  For an agreement to be legally binding there must have been full financial disclosure,  independent legal advice and an order made by the Court.

What about my pension?

Pensions are a matrimonial asset and almost certainly (depending on the respective ages and the length of the marriage) your spouse will be able to claim some of it.  If you have a very good pension you may decide to give up your interest in other assets (e.g. house and savings) so that your pension stays untouched.

 

What action do we have to take as an employer for employees who are close to retirement age?

Since the default retirement age has been phased out you can no longer compulsorily retire older workers unless it can be justified. Workers are free to continue working for as long as they wish and they no longer have to request to work beyond the age of 65.

 Whilst there is no obligation on your behalf it can be helpful to talk with employees about their future to help you plan internally. However you should be careful not to single out older workers. By asking questions including future aims, aspirations and development needs in annual appraisals this will help you gauge your employees intentions.

 If an employee has indicated that they wish to retire or perhaps alter their working hours you can then discuss altering working conditions but not before. If the employee has given you a formal notice they wish to retire you are under no obligation to let them withdraw that notice. 

What additional work is not covered?


  • The cost of acquiring a replacement marriage certificate

  • Any advice in relation to property, finances, children or domestic violence

  • Any advice if the divorce is defended, the petition requires amendment after being issued by the Court or a cross petition is filed

  • Any cases which need to be issued outside of England and Wales or a divorce where one, or both of the parties lives abroad

  • Enquiry agents fees

  • Advice in relation to pursuing or enforcing a costs award

What am I entitled to in a divorce? Can she take me for every penny?

No.  Sometimes it may feel as though this has happened. The aim when sharing out matrimonial assets is to be fair.  Both spouses have to make full disclosure about their assets and debts before any decisions can be made about distribution, trying to hide anything won't work.  Factors which are important when sharing out the assets include the current and future needs of each spouse and any dependent children; the length of marriage and the age, earning capacity and contributions of each party.

What am I supposed to do if my ex-spouse refuses to let me see the children?

If you haven’t applied for a contact order you should apply to the court for one. If your ex still refuses to stop you seeing your children despite a contact order being granted you should go back to the court. The court will then take appropriate action as your ex is breaching the contact order. The court may fine or imprison your ex. The court is usually reluctant to do this as it would not be in the best interest of your child.

This may mean that enforcing your contact rights can be a drawn out stressful process. You may need to return to court on several occasions, ensure you keep notes to use as evidence of how your ex is stopping you from having the agreed contact with your child. 

What are my rights for contacting and seeing a child that is now living with my ex-spouse?

You and your ex-spouse can arrange an agreement between yourselves as to your contact rights. This can include visits, taking the child out during the day and overnight stays.

If you are not able to come to an agreement you should apply to the court for a contact order. The court’s decision will be based on what the court believes is in the best interest of the child. This will usually include some contact for the non-resident parent.

In some circumstances it may be more difficult to obtain contact rights this may apply if you have not been in contact with the child for a significant period of time. The court may wish to minimise the disruption of the childs routine. It may also be difficult if your child says that they do not wish to see you. 

What are my rights for contacting and seeing a child that is now living with my ex-spouse?

You and your ex-spouse can arrange an agreement between yourselves as to your contact rights. This can include visits, taking the child out during the day and overnight stays.

If you are not able to come to an agreement you should apply to the court for a contact order. The court’s decision will be based on what the court believes is in the best interest of the child. This will usually include some contact for the non-resident parent.

In some circumstances it may be more difficult to obtain contact rights this may apply if you have not been in contact with the child for a significant period of time. The court may wish to minimise the disruption of the childs routine. It may also be difficult if your child says that they do not wish to see you. 

What are my rights for contacting and seeing a child that is now living with my ex-spouse?

You and your ex-spouse can arrange an agreement between yourselves as to your contact rights. This can include visits, taking the child out during the day and overnight stays.

If you are not able to come to an agreement you should apply to the court for a contact order. The court’s decision will be based on what the court believes is in the best interest of the child. This will usually include some contact for the non-resident parent.

In some circumstances it may be more difficult to obtain contact rights this may apply if you have not been in contact with the child for a significant period of time. The court may wish to minimise the disruption of the childs routine. It may also be difficult if your child says that they do not wish to see you. 

What are the common types of application made under TOLATA?

The two main types of dispute in TOLATA applications relate to: -

  • Who is entitled to occupy a property, and
  • The nature and extent of the ownership of a property
What are the conditions of age discrimination?

In 2011 legislation new legislation was introduced making it unlawful to treat anyone differently due to their age except if it could be justified or falls within one of the exemptions to the law. The retirement age of 65 has now been phased out meaning employers can now only forcibly retire workers if it can be justified.  

 

What are the initial costs I will have to pay?

Owning a home can be expensive and you will need to consider things such as re-decoration, utility bills, fittings and furniture and insurance for the contents of your home.

Other costs you must budget for monthly include mortgage repayments, rent on the proportion of the share you do not own, council tax and any service charge (if applicable).

There are also some initial costs involved in buying a Shared Ownership property just as there is when you buy on the open market and these will need to be paid from your own savings.  These include:

  • Stamp Duty - The calculations as to whether you have to pay Stamp Duty is more complicated with a Shared Ownership property.  You can be exempt from paying this if you purchase up to 80% share in the equity.  However, if the value of the percentage share you are buying is over £125,000.00 then you will have to pay Stamp Duty.  We would discuss the options regarding Stamp Duty with you as part of the transaction.
  • Deposit – if required.
  • Survey/Valuation – This is essentially if you are purchasing a property with a mortgage and is normally arranged through your mortgage broker or lender.
  • Legal fees – This covers the work we do to complete the transaction and it will always be a fixed fee. Contact us for a free quote.
What are the penalties for driving if you are disqualified?

This is an extremely serious offence and can result in imprisonment for up to six months but this is more likely to be imposed where the disqualification was recent.

The period of imprisonment can range from 12 weeks to 26 weeks this is depending on how recent the disqualification was.

A community order could also be imposed however this is likely only if the full period of the disqualification has not already been served and if a prison sentence is not imposed.

You can face another discretionary disqualification for any period between 12 -18 months beyond the period of the current disqualification if that disqualification has been ordered recently and between 6-12 months beyond the current period if most of the current period has already been served. If you have served the full disqualification, however a retest has not been taken, any additional period of disqualification is likely to be between 3 and 6 months.

The offence also carries an obligatory endorsement of 6 penalty points, these will not be imposed however if you are further disqualified.

What are the rules regarding seatbelts?

The driver must wear a seatbelt. The driver is also responsible for ensuring that children under the age of 14 wear seat belts. Passengers over the age of 14 are responsible themselves and would be guilty of an offence if they do not wear a seatbelt. The driver is not responsible for adult passengers.

What basis can the Civil Partnership be ended by the court?

