A prominent Family lawyer has said that the Government should include cohabitation reform in the Queen’s Speech, as new official figures show that nearly 20 per cent of people aged 30-34 – almost a million people – in England and Wales are cohabiting.

Graeme Fraser, a Partner and Head of the Family department at Finchley-based OGR Stock Denton LLP, said that the figures show that the need for action is urgent and legislation should be included in the Queen’s Speech on Monday 14 October.

Unlike for married couples, when a cohabiting relationship ends there is no specific legal mechanism for dividing property fairly and partners who did not have a legal share in the family home can find themselves destitute.

At the same time, cohabiting couples are at a disadvantage when it comes to Inheritance Tax (IHT) and death benefits in comparison with married couples.

However, thanks to the myth of ‘common law marriage’ many cohabitants wrongly believe that they share the same rights as married couples.

Graeme Fraser, who is also Chair of Resolution’s Cohabitation Committee, said: “Official statistics have repeatedly shown how quickly the number of cohabiting couples is rising.

“However, laws shaped by the social norms of the twentieth century are still governing twenty-first century relationships, potentially putting millions of people at risk of destitution in the event of the breakdown of their relationship or the death of a partner.

“With these new statistics showing a fifth of people in their early thirties are cohabiting, the need for action is urgent. People in this age group are often just getting onto the housing ladder and starting families, making them especially vulnerable to the consequences of relationship breakdown or the death of a partner.

“I would like to see legislation announced in the Queen’s Speech to introduce certain automatic rights for cohabiting couples who have lived together for a defined period of time or have children, unless they choose to opt-out of these rights.

“I hope this call will be supported by a Prime Minster who likes to characterise himself as a social liberal and who is himself in a cohabiting relationship.”

The figures from the Office for National Statistics (ONS) also show that an estimated 6.3 million adults in England and Wales are cohabiting, over a million more than in 2008.

OGR Stock Denton Partner, Ian Pearle, has commented on the recent Court of Appeal decision in Cowan v Foreman & Ors [2019], where the widow of Michael Cowan – credited as the inventor of the bin liner – has challenged the use of trusts to pass on his wealth.

1. What is your reaction to this decision?

“Two particular issues to be drawn from this case, surrounding the court’s interpretation of the Inheritance (Provision for Family and Dependants 1975) act:

“First – The Court of Appeal has shown that even with an estate of over 16 million and the claimant being made a beneficiary of two trusts, the court will adopt a traditional approach, which ensures that the surviving spouse is left in control of her own livelihood.

“Second – The Court of Appeal overruling the decision to strike out the claim for being issued out of time. It undertook a useful analysis, and said that delay in issuing proceedings to try and reach a negotiated settlement is not to be penalised.”

2. Is there anything that people putting their estate into trusts can do to reduce the chances of circumstances such as these arising? 

“They should ensure they set out their reasons clearly in a letter of wishes which would not preclude a claim but would give the courts an insight into their wishes and the reasons for them.”

3. Might the will have been structured differently to enable ‘reasonable financial provision’ to have been made while still achieving tax savings (assuming that is why it was structured in this way)?

“It seems from the analysis that unless the surviving spouse is given control i.e. made a trustee, it is difficult to see how, a Court could not find that the deceased failed to make reasonable financial provision.  It also protects the spouse otherwise the trustees could make decisions without her consent or approval.  A lump sum could have been given to the spouse outright with only the balance of the estate being put in trust.  This could make it easier to argue that ‘reasonable financial provision’ has been made.”

4. Why is it necessary to make ‘reasonable financial provision’?

“If you fail to make reasonable financial provision, a Court may well overturn your last wishes set out in your will, if your surviving spouse, partner or child makes a claim.”

5. How is ‘reasonable financial provision’ usually interpreted?

“When calculating reasonable financial provisions for the surviving spouse, the benchmark is what they would have received on a divorce, however where the parties are merely cohabiting the statutory provision is what is necessary to ‘maintain’ the claimant.  Whilst case law shows that there is judicial flexibility to address this difference, for anyone arguing that there is no distinction between being married and cohabiting, this is further evidence that there is!”

Graeme Fraser, a Partner at Finchley-based OGR Stock Denton and Chair of Resolution’s Cohabitation Committee, has commented on figures from the Office for National Statistics (ONS) showing that the number of cohabiting families in the UK increased by more than 25 per cent from 2008 to 2018.

