LEGAL AND FINANCE QUARTER FAMILY LAW SPECIAL EDITION IN PARTNERSHIP WITH:
SPECIAL FEATURE
Claire Darley reports on promoting family law
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SPECIAL FEATURE Family Law
Looking after family law Claire Darley explains the nature of family law, and explains how the Birmingham Law Society works to achieve the best working practices and promote family justice The nature and needs of families are diverse, and different families may require the assistance of different legal experts. Professionals or experts may come into contact with a family where there has been a dispute about the care of a child, or about the arrangements for a child. In more serious cases, there may be safeguarding issues relating to the risk of harm to a child, which may involve a report to Children’s Services, or where a child has been removed from the care of his parents. It maybe in these circumstances that family lawyers and professionals working in the court system work alongside healthcare professionals. In relation to financial experts, a family may have business interests and wealth to protect. In these circumstances family lawyers work alongside wealth managers and other trusted advisers. There are a greater number of tools that a family lawyer now has to prevent a dispute arising in a familial context and to protect resources. This may be the case for example, when a non family member is bought into the family. Persons may employ tax-efficient measures to manage their finances to meet their immediate needs. However, the long–term consequences of those actions may have unintended consequences in the event of a breakdown in their personal relationships. For example, when setting up a new company, or in relation to an existing company, if permitted to do so by the articles of association, a spouse may transfer shares of the shareholding in a company to their spouse to seek to minimise their income tax bill overall if the other spouse is a lower rate tax payer. However, if they later separate and divorce the the person who has transferred their interest could be severely disadvantaged.
Parents and grandparents looking to benefit children and grandchildren would wish to consider the long-term implications of their lifetime financial and estate planning to seek the assistance of a family solicitor alongside their IFAs and accountants to work as a team to protect their interests. The Family Law Committee of Birmingham Law Society is a collaboration of all professionals working within the family justice system to promote a service of excellence. The Committee is made up of solicitors and barristers specialising in financial and child law matters, Cafcass (the Children and Family Court Advisory and Support Service), the Local Authority and the court service, including members of the judiciary. Last October, Birmingham Law Society and Resolution jointly held the most successful Family Law Conference we have held. The message of the key note address by the President of the Family Division was that family law will be embracing the digital age. Following the closure of courts and the streamlining of procedures this involves the e-filing of documents and court hearings taking place wherever a judge is located. This is nothing new to the courts, because parties in proceedings have been able to attend court remotely for over 40 years by the use of video-link. Implementation has already started with the changes in the rules resulting in a greater range of applications that can be e-filed. The headline news in family law covered by the Committee over the last 12 months has included the topics of regionalisation, rationalisation and radicalisation in family justice: • Birmingham Family Court continues to be able to provide specialist finance judges. This benefits
the business community across the West Midlands and beyond. • Birmingham Family Court has been made the Midlands regional hub for the administration of applications relating to decisions about a person’s property, finances and welfare if a person lacks the mental capacity to make those decisions for themselves. • The Family Drug and Alcohol Court, based at Coventry Family Court, has been a significant success for the Midlands. This court works with families whose children are subject to care proceedings resulting from their parents’ drug and alcohol misuse. • Family law has seen a dramatic increase in cases involving radicalisation. We had the President’s Practice Note in October last year, which confirmed that cases involving this issue should be heard by a Judge of the Family Division only. Fortunately, our own Family District Liaison Judge is able to hear cases of this nature, which means they can be heard at courts within the Midlands region. • Cafcass (the Children and Family Court Advisory and Support Service) is now undertaking free DNA Testing. Our work is to strive to achieve the best working practices within the family justice system as members of Birmingham Law Society. Our aims are to promote family justice across the extensive region of Birmingham covering Worcestershire, Shropshire, Staffordshire, the Black Country and the West Midlands. n
Claire Darley is chair of the Birmingham Law Society Family Law Committee, and is also a Partner and Mediator at Higgs & Sons.
SPECIAL FEATURE Family Law
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“The Family Law Committee of Birmingham Law Society is a collaboration of all professionals working within the family justice system to promote a service of excellence.”