The court will accept similar grounds to prove that the civil partnership has come to an end as those of divorcing couples.  The ground for dissolution is that the relationship has broken down irretrievably shown by the following facts:-

  1. Either that your civil partner’s behaviour has been so unreasonable you can no longer bear to live with him or her;
  2. That you or your civil partner have lived apart for at least two years immediately preceding the presentation of the petition and your partner agrees to a dissolution;
  3. That you and your civil partner have lived apart for at least five years prior to the presentation of the petition and the partner’s consent is not required, or;
  4.  Your civil partner has deserted you.

For a desertion petition you will need to have been apart for two years immediately preceding the presentation of the petition.

What can I claim for?

You are entitled to claim for the pain suffering and loss of amenity which you have suffered along with an award to cover financial losses which might include items such as lost earnings, treatmentand care costs and travelling expenses etc.

What can I do if my tenant is in rent arrears due to Coronavirus?

As always, it is sensible to be pro-active in this situation. Contact your tenants to discuss their financial circumstances.


It is important that your tenant understands that any rent that is deferred during this period will still be expected to be paid back later as part of a payment arrangement. You may be able to offer guidance on the different types of support available to them be able to continue payments. Depending on the response that you receive from your tenant you may also consider applying for a mortgage payment holiday.


If needed, there are still legal procedures available to you but the Coronavirus Act 2020 has extended time-frames of notice periods and widened the pre-action protocol for possession claims to encourage more contact and exchange of information between landlords and tenants.

What can I do to stop things turning bitter while we are negotiating agreements?

Divorce negotiations often become adversarial, this is most present when one spouse feels betrayed. If you are filing for the divorce because say you have fallen in love with someone else you may want to consider counselling. Even if you have made up your mind in your head that you are getting a divorce you need to allow your partner time in order to come to terms with what is happening.

It is advisable to come to preliminary agreements for finances and the care of any children. You may wish to consider some form of negotiation to help you come to agreements on these issues. If you hand all these issues over to your solicitor this may increase the likelihood that negotiations will become difficult.

You should try and discuss with your partner the wording of any documents for example the reasons why you are filing for divorce i.e unreasonable behaviour. 

What counts as Domestic Violence?

The Legal Aid Authority will accept the following evidence as domestic violence outlined in our PDF guide.

This must be provided by you before we are able to sign you up to any form of Legal Aid, unless you are looking for Help with Mediation, a Domestic Violence Injunction or Local Authority Care Proceedings relating to children.

Please note that the allegations have to be in relation to the person that you are currently having problems with.  These allegations cannot be in relation to a previous or different partner as you will not qualify for Legal Aid.

What different Equity Release Schemes are available?

The schemes fall under 2 broad headings: “Reversion Schemes” and “Lifetime Mortgage Schemes”. Each type will have advantages and disadvantages.

What do I do next?

We are always keen to find the best solution possible for your particular circumstances, and we know that no two families are the same. Whatever your circumstances you can telephone us or make an appointment to discuss your situation with us in more detail. We will then be able advise you as to the best way forward.

What do I have to include within the written statement of terms and conditions?

You must include the following:

  • The name of the employee and the employer
  • The date which the employment began
  • The date in which the continuous employment began (this will only apply if the employee previously worked for a company that was acquired by you)
  • The employees pay and the date which it will be paid
  • The employees working hours
  • Holiday entitlement
  • A job description for the employee along with a job role
  • The place of work of the employee
  • The employers current disciplinary and grievance procedure

You are also required to provide within the written contract or make it available to the employee in other documents the following:

  • Sick pay and the terms and conditions relating to injury
  • Terms and conditions related to pensions
  • The notice period the employee must give and is entitled to receive for the termination of employment
  • How long the employment is to last
  • Any other agreements which may affect the employer
What do we do about an otherwise well-qualified candidate for a job dealing with customers, who turns out to have a severe facial disfigurement?

There is less favourable treatment on the grounds of disability which can be justified under the equality act, only if the reason for it is both “material to the circumstances” of the particular case, and “substantial”.

It is also unlawful for an employer to treat a disabled person less favourably on the grounds of their disability than they would any other person that didn’t have a disability whose circumstances are the same or not materially different from that of the disabled person. It is therefore against the law for you to turn down a potential candidate on the grounds that you feel customers or current employees would feel uncomfortable dealing with them. 

What evidence will I need to supply the CICA as part of my application?

You or your solicitor will need to provide the evidence necessary to decide your case. In particular, they may ask you to provide the following evidence:

  • proof that you meet the residency requirements;
  • medical evidence that shows you suffered an injury that can be compensated under the Scheme ;
  • evidence to support a claim for lost earnings or future loss of earnings

They may collect the following evidence before they ask you to obtain a medical report:

  • Confirmation from the police that the incident was reported to the police;
  • Confirmation from the police and/or witnesses that your behaviour did not contribute to the incident in which your injuries were received; i.e. That you were blameless
  • You will need to prove that you are of good character
  • Confirmation from the police that you co-operated with them
What evidence will you need?

These cases are easier when there has been a criminal prosecution, however it is possible to still claim without.

What happens if I am not able to afford the maintenance payments?

You are able to go to court and ask them to change the maintenance order to suit your circumstances. You may wish to do this if you have lost your job. 

What happens if I have Legal expenses Insurance?

If you have legal expenses insurance then we will contact your legal expenses insurers to seek authority to represent you under that policy.

Where we represent you under a policy of legal expenses insurance then in most cases from the date when cover is confirmed and up to the maximum cover provided by the policy your own and any of your opponents legal costs ordered to be paid by you will be met by your insurers.

 

What happens if I lose the case?

There are many different answers to this question which will depend on the exact terms of your retainer with your Solicitor. The answer below should only be taken as general guidance and you should ensure that your Solicitor makes the implications of losing the case clear to you given the manner in which you choose to fund your case.

If you lose the case then your liability for legal costs will depend on a number of factors and in particular the manner in which the claim is being funded at the point which the claim has reached.

In most cases where a claim is lost or discontinued prior to the issue of court proceddings then no costs will generally be recovered by the successful opponent from you.

Where a case is unsuccessful after court proceedings are issued then it is likely that you would be held responsible for your opponents costs . Where you have  the benefit of a policy of legal expenses insurance then it is likely that your opponents costs will be covered by that policy. Where no such policy is in place then it is likely that you will be responsible personally for those costs.

Where a case is unsuccessful after court proceedings are issued then you will generally also be responsible for your own legal costs. Where the claim is being pursued on a conditional fee agreement then no charge will be made by the your Solicitor. However, in all other casesyou will be reponsible for your own costs save where a policy of legal expenses insurance is in place which covers those costs.

 

What happens if my Civil Partnership does not work?

If the Civil Partnership breaks down then you can apply to the court to have the civil partnership brought to an end after you have been together as civil partners and in a civil partnership for at least one year. This is known as a Dissolution.

What happens if my claim is against an individual rather than say the local authority?

Claims can be brought against individuals who may or may not be insured or have assests or income out of which to pay compensation. Where there is no insurance cover but a Defendant has assests, it is possible to apply to the Court for a freezing Order to stop the Defendant from selling or disposing of assests which may in due course be sold or used to meet any compensation ordered to be paid.

What happens if the house I am buying has quarantined owners in it?

