Friday, 30 November 2012

Half and half is a long way off

Stay-at-home spouses are still not getting their fair share in assets from a divorce - despite a decade passing since a landmark legal ruling - that's the warning from Nadia Davis, who leads our family team.

She said ten years ago the principle that divorcing wives could expect to receive half the assets of a marriage was introduced.

"It was generally introduced for wives who gave up their own careers to support their husband, look after the home and children, and who sacrificed their own salary for the sake of the family. But despite there being several high-profile multi-million pound payouts for divorcing wives lately, it would appear that the same equality does not always apply when it comes to dividing the assets.

"It's not an actual rule that each partner should have an equal share of the assets, and courts always have the flexibility to make individual decisions in exceptional circumstances. But it had been generally accepted in most cases that the wife would receive a 50 per cent share.

"Historically it was felt that the breadwinner's contribution to a marriage weighed more heavily than the homemaker, but in these relationships, both partners make significant but different contributions to the partnership.

"And before the ruling, financial equality would have been unheard of - a wife would usually have been assessed on her needs and receive maintenance and a home for her and the children, rather than an amount based on her contributions to the marriage.

"So in ten years since the ruling, there has only been one recognised case where a stay-at-home wife has actually received a true half-share of the assets - it's clear there is still some way to go until things really are equal."

Wednesday, 28 November 2012

"Cheat's charter" is bad news

Our family law expert has hit out at a ruling that could help wealthy husbands to hide their assets during a divorce.

Nadia Davis leads our family law team and said the ruling by the Court of Appeal that an oil baron's companies did not have to hand over their assets to his ex-wife was a dangerous development.

"It's clear that this ruling could encourage wealthy businessmen to shelter their assets in companies and trusts that are beyond the reach of their wives, which is just unfair.

"I believe this should be looked at again as soon as possible, in order to protect wives in high value divorce cases who may otherwise not get the payout they are really entitled to."

The Court of Appeal said that the "corporate veil" could not be lifted unless there were exceptional circumstances, and said the oil baron's companies could not be considered as his own property.

"In many instances this ruling has been referred to as a 'cheat's charter' and gives unscrupulous husbands all the opportunity they need to protect their assets," said Nadia.

"This decision by the Court of Appeal, which was not unanimous, means family law judges can no longer ensure that justice is done on both sides in a divorce.

"For me, this is an extremely dangerous route to have taken and it will create real uncertainty in any forthcoming cases.

"Surely the wisest move would be to reconsider the ruling and to introduce legislation that safeguards a wife's right to receive a fair payout and that prevents assets being hidden away.

"Divorce is a difficult enough experience at the best of times for anyone involved, and to have introduced a method where precious assets can be taken out of the equation is only adding to the stress."

Monday, 26 November 2012

Hand it back - it's not yours!

Senior employees dismissed for gross misconduct have no rights to continue using their company car or equipment - no matter how inconvenient it may be.

Our employment law specialist, John Mehtam, said many senior employees would have access to all kinds of company property as part of their job.

"They may well have a company car, a laptop, and a mobile phone, which you have given them so they can carry out their work. But even if they use these items every day, perhaps even for personal reasons, they don't own them. And everything belongs to your company at all times.

"So if you need to fire them for gross misconduct, they may well begin to complain about the inconvenience and refuse to hand the items back until they've bought their own.

"Legally though, their last day of employment is the day on which you give them the news, and at that point, your directors can take back any company property they have.

"If you've dismissed them in a face-to-face meeting, you can ask them to leave all the company property behind when they leave your offices on that very day.

"If you're feeling charitable and they live some distance from your premises, you could arrange alternative transport or ask someone else to drive them home.

"But there is absolutely no way they should be permitted to drive away in the company car - if they did, they could well be committing an offence anyway as your company insurance policy will probably only cover current staff and not ex-employees."

John said if the dismissal had been by letter, their employment ended as soon as they read the letter itself.

"You should ask them to arrange to return all company property immediately, and you could even send someone to their home address to collect the items.

"If you don't get an immediate response, say by the next working day, and they don't have a reasonable explanation, you should tell them you intend to contact the police."

John said company directors should include a clause in company literature that says it's the employee's responsibility to return all company items if their employment ends.

"You can also ask your employees to sign a company equipment policy which states that you will take the value of any outstanding items from their salary if they fail to return them."

Wednesday, 21 November 2012

Payout plans welcomed

Plans to reduce the compensation payouts that workers can claim for unfair dismissal have been warmly welcomed by our employment law specialist.

John Mehtam leads our employment team and said the proposals from Business Secretary Vince Cable should be a real help particularly to smaller companies.

"The proposals suggest the limit on compensation would be a maximum of 12 months' salary, and Mr Cable also wants to bring in settlement agreements. These new agreements would mean staff would agree to leave without being able to take their employer to a tribunal, but they would get a pay-off in return.

"This is great news for businesses in the small and growth sectors, as reducing the burden on smaller employers is always a welcome suggestion," said John.

"And settlement agreements would be a very positive move as they would bring a less confrontational approach to resolving any dispute."

John said restricting the possible payout through a tribunal to one year's salary was also a bold move.

"It means each compensation payout would be assessed according to the employee's individual finance package - so this removes the misleading incentive for employees to claim in the unrealistic hope of securing tens of thousands of pounds in compensation."

He also said that 12 months represented a very reasonable period for the employee to have secured suitable alternative employment.

"I think the settlement agreements are an excellent idea as currently dismissals often involve accusations of fault, liability and guilt.

"But by introducing the settlement agreement, which would provide the employee with a reference too, both the employer and employee can draw a line under the working relationship and move on.

"This is a very sensible solution and a welcome alternative to an employment tribunal which can be costly and time-consuming.

"These new proposals, combined with the change in the rules that employees must have completed two years' service before they can claim unfair dismissal, are certainly turning the tide in favour of the employer, which in the current climate is a very promising move."

Thursday, 8 November 2012

Henry VIII property law hits homeowners

Families could face large bills to repair their local church after parishes were ordered to enforce a law passed after the dissolution of the monasteries under Henry VIII.

The Land Registry will be sending out warnings to the owners of many houses sited near historic churches and they could be in for a real shock.

Nita Patel, who leads our property team, said the rules came about because of the way the land was distributed after the dissolution of the monasteries.

"It means the owners of such properties have a legal obligation to contribute to church repairs, even if they have never attended a service."

Across 5,000 parishes in England, people are subject to the rules known as Chancel Repair Liabilities, as they live in properties built on land formerly owned by the monasteries.

"Many homeowners take out insurance against their liabilities, but many more are completely unaware of their legal obligations as the law is very rarely enforced," said Nita.

But a high profile court case in 2003 led to the last Government trying to tidy up the difficult situation.

"The court case came about after a parish church billed a couple for almost £100,000 in repairs, and it went on for years leading to considerable additional court costs," said Nita. "As a result, parishes were ordered to go back through land records dating back centuries to clarify exactly who may be liable for costs, and to register all the properties concerned before October 13, 2013.

"The ten-year deadline is fast approaching, and local parishes will find they could be legally responsible if they don't complete the registration process in time.

"This law could have a dramatic effect on many properties across Shropshire and it's vital that homeowners find out whether they are affected. No-one wants to be faced with an unexpected bill that could run into thousands of pounds, and if homeowners know in advance they can take steps to protect themselves with the right insurance cover."