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SPECIAL FEATURE Family Law
The Resolution revolution puts families first
Aaron Keene, a solicitor at The Wilkes Partnership in Birmingham, is also the West Midlands chair of Resolution, a national group of family lawyers. Here, he looks at how Resolution is helping lead the way as the role of the family courts changes Increasingly clients do not want their cases dealt with by traditional court proceedings which often bring long delays and great expense. Now there is a fresh approach with Resolution, a national organisation of family lawyers committed to dealing with issues in a constructive and nonconfrontational way. It is accepted that some cases cannot be resolved without recourse to the courts, but there is more than one way to deal with a family law case. Family law solicitors are adept at narrowing the issues between parties who
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are suffering the trauma of marital or relationship breakdown. Resolution lawyers particularly concentrate on the welfare of the children and are backed by a code of conduct to ensure that these ideals are met. Resolution and family lawyers have a wide range of strategies to deal with disputes, from correspondence to mediation, a process whereby a couple are referred to a neutral third party to help them reach their own informed decisions by negotiation. There is also collaborative law where highly trained family lawyers look to resolve family law issues at a series of four-way meetings. Resolution is committed to making sure any changes are for the benefit of families, including its most recent campaign for a no-fault divorce. The last thing a couple should be doing when their relationship breaks down is arguing about the reasons for it.Concentrating on sorting out the arrangements for their children and dealing with their financial issues should be the priority. Each local region has a regional chair and committee to bring together the legal communities in those areas - a driving force for lawyers to work together for the benefit of clients. In July this year we launched a Litigants in Person Scheme, where local solicitors join a rota once a year to provide free advice to litigants in person at the family court in Birmingham – an issue which is becoming a growing problem. When a person does not have a lawyer it usually leads to delays in the process and lengthy hearings so by providing this advice we are not only assisting that individual but also other court users. We are always looking at ways to let other parts of our profession and other professionals know more about the services that we can provide to their clients who unfortunately find themselves with family law issues to resolve. There are always more creative solutions to be found, and by working together as part of Resolution we can look for those solutions. We recognise that sometimes it is not possible to sit around a table and deal with matters, so all Resolution members are able to make the appropriate court applications where necessary, for example where children are in danger of suffering harm or assets need to be preserved. The president of the family division, Sir James Munby, has said that an entirely digitalised and paperless family court can be achieved in the next four years. With such a rapid pace of change, clients with family law issues need to know they are in safe and proactive hands, as provided by Resolution members. If you would like further information on Resolution West Midlands, contact Aaron Keene on 0121 785 4400 or abkeene@wilkes.co.uk.
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SPECIALIST SOLICITORS IN FAMILY LAW We have one of the largest and longest standing specialist teams in the country with several of our lawyers being accredited members of either the Law Society Family Law or Children Panel Our highly experienced family law team deal with every type of problem, from the simple to the extremely complex and serious. There is no particular type of client we act for, we act for people from all works of life, including but certainly not limited to owners and directors of privately and publicly owned companies, professionals and the entertainment and sports world.. We have been consistently endorsed by Legal 500 and Chambers directories as leading family lawyers in the midlands. The reputation of the firm was recognised in the Birmingham Law Society Legal Awards when we were awarded Law Firm of the Year (sole practitioner and up to four partner’s category). Our ethos is built around two pillars. Firstly, to provide our client with an excellent personal service, recognising that they need our service as they are going through one of the most challenging times in their life. The second is the skill and expertise that we provide that must be of the highest quality in all that we deliver. For more information please contact Grant Bird, Blair Allison, Fountain Court, Steelhouse Lane, Birmingham B4 6DR T: 0121 233 2904 E: grantbird@blairallison.co.uk W: www.blairallison.co.uk
Divorce & Family Law Practice LLP is a niche practice based in the attractive surroundings of St Paul’s Square. We specialise in all areas of Divorce and Family Law.
Established in 2002, DFLP immediately gained recognition as a leading Family Law practice, and is recognised annually in both Legal 500 and Chambers UK. We are one of the Midlands’ premier matrimonial firms. Sources say we are “absolutely committed to doing their best for their clients”.
The practice is headed by partners Beverley Morris and Joan Price, together with Caroline Dresden, Vivienne Middleton, Amy Parker and other support staff.
We offer a personal and tailored service, dedicated to providing proportionate and pragmatic advice within a realistic costs framework. We understand the dynamics of family relationships – and their breakdown. We are adept at dealing with complex and high net value cases, including those with pensions and company issues together with issues arising out of co-habitation, pre and post-marital agreements, civil partnership disputes and children issues.