He said:

“These statistics should come as no surprise, with even the Prime Minister being in a cohabiting relationship.

“However, what many people do not realise is that cohabiting couples are at a major disadvantage in comparison with their married and civil partnered counterparts in many areas, including on the breakdown of a relationship, inheritance, death benefits, pensions and tax.

“For example, where only one party to a cohabiting relationship is named as the owner of the family home, the non-owning partner can be left with nothing on the breakdown of the relationship and no straightforward legal recourse.

“The fact that the number of cohabiting families is rising so quickly underscores the need for urgent reform so that couples who have lived together for a period of time enjoy certain automatic rights, unless they chose to opt out.”

The passage through Parliament of the Divorce, Dissolution and Separation Bill this summer has identified how a simple matter of labelling the parties may send out a much healthier message to children.

During the Public Bill Committee stage in the House of Commons on 2^nd July 2019 David Hodson OBE (Law Society Family Law Committee) said:

“One of the things the legislation has to bring through is that we have to review how we call people in this process. It is the soft elements around the legislation that are as important as the harder elements.”

Thousands of family law professionals who belong to Resolution subscribe to a Code of Practice that promotes a constructive approach to family issues. As divorce law currently stands, the adversarial positioning of the couple as “petitioner” and “respondent” could be perceived as automatically putting the good intentions of family lawyers and other family law professional at odds with various pledges under the Code, including to:

“Listen to and treat everyone with respect and without judgment.”

Hodson further commented:

“Let us call it a divorce between two people, without having a litigious element in the heading.”

The importance of labelling may therefore be considered relevant to the focus of no fault divorce legislation, which has a core objective to promote the welfare of children. During the Committee Stage, Nigel Shepherd (immediate past Chair of Resolution) confirmed that a very considerable number of divorces involve children under the age of 16, that children are at the heart of this process, and the conflict is damaging to children.

These comments are borne out by the findings of Professor Liz Trinder’s Finding Fault Report (Nuffield Foundation) which indicated that the use of fault might trigger, or exacerbate, parental conflict, which has a negative impact on children. The national survey found that 62% of petitioner’s and 78% of respondents said fault had made the process bitterer. When interviewed, both petitioners and respondents gave examples of how the use of fault, mainly behaviour, had had a negative impact on contact arrangements, including fuelling litigation over children. Some described threats to show the petition to children

Resolution members and family lawyers have long known that traditional processes often fall short of achieving a healthy divorce. It explains why a significant number of family law professionals have trained in dispute resolution processes better suited to meet the need of couples facing relationship breakdown.

Dispute resolution processes dramatically steer away from the harder elements of existing legislation and traditional processes, which label parties as part of an adversarial process.

In the Collaborative law process, for example, the parties and their lawyers sign a Participation Agreement at the beginning, which includes a commitment to the following primary principle:

“They intend to resolve these issues by focusing on all their needs (their own and the needs of their children), rather than focusing upon just their own claims, needs and legal rights.”

However, continuing to base divorce on fault can fuel unnecessary distress in an already difficult situation for the separating couple. During the Committee Stage, Aidan Jones (Relate) described the benefits of removing fault from the divorce process for the couple who are trying to work through their relationship difficulties

“Blame is toxic and is never helpful. A great deal of the work we do in the counselling room is around helping people to understand this and to take responsibility for their own actions.”

The Bill currently under consideration does include measures to change references to “petitioner” in the process to “applicant”. However, references to a “respondent” will remain. This is not sufficient to mark the sea change of no fault divorce legislation, which is intended to transform divorce from an adversarial to a more consensual process.

Instead, the heading could be changed to “in the marriage of” and the parties simply referred to by their names, rather than on the basis of who notified the other of the divorce. This is also far less confusing later on because applicants and respondents can mean different things in different process. For example, someone could be the applicant in the divorce and the respondent in family remedy proceedings.

Meanwhile, using “wife” or “husband” also seems not to be appropriate as the process is designed to bring the relationship to an end.

Using the parties’ full names, by contrast, would help humanise the process. Many Agreement documents reached through Dispute Resolution processes use the parties’ full names in the title and commencement and execution clauses, and the forenames within the main body of the text. This would also make the documents work better and be easier to read, as it is plain English rather than legal language. It is a good opportunity to modernise the process thoroughly.

