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What is spousal maintenance and how much will I have to pay?

What is spousal maintenance and how much will I have to pay?

The Family Court can make a wide range of orders in respect of both income and capital when addressing the financial settlement following a divorce.

Readers may be familiar with one of the income orders known as spousal maintenance. Spousal maintenance refers to regular payments that are made by one former spouse to the other in order to supplement their income.

When will the court order spousal maintenance?

The Family Court has a very wide discretion as to the orders it can make: no two cases are the same, and every financial settlement will be tailored to achieve fairness on both sides.

Judges are under a duty to try to achieve a “clean break” in every financial settlement, such that there is no ongoing financial tie between former spouses. However, where this is not possible (for example, because there isn’t enough income or capital to meet someone’s needs), the court will look at making a maintenance order to meet the deficit.

How much spousal maintenance will I have to pay?

How much you will have to pay depends on your and your former spouse’s particular circumstances and by reference to a number of factors set out in legislation. These include your income and earning capacity, your needs, the standard of living enjoyed during the marriage and the welfare of any children.

A spousal maintenance order is always variable, such that if there is ever a change in circumstances, either of you could make an application to increase or decrease the amount.

How long will I have to pay?

Spousal maintenance can be ordered for a specific period, or on a ‘joint lives’ basis (indefinitely). In recent years, judges have made fewer joint lives maintenance orders but they can still be made where the financially weaker party cannot work, for example because they are looking after young children.

Maintenance orders for a set number of years can be extended beyond the original term in exceptional circumstances, unless the court has specifically placed a bar to any extension at the time of the original order.

At Slater Heelis we are focused entirely on achieving the best outcome for you — and our experience and level of commitment is second-to-none. A number of our family solicitors are ranked as leading individuals and recommended lawyers in the authoritative UK legal directories (Legal 500 and Chambers) and all of our family solicitors adhere to the Resolution Code of Practice, which means that they will work with you to resolve your case in a constructive and non-confrontational way.

To get in touch, just call 0161 969 3131 or email a member of the team.

Q – Why should I make a Will?

Q – Why should I make a Will?

A – If you die without leaving a Will your Estate will pass following the “rules of intestacy”. These rules were first drawn up 1925 and are outdated and onerous and may mean that your Estate does not pass to the people you would have chosen . By having a Will in place you can avoid the rules of intestacy, appoint people of your choice to deal with your Estate following your death and nominate those you wish to benefit.

Q: I am a commercial landlord, what can I do if I want a tenant to vacate my property?

Q: I am a commercial landlord, what can I do if I want a tenant to vacate my property?

A: You should consult your written lease to consider whether you have a break option. If you do and you can satisfy the conditions of this, then you may be able to obtain vacant possession of the property.

Alternatively if the tenant is in breach of its covenants in the lease, for instance by being in rent or service charge arrears, you can take possession by force by changing the locks to the premises when there are no individuals present. For rent arrears, you may be able to take such action without serving a notice on the tenant. For all other breaches of the lease either, a claim for possession must be issued and a Court Order obtained or. a Notice of Forfeiture served n your tenant giving them a reasonable period to remedy those breaches specified in the Notice and then the locks can be changed if the breaches remain.

Once you have decided to end the tenant’s interest in the premises, or you have already obtained vacant possession, you should instruct a suitably qualified surveyor to draw up a Dilapidations Schedule which you will serve on the tenant asking it to repair the premises up to the condition required by the lease or pay damages equivalent to your loss.

As with all property disputes you should take the advice of a competent and experienced property litigator who will be able to advise you on your options.

Q – My Mum has recently been diagnosed with Alzheimer’s disease and wants to make sure that her affairs are in order. What can we do to ensure that we can look after her wellbeing and finances should her health deteriorate further?

Q – My Mum has recently been diagnosed with Alzheimer’s disease and wants to make sure that her affairs are in order. What can we do to ensure that we can look after her wellbeing and finances should her health deteriorate further?

A – Your Mum should be thinking about making a Lasting Power of Attorney (an LPA) to appoint people to manage her affairs should she be unable to manage her own affairs in the future. Just because there has been a diagnosis of Alzheimer’s does not mean that it is too late to make an LPA. Your Mum should talk to a lawyer who can discuss with her the implications of making an LPA and the benefits of doing so. The LPA can be made to cover both Financial Affairs and Health and Welfare decisions. The person making the LPA must have sufficient capacity to understand the documents, so it is important to speak to somebody as soon as possible and to not leave it too late. 

 

 

Q: What do I need to do to buy the freehold on my house?

Q: What do I need to do to buy the freehold on my house?

A: You are entitled to buy the freehold of your house if you satisfy the following criteria:

  • The property must be held under a long tenancy (a term of more than 21 years)
  • You must have held the lease for 2 years leading up to the date of the service of your notice
  • You must have a lease of the whole of the house

The freeholder can then either admit the claim or dispute it.  You maybe required to pay a deposit of three times the annual rent or £25 (whichever is the greater) and to deduce your title to the house. If your claim is admitted, the freeholder can specify rights and covenants he wishes to be included in the transfer and you can do similar.  If agreement on the right to purchase or the price cannot be reached you can ask the First-tier Tribunal to decide. They will do so after considering both parties’ positions and their submissions.