Beverley Morris: Joan Price: Caroline Dresden: Vivienne Middleton: Amy Parker:
Caroline and Beverley are also trained Collaborative lawyers, a style of dispute resolution in which we seek to avoid time-consuming and antagonistic litigation, by empowering the parties in face to face discussions, and reaching a settlement reflecting their own personal requirements.
bjm@dflp.co.uk jp@dflp.co.uk cd@dflp.co.uk vm@dflp.co.uk ap@dflp.co.uk
t: 0121 200 0890 f: 0121 233 9623 www.dflp.co.uk Divorce & Family Law Practice LLP 14 St Paul’s Square, Birmingham, B3 1RB
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PROFILE Shakespeare Martineau
What’s yours is mine and what’s mine is yours - except for the family business Have you ever considered whether your family business would survive a divorce? Families have for years built businesses through generations whether in IT, manufacturing, building and various other trades. Such businesses have been on a rollercoaster following more than one recession, a fluctuating economy and now Brexit. However, businesses are not only subject to economic turbulence as personal circumstances can cause an equal amount of disruption and distress. Have you ever considered whether your family business would survive a divorce? Family businesses are often built up through the bloodline with children following in the footsteps of parents, but they also branch out to spouses. It can often be tax efficient to make a spouse an employee, Company Secretary as well as a shareholder. However, making decisions based on what your heart says or in order to be more tax efficient can be costly in the long run. Your business may have been running for years before you were married, and then you marry and perhaps, sadly the marriage breaks down. It is at that stage that you may regret giving away shares to your spouse, as they are unlikely to return them without proper financial consideration. Even if you have provided the shareholding as a ‘gift’, you can be sure that this gift will not be returned! That old adage of ‘what’s yours is mine and what’s mine is yours’ can ring true on divorce.
“It is not uncommon for some family businesses to bring in non-family members to boost the business such as a new partner, shareholder or director” The starting point when you look at divorce proceedings is often an equal division of capital and potentially income, followed by the Court considering why you should step away from this
Zahra Pabani
position of equality. If you have a family business when exiting a marriage, you would no doubt argue that this existed pre-marriage and should therefore be discounted from the matrimonial pot. However, if the business is the main asset and no other funds available you may struggle to make this argument. Usually, the Court will only allow you to ring-fence the assets if they are not required to satisfy the needs of the other spouse and more importantly the children of the marriage. However, your family business may have increased in value since the point of marriage, or start of the relationship and this value should therefore be taken into account and ringfenced as a result. It’s hard to assess this value retrospectively and you would often need a forensic account to undertake this exercise. In an ideal world, you should carefully consider
your options prior to getting married, and ensure that a valuation is done at that time, but in reality who does that? It is not uncommon for some family businesses to bring in non-family members to boost the business such as a new partner, shareholder or director. Of course when doing so, an exercise of due diligence is carried out to ensure the business partnership will effectively be a ‘happy marriage’ and when bringing in a new romantic partner into the business a similar approach should be taken. Although going through the lengthy due diligence exercise may be unrealistic, speaking to a family lawyer to assess what options are available could pay off considerably in the long run and help to avoid complex divorce proceedings. For example, a pre-nuptial agreement could be exactly what you need. For some people this is unpalatable and can be very unromantic, but for others it is a sensible planning tool, which can save a huge amount of heartache and money if the worst happens. Bringing a new partner into your life is of course incredibly important and no doubt requires a considerable amount of thought, emotion and planning. This is multiplied further if also introducing them into the family business too, so always give it a lot of thought and take some advice, so that you all go in with your eyes wide open!
For more information please contact Zahra Pabani, Family Law Partner Email: zahra.pabani@shma.co.uk Tel: 0121 214 0318
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PROFILE Anthony Collins Solicitors
Why won’t you let us be a family? Surrogacy and the need for reform. Following the publication of ‘Surrogacy in the UK: Myth busting and reform’ in November 2015, Kadie Bennett of Anthony Collins Solicitors looks at the issues and pitfalls with the current law on surrogacy arrangements that have once again come to the forefront of family law developments. The law in this area is primarily governed by the Human Fertilisation and Embryology (HFE) Act 1990. Whilst the Act has been reviewed, in 2004 and 2007, and subsequently amended by the HFE 2008, the legislation in this area has not seen a significant overhaul since its enactment. As the report highlights, the need for reform in the area of surrogacy law is great and can no longer be ignored. The main area in which reform is needed is the time limit in which parents can apply for parental orders. Currently, applications for parental orders can only be made between six weeks and six months after the birth of the child concerned. In 2014, Anthony Collins Solicitors’ childcare team was successful in challenging the time limit imposed by the HFE Act and secured a parental order for the intended parents who had made their application after the six month time limit had elapsed (Re X [2014] EWHC 3135). Understandably, this is the area of reform that is most frequently challenged. It can only be assumed that the need to challenge the time limit in which parental orders can be made is primarily due to the lack of awareness of intended parents. This was recently highlighted again in the case of A & Anor v C & Anor [2016] EWFC 42, where the applicants requested that a short judgement was put into the public domain, to raise awareness and encourage other people in the same position as them to make applications to secure their legal relationships as soon as possible. Problems can also arise if surrogacy arrangements have taken place with a surrogate mother being located outside of the UK. There are additional requirements in relation to the immigration status and entry requirements for the child etc. that can lead to applications being made outside of the time limits imposed by the HFE Act. A further area for reform is that the law doesn’t