However, the legislation could go further still by making it possible to apply for divorce jointly – something that should be encouraged as a matter of good practice. We would expect that those who have been through counselling, mediation or collaborative law would want to apply for divorce jointly, as it gets away from having to attribute blame. By having this possibility, we would hope that this would become the normal way forward as part of obtaining a more healthy divorce. It also sends a better message to the children.

Reducing conflict in relationship breakdown is a laudable aim and generations of family lawyers have been campaigning for these changes for decades. Language acts as a framework for our thinking. Where that framework is geared towards conflict, there can be little surprise when our thoughts and actions follow suit.

Not only will a relabelling of the divorce process promote better outcomes for families, but also could lead to other welcome changes in other areas of family law practice.  For example, the President of the Family Division’s practice guidance on the use of standard orders in financial remedy proceedings encourages Court Users to express the parties as Applicant and Respondent despite the fact that the bulk of Orders are made by consent.  Would it not be better to express the parties by their names to reflect the accord between them rather than require standard reference to litigious phrasing?

Generally, the priority now must be  to get the new legislation over the line through Parliament so that it does not get delayed or fail. These changes can be dealt with by modernising the terminology through a wholesale revision of the Family Proceedings Rules 2010. These are ripe for revision, given the progression of legislation towards modernising the practice of family law in any event and these changes  could be achieved relatively easily by secondary legislation.

Resolving children and finance issues when couples are experiencing relationship breakdown can be complex and difficult when they are experiencing conflict, but no fault divorce will send out a much healthier message for children. A humane divorce that recognises the couple as two people rather than litigants is a subtle but important way of reducing conflict and ultimately achieving better outcomes for families.

Graeme Fraser is Head of Family and Partner at OGR Stock Denton

OGR Stock Denton has drawn level with accountancy firm, Gerald Edelman by winning the latest cricket match between the two firms.

The OGR Stock Denton team won the match at Southgate’s Walker Ground by three wickets, chasing a score of 103 after some sharp fielding and bowling. After a quick four wickets at the start of OGR’s chase, the OGR team ended up as comfortable winners, avenging their defeat from last year.

The series between the two firms is now tied at one match each.

Michael Stock, Partner and Head of Property at OGR Stock Denton, said: “It was great to come out on top this year, avenging last year’s defeat!

“It is always good work with our colleagues at Gerald Edelman. Ultimately, our clients benefit from the close working relationship between our two firms.

“We are now looking forward to another match next summer.”

Hayley Trovato, a Senior Associate Solicitor at OGR Stock Denton LLP, has said that a recent Supreme Court decision concerning the use of non-competition restrictive covenants in employment contracts will give employers “some comfort”.

The landmark case [Tillman v Egon Zehnder Ltd] concerned the ability of employers to prevent former employees from taking up work with competitors, potentially taking with them vital commercial knowledge, market insight and know-how.

Hayley Trovato said: “Employers can, to some extent, take some comfort from the long-awaited decision of the Supreme Court this week in Tillman v Egon Zehnder Ltd.

“In unanimously allowing the appeal, the Supreme Court ruled that the offending words in the non-competition restrictive covenant could be removed from the clause without damaging the rest of the covenant, making it enforceable, even though it was accepted that the employer had drafted this restriction in very broad and therefore unreasonable terms.  As a result, the injunction was restored.

“It has been over 100 years since the Supreme Court has looked at the rules on restrictive covenants and while this is good news for those employers looking to enforce restrictive covenants, a cautious approach is still recommended.

“Employers should ensure that restrictive covenants are drafted responsibly and no wider than reasonably necessary to protect a legitimate business interest.

“Although the Supreme Court allowed the employer to enforce the other parts of its non-competition clause, there was a suggestion that unreasonable drafting by employers could result in costs orders being made against them.

“This case should act as a stark reminder to employers of the need to review their restrictive covenants regularly in order to ensure their enforceability.”

If you would like us to review these for you please contact either Susan Bernstein or Hayley Trovato.

A North London-based employment lawyer has given her five top tips for dealing with the use of smartphones in the workplace.

Hayley Trovato, a Senior Associate Solicitor at Finchley-based OGR Stock Denton LLP, commented after the Prospect union said that an increasingly wide range of employers are asking employees to hand over their smartphones before starting work.

“Given the ubiquity of smartphones in modern life and their near-addictive properties, it is little wonder they are becoming a source of conflict between employers and employees.

“However, good practice can mitigate the chances of conflict arising. Having a clear policy on the use of mobile phones in the workplace means that situations such as this can be avoided easily. If employees know what to expect from the outset, then there can be no surprises, reducing areas where problems could arise,” said Hayley.