Unfortunately, in this situation the seller will not be able to give vacant possession, which will lead to completion delays.  As a preventative measure, as per question 1, we can offer to exchange contracts and complete on the same day, which ensures that contracts are only exchanged if all parties in the chain are able to move on that day, thus reducing the risk to all parties.  This can be more stressful so we ask that clients be sensible and accommodating of the situation.

What happens if there are disruption to banking services due to coronavirus?

If banks or mortgage lenders are unable to move funds around due to staffing shortages then this will disrupt your completion, however, be reassured that they will be doing everything they can to prevent this scenario.

What happens if we are in a national lockdown and we have exchanged to move?

Unfortunately, in this situation the seller will not be able to give vacant possession, which will lead to completion delays and penalties. If this situation arises, we ask that clients be sensible and accommodating of the unprecedented situation.   If contracts have been exchanged then usually it would result in interest and compensation being paid to you, however if you are in a chain the same will apply to your buyers, so to keep the chain going it may be better just to accept the delay.   As a preventative measure, we can offer to exchange and completion on the same day which ensure that contracts are only exchanged if all parties in the chain are able to move on that day.  

Under normal circumstances, we would not recommend simultaneous exchange and completion as it does have its risks, since there is no guarantee, until the day itself that you will actually be moving.  This means that if you are paying deposits to removal companies or arranging for services to be disconnected when we have no legal assurance that you will move.    Please be aware that if you do instruct us to carry out a simultaneous exchange and completion this is done entirely at your own risk and Banner Jones Solicitors cannot be held responsible for any losses that you might incur if the transaction does not complete.

What happens if we can’t produce certificates for work we’ve had done on the house we’re selling?

You can indemnify the work by taking out an insurance policy. This means that you can not be held liable for any future fault on the work that was done. We can arrange this for you

What if I find out that my spouse has assets which were not disclosed when we agreed our financial settlement?

You are able to go to court and get the financial settlement altered.

What if I have been left out of a Will or am unhappy with the amount that has been left to me?

Under the Inheritance (Provision for Family & Dependants) Act 1975, it is possible for certain individuals to pursue a claim if they can demonstrated that the financial provision made for them is inadequate.

What if my case goes beyond the agreed fixed price stage?

Matters that do not complete or settle before or at the conclusion of the agreed stage will revert to our normal hourly charging rates or a new fixed price can be agreed to the next level of the case.

What if my ex-spouse was to die, how can I protect my maintenance payments?

A possibility may be to take out life insurance policy on the life of your ex-spouse, this could be part of your financial settlement whereby you negotiate that your ex-spouse pays the premiums on this policy. You can also arrange if your spouse is paying maintenance for your children for insurance to cover these payments until your children are 18 and over.

Alternatively you can negotiate a clean break with your spouse, this means there will be no maintenance paid in the first place. 

What if the case settles before the end of the fixed price stage?

If your case settles up to or including the stage we have agreed the fixed price for, then the full amount is due

What if there are children involved in the Civil Partnership?

Following a dissolution we can apply to the Courts for orders regarding children issues including residence, contact order and financial provision. See our Children page for more details.

What if we can’t come to a divorce settlement agreement?

We would always advise couples to try and come to a financial agreement so to avoid having to go through the Court process but we know sometimes it is just not possible to agree.  In these cases an application will be made to the Court and a timetable will be fixed. It is essentially a three stage process:

1. First Directions Appointment

During the first stage both parties have to disclose their financial circumstances to the Judge. Our experts will deal with all the paperwork and ensure that everything is in order prior to the hearing. At this stage the Judge is checking that we have all the information we need and will give directions to progress the case to stage 2, for example, whether any valuations of property or businesses are required.

2. Financial Dispute Resolution Hearing

Here the Judge will give guidance to the parties on areas of dispute and will encourage the parties to find a compromise solution which is fair to both of them. Most cases do settle at this stage.

3. The Trial

If the case cannot settle, then a trial date will be fixed and the Judge will hear evidence from both parties and the divorce solicitors before deciding what should happen and making an order which the Judge considers to be fair.

What if we change our mind during the divorce process?

Legally you are still married right up until the Decree Absolute is pronounced, which finalises the divorce. The petitioner who filed for the divorce is able to stop the divorce at any point. 

What information will my solicitor require?

Your solicitor will need to gain an understanding of the background to the divorce, what financial assets are involved and whether there are any children involved.

The information you will be required to provide us with includes:

  • What basis you are getting the divorce
  • Which of you is filing for the divorce and whether both of you have agreed
  • What you and your spouse’s major assets are
  • You and your spouse’s income and outgoings
  • Information on any children under the age of 18

The more information you are able to provide us with the better. Your solicitor can ask your spouse’s solicitor to provide us with additional information which we may require however this will incur a cost.

You should also state to your solicitor what your objectives are out of the divorce i.e if you are looking to stay in the family home. 

What is a Caveat and how does it work?

A caveat is a legal document issued by the Probate Registry that prevents a grant of probate being issued.  The caveat will remain in place for a period of 6 months (unless voluntarily removed by the person entering it or by an order of the Court.  A caveat can be renewed after 6 months. Caveats should not be obtained lightly or without justifiable reason as the Court can impose financial sanctions where it considers that a caveat has been improperly obtained. It is therefore advisable to obtain specialist legal advice before seeking to lodge a caveat.

What is classed as a legitimate aim under the legislation?

The concept of objective justification is hard to describe partly because it depends on an employer establishing that they have a legitimate aim and there is neither a definition nor description of what a legitimate aim may be. If you are looking to claim objective justification it is going to be up to you to argue that your aims were legitimate. Case law is unlikely to help as the outcome of each case depends on its own circumstances. You possibly have a legitimate aim which could justify you treating people differently on the grounds of age where you have a real need and there is no other alternative for example:

  • Efficiency
  • Health, Welfare and Safety
  • Training requirements
  • Encouraging and rewarding loyalty
  • The need for a reasonable period of employment before retirement

You will be required to justify that:

  • You have a real need
  • The benefits of resolving outweigh the disadvantages of practising age discrimination
  • The age discrimination you are practising is absolutely necessary

Do not attempt this without legal advice. 

What is classed as exceptional hardship?

There is no statutory definition of exceptional hardship it is at the courts discretion to decide on the circumstances of each individual case.

The keyword is "exceptional" as an example the courts take the view that losing your job does not itself amount to exceptional hardship as anyone losing their job would suffer hardship. However this doesn’t mean that the loss of your job wouldn’t be regarded as exceptional hardship as it all depends on the facts and individual circumstances of the case.

The court will take into consideration how the disqualification will affect individuals who are dependent on the driver being able to drive. Such as family members or colleagues.

What is classified as a defective tyre?

A tyre is classed as being defective if:

  • It is unsuitable for use
  • It is unsuitable to use along with other tyres
  • It is not inflated suitably
  • A break appears in the fabric of the tyre
  • The ply or cord of the tyre is exposed
  • The tread of the tyre does not have a continuous depth of 1 millimetre
  • The tyre has a defect which could harm the road

If all four of your tyres are defective this is classed as 4 separate offences

What is going to happen to my pension?

