Archive for the ‘Uncategorized’ Category

Spousal Visas – Better Support for Victims of Domestic Violence

Passport stamps2The Home Secretary has announced that the Government is to give overseas spouses and partners of UK residents who are forced to flee their relationships as a result of domestic violence the permanent right to access support services.
At present, some partners feel forced to remain in abusive relationships because they are in the UK on a spousal visa and have 'no recourse to public funds', meaning that they cannot access support services during the two-year probationary period before they can apply for indefinite leave to remain.
Following a successful pilot programme, victims of domestic abuse will be able to access services to ensure that they do not need to remain in violent relationships. Access will be for a limited period only, to allow time for the victim to gather evidence in support of a claim for residence based on the domestic violence and for the UK Border Agency to consider the application.
There will be strict checks in place, however, to ensure the system is not abused by those seeking to stay in the country when they do not have the right to do so.
The measure is expected to be introduced in 2012.

Posted March 15th, 2011 in Uncategorized |

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Celebrity Chef Calls Off Divorce but Pursues Lawyers

RestaurantMarco-Pierre White and his wife Mati may have called off what looked like being a very acrimonious divorce, but the celebrity chef is still to take action against her former solicitors.
He accuses them of sanctioning her removal of his personal papers, to which no right had been established.
It would be unlikely indeed were the case to get to court, but if it did, it would be informative as regards the extent to which a divorcing spouse is entitled to access their spouse's documents.

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Posted March 11th, 2011 in Uncategorized |

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Views on Sexual Orientation Relevant in Fostering Decisions

The High Court has handed down its judgment in the widely-reported case concerning a Christian couple seeking to foster a child, who had told social workers that they were opposed to homosexuality on account of their religious beliefs.
 
Owen and Eunice Johns had previously been approved as foster carers by Derbyshire County Council and had provided foster care in the past, last doing so in 1993. In 2006 they again expressed an interest in fostering a child and in January 2007 applied to be short-term foster carers.
 
During discussions with social workers, the Johns expressed the view that homosexuality was against God's laws. They also said that because of their religious faith they would feel unable to take a child to a mosque. Ms Johns was asked about a number of hypothetical situations, such as how they could support a young person who thought they might be gay, or who was being bullied at school for reasons relating to sexual orientation. Following these discussions, social workers told them they 'would have difficulty in being approved' for fostering.
 
After the application had been deferred for some time, the Johns went to court seeking a declaration that:
 
  • persons who adhere to a traditional code of sexual ethics, according to which any sexual union outside marriage [...] is morally undesirable, should not be considered unsuitable to be foster carers for this reason alone;
  • persons who attend Church services at a mainstream denomination are, in principle, suitable to be foster carers;
  • it is unlawful for a Foster Service to ask potential foster carers their views on homosexuality absent the needs of a specific child;
  • it is unlawful for a public authority to describe religious adherents who adhere to a code of moral sexual ethics [...] as 'homophobic'.
 
The Council sought a declaration that it may be lawful for a fostering service provider to refuse to approve a foster carer who expresses opposition to, or an inability to display a positive attitude towards, homosexuality and same-sex relationships.
 
The court declined to grant declaratory relief, but did rule that a potential foster carer's attitudes to sexuality are relevant in fostering decisions. The legality of any decision will depend on the individual facts of the case, taking into account the relevant guidelines.
 
Contrary to some reports, the Johns have not been banned from fostering – a formal decision on their application has not yet been reached, although this ruling may mean they are unlikely to be accepted.
 

Posted March 3rd, 2011 in Uncategorized |

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Divorce – Mediation First (By Order)

Despite the fact that divorces can be particularly acrimonious and in many it is obvious that  the parties are too emotionally entrenched to settle things without going to court, the Government has decided that from April divorcing couples will be referred to mediation before they are allowed to make use of the courts to agree the terms of the arrangements as regards children and asset distribution on divorce.

The decision was described by Linda Lee, President of the Law Society, as based on ‘a myth that mediation is a panacea in order to justify cuts to legal aid’.

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Posted February 28th, 2011 in Uncategorized |

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Appeal Court Highlights Difficulty of Reopening Divorce Settlements

ContainersAlthough it may be galling indeed when a former spouse goes on to great financial success, the Court of Appeal has again confirmed the high hurdles placed before a former spouse when their ‘ex’ goes on to achieve new wealth after the financial settlement on divorce has been finalised.
The ex-wife of a Greek businessman appealed against a 2006 settlement which left her approximately £2 million worth of assets and her husband, from who she had been divorced for several years prior to the financial settlement, ownership of a company.
At the time of the settlement, he argued the company had little value. Her expert witness valued it at £30 million. In the course of negotiation of the financial settlement, the ex-husband undertook a re-financing of the company, which he did not disclose. He later sold the company for nearly £30 million.
The court considered that the husband’s role in building the company meant thet the increase in value was due to his efforts alone. The increase in value had disproportionately arisen after the couple split up. In the circumstances, even if the husband had made a full disclosure to the court at the time of the 2006 settlement, it was unlikely that the settlement would have been altered significantly.
The wife’s claim to have the original order set aside and a new order made was therefore dismissed.

