Clarke and Son News

The Court of Protection’s role is to make decisions in relation to the health, welfare, property and affairs of children and adults who are suffering from mental incapacity.  Currently, these decisions are made in hearings held in private, with only the parties to the application being present, to ensure confidentiality is maintained for the vulnerable people involved.

Recently, the Court of Protection, which was quoted in The Times as being “One of Britain’s most secret courts” has been subject to widespread criticism in its workings. These criticisms are largely from people applying to manage the affairs of elderly or vulnerable relatives who have found the Court of Protection to be bureaucratic, complex and intrusive. As a result of these complaints the senior judge at the Court of Protection, Denzil Lush, has stated that he would favour a decision to allow media access to the hearings, as is the current position with the rest of family courts.  He did, however, specifically state that “there would have to be anonymity for the vulnerable elderly people involved, the details of whose financial affairs were being exposed”.

What is clear is that media presence could boost public confidence and understanding of the Court of Protection after the recent widespread criticism of its workings.

If you have any issues relating to the Court of Protection, you can contact Nia Wharry, Head of Wills & Probate department on Tel: 01256 320 555.

Bhupendra Sankhla, Partner and Head of the Family Department at Clarke & Son LLP is now able to offer clients a Collaborative Law Service.  This is an alternative to court for divorcing couples, involving four-way meetings with both parties and accompanying solicitors.

 The aim is for all parties to set the agenda and to reach an amicable conclusion within their own timetable.  It helps to reduce the amount of cost to the client as there is less correspondence between solcitors.  Also, the solicitors sign an agreement to say they cannot represent the client in court, giving the client an incentive to work with this process.

It is an alternative to mediation which involves an independent person known as a ‘mediator’ who assists the parties reaching an agreement.  However, the mediator is not a legal representative and therefore each party is advised to take additional legal advice.

 Bhupendra says of the new service:

“I am delighted to be able to offer clients this alternative to court proceedings, which can be costly and stressful for all concerned.  It is vital that all parties are happy with arrangements, especially when children are involved and this process will hopefully help to achieve this.”

For more information on Collaborative Law, please email Bhupendra Sankhla, who is an accredited specialist member of Resolution (formerly known as The Solicitors Family Law Association) or tel: 01256 320 555.

The High Court has confirmed that a Solicitor’s Undertaking is something that the party to whom it is given should be entitled to rely on absolutely.

The decision reaffirms the importance of Solicitors’ undertakings in the conveyancing process and emphasises that undertakings should always be appropriately qualified and unequivocal.

A buyer that accepts a solicitors’ undertaking should be entitled to rely on it knowing that the solicitor will be compelled to comply with its terms.  If solicitors were able to delay complying with their undertakings because of  a dispute with a third party (save, perhaps, in very exceptional circumstances) it would undermine the sensible conveyancing practices that have evolved over time.

 For any queries on all services offered by Clarke & Son Solicitors, please email us or Tel: 01256 320 555

On 14 July 2009, the Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian (Amendment) Regulations 2009 were made, in response to a consultation launched in October 2008. These regulations, which come into force on 1st October 2009, amend the Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007 to introduce new prescribed forms for individuals intending to make Lasting Powers of Attorney.

The new forms are considerably shorter than the current 28 page forms, use clearer language and problem areas such as tick boxes have been removed and continuation sheets introduced. They also incorporate fundamental details such as attorneys’ addresses which were unavailable in the previous forms. They will be launched on 1st October 2009 and until then the current forms should continue to be used.

There will be a transitional period where the old forms will be allowed, provided that execution occurs before 1 April 2011.

For more information on Lasting Powers of Attorney contact Nia Wharry or Tel: 01256 320 555.

Ref. The Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian (Amendment) Regulations 2009 and explanatory memorandum.

In a landmark judgement, three of the most highly respected judges in the UK, have ruled that Prenuptial Agreements can be decisive in determining the financial division on divorce.

This court ruling could pave the way for such contracts to become legally acceptable in England and Wales.

