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Financial Settlements in Uk Divorce Actions

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					OUR NEWS
AND VIEWS
ISSUE 1, 2008




FAMILY TEAM GOES FROM                                                                      NEW LOOK FOR
                                                                                           CHARLES LUCAS
STRENGTH TO STRENGTH                                                                       & MARSHALL
It has been a busy period for Charles        Nicole Biggs has moved to strengthen the      Charles Lucas & Marshall’s branding
Lucas & Marshall’s family team which         family team in Wantage, while colleagues      strategy has sought to capture experience,
reflects the firm’s commitment to stay       Suzy Hamshaw and Lyn Ellins have              innovation and a ‘can do’ attitude.
one step ahead in what is a fast-changing    qualified as collaborative family lawyers.
                                                                                           The branding reflects our approachability,
legal environment.
                                             Lyn has become one of the first lawyers       transparency and the emphasis we place
Everyone in the team is a member of          in the country to obtain a new national       on open communication.
Resolution, an association committed to      Resolution qualification – that of Family
                                                                                           We carried out client surveys as part
promoting a non-adversarial atmosphere       Law Assistant. Peter Berry who heads up
                                                                                           of the branding process. These revealed
in which family law matters are dealt with   the firm’s family team in Swindon,
                                                                                           that clients consistently see us as
in a sensitive, constructive and cost-       qualified as a collaborative lawyer in 2005
                                                                                           “professional, friendly and helpful”.
effective way.                               – again, one of the first in the UK.
                                                                                           “We have always appreciated the
However, Claire Marshall has become          Collaborative family law has been
                                                                                           importance of responding to clients’
the first lawyer in the firm to achieve      introduced to allow couples to manage
                                                                                           needs and changing circumstances,”
specialist status by passing a series of     their separation or divorce in a more
                                                                                           says Hemant Amin, Head of Practice
examinations to demonstrate her              dignified and less confrontational way.
                                                                                           Development. “As part of that process,
specialist knowledge of family law issues.   Crucially, couples agree from the outset
                                                                                           we recognise we have to change too.
                                             that they will not drag each other
Claire, who has been qualified for seven
                                             through the courts with their                 “Our new brand is part of this process.
years, had to pass exams dealing with
                                             collaborative lawyers acting as guides,       The way we present ourselves to clients
complex financial settlements arising from
                                             by providing advice and legal support.        has to show clear direction and give
divorce proceedings and cohabitation.
                                                                                           clients confidence they are working
                                                                                           with advisers who have vision and
                                                                                           understanding. We believe our new
                                                                                           brand achieves this.”



