Solicitors Be Warned – New Barristers Terms Of Engagement

Recently, the Bar Council announced that it was to instruct all Barristers Chambers to use The (New) Standard Contractual Terms For The Supply of Legal Services to Authorised Persons 2012 (otherwise known as Annexe T). Where do we stand as Solicitors?

In effect any Solicitor etc. who now instructs Counsel is subject to those terms now.

The Law Society have been in negotiations with the Bar Council on creating a generally approved new set of terms of engagement in written format. No prizes for guessing that they could not agree. Both sides are accusing the other of being unreasonable to the point, in my humble view, that they BOTH look like petulant children.

The Bar Council as I understand is simply driving a coach and horses through negotiations by simply saying to Counsel and Counsels Chambers that they will go ahead anyway and indeed have done.

The Law Society have taken their bat and ball home and said in effect to us not to agree the standard contractual terms and negotiate INDIVIDUALLY.

What a nightmare.

I have pored over the Law Society’s Practice Note on the new terms, I have also seen the Bar Council’s Guidance in response and neither of them seem sensible in the approach. As far as I am aware, therefore, we are left in limbo where we are expected to negotiate direct with each Counsel that we use each time we use them. What a bloody nightmare!

What surprises me is that there is little comment on the new terms. Are you (Solicitors) all aware of them?

I have revised the new terms to something that I think is workable, sensible and fair (wasn’t that hard to do but was time consuming) and so far the Chambers that I use have been happy to adopt the changes.

What is everyone else doing?

If you do not have the (Law Society’s) Practice Direction or the (Bar Councils) Guidance and Annexe T I am happy to send you a copy or try to find  link for you. I am also happy to share my adapted version of the Annexe T if anyone wishes to have a copy of the same. (Please do not be offended, but I will only reply to Solicitors).

The information provided in this article is not intended to constitute legal advice and each relationship breakdown requires careful consideration in our view by a fully qualified Solicitor before decisions are made and before you embark on a certain course of action.

Shak Inayat

Solicitor

0207 183 2898

© Shak Inayat 2013

Butchers And Solicitors – In The Same Game?

Butchers and Solicitors – in the same game ?

I read an article in the Metro today on the tube today when coming into work today which gave me food for thought (ok enough of the puns) about how similar butchers are to Solicitors.

The High Street Butcher, the last bastion of quality workmanship in preparing a decent joint – a person who takes pride in his cuts of meat, who lovingly appreciates a quality joint carefully prepped and expertly shaped by his own hands – has been slowly dying on the high street and shoved over unceremoniously, without even a wave goodbye by the monopolistic leviathans of the supermarket chains.

These supermarkets initially processed the meats and plonked them into some ugly plastic white trays (which looked more appetising than the meat itself) and covered them with cling film after allegedly injected the said meats with water to add volume. We still bought these products though didnt we ? I admit that I did.

Then to add insult to injury, the same supermarkets that have almost destroyed the high street butcher shops emulated these high street butchers by giving the impression in a corner of these vast buildings that they were like a local butcher !

Now with the horse meat scandal – these charlatans are losing business in droves and consumers (including turncoats like me) are starting to appreciate the value of the high street butcher and returning to their stores rather more sheepishly, ashamed of our errant ways.

Now, let’s look at the small high street solicitor, educated, proud of his craft, intellectually willing to challenge their opponent and indeed the Executive (of government) all in the name of natural justice, often for a pittance and pretty much always without a thank you.

At the starting line are the Co-Op and their ilk……………soon to attempt to take the work away that we do – no doubt, initially as pre packaged options – minus the cling film – thereafter, when that does not work they will evolve to try to give the impression of being a warm cuddly local high street firm of solicitors in each vast monolithic supermarket (oh the horror of it is too much to bear).

After the first furlong, there will be an equivalent horse meat scandal in the legal world, not unlike TAG or conveyancing farms who could only process the most simple of transactions (bless them), or will writers who dumped their unwanted wills by the bus stop when they went bust .

Then, our less that benevolent clients may come back to us – realising that sometimes the other way is the best way.

I am all for improvements being made to our profession – and there is a lot that needs to improve – but change for change’s sake – no thanks…. I will stick to the high street butcher if you don’t mind but thanks all the same.

 

The information provided in this article is not intended to constitute legal advice and each relationship breakdown requires careful consideration in our view by a fully qualified Solicitor before decisions are made and before you embark on a certain course of action.