Kadie Bennett allow for single parents to apply for a parental order, despite an intended parent being able to foster and/ or adopt a child or, in the case of a female intended parent, undergo IVF. This can be frustrating when the intended parent is biologically linked to the child. In this scenario, a source of legal recourse would be for the
“As the report highlights, the need for reform in the area of surrogacy law is great and can no longer be ignored”
intended parent to apply to the court under a child arrangement application. Any order made would be regulatory in nature, rather than transformative, and therefore would usually extinguish the day before the child’s 17th birthday. Alternatively, adoption could be considered by the intended parent; however this is not without its own difficulties. The report highlights that the law requires one or both of the intended parents to have a genetic link to the child, in order to apply for a parental order. The report highlights that by comparison there is no such requirement for those who undergo IVF. This is because the law recognises the gestational mother as the legal mother of a child. This is both unfair and arguably a violation of rights to equality among other basic rights. It is clear that as technology and science advances and as society becomes more accepting of nontraditional family arrangements that the need and want for review and reform will only grow and build momentum. It is fair to say that we, at Anthony Collins Solicitors, are particularly interested and excited to see what developments are borne from this report and hope that reform in this area is soon to be forthcoming – for the benefit of both the children and families involved.
For further information, please contact Kadie Bennett kadie.bennett@anthonycollins.com 0121 214 3545 https://newsroom.anthonycollins.com/profiles/ bennettk
Planning for long-term care
Thanks to continuing advances in medical care and healthier lifestyles, we have the potential to enjoy longer lives. While most of us embrace this prospect, many of us also recognise that increased life expectancy comes at significant financial cost. Financing the long-term care of ourselves or our families may seem rather daunting which is why the Birmingham office of accountancy, investment management, financial planning and tax group, Smith & Williamson, is hosting a free seminar which will give you the information and guidance you need to plan for the future. John Hodgson, managing partner of tax & business services at Smith & Williamson in Birmingham, will open the seminar with a look at ways to plan for later life, what is involved and how you might benefit. John said: “Social care is a course of anxiety for many, we seek to alleviate the problem by helping people to make the best use of their finances and finding the most effective ways of funding their care. “The social care arena is such a complex and confusing one and we hope that our seminar will provide some valuable insights. The last thing people want to do is leave things to chance and find themselves having to make crucial decisions for themselves or their loved ones when they are at their most vulnerable. At such times, people frequently feel very emotional and under pressure to make the right decisions, often in a very short space of time. “Fortunately this scenario can be avoided through careful planning with help and support from specialists that can advise on the various considerations, from ways to minimise capital erosion and improve cash flow planning, to setting up a Power of Attorney.”
These include: • Understanding who is responsible for delivering social care and your options when paying for it • Where to go for assistance and the different types of care available • Ways to organise your estate effectively, including balancing the need to access capital when you need it and managing inheritance tax • Aiming to maximise the return on your investments at a time when interest rates are low and retirement and care costs are rising • The value of Powers of Attorney for everyone, regardless of age or time of life. The later life planning event is taking place at the Birmingham Repertory Theatre (REP), Centenary Square, on Thursday 24 November from 2pm to 5pm. Refreshments will be served and there will be an opportunity to ask questions after the briefings and meet speakers on a one-to-one basis afterwards. To find out more or reserve your place, please contact Jas Dhillon at Smith & Williamson on 0121 710 5226 or email BirminghamEvents@smith.williamson.co.uk John Hodgson, Managing Partner Tax & Business Services Birmingham t: 0121 710 5200 e: john.hodgson@smith.williamson.co.uk w: smith.williamson.co.uk
John will be joined at the seminar by five other speakers, each specialists in their field, who will provide thought-provoking overviews of the issues.
By necessity, this briefing can only provide a short overview and it is essential to seek professional advice before applying the contents of this article. No responsibility can be taken for any loss arising from action taken or refrained from on the basis of this publication. Details correct at time of writing. The tax treatment depends on the individual circumstances of each client and may be subject to change in future. Smith & Williamson LLP Regulated by the Institute of Chartered Accountants in England and Wales for a range of investment business activities. A member of Nexia International. The word partner is used to refer to a member of Smith & Williamson LLP. Smith & Williamson Financial Services Limited Authorised and regulated by the Financial Conduct Authority. The Financial Conduct Authority does not regulate all of the products and services referred to here.