The matrimonial home and bankruptcy

July 27th, 2010

Cohen Cramer Solicitors LeedsThe bankruptcy of a spouse can have a catastrophic effect upon the ancillary relief claims of the other spouse.  In this article, it is assumed that it is the husband who is made the subject of a bankruptcy order, and we examine the effect upon the wife’s ancillary relief claim.  However, the same would apply if it were the wife’s bankruptcy and the husband was seeking ancillary relief.

Where there is a possibility that a husband could be made bankrupt, the advice to the wife is to try to reach an early settlement of ancillary relief proceedings and to effect any transfer of property before bankruptcy.  Even if the transfer has not been put into place by the time the husband is made bankrupt, as long as decree absolute has been pronounced and the time limit under the Order for the husband to transfer the property has expired, the property will belong to the wife.  However, if the bankruptcy petition against the husband had been issued before the ancillary relief order had been made then under Section 284 of the Insolvency Act 1986, any disposition by a person later made bankrupt made after the issue of a bankruptcy petition is void.

The wife is therefore safe if an ancillary relief order has been made and a transfer of the property pursuant to a court order has taken effect.  The exception to this would be if there was any collusion, fraud or material non-disclosure by the wife.  In such cases, a trustee in bankruptcy may be entitled to have the ancillary relief order and transfer set aside.  Any settlement must therefore be a genuine resolution of ancillary relief claims.

What would happen if the ancillary relief order provided for the former matrimonial home to remain in joint names but subject to a later sale?  This situation could arise where it had been agreed or the wife had been allowed to remain in the matrimonial home for as long as she liked unless she re-married.  Unfortunately for the wife in this situation, a trustee in bankruptcy can apply to Court for an order that the property be sold unless there are exceptional circumstances.  If the home had been transferred into the wife’s sole name with the charge back in the husband’s favour the trustee would struggle to enforce this charge before the events triggering sale as specified in the charge.

Where the trustee has an interest in a property which used to be the matrimonial home, the trustee has 3 years from the date of the bankruptcy order to take steps to realize his interest.  If a trustee doesn’t take steps within this time frame then his interest reverts back to the bankrupt.

For further information, contact  Cohen Cramer Solicitors family law department here or for further information, contact Cohen Cramer Solicitors on 0113 244 0597 or visit www.cohencramer.co.uk

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The ‘Get’ explained

July 20th, 2010

Cohen Cramer Solicitors LeedsObtaining a Get is considered a very important part of the divorce procedure by the Jewish community.  A Get is a Jewish divorce document that acknowledges that the marriage has been terminated.  The Get only applies to marriages in England and to marriages conducted by synagogues.  Therefore a couple who marry in a register office or marriage outside of England will not be able to make use of it.  It is not possible to remarry in an orthodox synagogue without obtaining a Get.

To obtain a Get, each spouse must be living at different addresses and they both must consent to the Get.  The Get must be obtained from the Court of Jewish Religious Law (Beth Din).

The Beth Din invites both spouses to attend interviews, where specific information is exchanged.  The husband takes a prominent role and instructs the Scribe to write the Get.  The essential text of the Get is: “You are hereby permitted to all men” i.e: the wife is no longer a married woman and the laws of adultery no longer apply.

The Get is approved and signed and witnessed.  In the presence of the witnesses, the wife is then asked whether she is willing to receive the Get.  If she is, the husband recites words which indicate that he has in hands a Get which will be given to the wife, receipt of which will free her from the marriage.  The Get is then placed in the wife’s hand.  The wife then holds the Get above her head.  She then tucks the Get into her pocket and turns away from her husband as a sign that she has asserted her independence from him.  The wife then hands back the Get so that it can be checked again.  The process is then completed.

Both spouses are given certificates written in English and Hebrew, stating that the Get has been duly executed and that they are free to remarry under Jewish law.  However, a period of 92 days must elapse before remarrying.

Where possible, the Jewish divorce should be dealt with within the same time frame as the civil proceedings.

Problems can arise for the wife if she has committed adultery before obtaining a Get.  She and her new partner will not be able to remarry each other in an orthodox synagogue.  This is particularly so where a husband has issued a divorce petition based upon the wife’s adultery as in the event the adultery is admitted this will provide evidence of her sexual relationship before divorce.  It is not unusual for one party to try and use the Get as a tool to make unreasonable demands of each other.