Shak Inayat

Solicitor

0207 183 2898

© Shak Inayat 2013

Disclaimer – No animals were harmed during the writing of this article.

Divorce v Religion – An Unholy Union

There is a lot going on in the press and in religious institutions regarding same sex marriages and actually there has always been, let’s say “dialogue” or you could say outright war in some periods of our bloody history, in the literal sense, between the state and the Church.

I use the term Church to mean the English Church (which over time was Catholic and then Protestant and now both) in the historic sense but in the contemporary sense I use that term to cover the whole multitude of religious institutions and denominations.

The chasm between the rights of the individual as propounded by the state and the rights of the individual as propounded by the Church has come to rear its ugly head again in relation to same sex marriages – now quite well documented all over the media and in chat rooms and where ever else people communicate.

In case you have been on the Moon until now, there was a free vote in the House of Commons on the second reading of The Marriage (Same Sex ouples) Bill and MP’s voted with their conscience (I use that term VERY loosely) and the final outcome was 400 in favour of the Bill and 175 against the Bill.

For the sake of completeness, for a Bill to become law it must pass through 5 stages in the Houses of Parliament approved by MP’s and then 5 stages in the House of Lords approved by the Lords. It has passed through the second of those 10 stages – but whilst that may seem as though it has a very long way to go and may not get passed as an Act, one of the main hurdles has just been passed so it is truly a historic moment, even if the game is not over yet, so to speak,

The Catholic church has campaigned against the Bill, which is also strongly opposed by the Church of England, the mainstream Protestant denominations and by Jewish, Muslim and Sikh leaders.

I approach this issue from a neutral perspective because that actually is where I stand. I completely believe in fairness and equality for all.

The 400 Ayes

On the one hand, for the ayes, I completely accept that LBGT’s need to and should have the right to show their love and commitment to their partner in a way that feels appropriate and legal.

If that means that they wish to marry, as I can as a heterosexual male, then I see no reason why two loving people of the same sex cannot do likewise.

I am a happily married. I wished to cement my relationship to a level of permanence with my then fiancée that I felt was only obtainable by the vows of marriage and I see no reason why others, including those of the same sex would not want the opportunity to do likewise.

I feel in some ways that the resistance that I felt (and yes I admit I was initially opposed to same sex marriages) must have been akin to me being a white segregationist in 1950’s and 1960’s America. LBGT’s must feel how African Americans felt not that long ago when segregation was in full swing and Blacks felt when they were treated as second class citizens. That cannot be right.

I had to learn to understand that and I now accept it.

The 175 Nays

However, as an atheist, I also had similar issues with understanding the plight of those who have Faith. I could not understand why those who are riddled with religious dogma were so averse to accepting that the love of two people of the same sex was incompatible with the love of their religious teachings, whatever that religion may be.

However, even as an atheist it feels morally repugnant to me (however wrong the Church may or may not be) to impose the will of same sex marriages on those who find it unacceptable for their religious beliefs.

However, as much as I am not gay and had to learn to understand and accept what LBGT’s must have been going through, I have also accepted that I do not understand what those of Faith must be going through either.

But I have had to learn to understand and accept what those of Faith must be going through too.

To me, that was the only fair and equitable thing to do.

The Ayes Have It?

I am not sure that the outcome of the second reading of the Same Sex (Couples) Bill is the right one. Aside from the massive legislative changes that will need to take place now – and be under no illusion that the changes needed to collateral legislation will be vast, not just huge, but vast; in a time of austerity I think the legislation should be made law but not implemented for a period until we have the appropriate fiscal security to make sure that those who will be seized of making the necessary legislative changes do not make a hash of it.

To avoid politicking, there ought to be a long stop deadline by which such changes must be implemented. I appreciate the sadness and upset that this would cause many of the same sex who are desperate to show their love in a marriage but at present cannot.

I am also of the opinion that the quadruple lock that the government has promised the Churches will not endure. Over time it will erode and it will be subject to legal action and I have a very strong suspicion that it will be overturned on Human Rights and Equality grounds in due course. I do not think that will happen overnight, but I suspect it will happen.

Rightly or wrongly, the LBGT movement, if I can call it that, is becoming more militant as they rightly stand up for their rights. It is that very same militancy that I suspect will lead to challenges to the quadruple lock that will erode the expected Churches’ rights not to engage in ceremonies involving same sex couples.

I think that will serve to alienate hitherto pro LBGT rights individuals to becoming less so and that cannot be a good thing.