Your pension is classed as an asset much like your home. The value of your pension is taken into account in order to decide a fair settlement.

Solutions include:

  • Offsetting the value of one spouse’s pension fund this would be by transferring a lump sum to the other spouse.
  • Splitting the fund into 2 separate pension funds.
What is involved in the Collaborative Law process?

The process is based upon each party having their own collaborative family lawyer. Progress is made in a series of four-way meetings, face to face, sat round the table. There are no letters or phone calls except to arrange the meetings and to circulate the minutes of those meetings. Both parties and their Collaborative lawyers as well as making a commitment not to go to court, agree to a set of basic ground rules. Negotiations are based upon full financial disclosure, and when needed, other jointly instructed neutral professionals (such as accountants) can be brought in to assist in the process.

Solutions are based upon the parties’ interests and needs rather than conflicting positions. Sometimes only a couple of meetings are needed, sometimes four or five. These meetings can be close together or widely spaced depending upon your individual circumstances. The choice is yours. Once agreement is reached, your Collaborative lawyer will make it binding for you and put the agreement into effect. For couples and families who genuinely seek a fair solution and want to minimise the pain of family breakdown, Collaborative Family Law may offer the best approach.

What is meant by the term objective justification?

Objective justification is what you need if you wish to stay on the right side of the law whilst treating individuals differently on the grounds of age unless:

  • You are acting within the general exemption
  • You are acting within one of the specific exemptions
  • You comply with other legislation containing age restrictions
  • You undertake positive actions
  • You have an occupational requirement

In order to prove objective justification for discrimination on the grounds of age you need to show what you are doing is an appropriate and necessary means of achieving a legitimate aim.

In order to prove what you’re doing is appropriate and necessary you must be able to show:

  • That it will actually contribute towards achievement of your legitimate aim
  • That the benefits you look to achieve can justify the amount of discrimination you are going to practise.
  • That you practise no more discrimination than is necessary. 
What is not covered in the fixed fee?

The quotes are exclusive of vat, any Court fees or other disbursements such as swear fees. Expert reports, valuations, process server fees and any barrister’s fees are also not covered. However, we will try and obtain fixed quotes for any work undertaken on your behalf prior to the work being carried out. The Forms Assist package cost does not include going on the Court record as acting, or entering into correspondence with court.

What is staircasing?

In the future you can gradually buy a bigger share in the house and in most schemes you can eventually own it outright.  There is no obligation to purchase a larger share but the scheme is designed to be flexible should your circumstances change.

Initially you contact the housing association who will arrange a valuation and will offer you a price to purchase the extra shares.  Any improvements you have made to the property will be disregarded in calculating the price of the further shares.   Once you have completed the purchase your rent is reduced accordingly but your mortgage payments may increase.

What is Stamp Duty and how much will I have to pay?

Stamp Duty is a tax levied by HM Government on a transfer of property. For residential property this tax is calculated at 1% for property values between £125,001 and £250,000, 3% for values between £250,001 and £500,000 and 4% for those of £500,001 and over. Duty may also be chargeable on any rental charge (leases only) - this affects both residential and commercial leases where different thresholds are applied.

What is taken into consideration when dividing marital assets?

In the absence of a negotiated agreement between the parties on marital assets the Court will apply its own discretion. Below are some of the main things which may be taken into consideration.

  1. The length of the marriage/civil partnership has an impact on the Court's decision, the longer the marriage the more tendency towards equality.
  2. The relative contributions to wealth created during the marriage/civil partnership.  This does not mean that 'stay at home' spouses will necessarily receive a smaller settlement. If they can demonstrate that they provided the environment and support which enables the 'go getter' to amass wealth, then there is every chance of them being awarded a significant proportion of the assets.   If they can prove for example that their own career has been put on hold to look after children this would be part of the consideration.
  3. Wealth brought into the marriage/civil partnership by each party. Usually, the 'non-marital' assets are divided in the proportion in which each spouse introduced them.  Family inheritance is very complex area when it comes to division as the particular context in which the inheritance was given is taken into consideration.
  4. Pension rights.  It is important to remember that pension rights form part of the marital assets and these can be divided.
  5. Standard of living.  Finances permitting, the standard of living for any children and the parties during the marriage/civil partnership should be preserved at the levels previously enjoyed.
  6. Be aware that the previous behaviour of the parties is not usually a consideration at this stage of the process.
  7. Properly negotiated Pre-Nuptial agreements (if in place), can increasingly influence outcomes.
What is the amount we are required to pay in redundancy pay?

The amount of statutory redundancy payment depends on factors like age, length of service and pay. This is calculated using the following points:

  • For each full year of service in which the employer was aged 41 or over assign one and a half weeks pay
  • For each year the employee was aged between 22 and 40 offer one week’s pay
  • For each year in which the employee was aged up to 21 offer half a week’s pay

An employee must have at least 2 years employment at the relevant date in order to be able to receive redundancy payments. 20 years is the maximum length of service which can be taken into account.

Age related limits on redundancy entitlements, including redundancy pay remain notwithstanding the legislation which bans age discrimination. However younger works are now able to claim for services before the age of 18 and older workers are able to claim for services beyond 65.

 The week’s pay is subject to a maximum amount of £450 per week.

If you are looking to encourage voluntary redundancies you may wish to offer more than the statutory redundancy. You should ensure however that you do not create a contractual right to such enhanced payments. 

What is the civil register and is there any advantages to registering?

In November 2004 The Civil Partnership Act became law, its provisions have now come into effect. This law only applies to same sex couples.

Under this act same sex couples can register as a civil partnership. This gives couples similar rights to married couples.

If you were to register your relationship it may be a good way of helping to protect your partner. 

What is the Collaborative Divorce process and how is it different?

Couples who decide to go down the route of collaborative family law sign an agreement not to go to court but to meet face to face reaching a fair and balanced outcome. The benefit of the collaborative divorce process is that it is non-court based therefore it allows you to:

  • To control the pace, timescale and outcome of your discussions
  • To find a solution bespoke to your own circumstances
  • To give careful consideration to complicated business, family business or high value investment interests
  • To work with other specialist advisers such as accountants, financial advisers and pension experts jointly with your partner if required
  • To keep things as amicable as possible (which is particularly important where there are children involved)
  • To avoid conflict and deal with your separation in a dignified manner
What is the difference between dangerous driving and careless and inconsiderate driving?

Careless driving also classed as driving without due care and attention is established if your driving was to fall below what would be expected of a careful and competent driver.

It becomes dangerous driving if your driving fell far below the standard of what is expected such as:

  • Car racing on the road
  • Aggressive driving
  • Being distracted by your passenger
  • Driving with an arm or leg in a pot or impaired eyesight
  • Driving a vehicle that has a dangerous defect

 Inconsiderate driving includes:

  • Flashing drivers as a signal to give way uneccessarily
  • Staying in the overtaking line
  • Failure to dip your headlights
  • Actions such a driving through a puddle to splash pedestrians
What is the difference between Joint Tenants and Tenants in Common?