Miss Radmacher, a German heiress appealed against a 2006 court ruling to award her French husband £5.8m of her £100m fortune. A Prenuptial Agreement enforceable in the Germany but not the UK stated that her husband would not make a claim if they divorced.

The Court of Appeal ruled that such contracts should be taken into account by the courts when they divide assets after a marriage fails. Bhupendra Sankhla, Partner and Head of the Family Department at Clarke and Son LLP said of this development:

“This will be a welcome relief for not only the fabulously rich but also the not-so-rich who will be more able to ring fence their fortune from attack by an ex-spouse in English Divorce Courts.”

For more information on Prenuptial Agreements, contact Bhupendra Sankhla, Partner on Tel: 01256 320 555

The current uncertain financial climate is leading to more applications to vary Maintenance Orders which were made in more prosperous times. Agreements under Court Orders requiring (usually) the husband to pay maintenance to an ex-wife may not be sustainable due to the downturn in the economy because the husband may have had a pay cut, lost his job, etc. As a result ex-husbands are looking to renegotiate the amount they pay to their ex-wives.

A fluctuating economy also means that family lawyers are finding it increasingly difficulty to value and divide assets amongst spouses/civil partners. With a falling property market (usually) the main asset of the marriage being the matrimonial home is worth significantly less. Therefore it is more difficulty for it to provide enough funds to parting couples to support two separate households on divorce.

B Sankhla, Partner, and head of the family department at Clarke & Son LLP advises:

“Marrying couples should consider Pre-Nuptial Agreements in order to provide some economic certainty in the current uncertain economic conditions. The divorce Courts are more willing to honour agreements between parties made prior to or during the marriage.”

For more information on please contact Bhupendra Sankhla on Tel: 01256 320 555.

Over the last decade, there has been a significant increase in employment legislation that has originated from both the EU and the UK.

It’s an established fact that many businesses, and small businesses in particular, find the steady stream of employment legislation extremely challenging.

For employees too, Employment Law can often be viewed as minefield of information beset with potential pitfalls - especially in the area of redundancy which, unfortunately, is an all-too-common occurrence in these changing economic times.

Whether you are a business owner, employee or former employee, there is no substitute for qualified, professional advice to give you all the facts you need under current legislation.

Areas in which our Employment Law specialists can advise our clients include:

• Redundancy, Lay-Offs and Short-Time Working
• Dismissal and Grievance Rules
• Employment Terms & Conditions
• Parental, Paternity or Maternity Leave
• Parental, Paternity or Maternity Pay
• Working Time Regulations
• Flexible Working
• Agency Workers
• Self-Employed
• National Minimum Wage
• Equal Pay and Conditions
• Health & Safety in the Workplace
• Disability Discrimination
• Age Discrimination
• Sex Discrimination
• Race Discrimination
• Employee Holiday Entitlement
• National Minimum Wage
• Employing Migrant Workers.

If you have an issue that needs to be resolved either as a business owner or as a worker, or you’re simply looking for some friendly help and advice, contact us or e-mail Nicholas Bowers direct.

Reports in the leading legal publication ‘The Lawyer’ have indicated a significant increase in the number of women seeking advice on divorce proceedings. Reports suggest that a growing number of women are seeking to secure assets as the economic boom turns to gloom.

Meanwhile, men are seeking advice on how they are going to prevent their former wives from accessing their dwindling wealth.

More men are also asking about variations - where court orders were made years ago and the husband has to pay an annual sum to the wife but can no longer afford to.

Bhupendra Sankhla, Partner, Clarke & Son says, “In the present economic climate, I’m finding more already-divorced couples coming back to us demanding a change to their original court orders, for the men because their earnings are not keeping up with the rising cost of maintenance fees and for the women, (or the main carers of the children), because of the increased price of food and fuel.”

If you need further information, help or advice regarding Divorce, Mediation and Reconciliation, Pre-nuptial Agreements  or Informal Separation, contact Bhupendra Sankhla Partner, Family Department.

Alternatively, call Clarke & Son on 01256  320 555.

Legal experts are claiming that more money should be given to parents who still care for their children if their spouse dies early without making a Will.

