Talking it out can save the children

Statistics show that more children than ever celebrated Christmas with only one of their parents, following a relationship break-up.  

According to the research, published by the Marriage Foundation, one in three children under the age of 15 woke up with just one parent on Christmas morning.  Alongside, are many more families where couples will have ‘held it together’ for one last family Christmas, but who will now be heading for divorce.  
The first working day in January is commonly known as ‘Divorce Day’, as lawyers receive more enquiries than at any other time of the year, and the latest EU data shows that the UK has the highest rate of family breakdown in Western Europe.   But now, all couples are required to follow mediation before being allowed to take financial arguments to court.  As a result, family lawyers are saying the emphasis for 2015 will be on talking solutions.   
At present, the only grounds for divorce are that the marriage has broken down irretrievably, with most being ‘fault-based’ - adultery, unreasonable behaviour and the rarely-used fact of desertion. The only way to avoid raising issues of fault is by a period of separation of at least two years before issuing the divorce petition. But there are moves to consider changing the law to allow for ‘no fault’ divorce without long separation, with those advocating the change arguing this could reduce the heartache of divorce, allowing greater dignity and lessening animosity.    
Explained family law expert Olive McCarthy of Breeze & Wyles Solicitors Limited:  “For the time, being most couples find themselves going through a challenging “finger-pointing” process, if they want to achieve the outcome of a swift break-up.  But just because there isn't a speedy, no-fault divorce option, doesn't mean it has to be that tough.  Collaboration and mediation, and putting children’s interests first, can make a much less painful process.
“Collaboration may not be suitable where there is a threat of bullying or violence, but for most couples it’s a way to get things sorted out more quickly and, hopefully, more easily.” 
Figures suggest that mediation is faster and cheaper than going to court – Government figures say the average time for a mediated case is 110 days compared to 435 days for non-mediated cases.
Mediation following a separation usually involves sorting out arrangements for the couple’s children and separating finances from the actual divorce proceedings.   The resulting agreement is likely to be presented to the Courts for a formal consent order to be made.
She added:  “Thinking about talking is good practice for those at the beginning of a relationship too. 
“For those starting out, it’s sensible to think about protecting assets through a pre or post nuptial agreement – they’re not binding in the UK, but they are being given increasing weight and the open discussion that is necessary to make one is a really useful process to go through.  As Winston Churchill said, to jaw-jaw is always better than to war-war.”
ENDS
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This is not legal advice; it is intended to provide information of general interest about current legal issues.

Reference

European Court weighs in with obesity verdict

Employers will need to review circumstances for obese employees whose weight is causing them problems in the workplace, following a landmark ruling by the European Court of Justice.    
The Court has ruled that if the obesity of a worker "hinders the full and effective participation of that person in professional life on an equal basis with other workers", then obesity can fall within the concept of "disability".  The decision is binding across the European Union and creates a precedent that is likely to have a major impact on employment rights in the UK. 
Although the judgement stops short of declaring obesity to be a protected characteristic against which all discrimination is prohibited, it means that employers, retailers and venues open to the public will have to review the way they treat overweight staff and customers.  In the UK, obesity levels have doubled in the past decade and statistics1show that around one in four people are overweight. 
Said Managing Director of Breeze & Wyles Solicitors Limited, Brendan O’Brien :  “Employers will have  a duty to take ‘reasonable’ steps to accommodate any obese employee, visitor or customer.  That could mean a bigger desk, larger chair or offering a parking space close to the office.
“And it’s not just employers, as anywhere that’s open to the public, such as retail outlets, restaurants and sporting venues, will have to make reasonable adjustments for their customers.  However, it is about a reasonable response, so it’s very unlikely that a corner shop will be expected to make the same sort of investment as a major high street retailer, for example.”
The case of Kaltoft v Municipality of Billund involved a Danish childminder who claimed that his employer had ended his contract of employment because of his weight, and that this amounted to unlawful discrimination.  Mr Kaltoft was 5 feet 7 inches and weighed over 25 stone, with a BMI of 54, which is extreme or morbid obesity under the World Health Organisation classification. 
The Danish court referred the case to the European Court of Justice (ECJ), asking whether obesity amounts to a form of disability under the Equal Treatment in Employment Directive.  Following the ruling, the Danish courts will now have to review the case to decide whether Mr Kaltoft’s weight has given rise to factors that can be classed as a disability.
He added:  “Employers need to be careful they don’t suggest that an overweight employee has only themselves to blame.  This ruling places obesity in the same position as other forms of risk taking such as ski-ing or horse riding.  We don’t refuse special treatment to someone who is unable to walk following a horse riding accident, and now we can’t refuse special treatment to someone who cannot fully participate in their work life because of their weight.
“As well as dealing with the problems that obesity may give rise to, all employers should make sure they encourage healthy lifestyles at work.”   
ENDS
1 Reference:  http://www.hscic.gov.uk/
There was a marked increase in the proportion of adults that were obese between 1993 and 2012 from 13.2 per cent to 24.4 per cent among men and from 16.4 per cent to 25.1 per cent among women.   Health & Social Care
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This is not legal advice; it is intended to provide information of general interest about current legal issues.