Therefore, it is more common nowadays for a party to rely upon the Divorce (Religious Marriages) Act 2002.  Under this Act, an application can be made to the Court for the civil divorce not to be granted until the Get has been obtained.  The application can only be submitted once Decree Nisi has been granted.  The Court then has discretion to delay the making of the Decree Absolute until the spouses have first obtained the Get.  The Court will make such an Order where it is “satisfied that in all the circumstances of the case it is just and reasonable to do so”.

For further information, contact  Cohen Cramer Solicitors family law department here or for further information, contact Cohen Cramer Solicitors on 0113 244 0597 or visit www.cohencramer.co.uk

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Piper’s tune carries across Three Peaks

July 19th, 2010

DLA PiperLawyers from DLA Piper in Leeds have completed the ‘Three Peaks Challenge’, raising over £4,300 for Marie Curie Cancer Care.

The team of over 20 lawyers from the Leeds office of the global law firm set out on the challenge earlier this month, facing the highs and lows of blistering heat and driving winds as they completed the 26 mile hike.

The walkers maintained a steady pace throughout the hike, which covers Yorkshire’s three highest peaks; Pen-y-ghent (2,277ft), , Whernside (2,415ft) and Ingleborough (2,375ft), and takes anything between 6 to 12 hours to complete.

The challenge is part of DLA Piper’s year-long campaign to raise funds for Marie Curie Cancer Care, which supports individuals and families living with cancer.

Brian Curran, Marie Curie’s  Regional Corporate Development Manager; “DLA Piper’s efforts in taking on this challenge will help the people who we look after, who are facing their own challenges of dealing with cancer.

“The funds raised by the Piper Hikers will help our nurses and Hospice staff continue to look after their patients in a very special way and will make a real difference to so many people.”

DLA Piper Corporate Partner Jonathan Procter on Three Peaks Challenge

Mark Vipan, Partner at DLA Piper in Leeds and head of its Corporate Social Responsibility initiative adds; “Each year DLA Piper in Leeds selects a charity to support within the region, and this year we are proud to be working with Marie Curie Cancer Care.

“The money raised by the hikers will go a long way to ease the pain of any blisters from the walk, and means that we have now raised in excess of £21,000 for the charity so far this year.”

About DLA Piper 

1.      DLA Piper is an international legal practice with over 3,500 lawyers across 68 offices and 30 countries.  From its offices across Asia, Europe, the Middle East and the United States, legal and business advisers provide a comprehensive range of services to local, regional and international businesses.

2.      DLA Piper received an award for Outstanding Achievement at the 2010 Legal Business Awards and is ranked 1st by revenue in the Legal Business Global 100 2009.

3.      For further information about DLA Piper, please visit the website: www.dlapiper.com

About Marie Curie Cancer Care

Marie Curie Nurses provide free nursing care to cancer patients and those with other terminal illnesses in their own homes. For more information about Marie Curie Cancer Care, visit the website at http://www.mariecurie.org.uk/

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The Effect of Cohabitation Upon Spousal Maintenance

July 16th, 2010

Cohen Cramer Solicitors LeedsThis was recently considered by the Court in the case of H v H (2009) which involved a high value ancillary relief claim by a wife who, by the time of the final hearing, was pregnant by her new partner.

In H v H the Court considered the effect of the wife’s possible cohabitation with her new partner and of another child.  Once again the Court reiterated that cohabitation is not to be equated by marriage and therefore in this case, the Court held that the wife’s relationship with her new partner should not have any effect upon the husband’s liability to pay maintenance.  In this case, there was no evidence before the Court to suggest that the wife’s new partner had made a significant contribution for her financial outgoings.  The Court felt that even despite the fact that the wife was expecting a child, this did not necessarily mean that the wife and her new partner would cohabit, cohabitation not being a reliably valid indicator of anything long term.

Under Section 28 of the Matrimonial Causes Act 1973, re-marriage terminates financial obligation whereas cohabitation does not.  It was the Court’s view that if cohabitation is to be treated like marriage, then such a change in the law would need to come from Parliament and not from the Court.  We therefore have a clear signal from the Courts that just because in this case the wife was probably cohabitating, this did not mean that her husband did not have a duty to pay her maintenance in a case where such a liability arose.

For further information, contact  Cohen Cramer Solicitors family law department here or for further information, contact Cohen Cramer Solicitors on 0113 244 0597 or visit www.cohencramer.co.uk

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Severing a Joint Tenancy

July 15th, 2010

Cohen Cramer Solicitors LeedsWhether you are contemplating separating from your partner or getting divorced, you should consider the consequences of what will happen to your share of the equity in your property.

Whilst you may not have figured out how you will divide your assets amongst you, the first step that you should consider taking is to protect your interest in your share of the property.

