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The New Divorce Law

From Autumn 2021, the Divorce, Dissolution and Separation Act will finally bring change to divorce law.

As the law currently stands, couples who want to divorce in England and Wales must rely on one or more ‘facts’ to prove that their relationship has irretrievably broken down. These facts are:
  • Unreasonable behaviour
  • Adultery
  • Desertion
  • 2 years separation with the consent of both parties
  • 5 years separation 
As only one party can petition for divorce, this can often lead to an acrimonious situation where the other party is “blamed” for the marriage breakdown, even though it may have been a mutual decision to separate. This can be difficult when the parties remain in each other’s lives because they have children. They could decide to wait and separate on the ground of two years separation with consent, but that can could lead to a delay in finalising financial claims which effectively prevents them from moving on with their lives.

As a result of this unsatisfactory situation, there have been long standing campaigns from family law professionals to change the law, which had been unchanged since 1973.

A recent catalyst for change was the widely reported case of Owens, which reached the highest court in the country in 2018. In that case, Mrs Owens had sought to petition for divorce relying on her husband’s “unreasonable behaviour” as the fact to prove that the marriage had irretrievably broken down. She had initially tried to keep the “allegations” as neutral as possibly, to try and reduce the conflict. However, when Mr Owens stated he would defend the divorce, Mrs Owens sought permission from the court to amend her allegations to include 27 allegations, her position being that whilst each allegation taken alone may seem minor, the cumulative effect was such that she could not be expected to live with her husband. The judge hearing the case described her allegations as “flimsy and exaggerated” and her divorce petition was dismissed. Her appeals to both the Court of Appeal and Supreme Court were unsuccessful, however it was noted by the Supreme Court that the outcome was less than satisfactory. She therefore had to wait to divorce based on 5 years separation (it not being possible to rely on 2 years separation as her husband’s consent would have been required). It was clear that the law needed to change.

Under the new law, separating couples will no longer have to rely on one of the ‘five facts’ to prove the ground for divorce – the irretrievable breakdown of the relationship. Instead, the new law will encourage a more constructive approach to separation.

The new law will introduce the following changes:
  • Introduce joint applications where the couple both agree that the relationship has irretrievably broken down;
  • Applicants will still be able to submit a sole application if their partner does not agree;
  • Remove the ability to defend a divorce, dissolution or separation;
  • Remove the requirement to reply on one of the 5 facts;
  • Introduce a new minimum period of 20 weeks from the start of proceedings to the ‘Conditional Order’ (currently called the decree nisi).
For advice on divorce and financial settlements, please contact specialist family law solicitor Angela Lally for a free initial chat.
 
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One of the most common misconceptions I come across when dealing with divorce and finances cases is about bringing to an end financial claims. I have had many conversations with clients who think that the divorce itself brings the financial claims to an end – it does not.

Even years after divorce, your assets could be at risk unless you sort out the financial claims within the divorce process. When you separate from your spouse, you can make a claim financially in respect of the assets. Financial claims can include a claim against a house, savings, pensions or income (spousal maintenance). Sorting this out is straightforward if you have agreed how the finances are to be dealt with. It involves filing an agreed order at the court (called a consent order), and providing to the court some basic information about your finances.

So for example if you have sold the house, divided the proceeds and you have decided to leave each other’s pensions and income alone, this can be included in a consent order to provide that there is a clean break. Without doing this, even after the decree absolute has been made, the financial claims remain live and are not time limited (although delay can have an impact on the success of a claim).

You should still consider having a consent order even if you do not currently have any assets … who knows what may happen in the future? You may receive inheritance or win the lottery! The consent order is like an insurance policy – it means that you have protection against claims in the future.

If you have done your own divorce, it is still possible to instruct a solicitor to prepare a consent order. The consent order can be filed at court any time after the decree nisi has been pronounced.

At Legal Studio solicitors, I can provide you with a free initial assessment to see whether a consent order is right for you and how to put it in place. I also offer fixed fees if you want to go ahead with a consent order.

Please contact specialist family finances solicitor, Angela Lally, for more information.
 
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It is currently impossible to say when and how the coronavirus lockdown will be eased. However, one Government strategy paper sets out a potential path back to work for those currently unable to do so. Of course, this has not yet been formally adopted and so should be treated with extreme caution, but any inkling as to how things might develop in the future is perhaps useful at this most extraordinary time. The main features of such a policy might be as follows:

-Employers would not be forced to maintain social distancing of two metres but encouraged to do so where possible.

- Where such social distancing would be impossible, other measures should be introduced such as screens, additional hygiene procedures and use of personal protective equipment.

