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Last updateTue, 24 Feb 2015 5pm

Russell-Cooke LLP

Russell-Cooke LLP

There are particular duties, responsibilities and issues to bear in mind when dealing with property matters for charities. Clare Garbett gives an overview

It is reasonably well known that there are various common law and statutory duties with which charity trustees must comply when dealing with property.

A recent EAT decision on night shift pay is threatening the overstretched care sector’s ability to provide services, warns Carla Whalen

Calculating the national minimum wage (NMW) has long been a source of worry for employers, with particularly difficult questions arising over workers who undertake on-call and sleep-in shifts overnight.

A preliminary ruling by the ECJ has found a UK exit tax to be a restriction on the freedom of establishment. Christopher Salomons explains

On 21 December 2016 Advocate General Kokott issued an Opinion regarding the compatibility of s80 TCGA 1992 with the fundamental freedoms under the Treaty on the Functioning of the European Union (TFEU) in the case of The Trustees of the P Panayi Accumulation & Maintenance Settlements v Commissioners for Her Majesty’s Revenue and Customs [2015]. The First-tier Tax Tribunal (FTT) had requested a preliminary ruling.

A host of legal decisions, reviews and reports is calling into question the notion that workers such as Uber drivers and couriers are self-employed, writes Natalie Razeen

Frank Field MP, chairman of the House of Commons Work and Pensions Select Committee, did not mince his words when he described the growing gig economy (in which workers are paid by the job, or ‘gig’) as sulphurous and representing to many:

Camilla Thornton examines case law post-Radmacher where a party has sought to overturn the terms of a nuptial agreement

It has been five years since the Supreme Court held in Radmacher v Granatino [2010] that the court should give effect to a nuptial agreement that is:

Paolo Sidoli looks at a reassertion of privilege by the Court of Appeal

In Avonwick Holdings Ltd v Shlosberg [2016], the Court of Appeal considered whether privilege attaching to a bankrupt’s documents constituted property which vests in a trustee in bankruptcy and, if so, what use can be made of the privileged documents in the exercise of a trustee’s statutory powers.

Alex Bearman considers the findings of a recent report on whether the legislation which protects religious freedoms is striking the right balance

The laws which seek to protect people from religious discrimination continue to ignite controversy about how far that protection should go. Should an employer with a religious ethos have the right to refuse to employ an individual on religious grounds? Should employees have the right to opt out of work duties which conflict with their religious views? Should an organisation have the right to refuse to carry advertising which promotes a religious message?

Michael Colledge and Chris Rowse advise charity trustees on best practice when faced with litigation

Every organisation will face legal issues at some point, whether that is the sale or purchase of property, or a dispute with another party. Charities are no different, but in the case of disputes charity trustees will have some different considerations to take into account when considering whether to enter into litigation, including the duty to preserve charity assets.

Anthony Sakrouge looks at the key lessons from Uber’s failure to convince the employment tribunal that its drivers are self-employed

The recent decision in what has been dubbed ‘the employment case of the year’ (Aslam and v Uber BV [2016]) again confirms employment tribunals’ willingness to disregard written contract terms where these do not reflect reality, adopting the Supreme Court’s approach in Autoclenz Ltd v Belcher [2011]. The decision has generated huge levels of interest, as few organisations divide opinion more than Uber, which was founded only seven years ago but is now said to be operating in more than 500 cities around the world. It is likely to have reassured those concerned about exploitation in the gig economy (so called because workers are paid per job, or ‘gig’, rather than per hour or month) but worried organisations with a similar business model to Uber.

Rebecca Stone looks at the implications of bankruptcy both prior to and following a financial agreement or order

The ramifications of the outcome of the EU referendum on the 23 June 2016 for family law remain unknown. However, with concerns that there may be another economic crisis very much on the radar, it is perhaps a good time to review the difficulties that people face if their spouse goes bankrupt either before or after a financial agreement has been reached.

James Carroll and Shantel Burbridge highlight the disparity in the courts’ approach to cohabitation that precedes marriage or civil partnership, and cohabitants who do not marry or enter into a civil partnership

This article explores the contrast between a period of cohabitation being taken into account in calculating the length of marriages and civil partnerships, and the current state of law on cohabitation.

Camilla Thornton analyses recent decisions on maintenance and whether joint lives maintenance orders are facing extinction

There seems to have been a sea-change in recent years with the courts more reluctant to award joint lives orders in circumstances where historically they would have been granted. This is perhaps as a consequence of the economic difficulties since 2008 or because of the recommendation of the Law Commission in its paper ‘Matrimonial Property, Needs and Agreements’ (Law Com No 208) that (para 102):

Rebecca Stone reviews the case law relating to family businesses and the differing approaches taken by the courts to such assets

The question of how to deal with a shareholding in a private company following a divorce/dissolution can be tricky. Pre-White the courts tended to look at the income produced by the business/shareholding and consider what was available to meet ‘reasonable requirements’. Post-White the courts have had to consider how to adhere to the ‘yardstick of equality’ principle when some assets are tied up in a business.

Camilla Thornton outlines the courts’ approach to income such as bonuses and how this may be reflected in an order for periodical payments

It is eight years since the decision in Miller v Miller; McFarlane v McFarlane [2006] established the principle that the resources of the marriage should be shared and that (per Baroness Hale, at para 144):

Alison Regan analyses the implications of the Supreme Court decision in Marley v Rawlings

On 22 January 2014 the Supreme Court unanimously ruled that a couple’s intended heir should not be disinherited despite the husband and wife mistakenly signing each other’s will. Lord Neuberger delivered the judgment which determined that the will erroneously signed by Mr Rawlings could be admitted to probate.