                                                                                                             www.clmlaw.co.uk
ISSUE 1



INHERITANCE TAX –                                                                                  BIKERS SUPPORT
THE NEW RULES                                                                                      HEADWAY
Simon Mee, a member of Charles                                                                     Keen bikers, Michael Berrett and Jackie
Lucas & Marshall’s Wills and Estate                                                                Waller, both based at Charles Lucas &
Planning Team, reviews the changes                                                                 Marshall’s Wantage office, are organising
to inheritance tax.                                                                                a treasure hunt this summer to raise funds
                                                                                                   for Headway, the charity that supports
Inheritance tax is charged on the value
                                                                                                   people who have sustained head injuries.
of a person’s estate transferred on their
death – with any assets passing to a                                                               They will be joined by a team of fellow
spouse or to a charity exempt.                                                                     motorbike enthusiasts at the Harley-
                                                                                                   Davidson headquarters in Oxford from
Therefore, if a husband or wife leaves
                                                                                                   where they will work their way towards
their estate to their spouse, inheritance
                                                                                                   the ‘The Rising Sun’ pub in Stockcross
tax does not apply. However, on the
                                                                                                   near Newbury, unravelling clues along
second death, with assets typically
                                                                                                   the way.
passing to children, tax is chargeable
at 0 per cent – or the ‘nil rate band’                                                             Michael, Partner and Head of Litigation at
as it is commonly known – on the first                                                             Charles Lucas & Marshall and a specialist
£300,000. Everything else above                  If, on the death of the first spouse, the trust   in clinical negligence cases, is chairman
this amount is taxed at 40 per cent.             is wound up after three months but before         of the Oxford Headway branch.
Before the changes announced in                  the second anniversary, the trust is deemed       For further information, contact
October’s pre-budget report, only one            never to have existed and the nil rate band       Michael Berrett on 01235 771234
nil rate band would have been used.              remains intact. It is therefore important to      or michael.berrett@clmlaw.co.uk,
However, tax-efficient wills would have          review the position at that time, taking into     or Jackie Waller on 01235 771234
included a ‘nil rate band discretionary          account the possibility that if the nil rate      or jackie.waller@clmlaw.co.uk
trust’ to ensure each spouse made use            band rises rapidly in the years between the
of their respective nil rate bands.              first and second death, the tax saving may
                                                 be greater by not using the trust.
Following the changes, if the first spouse
does not use their entire nil rate band,         It is worth noting that these changes
the unused proportion now will become            remain an announcement in the
available on the second death. For               pre-budget report and while the
example, if (in this tax year) a person          Chancellor has promised to include
dies leaving gifts to children of £150,000       them in the March 2008 budget and make
with the remainder to their spouse, 50           them retrospective to 9 October, they
per cent of the nil rate band remains            will not become law until the summer.
available at the relevant rate on the            For further information, contact
death of the survivor.                           Simon Mee on 01635 521212
Despite the changes, the nil rate band           or simon.mee@clmlaw.co.uk
discretionary trust will is not redundant
and still holds many advantages.                 NEW HEAD OF RESIDENTIAL PROPERTY TEAM
A discretionary trust is usually very flexible   Simon Pook is the new joint head of               responsibility for
and can be used to safeguard assets for          Charles Lucas & Marshall’s Residential            Head of Team with
the family, such as provision for care fees,     Property Team. Simon joined the firm ten          Managing Partner,
protecting assets for future generations in      years ago and is a Fellow of the Institute        Peter Graham who
the cases of second marriage, or where           of Legal Executives.                              has over 30 years’
children would prefer assets to be held for                                                        experience in the
their own children without compromising          In a recent client satisfaction survey, 98
                                                                                                   residential property
their own tax position.                          per cent of clients said the conveyancing
                                                                                                   market.
                                                 service they received was either ‘good’
It is also a useful mechanism for taking         or ‘excellent’.                                   Simon Pook
maximum advantage of tax rules relating                                                            Tel. 01635 521212
to business or farming assets.                   Simon has first-class contacts and excellent
                                                                                                   simon.pook@clmlaw.co.uk
                                                 knowledge of the local market. He shares
PLANNING PERMISSION –
NOW YOU HAVE IT, NOW YOU DON’T
When planning permission is granted it
will specify the latest date from when the
development must start and often comes
with conditions that must be met before
the development can begin. For example,
a landscaping scheme must be submitted
and approved prior to the commencement
of the development.
Why did I choose that particular
example? Because it is one that is
frequently overlooked and has been
the subject of recent court cases.
What happens if the landscaping scheme
is not submitted and therefore not
approved within the lifetime of the
planning permission? The courts are
currently taking the view that planning
permission cannot be implemented,
which means the land does not have
permission for the development and
is consequently less valuable.
So what if the development has
already started?
The work undertaken is not authorised
and is liable to be subject to the
enforcement procedures of the local
planning authority. These consist of either
a notice stopping further work until the
issue is resolved or, even more seriously,
a requirement that the land is reinstated
to the way it was before the work
started. While there are steps that can be
taken to rectify the position, they will not
always be successful and the opportunity
for development may be lost for a long         increasing significance. As the demand           system better. They are just as likely
time or for good.                              for new housing grows, there will be             to be concerned with small planning
                                               more planning applications. This will            applications as those for substantial
The best advice is to ensure that              undoubtedly increase the number of               developments.
before buying land with the benefit of         objections. If a planning permission lapses
permission, you are happy that all the                                                                         For further
                                               because of a failure to meet timescales
appropriate conditions are fulfilled or that                                                                   information, contact
                                               and it has also been the subject of
you are satisfied you can meet them                                                                            Hugh Ellins on
                                               objection, the local planning authority will
within the necessary timescales.                                                                               01793 511055 or
                                               have to consider its position carefully. If it
If you own the land for which you have                                                                         hugh.ellins@clmlaw.co.uk
                                               does not, it may well find that its actions
obtained planning permission, make sure        are the subject of court proceedings,
that you fully understand the conditions       instigated by the objectors.
and the timing implications.
                                               Objectors are now becoming better                  If you would like more information
I am highlighting this issue now as it                                                            e-mail us at ask@clmlaw.co.uk or
                                               organised and understand the planning
is one that I believe will become of                                                              visit our website at www.clmlaw.co.uk
                                                                                                                                     2008