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Posted February 19th, 2011 in Uncategorized |

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Polygamy Legal (for Division of Estate)

Polygamy (having multiple spouses at the same time) is prohibited in the UK and entering into a second marriage whilst still married is a criminal offence.
 
This is not true everywhere, however, and that can have legal consequences in the UK, as a recent case shows.
 
It involved a Ghanaian man who died while married to more than one woman. The question arose as to the interpretation of the word ‘spouse’  for the purpose of the distribution of his estate.
 

The court ruled that a spouse who was lawfully married, in accordance with the law of domicile, to an intestate was entitled to be recognised in England in respect of property, including real property, as the surviving spouse. All of the wives were 'the spouse'.

Posted January 31st, 2011 in Uncategorized |

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Latest news on cohabitation & prenuptial agreements

The Law Commission is has published a consultation paper as a first step in the creation of guidance as to what extent the courts should regard pre-nuptial agreements as enforceable.
The 147-page document proposes the creation of a ‘qualifying pre-nuptial agreement’ and sets out various criteria which would have to be met  for such an agreement to be valid.
Curiously, though, the LSC has dodged the issue of dealing with the breakup of unmarried couples. Despite describing ‘the legal recognition of marital property agreements’ as being ‘of great social importance’, it has left the same issue with regard to those who are merely cohabitees undealt with.

The consultation period will last until 11 April.

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Posted January 21st, 2011 in Uncategorized |

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Claim of Lost Gold Leaves Appeal Court Cold

A businessman who claimed that three gold bars left ‘lying around the house’ had been mislaid and could not be found got short shrift at the Court of Appeal recently.

Peter Brandon, who claims to be made penniless by the decision, claimed to have net assets totalling £2m. The court ordered him to pay £2.4 million to his wife as a divorce settlement.

However, his pleas of lost gold fell on deaf ears in the Court, Mr Justice Ryder deciding that Mr Brandon had attempted to suppress £2 million worth of assets.

Posted January 12th, 2011 in Uncategorized |

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Anonymity Lost When Assets Not Disclosed

The Court of Appeal has recently issued a judgment showing the extent of its displeasure with divorcing spouses who deliberately do not disclose the truth about their finances when negotiating the financial settlement on divorce.
 
In the case in point, the Court revoked an order by the High Court to maintain the anonymity of a Greek businessman who failed to disclose the true extent of his assets but ordered him to transfer an additional £20 million into the ‘matrimonial pot’. The High Court had allowed him to maintain his anonymity on the basis that disclosure of his lack of forthrightness might damage his business reputation. The Appeal Court’s ruling now means his name had been made public.RCJ
 
It has been the usual practice for divorce proceedings in the High Court to be referred to in court reports only by the initials of the couple. Exceptions are made to the rule when a case has a very high public profile, such as the divorce proceedings between Paul McCartney and Heather Mills.
 

The implication is that where there is a breach of the duty of ‘full and frank disclosure’, the anonymity of the couple may not be preserved, opening the door to the lack of candour or truthfulness of either party being made public

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Posted January 7th, 2011 in Uncategorized |

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Late Payment and Material Breach

factoryRecent guidance has been given by the High Court on what constitutes a ‘material breach’ of a contract and the circumstances necessary for late payment to be regarded as serious enough to justify the termination of a contract.

The dispute arose between two companies, one of which (Dalkia) was contracted to build a combined heat and power plant for a paper mill belonging to the other (Celltech). It was agreed that Celltech would pay 174 monthly instalments under the contract and that in the event of non-payment, Dalkia would be entitled to £3m for the termination of the contract. Celltech failed to pay the last three instalments because of financial problems. Dalkia regarded this as a termination of the contract and went to court to obtain the £3m.

In assessing the claim, the High Court considered that the following were of significance in deciding if a breach of contract was material:
  • the impact of the breach on the innocent party compared with the position it would be in had the contract been fully performed;
  • whether the breach was intentional and not due to a misunderstanding or administrative error;
  • whether the amount involved was neither minimal nor trivial; and
  • the circumstances in which the breach occurred.
In the Court’s view, the circumstances were such that Dalkia could terminate the contract on the grounds of material breach and was thus entitled to the £3m. In this case, Dalkia could have terminated the contract on the grounds of ‘repudiation’ by Celltech, but since the contract was specific as to the circumstances under which the £3m would be payable, it could not have sought the whole sum had that course been chosen. The Court also confirmed that where the innocent victim of breach of contract has a choice of approaches, it is entitled to choose the most advantageous one to pursue.

In a recent case, a firm which continually paid one of its subcontractors late was considered to have breached its contract with the subcontractor.

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Posted December 1st, 2010 in Uncategorized |

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