Family, Matrimonial and Civil Partnerships
Recent research by mutual insurer Royal London indicates that divorcing women lag behind their married counterparts when it comes to pension and property wealth. Royal London is encouraging those going through a divorce to ensure that they properly consider the importance of the pension as an asset and give it the same attention as other significant assets such as the family home.
At Shentons, we regularly assist our clients on the financial elements of a divorce and frequently this means we advise on pension entitlement.
Pensions are regularly the most valuable matrimonial asset after the family home and so it is vital that this asset is properly considered in the course of any divorce. Many clients come to us and advise that they have reached an agreement with their spouse that they will keep their own pensions or that one party has agreed not to make any claim against their spouses’ pension. It is crucial that the client understands the significance of that decision. A younger couple for example, may not consider the importance of that potential income at retirement age or a spouse may not properly consider the exact value to them of the asset they are potentially ignoring.
Pensions can be confusing. Many different schemes have different rules and the specific methods for accurately valuing a pension can be very complicated. This may explain why many people are seemingly willing to forgo examining pensions in any great detail, even if that means potential financial loss to them.
It can be necessary to consider instructing an expert (Actuary) to value the pension. Clients will need to consider what they want to achieve by any potential Pension Sharing Order in the divorce – do they want to have an equal pension fund value with their spouse now or do they want to ensure that each party will have equal income on retirement? An actuary can be instructed to crunch those numbers and advise how best to “share” the pension to achieve that aim. The cost of obtaining the report can be shared between the parties and often they are invaluable to helping the parties consider how best to deal with the pension asset. Our advice remains to consider all assets properly and thoroughly on divorce to help achieve fairness for both parties.
A Life of Crime
Head of the Crime department, Chloe Jay, was asked to write a blog post for the Police and Crime Commissioner website to describe her experiences in criminal defence work.
“I recently had someone say to me that they thought of criminal defence work like ‘drain cleaning’ – a horrible job but someone has to do it! I like to think that I managed to persuade him that actually it was an extremely fulfilling job but he was right about one thing; someone does have to do it.
The legal system in England and Wales is adversarial in nature; meaning that both prosecution and defence have a lawyer who go head-to-head in court. The idea is that both fight as hard as they can ensuring a fair trial for the defendant and that if they are convicted, the conviction is safe.
In times of austerity it has become increasingly hard for all parties involved in the criminal process to perform these functions to the best of their ability, but obviously the cost of a mistake for the individuals concerned, can be huge.
The most common question that people ask is me is how can I defend someone I think is guilty? I always tell them about a real case that I had in Southampton many years ago. A man had been arrested for dealing drugs to an undercover police officer. His DNA had been found on the wrap of drugs and this had led the police to arrest the man at his home address in London. He told me that he had not committed the crime and knew nothing about it. I explained the implications of DNA evidence but he remained adamant.
“It was some time later, whilst he was in prison awaiting trial, that we discovered the DNA samples had been mixed up and he had in fact been telling the truth all along.”
I did not believe he was innocent but I continued to represent him. It was some time later, whilst he was in prison awaiting trial, that we discovered the DNA samples had been mixed up and he had in fact been telling the truth all along. It has stuck with me throughout my career as an example of how irrelevant my personal belief can be.
A week in the life of criminal defence
An average week in this job can have you reviewing the evidence for a robbery trial at the Crown Court, representing someone pleading guilty to drink driving, applying for bail in a drugs case, etc. This job brings you into contact with all walks of life and hearing about some people’s backgrounds can be a truly humbling experience. Not all the excitement takes place in court though, preparing someone’s defence frequently leads us to performing our own investigation in an attempt to challenge the prosecution case. This can be instructing our own forensic expert to consider a blood pattern, using a private detective to trace a witness and visiting scenes of crime. Reconstructing what took place can often prove vital in establishing someone’s innocence before a Court.
Local criminal justice board
I meet with the Local Criminal Justice Board quarterly to share ideas and issues. Being part of the LCJB has given me a greater understanding of the departments and agencies that we work with every day and the importance of each of our roles in achieving justice for victims and defendants alike. With the huge impacts of austerity on the justice system, our work on the Board to improve efficiencies, coordinate efforts and understand the pressures that we must withstand, could not be more important.”
Job interviews and risks of asking off-the-cuff questions
Company & Commercial
Questions asked of job applicants should be carefully considered in advance and formulated with the benefit of legal advice.