Tenants is Common is where two or more people are entitled to the proceeds of sale in distinct shares - on the death of one, his/her interest will not pass to the survivor(s) but will be part of his/her estate. Joint Tenants are on the other hand 50/50 Co-owners of land - when one of them dies, his/her rights of ownership pass to the survivor(s).

What is the framework for the way in which an employment tribunal operates?

The Employment Act 2008 came into force in 6 April 2009 following the Gibbons review. This looked at the whole employment dispute resolution.

The Gibbons Review stated that under the previous systems there were far to many disputes that would end up in front of an employment tribunal, this meant the procedure was extremely costly for employers. It was also said that employment tribunals were stressful and damaging to employees future work prospects.

The 2008 Act therefore highlighted some changes:

  • Repealed the former statutory disciplinary and grievance procedures introduced in 2004
  • Created new powers for the tribunal to adjust awards if there is unreasonable failure to comply with relevant code of practise
  • Extended powers of Acas to conciliate in disputes
  • Simplified tribunal claim and response forms
  • Removed all time restrictions on Acas duty to offer conciliation to parties involved in employment tribunal claims
  • Active and early case management promoted
  • Sometimes a chair to sit alone in the tribunal rather than always having a panel decide the outcome of cases
What is the legal level of alcohol while driving?

In the UK this is 80mg of alcohol in 100ml of blood, which can be measured as 35 ug of alcohol in 100ml of breath or 107 mg of alcohol in 100ml of urine. This threshold may differ outside of the UK.

There is no hard rule which identifies how much alcohol would provide these readings as much will depend on your body mass, rate of metabolism and whether food was consumed at the same time as drinking and what time elapsed between drinking the alcohol and driving. The only safe way to not fall foul of drink driving is to not consume any alcohol whilst driving.

What is the tax treatment of maintenance payments?

If you are aged 70 years and above the tax relief is very limited and only if you are legally required to make the maintenance payments. Younger maintenance payers do not qualify for a tax relief.

No income tax is due on maintenance payments that you will receive. 

What options are available where an Executor/Administrator is not carrying out their role properly?

There are a number of possible outcomes such as the Executor/Administrator agreeing to stand down or be replaced, the Executor/Administrator undertaking to carry out their function going forward and even the removal or replacement of the Executor/Administrator.  No two situations are the same and therefore consideration must always be given to the most favorable outcome given the specific facts of the matter.

What options are there if one partner owns the property that we live in?

One partner who owns the property may want to be the sole owner of the home and not want the other partner to have a share in it. If the owner of the house was to ask the non-owner to leave the non-owner would normally have no rights. The owner of the house however may want the other to have a share in the home.

You own the home together as a joint tenancy, when one of you dies the other automatically would inherit the whole of the home.

You own the home as tenants in common, each of you has a stated percentage of the home. You may wish to choose percentages that reflect how much each person has contributed to the purchase price of the home. If you have a will you can each leave your percentage of your share to a nominated heir.

What responsibility do I have for my partner’s children?

If you are the natural parent of the child you automatically have a financial responsibility. The natural mother of a child has the parental responsibility of the child this means:

  • You can choose the child’s name
  • How the child is brought up
  • The right to look after the child’s property until  they are 18 

The natural father of the child has the parental responsibility if:

  • You are registered on the child’s birth certificate
  • You re register the birth of the child with the mothers consent adding your name
  • You marry the child’s mother
  • You make a parental responsibility agreement with the mother and this is witness by the court
  • You apply to the court for a parental responsibility order

 If you are not the natural father of your partners child you do not have any automatic responsibility. You are able to apply for a residence order this will give you parental responsibility. 

What risk am I of being disqualified for a speeding offence?

This depends on the speed limit and the speed in which you were proved to have been travelling. Generally the court will consider disqualification if the speed you were driving is over a particular threshold of the speed limit in question. This however is only a matter of guidance, the court is able to disqualify you for any degree of speeding. Factors that will weigh in favour of a disqualification include poor road conditions, driving a large or heavy good vehicle towing a trailer or caravan and other factors.

What rules apply for foster and adopted children?

Adopted children are treated exactly the same as natural children.

Normally if you are going through a divorce any foster children would be removed from your care, this would be a matter for the local authority who placed the child with you as opposed to the courts. 

What should be included within a cohabitation agreement?

Financial issues are a major part of a cohabitation agreement. The agreement must cover what rights each partner has in relation to the property you live in, who owns what assets and who is responsible for any debts. The agreement can also look at how you will share expenses while you live together. If you have children either jointly or with a previous partner this should also be addressed within the agreement. 

What should be included within the pre-marital contract?

Your pre-marital contract should cover the following:

  • How assets like money, shares etc will be divided between you
  • What will happen to your house
  • Any ongoing payments to be made to the other if so for how long
  • Any maintenance to be paid for any children
  • The country the divorce proceeding will take place if there is an international aspect to the family
What should I do if my ex does not wish to have contact with my children anymore?

You are not able to force your ex to be involved with your children. If your ex does not wish to be involved it may be in the child’s best interest that they are not involved.

What should I do if my spouse refuses to get a divorce?

Your spouse is able to defend a divorce by claiming that the details outlined on the petition are not true. If you spouse does defend the divorce this would mean that you have to delay your divorce. However you could petition for divorce on a different basis. The worst case scenario you would have to separate from your spouse for 5 years before you could get a divorce.

Defending a divorce is not common, it is more common for an aggrieved spouse to make the process of getting divorced more drawn out and expensive.

For example:

  • Your spouse may not be fully compliant and delay sending documents to the court
  • Your spouse may state they are intending on defending the divorce
  • Financial agreements and childcare agreements can be drawn out
  • Your spouse may ask the court to intervene in deciding childcare arrangements for any depend children 
What should we do about employees who may be slowing up due to getting older?

Firstly you need to collect evidence to prove your point then arrange an informal meeting with them. Here you can discuss the possibility of perhaps reducing hours or to pass on some of their responsibilities to other members of staff. In most situations you will be able to come to an agreement that suits both parties. However if you can’t we suggest you seek legal advice on any further action.  

What’s the difference between getting a divorce and a separation? Which one is best?

A separation is if you walk out on your spouse or you agree to separate, however no formal legal action is taken. It is a good idea though to come to an agreement on issues like who will take care of any children and what the financial agreements will be and set these out in a separation agreement.

You will also need to consider what will happen to your family home. If you own it jointly with your spouse this means if one of you dies their share will go to the other and if you decide to sell you jointly own any proceeds.

If you are wanting a separation you can get a solicitor to draft a document that will create 2 different shares in the property, this means if one of you dies you are able to pass on your shares to an heir. You will each be entitled to a specific proportion of the proceeds if you sell.

You need to agree a share that each of you will have. If you contributed equally when you bought the home and have contributed equally since you will probably share 50:50. If one of you have put more money in you can ask a solicitor to draw up a document which states this.

If you later decide you want a divorce on grounds of separation it will not matter whether you have separated formally or informally.