Perhaps I am being naïve and I accept that I may just simply not grasp the heart felt feelings of the LBGT community or indeed the Faith community (being a heterosexual atheist!) but I understand some Churches (and remember I use that term loosely to encompass all faiths) are already willing to allow LBGT couples to marry in any event.

The secular right for same sex couples to marry will (and should) always be available but the non-secular option for same sex couples to marry in a Church should be one that is negotiated religion by religion, denomination by denomination, city by city and town by town.

We must all have free will and not be compelled to marry those whom we choose not to marry if our Faith does not condone it. After all, a Muslim heterosexual couple would not be entitled to marry in a Catholic church either.

 

The information provided in this article is not intended to constitute legal advice and each relationship breakdown requires careful consideration in our view by a fully qualified Solicitor before decisions are made and before you embark on a certain course of action.

Shak Inayat

Solicitor

0207 183 2898

© Shak Inayat 2013

Same Sex Marriage And Adultery – Some Problems To Ponder

Right now the topic of conversation seems to be that of same sex marriages.  It is now very clearly settled (unless there are substantial upsets at further readings of the Same Sex Bill presently working through the Houses of Parliament to be eventually enacted as an Act of Parliament) that same sex couples will be able to get married.

I cannot state how substantially that is going to impact upon present legislation and in particular in relation to divorce legislation.  In simple terms we need to look forward to what will happen in the event, and of course this will happen at some stage, when same sex couples who have married want to get a divorce.   Let me throw up a couple of problems I can immediately envisage and I would draw your attention to my later blogs dealing with the interrelationship between religion and divorce and the substantial anomalies that this throws up which are coming soon.

I will try not to be too technical nor too sexually explicit for you shrinking violets out there but in simple terms when a heterosexual couple decide to divorce one of the grounds for divorce are that the other party has committed adultery.

Believe it or not when getting into the details and technicalities of adultery reading the case law and the primary legislation in relation to that is bordering on pornographic (who said law is boring!)

To keep things very simple and light hearted ‘snogging’ is not considered adultery that is in fact unreasonable behaviour.   Anything more than snogging, including heavy petting and a little bit beyond is also not considered adultery but could be one of other grounds for unreasonable behaviour.

The current legal definition of adultery is where physical sexual intercourse takes place including penetration between a man and a woman.  There is no provision for a sexual liaison to have taken place between same sex partners or new partners as the case may be.

Therefore, curiously as the law stands at present, and of course it will need to be changed, if I were a gay man in a same sex marriage and had an assignation with another man I could not be divorced for adultery.  The law at present would only allow my hard done by male partner to divorce me on the basis of my alleged unreasonable behaviour.  In reality it is easier to proceed (for reasons I will not bore you with at this stage) on an unreasonable behaviour petition than it is on an adultery petition, especially if it is going to be challenged or may be challenged.  Therefore that does not necessarily present us with any problems.  However my aggrieved partner may wish to divorce me for the right reasons and be sufficiently indignant to insist that I am divorced for my adultery which of course cannot be the case at present.  Such an application (petition) must fail until the law is changed.

Therefore when same sex couples are finally able to be married unless this piece of legislation is changed then whom that person chooses to have a relationship with will determine whether adultery has been committed or not.

The moral of the story?  Let the legal nightmares begin.

Shak Inayat

Solicitor

0207 193 2898

Divorce Made Simple 6b – I Still Do Not Have The Acknowledgement Of Service Form – What Next?

Following on from my earlier articles in relation to the process of a divorce we assume that by this point you have not received the Acknowledgment of Service Form that your estranged spouse should have returned to the Court even though you have served them by bailiff or private process server.

If they have returned the Acknowledgment of Service Form and you served them by bailiff or process server please refer to the article 6a as that is more relevant for the next step to take as the procedure is slightly different from the process I am about to describe when you do not have the Acknowledgement of Service Form in your possession.

 

Timescales

For reasons that I will not bore you with, you need to wait 29 days not including the day your estranged spouse was served with the documents before you can proceed onto the next stage.

Once those 29 days have elapsed AND if your estranged spouse has not filed any documents at court – you can proceed onto the next stage.

 

Application for Decree Nisi

You need to now make an application for Decree Nisi.  In simple terms Decree Nisi means nearly divorced.  It is almost the final stage of a divorce.  You would have to wait a further six weeks before you can make the Decree Nisi Absolute – but let’s not get ahead of ourselves.