In one case where that did not happen, a 67-year-old man who was turned down for a park attendant's job succeeded in an age discrimination claim (James v Coedffranc Community Council).
The man was one of 13 people who had applied for the local authority post and was considered one of the two strongest candidates. Whilst two members of the interview panel asked candidates the same set of questions, the third member was free to ask questions that seemed relevant to her, perhaps picking up on an earlier answer and asking for further information about that.
The unsuccessful candidate claimed that the third member of the panel had commented, "I've just noticed how old you are," before asking him, "How's your health anyway?" He had driven away from the interview with a growing sense of injustice and, after failing to win appointment to the post, swiftly lodged a complaint with an Employment Tribunal (ET).
In upholding his claim, the ET accepted his account of the interview and that he had felt his chances of appointment were good until the atmosphere of the interview was changed by the panel member's age-related comments. The local authority had not been able to prove that his rejection had nothing to do with his age, leading to the ET's conclusion that his advancing years had certainly been a factor.
The ET's ruling opened the way for the man to seek compensation. however, in the light of its decision, he reached a settlement with the local authority.
Court visit required to give clarity to will
Wills & Probate
When a will is drafted with the intention that the distribution of assets will change in the event of changing circumstances, it is essential that the relevant clauses are absolutely clear in order to prevent confusion, as a recent case shows.
The ambiguous wording of a will led to an executor having to attend court to get a decision on whether the estate of a woman who died in 1973 that had since been held in trust would pass to the daughter of her best friend or to the beneficiaries of her own son, who died without children in 2014.
In order to make sure your estate passes to your intended beneficiaries, it is advisable to have your will properly drafted by a solicitor, rather than by an unqualified will writer. It is not widely known that will-writing is not a regulated activity, and failing to take high-quality professional advice can be a crucial mistake.
We are delighted to welcome Patrick Hunter to the firm who brings with him a wealth of experience in property, probate and commercial law. Patrick excels at untangling complex cases, which may span across different areas of law. He patiently unpicks what has happened, how all the different elements of the law are coming into play, and deciphers a way forward; giving his clients clear updates and options at each stage. Before law he worked as an Archaeologist for almost 15 years. The Police still send him bones for him to examine and compile a report for the Coroner.. we may need him in the Crime department as well!.
Our Katie Rowles has qualified as a FCILEX Legal Executive! Katie is a much-loved colleague at Shentons who has worked tirelessly to achieve this qualification. She joined Shentons around 6 years ago and it was apparent immediately what a star we had in our midst, we have been delighted to support her career within the Probate and Trusts team. Elisabeth Pollard, Partner, said “Not only has she taken on the exams over a period of years, but she spent last year pulling together an extensive portfolio of work to submit to the CILEX to demonstration both her knowledge and skills competences.”
Well done Katie.
Change in divorce law expected after court ruling
Family, Matrimonial and Civil Partnerships
The Supreme Court judges' decision to prevent a wife from divorcing her husband, which was made 'without enthusiasm', has led to proposals to introduce 'no fault' divorce.
The case arose after a wife's application for a divorce was opposed by her husband on the basis that the marriage had not irretrievably broken down. Such challenges are extremely rare. Under the law, there is an automatic right to a divorce only in a limited number of circumstances. These are:
This can be evidenced in several ways, including adultery, but the essence is that the behaviour of the spouse is such that the other spouse cannot reasonably be expected to live with him or her. In this instance, the husband's behaviour, though far short of what might be expected in a normal loving relationship, was not so egregious as to meet that test.
The husband believed that a reconciliation was possible, and the couple had not lived apart for five years.
When a petition for divorce is made on the ground of unreasonable behaviour, the normal practice is for such behaviour to be dealt with very briefly, as a detailed exposition can increase the ill-feeling at what is always a difficult time and that in turn can make other aspects (such as the residence arrangements for children and the financial arrangements) more difficult to negotiate. The wife's evidence in respect of her husband's behaviour was therefore limited.
The appeal to the Supreme Court dealt in essence not with the husband's behaviour as such, but the effect it had on his wife. Under no fault divorce the need to show evidence of unreasonable behaviour would be removed.
Council must repay family for care home overcharge
Company & Commercial
When a care home agreed a weekly rate of £450 for residential care for an elderly person but the local council assessed the charge at £750 per week, the family of the care home resident complained to the Local Government Ombudsman. The result was that the council was ordered to repay more than £14,000 that had been overcharged, plus interest of £200.