She added: “As with all policies, there need to be communicated clearly to employees, so they know they exist. They should also be applied fairly and consistently.”

Hayley suggested five top tips for employers dealing with smartphones in the workplace, noting that the applicability of each will vary according to the nature of the work an organisation is engaged in:

1. Set clear boundaries as to if and when smartphone use is permitted. This could either be a total ban on employees having their smartphones on them at all or just limiting their use to break and lunchtimes. This decision with often depend on the nature of the work. If you do have a total ban on employees having their phones, then you should offer a safe place for employees to store them, such as a locker and ensure that the employee can be contacted by family members on another number in the event of an emergency.
2. It may sound obvious but if an employee needs to take a personal call, then they should leave the room and do this in a separate area. Taking the occasional call may be necessary and as urgent situation often arise, but having employees catching up with their friends on their phone during work time is not acceptable.
3. If you do let employees have their phones on them, then stress that phones should be on silent, vibrate or switched off. This will minimise the disruption of having a variety of noisy ringtones blaring out throughout the office.
4. In some jobs, being on a mobile phone can pose a health and safety risk – such as while driving or operating machinery. For those jobs where employees are dealing directly with customers, being on a mobile phone is not good customer service.
5. Be clear about employees spending time going on to the internet via their phone. The occasional email may be acceptable and sometimes necessary but prolonged periods spent on Instagram or doing online shopping is not.

Clients of a Finchley law firm are set to benefit after one of the firm’s solicitors gained a prestigious tax qualification.

Tim Crook, a Senior Associate in the Private Client department at OGR Stock Denton LLP, has passed the STEP Advanced Certificate in UK Tax for International Clients.

The qualification from the well-regarded professional body covers a wide range of international tax and trust matters, enabling Tim to advise clients with highly complex financial arrangements.

Tim Crook said: “This qualification, together with my extensive offshore experience, enables me to provide expert advice to international clients and offshore trustees with UK connections.”

Richard Denton, Partner and Head of the Private Client department at the firm, added: “This is a fantastic achievement by Tim and highlights the tremendous strength in depth of our Private Client team and our ability to advise non-UK resident and non-UK domiciled clients.”

The qualification further strengthens the firm’s international tax practice. Partner Priti Shah also holds the qualification as well as being a Chartered Tax Adviser.

A Finchley-based employment lawyer has said that the law has failed to keep up with the rapid growth of the so-call ‘gig economy’, which sees workers ostensibly self-employed and often picking up work through intermediaries based on a digital platform.

Hayley Trovato, a Senior Associate Solicitor at OGR Stock Denton LLP, who specialises in employment law commented after TUC research revealed that the sector has doubled in size in just three years.

“The ‘gig economy’ is the future of work. The traditional nine to five is no longer the norm, with the rise of digital platforms in all sectors revolutionising the way we now work.

“However, as we have seen from the flurry of recent cases such as Uber, Citysprint and Deliveroo, the employment rights of ‘gig economy’ workers have failed to keep up with the pace of change.

“The main issue surrounding ‘gig economy’ workers in these cases in the employment statuses of the individuals concerned,” said Hayley.

“It is a common arrangement in the ‘gig economy’ for individuals to be classed as being self-employed. Self-employed individuals have very little protection under employment legislation in comparison with employees or workers because it is assumed that they have more control over their own working conditions and benefit from the flexibility afforded by the status.

“This state of affairs works well much of the time, however, the problem that repeatedly crops up in the ‘gig economy’ is that workers are treated as self-employed but without the levels of control over their own working conditions that have traditionally been the hallmark of self-employment.

“The question of whether these individuals are genuinely self-employed or are in fact workers is one which has occupied the tribunals and courts for a number of years.”

She said that the Taylor Review was set up to address this, amongst other issues, and its recommendations go some way to addressing the problems by saying that, although worker status should be retained, new legislation should bring clearer definitions of employees, workers and the self-employed.

“This might bring some clarity to what is currently a very confusing system, which results in a vast number of workers being exploited without any obvious recourse to the legal system.

“In the US, the default status is that everyone is employed and then it is down to employers to take legal action if they believe otherwise. This may be one way of clarifying the position, although it seems unlikely that this approach would ever be adopted here.”

It is expected that legislative changes in response to the findings of the Taylor Review will be implemented from April 2020 under the banner of the Good Work Plan.