JUDICIAL WORK – A DIFFERENT
DIMENSION TO LAWYERING
Michael Berrett, Partner with Charles           “There is a wide range of work available
Lucas & Marshall, explains why he               in the county court. It has unlimited
chooses to work as a part-time                  jurisdiction in family and insolvency
district judge.                                 matters. District judges hear the largest
                                                percentage of contested trials in small
“Within Charles Lucas & Marshall, both
                                                claims jurisdiction – dealing with all claims
Caroline Bamber and I sit in a part-time
                                                up to £5,000. District judges deal with
judicial capacity. Caroline sits as a Justice
                                                over 90 per cent of all the work
of the Peace and I sit as a Deputy District
                                                in the county courts.
Judge in the county court.
                                                “I spend most of my time sitting in the
“There are over 400 full-time district
                                                county court on the Midland circuit –
judges and almost 800 deputy district
                                                Northampton, Worcester, Warwick and
judges in England and Wales. From this
                                                Hereford. The work is challenging but
it can be seen that the Department of
                                                rewarding. The nature of your ‘list’ can
Constitutional Affairs (DCA) relies heavily
                                                be varied, there is little preparation you
upon members of the legal profession to
                                                can do and the cases have to be fully
supplement judicial requirements.
                                                dealt with within the working day.              ceases to amaze me how widely known
“I am required to hear cases for a                                                              Charles Lucas & Marshall is in the ranks
                                                “The working day lasts from around
minimum of 15 days per year. The court                                                          of the judiciary.
                                                9am to 4pm. Unfortunately, open court
diary system allows me to fit this around
                                                hearings are very rare and although             “The DCA has a number of current
my client and management work.
                                                my wig box is ready it has not yet              initiatives to target and encourage
Barristers always see a part-time judicial
                                                been opened.                                    solicitors to take up part-time judicial
appointment as part of their career
progression. There is no reason why             “It gives the practitioner a chance to          appointments. It is likely that the period
solicitors should not think in the same way.    understand the mysterious workings of           of post-qualification experience will be
                                                the county court and to appreciate the          reduced from seven years to five years.
“Most of us have spent many years                                                               There is also a shadowing scheme
                                                pressures staff are under.
advising clients and writing letters of                                                         whereby solicitors can spend a day
report, advice and drafting Instructions to     “It is also a good way to forge                 shadowing a district or circuit judge
barristers. The assessment and reasoning        relationships with the full-time judiciary      in his or her work.
process that goes on in preparing these         as an ambassador for the firm. You also
documents is very similar to the                obtain an insight into judicial attitudes by    “Of course, there are other avenues for
processes judges use in trying cases.           meeting fellow district and circuit judges      part-time judicial work apart from the civil
                                                in the judges’ dining room! It never            and criminal courts. The DCA also appoints
                                                                                                members of the various tribunals.