-Employers would also be encouraged to stagger arrival and break times, minimise the use of equipment or office space, and avoid changing worker rotas.

-Home working would be encouraged as far as possible as it is already.

-Vulnerable workers such as those who are pregnant or over 70 would need to be placed in the ‘safest possible’ places in the workplace.
 
The likely approach of the government seems less one of enforcement but informal guidance. However, the approach of the HSE and local authorities will need to be watched closely. The underlying law of keeping workers and those affected by business activities safe ie doing as much as is reasonably practicable, will not change and employers will need to be very wary, not only of enforcement action, but also potential civil liability. The government approach will also have huge ramifications for the insurance market and employers will need to consider their policies and coverage very carefully.

We will keep you updated when we know more………………………
 
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There are certain key updates from the HSE at this unprecedented time:
  1. RIDDOR- A report regarding coronavirus need only be made under RIDDOR in the following circumstances:
 
  1. An unintended incident at work has led to someone’s possible or actual exposure to coronavirus. This must be reported as a dangerous occurrence.
  2. A worker has been diagnosed as having the virus and there is reasonable evidence that it was caused by exposure at work. This must be reported as a case of disease.
 
  1. Home Working- Many more people are now working from home due to the lockdown. A risk assessment for home working will be required and employers should be aware that they have the same health and safety responsibilities for home workers as any other worker.
 
  1. Road Transport-There are two major health and safety issues relating to coronavirus for this vital industry. Firstly, drivers must have access to welfare facilities and it will not be lawful for customers to deny them access. Secondly, the driver’s hours rules have been temporarily relaxed to ensure key supplies are maintained. More about the latter tomorrow.
 
  1. HSE approach- The HSE has not stopped working. Its staff remain contactable and will continue to engage with stakeholders. It has said that it will take a flexible and proportionate account of the risks of the pandemic. It will suspend some targeted inspection activity, and will keep regulatory activity not requiring site visits as normal as possible. It will continue t investigate work related deaths, the most serious incidents and reported concerns. It will still take action to ensure compliance with the law, and while it will work remotely as much as possible, it will mobilise to site where necessary.
 
  1. First aid cover and qualifications- Adequate first aid cover will still need to be maintained in the workplace. Reduced cover may be appropriate with more workers working from home. Sharing first aid cover with another business is a possibility, and provision has been made for first aid certificate extensions and interrupted first aid training.
 
Much more information is available on HSE and local authority websites. If you are unclear about your health and safety responsibilities at this very difficult time and require advice on any health and safety related issue and/or interpretation of the above, contact Edmund Conybeare on 07739 463571 or at edmund.conybeare@legalstudio.co.uk.
 

 
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In the current crisis, the government have relaxed the driver’s hours rules in certain circumstances. These rules are in place to protect road safety, safeguard working conditions for drivers, and reduce the risk of drivers being involved in fatigue related accidents.

Currently, the EU drivers’ hours rules have been relaxed until the 21st of April 2020 for carriage of goods by road. No further extension has been currently granted and operators should keep a close eye on developments. The following relaxations of the rules are designed to help with the supply of vital goods such as food and medicines during the current outbreak and should be used only where absolutely necessary:
  1. EU daily driving limit extended from 9 to 11 hours.
  2. Reduction of daily rest requirement from 11 to 9 hours.
  3. Lifting the weekly and fortnightly driving limits from 56 and 90 hours respectively, to 60 and 96 hours.
  4. Postponement of the requirement to start a weekly rest period from 6 to 7 twenty-four hour periods. Two regular weekly rest periods or a regular and reduced weekly rest period will still be required within a fortnight.
  5. Daily breaks of 45 minutes after 4.5 hours driving are extended to the same break after 5.5 hours of driving.
  6. Drivers using 2.  above can still interrupt their daily rest by up to an hour to embark or disembark from a train or ferry.
  7. Relaxations 1.  and 4.  above cannot be used at the same time.
The relaxations are not limited to specific sectors or journeys but be warned, as stated above, their use must be deemed ‘necessary’ in the context of the current outbreak. Tacho charts/printouts must be endorsed by the driver in the usual way applicable to emergencies to explain the reason for exceeding the usual legal limits. And be warned, the DVSA are likely to crack down heavily on operators taking unlawful advantage of these relaxations.

All this may seem very technical, and comes from a former DVSA/VOSA prosecutor, but is vital information for transport operators, and offers considerable opportunity for those involved in supply chain management and customers involved in the supply of key goods.