Many parents are being forced to sell their family home when their spouse dies, just so they can pay the huge Inheritance Tax bill. The ‘intestacy’ laws in England and Wales state that, when someone dies without a Will, their spouse (or civil partner) will receive £125,000 (called the ’statutory legacy’) from their spouse’s estate. They will also get interest on half of the remainder of the estate.

If there are children over 18, then they will get the other half of the estate, but if they are minors, then this half will be put into trust. If there are no children but other surviving relatives, the surviving spouse receives the first £200,000.

These rates haven’t been changed since 1993 and, as a result, surviving parents are urging for an update in the law. They say that they are being forced to sell the family home when their spouse dies without a Will as they cannot afford to pay the hefty inheritance tax bill.

Only spouses and civil partners are exempt from Inheritance Tax. If the dependent children inherit directly from a deceased parent, they may have to pay tax of 40 per cent and the surviving parent may have to sell the family home to pay the bill.

Research by the Department for Constitutional Affairs has found that there could be up to 9,000 estates where the statutory legacy prevents the surviving spouse from receiving the whole estate, and out of this number, around 4,000 where the surviving spouse may be at risk of losing their home.

If someone dies without a Will, the surviving spouse can claim for more than the intestacy laws give them but, to do so, they have to make a claim from the court. And this means they could face a potential legal battle with their own children.

A consultation paper, drawn up by the Department for Constitutional Affairs in 2005, recommended that the statutory legacy should be increased to £350,000 where the deceased has children and up to £650,000 if they don’t.

The Ministry of Justice said that it will publish responses to the consultation “in due course”. The Law Commission for England and Wales also intends to start reviewing the intestacy laws in the autumn and it will publish its findings by 2011.

Roy Young of Clarke & Son LLP says, “These laws show just how important it is to make a Will to protect yourself financially.” He adds, “If you want to make sure that your spouse inherits all your assets on your death, then make a Will now. If you leave everything to your spouse in your Will then they can remain in the family home and they won’t have to pay any Inheritance Tax.”

If you’re looking for some help or advice on any aspect of Wills or Inheritance Tax, either e-mail Roy Young direct or telephone Clarke & Son on 01256 320 555.

For more information, read our information sheet on Making A Will (PDF).

(Adobe Acrobat required)

The Government has announced that it does not, for the time being at any rate, intend to proceed with reforms to the law that would have given cohabiting partners similar rights to married couples or civil partners on the breakdown of their relationship.

This unexpected announcement was made by Justice Minister Bridget Prentice and is all the more surprising given the inconsistency of rulings made by the courts in this problematic area.

The Law Commission had spent two years working on proposals to give protection to couples who live together. If introduced, these would have set out the respective rights of cohabitees as regards the financial arrangements on the termination of a relationship.

The number of people who are living together in a relationship but who are neither married nor civil partners continues to rise. Many of these people are probably completely unaware that they have few rights in the event of a break-up of their relationship and that such rights as they do have centre around any children of the relationship.

The problem stems from the fact that, contrary to popular belief, in law there is no such thing as a ‘common law spouse’,

says Bhupendra Sankhla, Partner at Clarke & Son

Couples who live together do not acquire legal rights and there are no set rules for how their assets should be divided if they split up. With over 2.5 million people currently living together informally, the courts are seeing a flood of disputes about who owns what when such relationships end.”

One common problem is where partners have lived together for a long time but the property they share continues to be held in the name of only one of the couple. If the couple then split up, this may give rise to a claim that the property should belong to both parties. The issues involved are often complex and such disputes can be very expensive to resolve in court. In some cases, people who have made a very substantial contribution to the financing and improvement of a shared home have been left with little or nothing for their efforts.

The review of the law in this area was intended to create more certainty in such cases, but the Government has chosen instead to wait to see what are the effects of planned reforms to the law in Scotland before any changes are made to the law in England and Wales.

 Meanwhile, the position of cohabitees is best protected by having a formal written agreement, which should be made with the benefit of independent legal advice on both sides.This is particularly important where the assets involved are substantial, so that in the event that the relationship founders, a drawn out and acrimonious dispute can be avoided.