When purchasing a property, most married couples choose to hold the property equally as joint tenants.  This means that they both own 100 per cent of the property.  On the death of one, the property passes automatically to the other.  This is known as the “rule of survivorship”.

Clearly, if you are contemplating getting divorced or separating, you would not want this to happen.  It is a common misconception that once you are divorced, you automatically sever your ties with one another.  This is not true.  In order to prevent the rule of survivorship to continue, one would have to “sever the joint tenancy” into a tenancy in common.

To hold a property as tenants in common each own a specified share of the property.  When one owner dies, their share falls into their Estate and passes in accordance with their Will, or if no Will is made, it passes through the rules of intestacy.

To sever a joint tenancy, a Notice of Severance needs to be served by one owner on the other owner.  Once the Notice has been served, the joint tenancy has been severed and there is nothing that the other owner can do to prevent this.

A form then needs sending to the Land Registry.  There is no fee payable to the Land Registry for this application.  The Land Registry then make a Restriction in the Proprietorship section of the Property Register of the Title document.  This will prevent the sale of the property by the other owner without the consent of the other.  The restriction itself does not change the ownership from a joint tenancy to a tenancy in common, it merely reflects the change.

There is a greater trend for couples to live together than to marry.  More often than not, cohabitees choose to hold a property as tenants in common to reflect the amount of capital invested by each person into the property.  There is no scientific calculation in determining the exact percentage each owner should hold but it is common for cohabitees to also enter into a trust deed detailing the amount of capital invested.  This is useful as it saves potential problems in the future should the relationship break down.

Finally, it is always advisable to review your Will to ensure that it adequately reflects your true intentions.

View details of Cohen Cramer Solicitors family law department here or for further information, contact Cohen Cramer Solicitors on 0113 244 0597 or visit www.cohencramer.co.uk

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Passport, tickets, currency, holiday entitlement?

June 29th, 2010

Steven Willey HR & Employment LawWith forecasters predicting yet another disappointing British summer, a significant number of employees from Yorkshire are expected to pack their bags and jet off for a holiday with a better climate. 

 However, following changes in employment contracts and time worked by employees being reduced to part-time roles, many employers may be unsure of their staff’s current holiday entitlement. Steven Willey, HR and Employment Law Consultant with Yorkshire Law firm, Last Cawthra Feather offers advise on the ruling by The European Court of Justice to determine annual leave.

“Clearly the amount of holiday an employee gets is related to their hours of work. A full-time employee will get the maximum leave; a part-timer will get a proportion of that.”

However, what happens when a full-time employee elects or is required to take on a part-time role instead?

Steven adds: “This is without a doubt one of the main areas of confusion for employers when it comes to holiday entitlement. During the unpredictable economic climate many employees have, and continue to be asked to reduce their working hours part way through a year, thus creating a notable grey area with few employers understanding the law and little in the way of a uniformed approach that they could use as guidance. 

“Nevertheless, the new ruling by The European Court of Justice should clarify this considerably. It states that if an employee, for example, reduces their contracted hours from five days a week to three their future leave entitlement will reduce to 60 per cent of the full-time entitlement.”

The further question The European Court of Justice tackled in this hearing was whether it was lawful to reduce holiday already accrued prior to a reduction in hours.

Steven continues: “The answer may seem obvious – that what has already been earned can’t be taken away, but in the UK the Working Time Regulations indicate that the entitlement to annual leave is calculated at the point where the employee actually takes their leave. Therefore if they are part-time at that moment, their entitlement should be worked out on those hours, without reference to the hours they may have been on earlier in the leave year. In fact the Court ruled that accrued but untaken annual leave cannot be lawfully reduced.

“There is still, however an area of misinterpretation, as this only applies where the employee had been “unable” to take their leave. The Court did not explain what “unable” means in these circumstances, however common sense suggests the employee would need to have requested leave and been told they could not take it. Simply choosing not to go on holiday will not enable them to take advantage of this decision.

“Of course one situation where the employee clearly cannot take leave is where they are on maternity leave – because taking holiday will bring the leave to an end. The employee will generally therefore take it at the end of her holiday, or soon after she returns to work.

“Since a significant proportion of returning new mothers ask to reduce their hours this decision will be important in confirming that all the annual leave they have accrued at full-time rates must be honoured even if they then reduce their hours.”

 Last Cawthra Feather is a leading law firm and has offices throughout Yorkshire.  It now has 12 partners and 115 employees. Visit www.lcf.co.uk  for more information.