We will keep you updated with any changes in the legal position. For further guidance, ring Edmund Conybeare on 07739 463571 or email him at edmund.conybeare@legalstudio.co.uk
 
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What can and can’t you do during the current pandemic? The basic law is that you cannot leave your home without ‘reasonable excuse.’ But what is a ‘reasonable excuse’? The following are reasonable excuses:
  1. Shopping for basic necessities such as food or medicine.
  2. To take exercise. In Wales this is once a day by law, but in the remainder of the UK it remains only a guideline, and to do so more often might be inadvisable but is not illegal.
  3. Seeking medical assistance or to escape a risk of harm. This is particularly important for those in danger of domestic violence.
  4. Providing care or assistance to a vulnerable person, providing emergency assistance, or donating blood.
  5. Travelling to work or to carry out voluntary services when it’s impossible to do so from home.
  6. Attending the funeral of a member of your household, a close family member (or in specific circumstances, a friend).
  7. Fulfilling legal obligations eg attending court or participating in legal proceedings.
  8. Accessing critical public services including childcare or education, social services or victim support.
  9. Allowing children of separated parents to move between both households.
When outside home, a safe distance of 2m should be kept from anyone not a member of the household.
If the police believe the rules have been broken, or their instructions refused, they can issue a fine of £60 (reduced to £30 if paid within 14 days). The fine doubles on each repeat offence. However, we are told they will apply their ‘discretion and common sense,’ in applying the restrictions. Quite what this means in policing terms is anyone’s guess. The attempt by British Transport Police to secure a conviction under the Coronavirus Act against a lady found loitering at a train station but not suspected of having the virus raises serious concerns about how these powers will be used.

It should be noted that local authorities eg trading standards officers will also be responsible for compliance and businesses failing to shut down as set out in the list on the government website under ‘Closing certain businesses and venues,’ will be subject to fines and potential closure.
All gatherings of more than two people have been banned save for those who live together, or the gathering is essential for work purposes.

All weddings, baptisms and religious ceremonies have been halted, apart from funerals, but see above for the restrictions on the latter.
 
If you or your business needs advice about any of the coronavirus restrictions, contact Edmund Conybeare at Legal Studio, edmund.conybeare@legalstudio.co.uk or on 07739 463571.
 
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This is the law that underpins the current lockdown of people and businesses. All the measures in the new law are time limited to two years, and not everything is legally in force. It contains extensive emergency powers for the government, and the legal measures in the Act can be suspended and reactivated later. Notably the Act’s provisions can be extended or ended, depending on the latest scientific advice.
 
Here at Legal Studio we don't wish to blind you with the law. Below are some key parts of the new Act, but there are several others which may affect your daily life or particular business activity.
 
  1. New unpaid statutory leave for emergency volunteers (Sections 8 and 9).
  2. Powers to restrict attendance at schools and childcare premises (Sections 37 and 38).
  3. Provision to allow companies that have paid statutory sick pay for an employee suffering  from coronavirus to recover some or all of that payment (Sections 39-44).
  4. Powers to screen and isolate potentially infections persons across the UK. Police or immigration officers can force people to stay in certain places and to be screened/assessed (Section 51).
  5. Powers to prohibit or restrict public events and gatherings, and to close premises (Section 52).
  6. Provision for the Coronavirus Job Retention Scheme where employees can contact HMRC for a grant to cover 80% of salary for people not working, but furloughed and kept on payroll (Section 76).
  7. Provision to protect residential tenants from eviction during the coronavirus outbreak (Section 81).
 
If anyone has any legal questions about the new law, what their legal position is in the current situation, how the new law should be interpreted, and/or what rights/entitlements they have, don’t hesitate to pick up the phone. We are happy to provide free initial advice to help anyone at this most difficult time.

Please contact us if you’d like more information about the issues raised in this article and/or or to find out more about the various legal services that we provide.
 
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Legal Studio's message is 'Where different works.' But is this just groovy law firm marketing designed to make us look good? Surprisingly, for all you cynics out there, it isn't. If you are an established solicitor who is looking for a different career pathway in these troubled times, read on...........

I left an established conventional law firm in 2011. Since that time, I have been a self-employed home-working consultant solicitor with no monthly salary and no fixed hours. The transformation in my life has been astonishing. I have been able to devote time to my clients in a way that means they get the best of me. I can work in a more relaxed and flexible way, while continuing to fight their corner as hard as I have ever done. I can relax when work is slow and cope when work is frenetic.

