Archive for the ‘Family Law’ Category

Pensions Alert

Thursday, August 19th, 2010

The emergency budget of 22 June introduced a change to government run employee pension schemes that is now starting to affect couples negotiating a divorce settlement.

Pensions increase annually. If you’ve left a scheme the value of deferred benefits will increase to keep in line with inflation, and pensions in payment will increase in the same way (personal pensions are different – with them you can buy whatever type of annuity you want). The Chancellor announced in the budget that all government run pensions (e.g. the NHS, Teachers, Police, Civil Service etc) will now rise in accordance with CPI rather than RPI.

CPI has traditionally been lower than RPI for a number of reasons (but note that the government is thinking about bringing housing costs in to the CPI so this is still very fluid) so this will mean that pensioners in such schemes will get less in their retirement than they might have thought.

When valuing a pension for divorce purposes the Court looks at the Cash Equivalent Transfer Value (CETV). This is the money that the scheme administrators would pay in to a private pension for you if you were minded to transfer out (seldom will this result in anything other than you losing money). The pension administrators can value in their own way the cost today of providing the benefits you are entitled to receive in the future. In doing so they are obliged to consider the best interests of the remaining scheme members, not the person hypothetically leaving, so traditionally CETVs don’t reflect the true market value of such pensions anyway.

The change to CPI means that CETVs will be even lower. If you already have a CETV for such a scheme then it is now out of date. Scheme administrators have imposed a temporary moratorium upon supplying CETVs (if you need one quicker you’ll have to go to an actuary, though they can only give you their best guess).

We can help clients through what is a very complicated area of law. Whilst the settlement of some cases will inevitably be delayed, with good will on both sides it will still be possible to come up with solutions and agreements can still be reached.

Expert advice is essential.

Andrew Lee

Andrew Lee is a senior associate solicitor at Gregory Abrams Davidson,  a member of the Advanced Family Law Panel of the Law Society and a Collaborative Family Lawyer. He can be contacted on 0151 236 5000 or at alee@gadllp.co.uk

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Pre Nuptial Agreements

Tuesday, March 16th, 2010

Getting married can be a stressful business. There’s the dress, the photographer, the limousine, the church, the choice of best man, the hen and stag night/weekend/week, the flowers, suit hire, choice of music, wedding breakfast, evening reception, and honeymoon.  Then there’s the worrying about how it’s all going to be paid for.

It is perhaps not surprising that often people who want a pre-nuptial agreement seem to think about them with a month or so to go before the big day.

Pre-nuptial agreements have been growing in popularity, matched only by the recognition given to them by the court in divorce proceedings.

Whilst they are still not absolutely binding, they will, if done properly, be followed wholly or substantially by the courts.

There are 2 common pitfalls that the unwary fall in to:

  1. They must not seem like last minute rush jobs.  The court will want to know that neither party has been placed under undue pressure to agree the settlement.  A last minute agreement gives the impression of undue pressure, and can invalidate the whole agreement.  Agreeing at the time of engagement that both spouses to be want the agreement is ideal.  Both will have enough time properly to consider what they want it to contain, and to take independent legal advice upon it.
  2. It is not an opportunity for the spouse with the greater financial resources to make sure that the other leaves the marriage with nothing.  The agreement is an opportunity to agree in advance what would be reasonable financial provision in the event of divorce.  Any agreement that is clearly unfair to one party may not be upheld by the court.

It is therefore vital to consider a pre-nuptial agreement early if you want it to carry weight in any future court proceedings.

Andrew Lee is a senior associate solicitor at Gregory Abrams Davidson, and a member of the Advanced Family Law Panel of the Law Society. He can be contacted on 0151 236 5000 or at alee@gadllp.co.uk

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“Shopping Around” For an International Divorce

Thursday, January 28th, 2010

With so many people moving abroad to live, work and start families, it is now becoming more common for a family lawyer to have to deal with trans-national issues.

Under the Council Regulation (EC) No 2201/2003 (know as Brussels II) people can choose to divorce in any of: (1) their country of residence, (2) the country of residence of their spouse, or (3) the country that is the nationality of both of them (it’s not quite that simple but you get the idea!).

Whilst it is always important to those getting divorced to consider which forum would get them the best deal, one matter that is often overlooked is the fact that a country dealing with a divorce also has the power to make orders in respect of children, even if the child has never lived there.

All the more important therefore for specialist advice to be taken at an early stage.

I can’t help but wonder, though, that this practical (and necessary) piece of EU legislation has the effect of encouraging couples to issue divorce proceedings more quickly, rather than take time to consider if a marriage can be saved.

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Care Costs for the Elderly: Obey the Law Health Trusts!

Friday, January 22nd, 2010

A recent case of three families having to fight tooth and nail to reclaim the care home costs for relatives suffering Alzheimer’s and Parkinson’s will be greeted with incredulity. English law, as set out in a Court of Appeal ruling a decade ago, states that residential care costs of a chronically sick person should be paid by the state. It seems that this ruling is being regularly flouted by health trusts.

In one of these cases, that of Judith Roe, the trust argued (shamefully) that Alzheimer’s was a “social” not a medical condition. Mrs Roe’s family then faced a six-year battle to win justice, which they did – but not before Mrs Roe’s home had to be sold to cover care costs. Her family has now been fully reimbursed following the intervention of the Health Service Ombudsman. The other cases are similar.

It would be some consolation to know that these cases are an aberration, but they are not. A further 750 families are challenging similar rulings. It prompts the unfortunate suspicion that for some health trusts, bending the rules to save money is routine. It should not be left to the families of the elderly or the infirm to have to fight the NHS for justice.

Care for the elderly is expensive and is going to get more so because of our ageing population. It is time that the NHS organised its priorities to take account of that fact. If the money isn’t there, then Parliament must change the law… It is totally unacceptable for health trusts to wriggle out of their legal responsibilites towards the most vulnerable people in society.

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