Last Cawthra Feather Solicitors

01274 848800

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LCF expands its corporate team with new appointment

June 25th, 2010

Last Cawthra Feather SolicitorsLast Cawthra Feather continues to show clear signs of growth following its recent appointment of Lawyer, Chris Blantern to the Corporate Team.

From Leeds, Chris brings with him a wealth of experience having advised many of Yorkshire’s leading companies and working with firms such as Eversheds LLP, Pinsent Masons LLP and Irwin Mitchell.

Commenting on his new appointment, Chris says: “Last Cawthra Feather is an innovative and forward thinking firm. It is this which I believe has been the driving force behind the firm’s continued success and development.

“With Last Cawthra Feather’s expansions and its ambitious plans for further growth, the opportunities are vast – it’s certainly an exciting time.” 

Working closely with Head of the Corporate Team and Partner, Susan Clark, she remarks on the success Chris has already made in the short time he has been at the firm: “Chris has substantial experience advising companies of all sizes and as such adds further strength to our existing team which operates throughout Yorkshire and nationally. His professionalism and understanding of our clients’ needs has ensured client satisfaction – which is at the core of Last Cawthra Feather’s values and focus.

Chris Blantern joins Last Cawthra Feather Solicitors

“Chris is a real asset to the team and with him, I’m confident that Last Cawthra Feather will continue to move in the right direction.”

Last Cawthra Feather is a leading law firm and has offices throughout Yorkshire.  It now has 13 partners and 116 employees. Visit www.lcf.co.uk  for more information or call 01274 848800.

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LCF promotes and appoints cream of the crop

May 4th, 2010

Last Cawthra Feather SolicitorsAs it continues to expand and diversify, Yorkshire law firm, Last Cawthra Feather has announced the promotion of its Practice Director and has made two further key appointments.

Practice Director, Cleo Howell has been appointed to membership of Last Cawthra Feather LLP after playing an instrumental role in the firms significant business growth since joining in 2001. As a non-lawyer and management accountant she is one of the significant contributors recognised by the firm.

During her time with Last Cawthra Feather, Cleo has been closely involved in the firms financial management and development, becoming a driving force behind gaining the Investors in People and Lexcel, the Law Society’s practice management standard, accreditations.

Commenting on her promotion, Cleo says: In the nine years that Ive been with the firm weve progressed so much. The role has been challenging at times, but ultimately extremely rewarding. We’ve recently unveiled our new online service, LCFOnline.co.uk which allows our clients to access our legal expertise when ever they need it. The innovative tool demonstrates our forward thinking attitude to the legal profession for which the firm was recognised in the 2009 Yorkshire Law Firm of the Year awards.

Last Cawthra Feather Solicitors Practice Director Cleo Howell

I’m looking forward to the next nine years with confidence that we’ll continue to expand our team and our client offering.

A further member of the team with reason for celebration is Steven Appleton. A recently appointed Associate with the firm, Steven has been announced as a member of Solicitors for the Elderly (SFE) after passing the entry exam with flying colours.

The SFE is an association of lawyers who specialise in legal services for older people and their carers. Members of the SFE, such as Steven have a wealth of experience within this niche legal area and are only granted the opportunity to join after a substantial amount of time working for elderly clients.

Last Cawthra Feather has also welcomed Carole Spencer to its Family Law team and Penny Barrand to LCF Residential Ltd, the firms residential conveyancing service.

Carole joins from Atkinson & Firth and will be based at Last Cawthra Feather’s Bradford office. Specialising in children and family finance issues, Carole will work closely with the firms large Family Law team.

Meanwhile, Penny who will be based at the Shipley office, will support the conveyancing arm of Last Cawthra Feather providing clients with her property expertise.

Commenting on Cleo’s promotion and the new additions to the team, Managing Partner, Simon Stell says: Cleo has become an invaluable member of the ever growing team at Last Cawthra Feather. She’s been a great support behind several of our initiatives to grow the business and has demonstrated her commitment to the firm, making her appointment as Partner well deserved.

We’re also delighted that Steven has been welcomed into the SFE. He did particularly well on his entry examination, which is testament to his vast experience and the understanding – in this specialist area of law. And with Carole and Penny on board, who have already proved themselves to be strong members of the team; I’m confident that LCF will continue to move in the right direction.

Last Cawthra Feather is a leading law firm and has offices throughout Yorkshire. It now has 13 partners and 125 employees. Visit www.lcf.co.uk  for more information.

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Will flight disruptions cause eruptions in the workplace?