Anthony Sakrouge contemplates the sometimes fine line between workplace bullying and robust performance management

In a recent survey carried out by the Unison trade union, 15% of the 1,300 respondents at Sutton Council considered that they had been bullied by colleagues. This statistic will come as no surprise to employment lawyers, as bullying allegations are increasingly common in employment litigation. So why does bullying appear to be on the increase, despite all the efforts to eradicate it, what are the flashpoints in the workplace, and what more can be done to prevent it?

Following a string of high-profile scandals, interest in whistleblowing looks set to remain high, suggests Fudia Smartt

On 2 July 1999, the Public Interest Disclosure Act 1998 (PIDA) was introduced, to protect workers from detrimental treatment and victimisation for having ‘blown the whistle’ on malpractice. It became law, by way of a private members’ bill, following a series of disasters and financial scandals, including the misappropriation of the Maxwell pension fund, the collapse of Barings Bank and the capsizing of the Herald of Free Enterprise off Zeebrugge.

Camilla Thornton looks at the approach of the Court of Appeal in a case involving non-matrimonial assets and problematic evidence

The case of Davies v Davies [2012], which involved a hotelier in Bayswater and his Australian wife, attracted a considerable amount of press interest. The headlines read ‘Wife known as hotelier’s “second best receptionist” in fight for £2.7m divorce’ (MailOnline) and ‘Wives who divorce wealthy husbands can’t expect big payouts, judge warns’ (The Telegraph).

Kate Hamilton looks at recent case law on validity of marriage

It is fairly uncommon for the principles relating to the law of nullity to pass across the desk of the average family practitioner. However, in the last three years there seems to have been a number of cases on this topic and so perhaps, these cases are becoming more prevalent.

Richard Frimston discusses the implications of the EU Succession Regulation

The EU Succession Regulation (SR) came into force on 17 August 2012. It is designed to counter the problem that different states have completely different private international law rules (PIL) for succession. While the UK uses domicile as a connecting factor, others use ‘domicile’ but with different definitions to those of the UK. The PIL of most of the rest of the EU is that succession law is governed by the law of an individual’s nationality and that the entire estate, movable and immovable, is governed by that law.

In the conclusion to a two-part analysis Hannah Minty and Sally Nash compare the differences in practice between financial provision in England and Wales and in Scotland

Part one of this article outlined the general principles of family law in Scotland and we considered the contrasting approaches of the Scottish courts and those in England and Wales to cases involving short marriages and civil partnerships. In this concluding part we will apply that analysis to case law involving pre-marriage assets, trusts and marital agreements and outline the jurisdictional limitations where Scottish proceedings are contemplated.

In the first of a two-part analysis Hannah Minty and Sally Nash compare the differences in practice between financial provision in England and Wales and in Scotland

In recent months there has been much debate in the political arena and the media over the question of Scottish independence and what that might mean for the future of the UK. Independence has, of course, long been the norm for the Scottish legal system. A brief examination of the matrimonial regimes north and south of the border highlights how the operation of these two legal systems can produce markedly different outcomes.

James Carroll and Juliet McDermott discuss interim occupationof the family home pending divorce

Commonly, when facing a divorce, the biggest asset will be the family home. Both parties will need to decide what is going to happen to the family home in the longer term. This will require consideration of their respective financial circumstances, including incomes, and if appropriate the needs of any children. Before the divorce becomes final, parties will have to consider who occupies the family home in the interim and how it will be financed. This can include a myriad of considerations including who pays for the mortgage, outgoings such as home contents and buildings insurance, mortgage payment insurance, council tax, and utility bills. Parties will also need to consider the upkeep of the property, maintenance, decorations and other works. These considerations may be crucial in determining who should stay in the family home since it may be the case that one person staying alone cannot afford to do so. In this case the question of interim maintenance arrangements and perhaps benefits entitlements also needs to be considered.

Richard Frimston and Beth Norton clarify the position on double taxation following the EU’s recent communication

Clients with cross-border issues are increasingly common. This can lead to difficulties in relation to the payment of inheritance or estate taxes following a death, with tax often being payable in more than one state. On 15 December 2011 the European Commission published a communication entitled ‘Tackling cross-border inheritance tax obstacles within the EU’ in an attempt to address this issue within the European Union member states. This was accompanied by a Commission recommendation and a Commission staff working paper. The communication and accompanying documents have potentially wide-reaching consequences for trust and estates practitioners in the UK. Some of the likely issues that will arise are highlighted below.

Lauren Hall looks at recent case law regarding the correct approach to be applied upon an article 13b defence of risk of harm

One of the possible defences to a Hague Convention application for child abduction is grave risk of harm to the child. This means that returning the child to where they had been living prior to their removal would place them at risk of grave psychological or physical harm or otherwise place the child in an intolerable situation. This defence derives from article 13(b) of the Hague Convention. The past nine months has seen the Supreme Court turn its attention to this same issue on two occasions. This article will assess the current interpretation of article 13(b) in light of those two cases.

With changes to the tenancy deposit scheme legislation expected to come into force in April, Edward Cracknell assesses the practicalities of the legislation

The saga of the tenancy deposit scheme legislation, introduced in 2007, has taken another important turn, this time very much in favour of tenants. As those involved in letting properties on assured shorthold tenancies will know, the legislation has been the subject of a number of court cases and the government has now taken the opportunity to clarify the legislation.

James Carroll and Hannah Minty set out best practice when drafting cohabitation agreements

Family practitioners throughout the country breathed a collective sigh of relief on behalf of Patricia Jones when the Supreme Court ruled that the first instance decision of HHJ Dedman should be restored, awarding Ms Jones a 90% interest in the jointly-owned property for which she had been financially responsible during her 14-year period of separation from Mr Kernott.