Completion will take place at least four weeks after the purchase price has been agreed. The purchase price will be calculated by your valuer who should be a surveyor with experience in enfranchisement. An experienced property solicitor should be appointed to advise you throughout the process, ensuring that everything runs smoothly and no additional costs arise.

‘Racism still haunts the Britain workplace’ says TUC general secretary Frances O’Grady

‘Racism still haunts the Britain workplace’ says TUC general secretary Frances O’Grady

A survey of 1,003 BME workers suggests more than a third of black or minority ethnic (BME) workers have been subject to racism at work with incidents over the last five years including bullying, abuse, or being singled out for unfair treatment. The survey, carried out by the TUC trade union, also found that a fifth of the workers had been passed over for training or promotion.

Guidance from the Advisory, Conciliation and Arbitration Service (ACAS) says that employers should intervene if any employee expresses racist views. As racism at work could be an employment law and a criminal law matter, in some cases, employers and the police should handle a complaint.

The survey also found that more than 43% of ethnic minority workers said they did not report discrimination to their employers, and 38% did not report bullying and harassment. Therefore, while incidents should be investigated properly, the initial focus for companies should be on having an open workplace that celebrates cultural diversity.

BBC News

Q – Does my elderly aunt need to make a Lasting Power of Attorney as she only owns her house and a modest amount of capital?

Q – Does my elderly aunt need to make a Lasting Power of Attorney as she only owns her house and a modest amount of capital?

A –Lasting Powers of Attorney (LPA) are not exclusively for elderly people, although many people do not consider making one until they are beyond retirement age. There are two types of LPA Finance and Property and Health and Welfare. It is very important to consider who would look after your aunt’s affairs, both financial and health wise should she become unable for any reason to manage them herself, particularly if she were to lose mental capacity. It is important she feels secure in the knowledge she has appointed Attorneys she trusts completely to look after her affairs for her benefit.  A lawyer is best placed to advise your aunt on the implications of making an LPA of either type and will discuss with her what is covered and how they work in practice.  Slater Heelis have a number of lawyers who have the necessary skills and experience to advise your aunt and to prepare documentation for her.

New Family Court rules in domestic abuse cases involving children

New Family Court rules in domestic abuse cases involving children

As from today, revised rules will come into force in cases involving arrangements for children, including where a child lives and with whom he/she spends time (child arrangements orders).

The new rules, made by the highest-ranking Family Court judge, Sir James Munby, will apply where there is an allegation of domestic abuse.

The most significant change is to the presumption that a child benefits from having both parents involved in his/her life. Under the new rules, if there is evidence to the contrary the presumption will not apply. In determining this, the court must consider whether there is ‘any allegation or admission of harm by domestic abuse to the child or parent’ or ‘any evidence indicating such harm or risk of harm’.

The revised rules also widen the definition of domestic abuse, and provide that abuse also includes ‘culturally specific forms of abuse including, but not limited to, forced marriage, honour-based violence, dowry-related abuse and transnational marriage abandonment’.

The court should also consider whether a fact-finding hearing is necessary in order to deal with any disputed allegations of domestic abuse.

The change is to be welcomed following campaigning from Women’s Aid and a review of the previous rules by Lord Justice Cobb. It is strongly hoped that the new rules will help ensure children’s safety in the future and will alert professionals to any risks.

At Slater Heelis we are focused entirely on achieving the best outcome for you and our experience and level of commitment is second-to- none. Several of our family solicitors are ranked as leading individuals and recommended lawyers in the authoritative UK legal directories (Legal 500 and Chambers) and all of our family solicitors adhere to the Resolution Code of Practice, which means that they will work with you to resolve your case in a constructive and non-confrontational way.

To get in touch, just call 0161 969 3131 or email a member of the team.

The Right to Privacy v Monitoring Workers’ Emails

The Right to Privacy v Monitoring Workers’ Emails

In the 2016 case of Bărbulescu v Romania, Mr Bărbulescu was dismissed for personal internet use at work, contrary to his employer’s internal policy, which strictly prohibited all personal use. The European Court of Human Rights (‘ECtHR’) held that his employer acted lawfully when it monitored Mr Bărbulescu’s Yahoo messenger account and such interference with Mr Bărbulescu’s Article 8 rights (right to private under Article 8 of the European Convention of Human Rights) was proportionate. Part of its rationale was that it was not the content of the messages that had been important before the domestic courts, but their existence.

The Grand Chamber of the ECtHR has now overturned this decision holding that Mr Bărbulescu’s Article 8 rights had been infringed as a result of his employer’s actions. The Grand Chamber set out the various factors to be considered when assessing the monitoring of workplace communications; this includes providing clear advance notification about the potential monitoring. In this case Mr Bărbulescu had not been informed of the nature and extent of the monitoring, or of the possibility that his employer may access the actual content of his messages.