Kaltoft v Municipality of Billund

Conversions from Civil Partnership to Marriage are now in effect!

On 26th June 2014, the Government announced that men and women in same-sex relationships who are already in a civil partnership will be able to convert it to a civil marriage from 10 December 2014. However, civil partnerships will not be extended to include straight couples.
These changes came as the Department for Culture, Media and Sport published the results of a consultation into the potential changes needed for civil partnerships.  This has been a long awaited by many couples who had previously entered into civil partnerships over the last decade and brings this in line with the changes on 29th March 2014 which allowed same sex couples to marry in England and Wales.
Yesterday, we saw fashion entrepreneur Mary Portas take advantage of these new rules and convert her civil partnership into marriage. The conversion took place at Westminster City Hall in London one minute after the law came into effect. It is early days to see how popular these conversions will be but here, at Breeze and Wyles, we will be keeping a beady eye out on how these changes will take effect.

Henal Gautam is an Associate Solicitor at Breeze and Wyles Solicitors Ltd. Qualified as a solicitor in 2004, she joined the Family Department at Breeze and Wyles Solicitors Ltd in 2005. Henal specialises in family law specifically relation to children. She represents parents, family members and children in a wide variety of public law cases, in addition to adoption and special guardianship and representing parents in s8 Children Act proceedings. Henal deals with most of her own advocacy, being instructed in a number of complex cases involving cruelty to children and serious allegations of harm, adoption within the UK and overseas. She is a member of the Law Society Children’s Panel, Resolution and the Association of Lawyers for Children, Henal is also a Trustee of the Broxbourne East Hertfordshire Domestic Violence Forum and the Hertford Contact Centre.

Be careful if you’re leaving employees lonely this Christmas

As the countdown to the festive season gets underway, employers juggling the holiday requests are being reminded to check their policy for lone workers.
It comes after convenience store operator McColl was fined £150,000 for failing to protect its staff during a series of store robberies in Merseyside.
The case was brought by Wirral Council, who argued that the company’s “failure to carry out risk assessments for shop staff exposed them to a risk of workplace violence”, as well as other health and safety breaches.
The six incidents took place between April 2011 and February 2012.  One robbery left a shop manager with concussion, another member of staff was threatened with a knife, and some of the staff said they were so traumatised, they did not feel they could work in a shop again. 
At the hearing, the court heard that shop staff had raised concerns about the lack of lockable doors into back room areas and the need for CCTV.
In finding the company guilty of the charges, the judge pointed to the “systemic failings both on and before the date of the actual robberies” and stressed the importance of risk assessment saying: “The absence of proper and adequate risk assessments is where things started to go fundamentally wrong”.
Although there are no general restrictions on working alone, the starting point for any employer is Section 2 of the Health and Safety at Work Act 1974, which requires employers to take care of the health, safety and welfare at work of all employees, as far as reasonably practicable, together with Regulation 3 of the Management of Health and Safety at Work Regulations 1999, which requires employers to assess the health and safety risks to which employees are exposed whilst at work. 
Said Chief Executive of Breeze & Wyles Solicitors Ltd, Brendan O’Brien : “The important thing is to ensure that lone working is subject to risk assessment, just like any other category or process, so lone workers are not placed in more risk by the nature of the role.
“Clearly, some types of business are more likely to be the target of criminals or other work-related violence.  It often comes down to cost and many retailers have abandoned their no lone working at night policies due to rising costs, but the more vulnerable the business, the more carefully you should consider the associated risks. 
“It’s worth remembering also, that whilst this case involved Wirral Council bringing criminal proceedings that resulted in a fine, workers can equally consider bringing civil proceedings, if there is a clear case of negligence on the part of the employer resulting in loss or damage to the employee.”
He added:  “It’s important to have a clear policy, and to make sure that everyone in the company knows , understands and implements it.”
A useful guide to lone working is published by the Health and Safety Executive and can be downloaded from their website :  http://www.hse.gov.uk/pubns/indg73.pdf
ENDS
Web site content note: 

