No-fault divorce will transform how couples understand the process

The Justice Secretary’s apparent willingness to introduce legislation to provide for a ‘no-fault’ divorce option will transform how couples understand the process.

Allowing couples to part ways without needing to revisit the past and apportion blame will reframe the entire process, drawing their attention away from past conflict and their differences to the far more constructive task of preparing for life after divorce.

This change of emphasis will help people think at an earlier stage about what they want to do with their lives after divorce, making an adversarial process into one with much greater opportunity for collaboration.

We await to see whether no-fault divorce will be provided for in addition to the current fault-based, or whether fault-based divorce will be dropped entirely as an option.

Our view is that the divorce ‘blame game’ is unhelpful to everyone and fault-based divorce should be dispensed with in its entirety.

In summary, today’s news is welcome in helping to remove much of the acrimony and stress that couples often face on marital breakdown since they will no longer be forced to apportion blame for the end of their relationship or wait lengthy periods of time to divorce.

Removing fault from divorce will avoid the long term damage often caused to family relationships by examining their past relationship difficulties and will better enable parents to resolve matters in the interests of their children going forwards through dispute resolution processes such as mediation and collaborative law.

Graeme Fraser and Peter Martin, Partners, Family Law Team, OGR Stock Denton LLP.

Government to trial home-buying reservation agreements

In an effort to tackle the problem of buyers and sellers pulling out of property transactions without good reason, the Government has said that it will trial reservation agreements this year.

English and Welsh law as it stands allows buyers and sellers to pull out of transactions until contracts are exchanged with no penalties whatsoever, potentially leading to the collapse of long chains.

Speaking at the Council for Licensed Conveyancers’ annual conference, Housing Minister, Heather Wheeler, said: “We want to increase people’s commitment by ensuring they get some skin in the game… there is no reason why this cannot become a standard practice. I believe the appetite is there.”

Matt Prior, head of home buying and selling at the Ministry of Housing, Communities and Local Government added: “Buyers and sellers should have financial skin in the game to reinforce the agreement. But how much will that be? How much should they pay to get out of the agreement? We want to work closely with conveyancers to iron out some of the practical issues to encourage people to adopt this.”

Link: Home-buying reservation agreements to be tested this year

Government consults on boosting protection for pregnant women and new parents returning to work

The Government has launched a consultation on proposals to strengthen employment protections for pregnant women and parents returning to work following their birth of their children.

One of the most eye-catching proposals that the Government has put out to consultation is increase protection against redundancy for new mothers to six months following their return to work. The consultation is also seeking views on whether equivalent protections should apply to adoptive parents and those returning from shared parental leave.

Prime Minister Theresa May said: “People in this country already benefit from some of the most rigorous workplace standards in the world, including parental leave and pay entitlements, but we are determined to do even more as we leave the EU.

“It’s unacceptable that too many parents still encounter difficulties when returning to work. Today’s proposals are set to provide greater protection for new parents in the workplace, and put their minds at ease at this important time.”

Business Minister Kelly Tolhurst said: “Pregnancy and maternity discrimination is illegal. But some new mothers still find unacceptable attitudes on their return to work which effectively forces them out of their jobs.

“Through the modern Industrial Strategy and the largest upgrade in workers’ rights in a generation, the Government is building an economy that ensures everyone can progress at work. That’s why we are looking at ways to further protect new parents by giving them time to re-establish themselves in the workplace and show the value they bring to their employers.”

Link: Plans to boost protections for pregnant women and new parents returning to work

Figures show sharp rise in number of Powers of Attorney but a more modest rise in disputes

Figures published by the Office of the Public Guardian have revealed a 14-fold increase in the number of applications for a Lasting Power of Attorney (LPA) over the last 10 years, accompanied by less than a threefold increase in the number of disputes.

The twelve months to April 2018 saw 759,976 applications to the Office of the Public Guardian (OPG) for LPAs, compared with 52,492 10 years earlier.

Over the same 10-year period, the number of orders under the Mental Capacity Act, enabling people to dispute decisions taken people appointed as attorneys increased from 16,407 to 38,945.

Meanwhile, the figures also showed that women made around 60 per cent of LPA applications.

LPAs can be made in respect of decisions relating to health and welfare and property and financial affairs. Individuals can choose to apply for either or both forms of LPA.

Link: Power of attorney surge – and so do family disputes

Peter Martin comments on the draft Domestic Abuse Bill

The Government has published a draft Domestic Abuse Bill including several measures to tackle domestic abuse, including the following measures:

  • A legal definition of domestic abuse, including economic abuse and control, as well as psychological coercion;
  • Powers to compel perpetrators to attend behaviour-changing rehabilitation programmes;
  • Special protections for victims giving evidence in criminal trials;
  • Appointing a national ‘domestic abuse commissioner’ tasked with improving the response and support for victims across public services; and
  • Banning abusers from cross-examining victims in the family courts.

OGR Stock Denton LLP Partner, Peter Martin has commented on the content of the draft bill:

“The draft domestic abuse bill is, of course, to be hugely welcomed.  It is a belated, but very important recognition of the wide ranging effects of domestic abuse and the fact that this is far more widespread than most people imagine.  The fact that the definition of domestic abuse now specifically recognises that such abuse may occur even where there is no actual violence, by including psychological coercion and manipulation, as well as the imposition of control including control over finances, will be of huge benefit in recognising the true extent of abuse and its true nature.