I am a happier lawyer because I keep more of what I earn and can spend more time with my gorgeous but demanding family (three girls aged 9, 13 and 14 if you are asking). If I am happier, it translates into the quality of service I give clients. I can essentially work where I want, when I want, and can therefore cater better to their legal needs.

I am different and work in a different law firm. Better for clients, better for me. If you doubt it, talk to me or my colleagues. I dare you to pick up the phone to Legal Studio and take the first step ............... you won't regret it, and it might just change your life. It did mine.
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Our employment law specialist Nathan Combes has produced a FREE temporary homeworking policy which has been put together with current events very much in mind.

Standard homeworking policies do not really cover off issues such as working from home and childcare (given the closure of schools) and self-isolation/social and social distancing etc.

If you would like to receive a copy then please contact Nathan by email at
nathan.combes@legalstudio.co.uk
2020 10 26 289
 
With many people self isolating there are practical problems cropping up, not least how to collect monies and pay for day to day items.
 
If someone has a lasting power of attorney registered in respect of their property and financial affairs, then this can be used by the person who made the power (referred to as "the donor") and they can instruct their attorney to go to the bank etc for them.
 
If however you do not have a lasting power or attorney in place, then all is not lost. There is a "general power of attorney" that you can put in place immediately to enable someone to assist you. This is a very limited document in that it will allow your appointed attorneys to carry out that specific task set out within the power (such as obtaining your monies and purchasing day to day items). General powers of attorney can be time limited or revoked in writing. Therefore, this may be suitable if you would like assistance throughout the isolation period only.
 
For further information please contact Helen Forster by email at Helen.Forster@legalstudio.co.uk
 
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Frustration
 
There’s been a lot of discussion recently, about contracts and what happens, or could happen, with them in the current climate. One of the phases that keeps coming up is ‘ooh, that contract might be frustrated’. This doesn’t mean that it’s fed up, but that the parties are legally excused from their performance obligations under it.
 
So, what is frustration and when does it occur?
 
Well, the case law on frustration started in 1863 and involved a Music Hall, “fireworks and full illuminations, Grecian statues, tight rope performances and air gun shooting” or rather the lack thereof as the Music hall burned down. But don’t worry, we’re not going into detail on that.
 
We’re going to look at pens.
 
A practical example: Geoff, the Journal and the Pens.
 
Imagine you’ve entered into a contract regarding pens. The terms of the contract govern the supply and maintenance of pens to be used by Geoff for writing in his one of a kind irreplaceable bespoke personal journal. For which Geoff pays a hansom fee. Now, several things could go wrong during the course of this contract. Lets’ consider some examples:
 
  • A pen runs out of ink. This is to be expected at some point as, frankly, pens do run out of ink. The contract ought to cover this and deal with who is responsible for finding new ink, who pays for it and how long Geoff can be left waiting for the new ink to arrive as well as, if no new ink turns up, who can terminate the contract and what happens if they do. Running out of ink whilst annoying, isn’t a frustrating event for the contract; or
 
  • The price of pens increases. It’s therefore commercially unattractive to stay in the contract. Well, again that’s annoying and should have been dealt with in the contract. But it isn’t frustration; or
 
  • The supplier of the pens buys them in from a third party, doesn’t get them delivered to them on time and they are late supplying them to Geoff. That’s the supplier’s problem and it’s problem alone. It’s not a frustration of the contract; or
 
  • The pens don’t write as well as they usually do in Geoff’s one of a kind irreplaceable journal. This isn’t frustration. The supplier knew about the specific requirements of Geoff at the time they entered the contract, so they can’t rely on this as an event of frustration.
 
However, if:
 
  • After 6 months of supply the government bans the use of pens and makes possession or supply of them illegal that is a frustrating event and the parties can be released from their obligations under the contract ;or
 
  • Geoff dies (sorry Geoff) that’s a frustrating event and Geoff’s Estate doesn’t have to pay to buy pens nor does the supplier have to supply them to Geoff’s estate; or
 
  • Geoff’s one of a kind irreplaceable journal is completely destroyed (through no fault of Geoff or the supplier) then that would be a frustrating event.
 
Essential elements of Frustration
 
These are all rather silly and very simplistic examples, but generally speaking, a frustrating event is an event which:
 
  • Happens after the contract has been formed;
 
  • Attacks the fundamental purpose of the contract;
 
  • Is completely beyond what was expected by the parties when they entered into the contract;
 
  • Is neither of the contracting party’s faults; and
 
  • Makes performing the contract from that point on impossible, illegal or radically different from what was expected by the parties when they entered into the contract.
 
What is the effect of frustration?
 