April 23rd, 2010

Last Cawthra Feather SolicitorsAs airlines continue to face a huge logistical operation to return holidaymakers to the UK after an unprecedented six-day shutdown, employers and stranded employees have another challenge to face which may cause further post Eyjafjallajokull eruptions.

Steve Willey, HR and Employment Law Consultant with Yorkshire Law firm, Last Cawthra Feather offers local employers clarification on returning employee issues:

Airlines such as Ryan Air initially announced that they will not pay their customers a penny more than the cost of their flight in compensation, asking the Government to foot the bill instead. This added insult to injury for the thousands of Yorkshire people stranded overseas and unfortunately many will be faced with yet more hurdles to jump when they return to work – a real prospect many employers will have to be prepared for.

In a nutshell, if an employee is on holiday and unable to report for work at the end of their pre-booked time they have three options. They can forfeit any remaining holiday entitlement to make up the shortfall, ask their employer to grant them unpaid leave or agree to make up the time. This is obviously at the discretion of the employer or based upon the terms of employment.

Employees are prevented by law from using holiday entitlement from the last or next years allocation unless that leave is over and above the minimum statutory entitlement of 5.6 weeks. However, any leave used to compensate the unrequested holiday will have to be given with the employers consent as the employee has no legal right to take it without agreement.

However for those employers whove not been informed of a member of staffs absence, theyre well within their rights to take the matter further. They can also request specific information about their absence if they strongly believe that the information provided is an inaccurate account.

Employees who are abroad on business are however entitled to their normal salary and allowances if they are delayed. This would typically include any out of pocket expenses, but doesnt have to include private costs, such as additional child care – yet again this is discretionary.

Steve concludes: The after effects of this natural disaster have been catastrophic for not just the travel sector, but British business as a whole. The domino effect will continue to be felt throughout industry for the months to come, so its incredibly important that those involved seek professional advice to smooth the difficult times predicted ahead. 

For further information, contact Steve Willey at Last Cawthra Feather on Tel:01274 848800 or visit www.lcf.co.uk

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Fit notes replace sick notes

April 20th, 2010
Victoria Robertson, Employment Law Specialist at the Needle Partnership

Victoria Robertson, Employment Law Specialist at The Needle Partnership

The Social Security (Medical Evidence) Regulations and the Statutory Sick Pay (Medical Evidence) (Amendment) Regulations came into force on 6 April. This means that ‘sick notes’ are now a thing of the past, replaced by ‘fit notes’.

The government hopes that fit notes will encourage further discussions between employee and
employer and doctor and employee, putting the emphasis on the return to work rather than on the absence from work.

What’s changed?

There are various differences between sick notes and fit notes. The “fit for work” option has been removed, replaced by a new option for a GP to tick a box stating that the employee “may be fit for work” with some support (note the word “may” – the onus is on the employer to ascertain if the GP’s recommendations can be put in place). GPs have the option to recommend a phased return to work, altered hours, amended duties, or workplace adaptations, and to include some comments about the effect of the employee’s condition.

The ‘not fit for work’ box is still an option and is bound to remain the most commonly-used feature, especially for short-term absence (after all, altered hours would not help, for example, a broken back!). The maximum length of a fit note in the first six months’ absence is three months, reduced from six months with sick notes.

What’s the effect for employers?

We will be watching with interest to see how helpful fit notes actually are to employers.

Employees can still self-certify illnesses of up to seven days, so ‘fit notes’ are only useful for managing long term absence. Unfair dismissal law already requires employers to consider measures to assist employees in returning to work as an alternative to dismissal, but the fit-note will bring the GP’s opinion more firmly into the equation. As always, if an employee requests flexible working, the employer is obliged to consider the request, but can decline for various business reasons.

We think it likely that employers will still need full medical reports on employees on long-term sick leave, to understand more fully the reason for and estimated length of their absence. The fit note is a good starting point but in certain situations employers will need more details, especially where the employee may have a disability.

Employers already have a duty to make reasonable adjustments for disabled employees, but whilst the fit note does not introduce any new duties it may be useful in opening up a dialogue on adjustments, and establishing what may be reasonable.

The main effect of fit notes is perhaps a psychological one upon employees, as they are now being asked from the outset to consider their return to work. For employers dealing with sickness absence and its financial and organisational ramifications, this can only be a good thing.

For assistance with employment questions please contact Victoria Robertson, a specialist employment law solicitor at The Needle Partnership Tel: 08445 611484 or email victoria.robertson@needlepartners.com 

The Needle Partnership
 

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