The main terms of the divorce can be negotiated between both of you however a divorce does also include the court. This has several important differences:

  • You can only get a divorce if you can satisfy the court that your marriage has broken down irretrievably.
  • If you get a divorce the marriage is over whereas a separation can be temporary.
  • The terms of a divorce can be ratified by the court, this means it is unlikely either of you will be able to change them at any point in the future.

There is also the third option of a judicial separation, this option is very rare. You would still remain married but ask the court to recognise your separation formally. This means that you can apply to the court for orders dealing with financial and property issues. The process is similar to that of a divorce however it is used as an alternative if a spouse has a religious or moral objection to divorce.

The option which you choose will depend upon your circumstances. If you are not sure if the marriage has broken down a separation may be the best option. If you want to remarry however you will need to get a divorce.  

What’s the difference between getting a divorce and a separation? Which one is best?

A separation is if you walk out on your spouse or you agree to separate, however no formal legal action is taken. It is a good idea though to come to an agreement on issues like who will take care of any children and what the financial agreements will be and set these out in a separation agreement.

You will also need to consider what will happen to your family home. If you own it jointly with your spouse this means if one of you dies their share will go to the other and if you decide to sell you jointly own any proceeds.

If you are wanting a separation you can get a solicitor to draft a document that will create 2 different shares in the property, this means if one of you dies you are able to pass on your shares to an heir. You will each be entitled to a specific proportion of the proceeds if you sell.

You need to agree a share that each of you will have. If you contributed equally when you bought the home and have contributed equally since you will probably share 50:50. If one of you have put more money in you can ask a solicitor to draw up a document which states this.

If you later decide you want a divorce on grounds of separation it will not matter whether you have separated formally or informally.

The main terms of the divorce can be negotiated between both of you however a divorce does also include the court. This has several important differences:

  • You can only get a divorce if you can satisfy the court that your marriage has broken down irretrievably.
  • If you get a divorce the marriage is over whereas a separation can be temporary.
  • The terms of a divorce can be ratified by the court, this means it is unlikely either of you will be able to change them at any point in the future.

There is also the third option of a judicial separation, this option is very rare. You would still remain married but ask the court to recognise your separation formally. This means that you can apply to the court for orders dealing with financial and property issues. The process is similar to that of a divorce however it is used as an alternative if a spouse has a religious or moral objection to divorce.

The option which you choose will depend upon your circumstances. If you are not sure if the marriage has broken down a separation may be the best option. If you want to remarry however you will need to get a divorce.  

What tax is paid on the sales or transfer of assets in a divorce?

Assets transferred between spouses are exempt from capital gains tax. This exemption continues to apply during the tax year in which spouses separate.

After this tax year any transfer will normally be treated as a sale and will be subject to CGT. However the transfer of the family home to the spouse who still lives in it will continue to be exempt from CGT in many circumstances. The transfer of a property as part of a divorce settlement is also exempt from stamp duty.

Any assets transferred between spouses are exempt from any potential inheritance tax liability. Any transfer made after the divorce as part of a financial settlement is also exempt from this tax.

You should take advice on the best way to minimise the tax consequences in the divorce process.

What will it cost?

There are all sorts of “hidden” costs including:

  • Completion, arrangement or application fees
  • Valuation fees
  • Insurance
  • Early repayment charges
  • Legal fees

 

Other considerations

You should also consider the following:

  • If your circumstances change in future, will you be able to move home?
  • Any equity release scheme will affect the inheritance you are able to leave to your children or grandchildren
  • There could be implications for your entitlement to social security benefits
  • Who will be responsible for repairs and maintenance of the property?
  • Tax implications
What will the CICA compensate for?
  • Psychological or physical injury following a crime of violence;
  • Sexual or physical abuse. If you suffer a psychological injury as a result of a sexual assault, you will receive either the tariff value for the type of assault or the value of the psychological injury, whichever has the highest value.  You will not receive a payment for both, because the tariff for a sexual assault takes account of the mental trauma.
  • Loss of earnings - where you have no or limited capacity to work as the direct result of a blameless criminal injury;
  • Special expenses payments - these cover certain costs you may have incurred as a direct result of an incident, such as loss of earnings. You can only ask us to consider special expenses if your injuries mean you have been unable to work or have been incapacitated to a similar extent for more than 28 weeks;
  • A fatality caused by a crime of violence including bereavement payments, payments for loss of parental services and financial dependency; and funeral payments. Strict qualifying criteria apply.
What would happen if I wasn’t warned about the prosecution?

This is only relevant to certain offences, including dangerous driving, driving without due care and attention, speeding, failure to comply with traffic signals and leaving a vehicle in a dangerous position.

For these offences generally speaking you must either be warned at the time of the offence  of the possibility that you will be prosecuted for it or either you or the registered owner of the vehicle must be served with a notice of the intended prosecution, or with summons within 14 days of the offence. 

What would happen if I was to get caught driving without having renewed my insurance?

As well as a fine, disqualification for any period will be considered. If you did previously have insurance but failed to renew it the court may well not disqualify you. Particularly if it is satisfied that failure to renew was an oversight. If there was an accident however the court may lean towards disqualification and also a compensation to be paid to the victim.

The offence also carried an obligatory endorsement of 6-8 penalty points. If you are disqualified for this offence these points do not count.

What would happen if my spouse refuses to pay maintenance?

If your spouse has not been paying maintenance you will be required to go to court for a financial order. You are able to apply for an order both before and after the divorce providing you have not remarried.

If you have an order in place that requires your spouse to pay maintenance but he or she fails to make the payments you are entitled to go back to the court and ask them to enforce payment. The court may issue an attachment of earnings order, so that your former spouse’s employer automatically pay you the maintenance. If your former spouse does stop paying maintenance you should take urgent legal advice.

You would normally contact the Child Support Agency if your spouse was refusing to pay maintenance for any children who you look after. 

What would happen if one of us remarries or starts cohabiting with a new partner?

 If you do choose to remarry without a financial settlement agreed with your spouse you may possibly lose the right to make any financial claims against him or her. Your former spouse will still have the same right to make a financial claim against you as before.

If you have reached a clean break settlement, the remarriage will normally not have an effect- you have already made an agreement once and for all.

If you are paying your ex-spouse maintenance (this does not include child maintenance) the maintenance will cease if the recipient remarries. If your former spouses financial position improves, you are able to apply to the court to stop paying any maintenance or to possibly pay a reduced amount.

If you are receiving maintenance from your ex-spouse you should continue to receive this if he or she were to remarry. 

What would you suggest to include in our disciplinary procedure?

You need to demonstrate that your actions and treatment have been fair and reasonable subject to any disciplinary action. If you fail to comply with the code of practise it means that an employment tribunal can increase any award against you by up to 25%. Your disciplinary procedure should include the following:

  • A commitment to try and resolve the issues informally where appropriate
  • A commitment by you to investigate any offences that give rise to a disciplinary action to establish all the facts
  • A commitment by you to inform the employee in writing of the details of the alleged misconduct which has led to consider a disciplinary action
  • A statement of the employee’s right to be accompanied to a disciplinary hearing by a colleague or a trade union representative
  • A commitment by you to give employees an opportunity to state his case at each disciplinary meeting
  • Examples of the types of offences that constitute misconduct
  • A clear explanation that the seriousness of the offence will dictate the stage which the disciplinary process is entered
  • A system of warning, for example al least one written warning and a final warning
  • A commitment by you to allow employees sufficient time for improvements if the issue is to do with poor performance
  • A commitment by you to give adequate warning of any disciplinary meeting
  • Opportunity for an employee to appeal at any stage of the disciplinary process this will include against any disciplinary action taken
  • Employers and employees should always try to resolve disciplinary issues and grievances within the workplace
What year did the requirements of age discrimination come into effect?