“The crime survey for England and Wales in 2018 showed there were some two million people who stated they had been a victim of domestic abuse.  The survey also challenged some common misconceptions. Over one third of the victims were male. Where prosecutions had taken place, which unfortunately is a low figure of just over 100,000, only 12% failed after the victim changed their minds about giving evidence.  There is a very common belief that most prosecutions fail as a result the victim deciding not to go ahead and to see the true information is important in changing attitudes.

“There is, however, one major problem.  The powers to compel perpetrators to attend rehabilitation programmes; the duty of the domestic abuse commissioner to improve the response and support for victims across public service; and many of the steps that would actually create change, need funding.  Where is this funding to come from?  The government have not made this clear and it is unlikely that special funds will be available.  Will this be yet another measure of good intentions that achieves little as a result of underfunding?  Only time will tell.”

Peter Martin’s comments were published in part by the Times on 23 January 2019. Read the full story here.

5.4 million Britons ‘do not know where to start’ when it comes to writing a Will

A new study has found that 5.4 million UK adults are ‘completely perplexed’ by Wills and ‘would not know where to start’ if they wanted to write one.

The research by insurer Royal London found that more than half (54 per cent) of adult respondents did not have a Will. Among parents, that figure was slightly higher, at 59 per cent.

Of those surveyed that did not have a Will, almost a quarter (24 per cent) said that they had no intention of making one in the near future, while more than a third (34 per cent) said that only an major life event – such as being diagnosed with a terminal illness – would encourage them to make one.

Conversely, the survey found that of those that did have a Will, more than half (53 per cent) had not updated theirs to reflect important life events such as getting married or having children and were, therefore, relying on an outdated document.

The study’s authors said that too many people across the UK were underestimating the importance of Wills and that their families could find themselves in a difficult situation in the event of an unexpected death.

They added that it was “especially important” for parents to ensure they have an up-to-date Will in place, as this is the only way they can control who will look after their children when they die, and to make proper financial provision for their children by setting up a trust.

Link: Perplexed by Wills: more than 5 million adults do not know where to begin

Bar warns that couples should not have to wait six months to finalise a divorce

In a response to a Ministry of Justice (MoJ) consultation on extending the period couples must wait for a decree nisi after receiving a decree absolute from six weeks to six months, the Bar Council has said such a period would be too long for couples without children.

It said: “It is not clear whether there is empirical or anecdotal evidence that the current period of six weeks and one day is too short a period of time and what the reasoning is for extending it to six months.

“The period is a minimum and a decree absolute will not be made until the court is satisfied that to make a decree absolute will not cause hardship and, in the case of a marriage with dependant children, that satisfactory arrangements have been made for the children.”

The consultation on reform of the legal requirements for divorce contains a range of proposals relating to the UK’s divorce laws, including replacing the current five grounds for divorce with ‘irretrievable marital breakdown’.

Link: Six months too long to finalise a divorce, bar warns

Consultation launched on expanding ‘commonhold’ ownership

The Law Commission, the body that advises the Government on law reform, is consulting on making ‘commonhold’ property ownership more widely available.

Under the ‘commonhold’ system people can own a flat without the complication of a lease expiring. The people who own flats in a building become ‘commonholders’ as members of a company, which owns the land and structure of the building.

Despite having been in 2002, fewer than 20 commonholds have actually been created.

Professor Nick Hopkins, Law Commissioner for property, family and trusts, said: “Commonhold provides a once in a generation opportunity to rethink how we own property in England and Wales and offers homeowners an alternative system to leasehold.

“It involves a culture change, moving away from an ‘us and them’ mindset, towards ‘us and ourselves’. We want to hear what people think of our proposals so we can be sure the commonhold system will work for homeowners and the wider property sector.”

Link: Expand ‘commonhold’ ownership system government urged

Tribunal ruling that Uber drivers are workers upheld

The Court of Appeal has upheld a 2016 ruling by an Employment Tribunal that Uber drivers are workers, entitled to paid leave and the minimum wage.

The Employment Appeal Tribunal had previously upheld the decision and Uber now says that it will appeal to the Supreme Court.

In its judgment, the Court of Appeal said: “For [Uber] to be stating to its statutory regulator that it is operating a private hire vehicle service in London and is a fit and proper person to do so, while at the same time arguing in this litigation that it is merely an affiliate of a Dutch-registered company which licenses tens of thousands of proprietors of small businesses to use its software, contributes to the air of contrivance and artificiality which pervades Uber’s case.”

A spokesperson for Uber said: “This decision was not unanimous and does not reflect the reasons why the vast majority of drivers choose to use the Uber app. We have been granted permission to appeal to the Supreme Court and will do so.

“Almost all taxi and private hire drivers have been self-employed for decades, long before our app existed… If drivers were classified as workers they would inevitably lose some of the freedom and flexibility that comes with being their own boss.”

Link: Uber loses appeal over driver employment rights