If a contract is frustrated, then the parties are excused from their future performance of it (in this case the supply and maintenance of pens or payment for them). In certain circumstances you can get back sums you’ve already paid over before the frustrating event happens or be entitled to charge a ‘just sum’ if you couldn’t perform the whole of your obligations but did do something.
 
Other options
 
Even if your contract is not frustrated, there may still be terms in it that you can turn to your advantage. These may include:
 
  • The right to vary the price you have to pay, or the volume/ timing of supplies you have to make;
 
  • The right to request changes to the services that you have to provide;
 
  • The ability to temporarily take over services that you have outsourced;
 
  • The right to give notice of termination on the contract.
 
So, if recent events have left you thinking about what to do about your obligations under your contracts of if your customers have started to question whether they can cancel do get in touch with the team at Legal Studio as a review of your contract will help you to understand your legal options and the strength of your negotiating position with your customers and suppliers.
 
P.s sorry again Geoff.
 
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Employer update | Homeworking & COVID-19 (Coronavirus)

We’re all currently living in uncertain and unprecedented times. In light of the government’s present focus on social distancing as a means of slowing down the spread of COVID-19 (Coronavirus) and protecting vulnerable groups, it’s likely that employers will increasingly need to utilise home working, wherever possible, in order to mitigate  the impact that these strategies will have upon their businesses and operations. Our latest blog examines some of the key homeworking related questions and issues.

Can we insist that one or more of our employees works from home?
 
In the absence of an established right to compel individuals to work from home, it’s likely that an employer’s decision to insist on a period of home working would amount to a variation of the employee’s contract of employment and that the relevant employee or employees would need to consent to this change.
 
For some employers, this may be the first time that homeworking has been introduced. Bear in mind that the health and safety implications of individuals working from home will need to be considered. The HSE has published some useful guidance on this issue which can be accessed here.

Are there any particular types of employees that we should allow to work from home?
 
Yes, the government’s latest advice (published on 16 March 2020) states that individuals falling into certain categories are "strongly advised" to work from home wherever possible. The relevant guidance can be accessed here.
 
Note that the governments guidance also states that all other workers are "advised" to work from home or vary their daily commute and use less public transport, whenever and wherever this is possible.

Can employers refuse to allow an employee to work from home if that individual will also be looking after children during working hours?

Ordinarily it would not be appropriate for an employee to care for others whilst working from home. However, as we all know these are far from ordinary times and as the COVID-19 outbreak gathers pace and the impact upon society as a whole increases, it’s likely that employers are going to need to relax and temporarily disapply the standard rules and expectations insofar as they relate to individuals needing to work from home.

If (as is increasingly being speculated) schools and nurseries are shortly ordered to close, then an outright ban or prohibition on employees looking after children whilst working from home will simply not be workable.

It may however be the case that certain employees with younger children or children with additional needs (requiring a greater degree of attention and care) may not be able to work whilst providing that care. Employers should be alert however to the possibility that employees in these circumstances may be able to share the burden of childcare with another parent or adult in order to work flexibly or on a part-time basis.
 
Be alert to the fact that employees who suddenly find themselves unable to work because of school and/or nursery closures may choose to assert their right to time off to care for a dependant Time off in these circumstances is usually unpaid (unless their contract of employment says otherwise).
 
Are there any particular concerns involving data protection and home working?
 
It would be sensible for employers to consider whether large scale working from home means that updated training and/or information should be given to employees regarding data protection and confidentiality. Employees need to know what is, and is not, in terms of the use of data.
 
Employers should also consider whether a data privacy impact assessment examining the data protection implications of working from home should be carried out.
 
Issues that might be considered as part of the employer’s assessment could include:
  • Who will have access to the employee's computer and personal data stored on it?
  • Whether any specific security measures or rules should be in place to ensure that members of the household do not have access to personal data held on the computer.
  • If personal data is being created and/or stored at home is it properly secured?
  • Is encryption and password protection in place?
  • How will information be moved between the employee’s home and the office?
  • Is the employee’s home internet connection password protected and secure?
  • Do new rules concerning the retention of documents, proper disposal (e.g. shredding) need to be created and observed?
  • Will regular reminders be sent to employee’s reminding them about their obligations to safeguard personal data?
Please contact us if you’d like more information about the issues raised in this article and/or or to find out more about the various legal services that we provide.
 
Disclaimer: the information set out above does not constitute legal advice and it is provided for general information purposes only. No warranty, whether express or implied is given and neither the author or Legal Studio Solicitors shall be liable for any technical, editorial, typographical or other errors or omissions within the information provided.

 
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