This is not legal advice; it is intended to provide information of general interest about current legal issues.

The Conveyancing Conundrum

Completion, Completion, Completion; – How can we deal with the most common question of all?
“So, when can we complete?” As I am sure most of you are aware, this is the question that crops up most from clients, anxious for the great day when they can pick up their keys and start their new life in their new home. It’s a difficult one to answer, and I’m sorry, but I don’t think there is a magical answer in this article; but here are my thoughts on the situation and if anyone has some helpful hints then please do share your views!
Trying to explain to clients their current situation can be a nightmare. You obviously don’t want them to worry about it, but you don’t want them to think that there is nothing happening and they can pick up their keys that evening. All too often firms decide to go into stealth-mode and ignore the client to try and resolve a situation for them. This is not what should happen and is not how we like to do things.
Now, short of getting the flip chart and exercise books out to lecture all our clients on Land Law and the definition and legal implications of an easement, we have to try and explain to them the actual process that we are going through ourselves for them.
I like to explain it to clients as a 1,000 piece jigsaw puzzle that we are completing on their behalf. The initial stages are putting the outside edges together; such as obtaining clients signed instructions, carryout out ID checks, requesting Draft Contracts etc. etc. Then comes the fleshing out of the puzzle itself; raising enquiries, obtaining certificates, obtaining Mortgage Offer... checking the box to see we are on track and all going well could be likened to checking with the lender that they are happy to proceed with a certain situation. 
Sometimes, pieces might be missing, so we source a suitable replacement; such as obtaining an indemnity policy for lack of FENSA certificate.
We need to ensure the puzzle is completed before we can frame it all up and hand it over to the client.
At Breeze & Wyles Solicitors Ltd we provide a quality service to our clients ensuring that their best interests are maintained whilst creating realistic, achievable completion dates. We understand that we have to communicate as much as possible, jargon free, with all parties involved.
Making everyone read from the same hymn sheet ensures that everyone is going in the same direction to get the process completed as fast and as painless as possible; resulting in a quality service that is above and beyond what people have come to expect from a solicitors firm.

“Alone we can do so little; together we can do so much” 

Osborne headlines on stamp duty but disappoints on inheritance tax

The property market was top headline for Chancellor George Osborne in this year’s Autumn statement, with a radical change to stamp duty which should see 98% of buyers better off. 