The Employment Equality (Age) Regulations came into effect in October 2006. The retirement age of 65 was phased out between April 2011 and October 2011.

When am I supposed to pay the statutory sick pay?

You start calculating payments at the SSP rate after the third qualifying day of sickness. A qualifying day is a date where an employer would normally be at work, weekends do not count towards these days. 

When does a financial agreement have to be agreed?

You can agree a financial settle at any time either before or after your divorce. It is advisable to establish an agreement before any partner remarries.

It is usually best if you can come to an agreement prior to the divorce. The court can then be asked to make any relevant financial order at the same time as they grant the decree nisi. (The decree nisi is granted when the court agrees that grounds of divorce has been proven)

When I get a divorce how am I able to protect my child’s financial interests?

You must always ensure from the start of financial arrangements that you provide adequate maintenance for your children. If the child is to remain living with you, make sure that the non-resident parents maintenance is at least as large as the level required by the Child Support Agency formula. There may be grounds for requiring higher payments for example if your spouse has a very high income.

You need to consider the risks to this income. If your former spouse runs into financial difficulties or perhaps remarries and has new children to support, the required maintenance could be reduced. If your former spouse dies maintenance will automatically stop. You should ask your ex to take suitable insurance policies and to make provisions in their will for the benefit of your child. If your spouse does die and leaves a will that fails to provide adequately for your child you should take immediate legal advice. You may be able to challenge the will so that funds are provided for your child’s benefit.

Throughout agreements you should always try and encourage your ex-spouse to be involved with your child regardless of your own personal feelings towards your ex. Your ex is likely to provide financial support if he or she continue to have a good relationship with the child. 

When it comes to selecting among job applicants is it acceptable if I were to just follow my instinct?

No, as your natural instincts may be discriminatory. In which case you may fall foul of the anti-discrimination legislation contained in the Equality Act 2010. This replaces previous Acts which outline discrimination based on the ground of sexual orientation, religious beliefs or philosophical beliefs and age discrimination. The new act now protects individuals in employment which includes the recruitment and selection process. This Act applies to all employers.

To ensure you stay on the right side of this law you must ensure that your selection criteria is objective and that any requirements need to be justified given the nature of the job. Don’t make stereotypical assumptions as they may also be discriminatory. It is also important to make sure your selection process isn’t discriminatory, this includes all interviews and assessment techniques. You must keep full records of your criteria in which you are assessing candidates and their application to all candidates detailing the reasons for the selection which you make. 

 

When should we consider a Post or Pre-Nuptial Agreement?

As soon as possible. The longer the pre-nuptial agreement is in place prior to a marriage or civil partnership being entered into the better. However, agreements entered into after marriage or Civil Partnership can still have legal effect.  In order for a pre-nuptial agreement of this nature to be made binding there needs to be independent legal advice for both parties, full and frank financial disclosure and no duress.  If a pre-nuptial agreement of this nature is entered into at the church door then it is open to an allegation that one party or the other has been under a level of duress to enter into the agreement.

When should we consider a Post or Pre-Nuptial Agreement?

As soon as possible. The longer the pre-nuptial agreement is in place prior to a marriage or civil partnership being entered into the better. However, agreements entered into after marriage or Civil Partnership can still have legal effect.  In order for a pre-nuptial agreement of this nature to be made binding there needs to be independent legal advice for both parties, full and frank financial disclosure and no duress.  If a pre-nuptial agreement of this nature is entered into at the church door then it is open to an allegation that one party or the other has been under a level of duress to enter into the agreement.

Where does the Mediation take place?

Mediation can take place wherever you would like, however, we recommend a neutral location such as one of our offices.

Where else can I get support to help me deal with my experience?

NAPAC- NAPAC is a UK registered charity which was set up to offer a range of services and support to adult survivors of all types of childhood abuse including neglect and physical, sexual and emotional abuse.

NSPCC- The NSPCC is a UK registered children’s charity fighting against child abuse. They help protect children from child abuse and also help those who have been abused to rebuild their lives.

Samaritans - The Samaritans is a charity which provides confidential, emotional support, 24 hours per day, 7 days per week, to anyone suffering emotional distress or struggling to cope, across the UK.

HAVOCA- HAVOCA, or Help for Adult Victims of Child Abuse, is a forum run by adult survivors of child abuse, which offers support, friendship and advice to those who have been affected by childhood abuse.

Male Survivor - Male Survivor is an organisation which provides life-changing support including forums and a range of recovery therapies to male adult survivors of child abuse.

Action on Elder Abuse - Action on Elder Abuse, or AEA, is a specialist organisation in UK focusing on the issue of elder abuse and offering a range of guidance and support services to those who have been affected by elder abuse

Which spouse pays the legal fees?

During the process of agreeing a financial settlement you will each use your own lawyer. As part of your settlement however you can agree that the other spouse should pay all or part of their legal fees.

You are able to keep your legal fees down by agreeing as much as possible amongst yourselves. Fees will mount up if hostile spouses insist on conducting all negotiations through lawyers. 

Whilst driving I accidentally knocked over a bollard, do I need to report it?

Yes as the knocked over bollard is classed as damage to property and could cause an accident or injury. You have a legal duty to report this to the police as soon as reasonably practicable, and in any event within 24 hours. If you fail to do so you can be prosecuted for failure to report.

Who Pays for a Divorce?

In most cases you will both need to employ separate divorce solicitors to advise you and act for you in negotiations and possibly at Court, so you will both incur costs.

The person initiating the divorce petition (the ‘petitioner’) will incur additional Court fees on top of the fees for their solicitor preparing the case. The person being petitioned against (the ‘respondent’) will incur the costs of their divorce solicitor preparing a reply to the petition.

The petitioner may claim some or all of his/her divorce costs from the respondent. Costs orders are typically made on petitions citing adultery or unreasonable behaviour.

In cases where an amicable agreement can be reached, it is often possible for the costs of the divorce to be shared equally between the parties and for no orders to be made. This is distinct from the costs of resolving the financial/property issues and any issues concerning the children, where the general rule is that each party is responsible for payment of their own legal fees.

Who qualifies for Shared Ownership?

To qualify for Shared Ownership you must be in employment and be in a position to raise a mortgage for the part you are buying.  The amount you must be earning will vary depending on property prices and where you want to live.  However, if you have sufficient income to enable you to purchase a home outright then you will not qualify.  Priority is normally given to those in need and those on housing waiting lists but each individual housing association has their own requirements.

Who should consider a Pre or Post-Nuptial Agreement?