                                                NEW ASSOCIATE                                   “I have found the work to be satisfying
                                                                                                and I have enjoyed meeting judges and
                                                Andrew Egan has been made an Associate at       other lawyers I would not meet
                                                Charles Lucas & Marshall. Andrew joined the     otherwise. The training given by the
                                                firm in 2006 to head up its employment team     Judicial Studies Board is excellent.
                                                and develop the firm’s employment practice      I believe it broadens your experience of
                                                across Wiltshire and West Berkshire. In that    the legal system generally and makes you
                                                time he has developed strong links with         a better and more confident lawyer when
                                                local employers as well as senior managers      returning to the office.”
                                                and HR advisers in advising on changes in
                                                employment law and developing risk
                                                management policies and procedures.
                                                Andrew Egan                                       If you would like more information
                                                                                                  e-mail us at ask@clmlaw.co.uk or
                                                Tel. 01793 511055
                                                                                                  visit our website at www.clmlaw.co.uk
                                                andrew.egan@clmlaw.co.uk




                                                                                                                   www.clmlaw.co.uk
ISSUE 1



BRIGITTE CHANDLER                            IMMIGRANT WORKERS – WHAT
– STILL MAKING
HEADLINES                                    EMPLOYERS NEED TO KNOW
Brigitte Chandler, Partner at Charles                                                     Once the work permit is approved, a visa
Lucas & Marshall, is one of the UK’s                                                      application will need to be made at the
leading lawyers in industrial disease law.                                                British Embassy or Consulate where the
Over the last year Brigitte has again been                                                employee is resident. Only after this has
involved in several leading-edge cases and                                                been approved can a UK employer
been the subject of considerable press                                                    employ a specific person in a specific
attention through the people she has                                                      job at a specific location.
represented.                                                                              Employers who try to avoid prosecution
One of the founders of the Swindon and                                                    by refusing to consider any applicants
South West Asbestos Group – a charity                                                     because they are foreign will contravene
to support people and their families                                                      the Race Relations Act 1976. Checks
affected by exposure to asbestos –                                                        carried out by an employer must be
Brigitte has worked tirelessly over                                                       conducted in a non-discriminatory
20 years to achieve compensation for         Many businesses employ migrant               manner and all job applicants must
asbestos sufferers and those who go          workers. However, new legislation that       be treated equally.
on to develop mesothelioma and               came into effect on 5 November 2007          Employers must also ensure that their
lung cancer.                                 will impose tougher sanctions on those       discrimination and diversity policies
                                             employing migrant workers illegally.         reflect the growing trend of hiring
Brigitte is frequently asked to
comment on legal judgements                  Criminal sanctions for employing             migrant workers. Workers who have
and compensation awards.                     illegal immigrant workers are great.         come from overseas are entitled to the
                                             An employer found guilty of such an          same protection as UK-born workers.
Based at the firm’s Swindon office,                                                       They have the right to be treated fairly
                                             offence may face imprisonment for up
Brigitte has represented hundreds of                                                      and equally, and not to be discriminated
                                             to two years and/or an unlimited fine.
former railway workers exposed to                                                         against or harassed on the grounds of
                                             It is not just the employer company
asbestos from the 1960s onwards, as                                                       their nationality, race or gender.
                                             that is liable, any partner, director,
well as people who have worked in
                                             manager, secretary or similar officer who    Failure to either have such policies in
the construction industry.
                                             consented to or negligently allowed the      place or to adhere to those policies could
Brigitte Chandler                            offence to take place can also be guilty.    prove very costly for an employer if a
Tel. 01793 511055                                                                         foreign worker brings a claim before an
                                             Under the new legislation, the
brigitte.chandler@clmlaw.co.uk                                                            employment tribunal.
                                             employment of immigrant workers will
                                             also carry a civil penalty. An employer                    For further
                                             will not only be subject to the same                       information, contact
                                             criminal sanctions but could be fined                      Andrew Egan on
                                             up to £5,000 for each illegal worker                       01793 511055 or
                                             they employ.                                               andrew.egan@clmlaw.co.uk
                                             It is important that an employer takes
                                             all the necessary steps to avoid penalties
                                             that may be incurred by employing
                                             illegal workers.
                                             If the employee is resident outside the
                                             UK and wishes to come over to begin
                                             work, a new work permit application will
                                             need to be made to Work Permits UK.
                                             Such an application can be made by
                                             either the employer or the worker, but
                                             must ultimately be signed by the worker        If you would like more information
                                             before being registered.                       e-mail us at ask@clmlaw.co.uk or
                                                                                            visit our website at www.clmlaw.co.uk
                                                                                                                                       2008