Accordingly, the Romanian court’s decision was wrong due to a failure to strike a fair balance between the employer’s and the employee’s interests. There was inadequate protection for Mr Bărbulescu’s right to respect for his private life and correspondence.

Professional Negligence: The complete guide to making a claim

Professional Negligence: The complete guide to making a claim

Legal claims on the grounds of professional negligence often present a disruptive and stressful challenge for any business or individual. For the majority of cases of this nature, pursuing a court claim can be a time-consuming and expensive process for those involved. It is therefore essential to gain a good understanding of the circumstances in which professional negligence applies in order to ensure that any prospective claim is valid.

This guide offers a succinct overview of the main considerations and procedures involved with a professional negligence claim – however, it is no substitute for expert legal advice in respect of your own individual situation. If you are currently seeking legal support on this topic then feel free to get in touch with one of our experienced professional negligence solicitors using the contact details below.

What is professional negligence?

Professional negligence occurs whenever a person advertises a certain skill as a service – such as a doctor, accountant, builder, solicitor, teacher, etc. – yet they fail to uphold their expected duty of care towards a client or customer. This may lead the client to suffer damages or losses as a result, which they can then look to address as part of a formal legal claim.

The nature of the duty of care the professional owes to the claimant will vary depending on the industry and the agreed terms of a particular service. Defining these terms is simple if there is a written contract or agreement between the professional and the client; however, there does not necessarily need to be a written agreement in place for a claim to be made against the professional’s implied duties of service or malpractice.

For example, let’s say a property surveyor informs a client wishing to buy a plot of land that the area has been granted planning permission. The client acts on this advice and buys the land only to find that there has been no agreed planning permission as they were informed. The client then has grounds to pursue a claim for professional negligence because the bad advice and false statements provided by the surveyor have caused them to lose a significant amount of money in purchasing the plot of land.

The specific experience of the person in question, whether they are a senior professional or newly qualified, does not affect the expected standard of work produced. If the nature of the work is somewhat ambiguous, or if there is a difference of opinion in the expected practice of their services, the professional must provide sufficient evidence that shows they have not breached their duty of care in any way.

What constitutes a claim for professional negligence?

In order to submit a successful claim for professional negligence, the claimant will first need to demonstrate that he or she was owed a specific duty of care by the defendant (the professional). They must then be able to show that they have suffered damages or losses because the defendant breached this established duty of care.

The specific circumstances of a claim – whether that’s the professional’s duty of care, the causation of the issue, or the damages involved – can often prove to be complicated, which has led to a large volume of case law records in relation to professional negligence. If the defendant has been negligent, but this didn’t cause the claimant any direct damages or losses, the claim will likely be deemed invalid.

It’s also important to be aware of the time limits in place for these claims, and to act swiftly if you decide to pursue legal action. For the majority of professional negligence cases, the case must be brought forward within six years of the initial date of negligence. It is possible for this time limit to be extended if there is sufficient evidence to show that the impact of negligence did not become apparent until a later stage. In this case, a claim must usually be raised within three years from the date of knowledge. In some cases, where claimants do not have the necessary knowledge of any lasting damage, there is a further long-stop time limit of 15 years for professional negligence claims.

Who can I claim against for professional negligence against?

The term ‘professional’ refers to any individual that advertises themselves as having skills or expertise as part of a particular service. In this sense, there is no real limit to the professions that can be claimed against, though claims are more commonly in relation to:

  • Accountants
  • Architects
  • Builders
  • IT professionals
  • Medical professionals
  • Solicitors
  • Surveyors

How long does a claim typically take?

As discussed, the process of submitting a claim for professional negligence can often be very time-consuming. Before issuing court proceedings, we advise that each claimant follows the professional negligence pre-action protocol. This protocol provides a useful template to document important information in the initial stages of a prospective claim, and is designed to allow the parties involved, both the professional and the client, to seek an effective resolution outside of court.

A central part of this process is composing a Letter of Claim, a document that lays out the facts of the case, the nature of the negligence and any specific allegations made against the defendant. Once the Letter of Claim has been received by the professional, they then have 21 days to acknowledge the letter and confirm receipt that they will be investigating the case at their end. The defendant then has three months to investigate the concerns brought against them and write a formal Letter of Response that either refutes or agrees with the claim, or makes initial provisions for a settlement out of court.

In the event of court action, it often takes longer than 12 months (particularly for more complex cases) for a case to go to trial after the initial summons have been issued.

Is court action necessary?

At Slater Heelis, we firmly believe that achieving an effective settlement outside of court is in the best interests of the claimant because it relieves the stress and financial cost involved with lengthy court proceedings. This is always our primary goal and it’s fair to say that the majority of claims are settled outside of court; however, we also know from experience that sometimes court action proves necessary as the only way to settle a dispute.

In any case, it remains vital for the claimant to bear in mind the cost involved with pursuing a claim and whether that outweighs any potential compensation that they stand to gain. If you believe you have grounds to lodge a claim of professional negligence, we recommend you act swiftly and seek the advice of a legal expert to evaluate the nature of the claim and support your decisions in pursuing further legal action.