Highlighting that the UK is currently the fastest growing economy in the G7, the Chancellor announced an improved economic growth forecast for 2014, increased to 3% from the 2.7% predicted in March, and against a backdrop of 500,000 new jobs created this year, of which 85% were full time.  
Grabbing everyone’s attention was the news that stamp duty was to shift from a so-called ‘slab’ tax to a ‘slice’ tax, like income tax.  It means that buyers will now only pay at the relevant rate for each band, rather than a flat rate across the whole amount.  The result is that most buyers should find there’s less cash to pay on completion – Government figures suggest average buyers will save £4500.   The gain is at the expense of those buying at the top end of the market, with a new rate of 12% for the tranche above £1.5m.
Said Managing Director, Brendan O’Brien :  “This move will be welcomed by most people, although buyers at the very top end of the market will have to re-work their sums.”
Also on the property front, the Chancellor introduced further changes designed to bring in more revenue through Capital Gains Tax (CGT), with clarification of measures first announced last year, whereby gains arising on disposal of residential property by companies or individuals based overseas will be charged to capital gains tax in the same way as UK resident individuals.  The non-residents will be allowed the usual CGT annual exemption and the tax will only apply to gains made above market values from 5 April 2015, when the new charge comes into force.
For oligarchs, expats and second home owners, from 6thApril 2015, there are changes to the principal residence relief rules and these will apply to UK residents disposing of a property abroad and also to non-residents disposing of a UK property.  A property will not be eligible to be counted as the principal residence, and therefore free of CGT, unless either the person making the disposal was resident for tax purposes in the same country as the property for that tax year, or the person spent at least 90 overnight stays in the property. 
On the personal taxation front, there’s an important change to the ISA rules when someone dies.   With immediate effect, their spouse or civil partner will now be able to inherit their ISA funds and keep the tax-free status.  In addition, the ongoing annual ISA allowance will be transferred to the survivor, in addition to their annual ISA allowance.  The rule will only apply to married couples or civil partners.
On the inheritance tax front, higher net worth individuals who had set up multiple trusts had feared a change in regime.  It had been expected that the Government would introduce a single nil rate band to be shared between all trusts set up by an individual, but this proposal has been put to one side with the Government saying it will, instead, introduce measures to curb tax avoidance through the use of multiple trusts.  There will also be changes to simplify the calculation of inheritance tax on trusts.
Added Mr O’Brien:  “Everyone had been hoping for an increase in the inheritance tax nil rate band, particularly as a pre-election sweetener, but yet again this has been held at £325,000.  Whilst property prices continue to rise, it means that many more families are caught by the tax and it is worth reviewing circumstances with advisors to see if there is anything that can be done, for example with lifetime gifts.”
On the employment law front, it’s likely that the increasing use of overarching contracts of employment by employment intermediaries such as 'umbrella companies' will be changed next year. Currently, such arrangements allow workers to obtain tax relief for home-to-work travel that would not otherwise be available. A discussion paper will be published shortly and new measures are expected in the 2015 Budget.
The new Stamp Duty bandings are as follows : 

0% will be paid for the first £125,000 of any purchase 
2% on the portion above £125,000 up to £250,000
5% on the portion above £250,000 up to £925,000
10% on the portion above £925,000 up to £1.5m
12% on the portion above £1.5m

To see how the figures work out, use the calculator been set up on the Government’s website:

Web site content note: 

This is not legal advice; it is intended to provide information of general interest about current legal issues.

Stamp Duty changes effective from midnight tonight

With effect from midnight tonight the existing stamp duty land tax regime will change. The rules can be found at: -

The main change is that the old method of calculation was to say that when the property exceeded a band limited the whole of the purchase price was charged to stamp duty not just the bit above the band. Now only the element of the purchase price in that bracket will be charged to that rate.

The new rules start on 4 December 2014 – but if you've already exchanged on a property you’ll have a choice about whether to use the old or new rules.

Completing your sale on and after 4 December 2014

If you exchange and complete (or in Scotland, settle) your home purchase on or after 4 December you will pay stamp duty under the new rules.

Completed your sale before the 4 December 2014

If you completed on the purchase of your property on or before 3 December 2014, but have not yet filed your stamp duty return, you still have to pay stamp duty under the old rules.

Exchanged on your contract before 4 December 2014

If you exchanged contracts (or in Scotland, concluded missives) before 4 December but complete on or after that date you’ll be able to choose whether the old or new rules apply.

HM Teasury says: "In the majority of cases you will pay less tax under the new regime"

ENDS
Web site content note: 

This is not legal advice; it is intended to provide information of general interest about current legal issues.