MOTORING OFFENCES –
PREPARE FOR CHANGE
Motorists will soon face a new series         definition applies to all such offences
of motoring offences, which bring with        committed after 24th September 2007.
them stiffer penalties and a new range
                                              A new and controversial offence of
of penalty points.
                                              “causing death by driving whilst either
The Road Safety Act 2006 received             unlicensed, disqualified or uninsured”
Royal Assent on 8 November 2006.              is also created by the Act. Again, this
Some provisions have already been             can be tried in either the magistrates’
introduced – but implementation of the        or crown court and carries a maximum           Under the existing law, speeding offences
major part of the Act has yet to take         penalty of two years imprisonment              carry a range of between three and six
place but it is likely different provisions   in the crown court or six months               penalty points. This will change in that
will be rolled out over a period of time.     imprisonment in the magistrates’ court,        speeding offences will carry a range of
                                              together with mandatory disqualification       between two and six penalty points.
NEW OFFENCES
                                              and endorsement.                               Further, the existing offence of failing to
A new offence of “causing death by
                                              From the way the statute is framed,            provide information about the identity
careless or inconsiderate driving” has
                                              the nature and quality of the driving          of a driver, which currently carries
been created. If tried in crown court it
                                              concerned is irrelevant. For example,          three penalty points, will increase to
carries a maximum penalty of five years’
                                              an uninsured, unlicensed or disqualified       six penalty points.
imprisonment whereas in the magistrates’
court the penalty will be a maximum           driver, even if driving perfectly properly,    The Act enables courts to offer persons
of six months’ imprisonment. It also          will be considered to have committed           convicted of careless driving, speeding or
carries mandatory disqualification            this offence if involved in an accident that   failing to comply with traffic signs, the
and endorsement.                              leads to the death of another person.          opportunity of reducing the number of
                                                                                             penalty points on their licence by
For the first time, the Government has        NEW PENALTIES
                                                                                             successfully completing a retraining course.
provided a statutory definition of careless   There will be a new range of penalties,
or inconsiderate driving. A person is         not only for these new offences but for        To qualify for the scheme, there should
regarded as driving without due care and      existing offences.                             be at least seven and not more than
attention “if the way he drives falls below                                                  eleven points to be taken into account
                                              One of the more important penalty
what would be expected of a competent                                                        at the time of conviction. Successful
                                              changes relates to offences of speeding.
and careful driver.” This statutory                                                          completion of the course will mean that
                                                                                             12 months after the conviction, three
                                                                                             points, or fewer, if fewer were endorsed,
SIMON MEE JOINS                                                                              will cease to be taken into account.
CHARLES LUCAS & MARSHALL                                                                     This new provision will provide
                                                                                             some relief from the rigours of the
Charles Lucas & Marshall has appointed
                                                                                             totting-up provisions.
another specialist to its Wills and Estate
Planning Team. Lawyer, Simon Mee will                                                                          For further
be based at the firm’s Newbury office                                                                          information, contact
and will work on existing accounts and                                                                         Paul Trincas on
develop his own client portfolio.                                                                              01635 521212 or
                                                                                                               paul.trincas@clmlaw.co.uk
Areas such as inheritance tax planning
and issues relating to the elderly have
                                                                                             Wantage                   Newbury
grown rapidly in the last five years and                                                     Tel. 01235 771234         Tel. 01635 521212
the need for professional advice has                                                         Fax 01235 772234          Fax 01635 37784
been reflected in the growth of Charles
                                                                                             Hungerford                Swindon
Lucas & Marshall’s Wills and Estate
                                                                                             Tel. 01488 682506         Tel. 01793 511055
Planning Team.                                                                               Fax 01488 684824          Fax 01793 610518
Simon Mee                                                                                    If you would like more information
Tel. 01635 521212                                                                            e-mail us at ask@clmlaw.co.uk or
simon.mee@clmlaw.co.uk                                                                       visit our website at www.clmlaw.co.uk




                                                                                                                   www.clmlaw.co.uk

				
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