A pre or post nuptial agreements should be considered if:

  • One or both of the parties to the relationship are more mature.
  • Where this may be his second marriage or partnership.
  • Where one party brings significant assets to a relationship or there is an imbalance in the financial provision to be made by both parties.
  • Where provision needs to be made for children or dependants from a previous relationship.
  • Where you wish to influence how assets may be divided between you should the marriage or civil partnership fail.
Who should I notify that I am divorced and will they need to see any documents?

You should notify your employer and anyone else who needs to know your marital status. If you are on benefits you should notify the department of work and pensions. You should also notify the bank if you have a joint bank account. You should also consider making a new will that is more current and up to date. 

Who will see my Will?

Your Will is a private document whilst you are alive and becomes a public document after you die and probate is granted. Anyone can then obtain a copy from the Probate Registry for a small fee. While you are alive, though, no one has any right to see your Will unless you want them to.

Why do I need a Will?

Leaving a Will means you can be sure that everything will be dealt with in the way you would wish following your death. It’s a great feeling to know that you won’t be leaving your loved ones with a mess to sort out.

If you don’t make a Will, the “Intestacy Rules” will govern how your estate is divided up when you die. They determine which of your relatives receives how much and can lead to some nasty surprises. They don’t provide at all for your friends or even for a partner who you may have lived with for years – they will inherit nothing. Under the Intestacy Rules, your step-children are not counted as your children if you have not formally adopted them and will inherit nothing – even if their other parents have already died.

When you die, someone will need to deal with the practicalities. If you don’t make a Will, you have no control over who this will be and it will usually be a family member.

If you make a Will, you can choose who you would like to deal with things. You may prefer to appoint a professional, such as a solicitor or accountant – someone who will not be suffering the distress of bereavement. If you are married and have combined assets of £325,000 or more (for tax year 2009/10), you can also save up to £130,000 of Inheritance Tax by having a tax-efficient Will drawn up. That’s £130,000 more for your children or your partner to enjoy.

Will a cohabitation agreement have an impact if we choose to later get married?

If you decide to get married or enter into a civil partnership your cohabitation agreement may be taken into account by the courts if later you chose to get a divorce. You are able to set out that if you do get married that your cohabitation agreement would come to an end. If you would like to have a similar agreement you would be able to draw up a pre-marital agreement. 

Will a surveyor/valuer attend the house I want to purchase or are they not carrying out surveys currently due to coronavirus?

Each company will be following their own policies and procedures as well as the government guidelines, which may result in a slower service or more precautions being put in place, or indeed surveys being cancelled.

Will I also receive my usual commission during furlough leave?

If your commission is contractual, then yes (subject to above). If not, your employer will not have to pay you commission you would usually earn.

Will I have to attend court?

In most cases, these types of claims will be settled through negotiation rather than through court.  If court proceedings become necessary we can apply for anonymity so that identity remains protected if that’s what you prefer.

Will I have to go to court?

It is rare that a claim will proceed to a final hearing before the Court which you would have to attend.

Will I have to pay a deposit?

This depends on your finances, but normally yes.  If for example you are renting 50% with a mortgage of 45% then a 5% deposit will be payable.

Will I have to visit a Doctor as part of the case?

In all cases where a claim for personal injuries is made , that claim needs to be supported with medical evidence in the form of a medical report. This report is prepared following a medical examination with a nominated medical expert which will be arranged by your Solicitor.

Will I lose touch with my children?

Your aim should be that both parents still play an active part in the raising of the child/children.  Usually parents sort this out amongst themselves, although if there are problems mediation can be a good way to resolve this.  Going to Court should always be the last resort where children are involved.

Will it be leasehold or freehold?

Whether you buy a house or flat your interest in the property will be leasehold because the housing association owns the property and is the landlord.  They will grant a Lease, typically 99 or 125 years, and you will be subject to the terms of the Lease.   Banner Jones would provide you with a full report of your rights and responsibilities under the terms of the Lease during the transaction.

Will removal companies be happy to enter properties during the coronavirus measures?

As things stand, it will be down to the individual companies who will have their own policies in place so the best thing is to contact our remover and discuss their policy with them.

Will there be service charges?

Not always.  If the property’s communal areas are maintained by the housing association then yes there will be a service charge.  Some Shared Ownership properties do not have a service charge.

Will the search providers be able to carry out searches during the coronavirus measures?

The majority of the searches are automated through computer systems and will therefore not be affected, however, the local authority searches are done by visiting the council offices.  Please therefore expect lengthy delays on the return of those searches as some council offices are not allowing visitors.

Will we have to go to Court during our divorce?

No, getting a divorce should be an administrative excersise only and there are many options open to you that avoid going to Court.

Won't everything just go to my husband/wife?

Not necessarily. The Intestacy Rules set out a strict order of who will inherit what. If you have children, your spouse may not inherit everything you own, whether or not you are close to your children or how wealthy they are in their own right. Your spouse might not even get the house, depending on how much it is worth.

Would drawing up a cohabitation agreement harm our relationship?

It should not harm your relationship if you approach it in the right way. You shouldn’t look at the agreement as a way of protecting you if the relationship was to break down or even looking at it that the relationship will at some point break down. Instead you should use the preparation of drawing up an agreement as a way for you to work through some key issues in your lives together. If handled carefully this process may even strengthen your relationship.

In some relationships one partner may have the majority of the income or assets. If the cohabitation agreement is set up to solely protect this persons financial position if they split up the other partner may resent it. Consequently if an agreement provides some degree of financial protection for the less wealthy partner this may increase that partners sense of security and happiness in the relationship. 

Would I have to attend a court hearing if I pursue a claim?

Not necessarily.  Our objective in any dispute is to seek to a successful resolution as quickly and cost-effectively as possible.  This can include seeking to negotiate informally, attending a mediation and other methods of alternative dispute resolution.  The vast majority of disputes do not reach a final court hearing.

Would you advise for us to initiate negotiations for agreeing a new information and consultation agreement?

If you currently have an existing agreement and it fulfils the legal requirement and all employees are happy with it you should announce that you are going to hold a ballot. You should leave 21 days between this announcement and the ballot allowing any employees to challenge the legality of the agreement before the CAC.

If the ballot does not receive support from 40% or more of your workforce you are not required to change your agreement, You also benefit from a three year moratorium during which no changes can be made unless agreed by both you and all your employees.

If the ballot shows that 40% or more of your workforce support the change you will have to negotiate a new agreement. However once you have done this you benefit from a 3 year moratorium. 

Would you advise me to make a new will?

Yes usually, when you get a divorce your ex-spouse becomes excluded from your will as either a beneficiary or an executor. This will have undesired consequences should you choose to not write a new will.

Your original will may have been drawn up on the assumption that your spouse would take care of the children with the money left to them. You may now wish to arrange an appropriate trust to hold the inheritance for your children. You may also want to alter the way in which your assets are shared amongst beneficiaries.

In your financial settlement you may agree that when you divorce one or both of you make provisions in your new will for your ex-spouse and any children.

If you ex-spouse still remains dependent on you it may be possible to challenge your will if it does not make provision for him or her.