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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 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.

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