The application for Decree Nisi used to be known as a Request for Directions for Trial (special procedure) but the Courts in their wisdom have, finally, simplified the process somewhat.  If you search the internet many divorce sites will still refer to a Request for Directions for Trial (special procedure) if they have not updated their websites but essentially the process is the same.

There are two documents that you will need to obtain from either a reputable legal stationer (which will involve a cost of perhaps a few pounds) or you can download from the Justice Website which you will find HERE.

Forms Required

The forms that you require depend on the type of divorce that you instigated against your estranged spouse:

a)         If you commenced divorce proceedings based on your estranged spouse’s alleged adultery then you will need Form D80A.

b)         If you commenced divorce proceedings based on your estranged spouse’s alleged unreasonable behaviour then you will need Form D80B.

c)         If you commenced divorce proceedings based on your estranged spouse’s alleged desertion for more than two years then you will need Form D80C.

d)         If you commenced divorce proceedings based on the fact that you had been separated for a period of two years and that your estranged spouse has consented to the divorce then you will need Form D80D.

e)         If you commenced divorce proceedings the fact that your estranged spouse has been separated from you for a period in excess of five years then you will need Form D80E.

The forms are relatively straightforward and simple to complete nowadays and no longer require you to attend a solicitors practice or the Court to get them sworn as an affidavit.  Now you simply complete the form and sign and date the form, paying good attention to the fact that if you have lied on the form then you will potentially be sent to prison.

 

The (slightly) tricky part

The only slightly tricky part on the sworn statement is on the second page where it states you need to exhibit to your sworn statement as exhibit A the Acknowledgment of Service Form of your estranged spouse and also acknowledge their signature.  Clearly you do not have a copy of it.

If that is the case simply staple the copy of the bailiffs certificate of service or the private process servers certificate of service that  you have received to the sworn statement and on the top in the middle somewhere quite prominent write an ‘A’ on the bailiff certificate or the process servers certificate that you are returning.

Delete the words that refer to the Acknowledgement of Service Form and instead insert a description of the document you are attaching eg sworn statement of process served dated 10.01.01

There is also provision for your to return the Statement of Arrangements for Children back page, which again you only need to staple to the back of your sworn Statement and somewhere near the top middle mark that document with a prominent ‘B’.

If you are exhibiting a doctor’s report or other statement then you will need to mark that document ‘C’ in the same way.  It is usually the case that you will only exhibit the document A.

That is the first document duly completed ready to send to the Court.  The second document is an application for Decree Nisi which is a Form D84.  You can download from the same Justice website as above.  Again, that is a simple document you need to complete and should be self explanatory.  (The provisions for the conditional order relate to civil partnerships and you therefore generally do not need to deal with that part, unless you are dealing with the dissolution of a civil partnership).

Having signed and dated the application for Decree Nisi you need to send that document together with the sworn statement and the exhibits together to the Court.  I would very strongly recommend taking photocopies of all the documents before you send them (as indeed I would for any document you prepare or letter that you send, as these documents are notoriously lost in transit either by the postal system or by the Court).

 

Fee

You do not need to pay a fee to make your application for Decree Nisi.

 

The information provided in this article is not intended to constitute legal advice and each relationship breakdown requires careful consideration in our view by a fully qualified Solicitor before decisions are made and before you embark on a certain course of action.

Shak Inayat

Solicitor

0207 183 2898

© Shak Inayat 2013

Divorce Made Simple 6a – I Have The Acknowledgement Of Service Form – What Next?

Following on from my earlier blogs in relation to the process of a divorce we assume that by this point you have received the Acknowledgment of Service Form that your estranged spouse returned to the Court (presumably within the 7 days they were expected to do so but in reality more often than not a substantial period of time thereafter).  If your estranged spouse had not returned the Acknowledgment of Service Form to Court but was instead served by a bailiff or private process server that may have sprung them into action to return the Acknowledgement of Service Form very late.

If they have not returned the Acknowledgment of Service Form and you served them by bailiff or process server please refer to the next blog for the next step as the procedure is slightly different from the process I am about to describe when you do actually have the Acknowledgement of Service Form in your possession.

Application for Decree Nisi

You need to now make an application for Decree Nisi.  In simple terms Decree Nisi means nearly divorced.  It is almost the final stage of a divorce.  You would have to wait a further six weeks before you can make the Decree Nisi Absolute – but let’s not get ahead of ourselves.

The application for Decree Nisi used to be known as a Request for Directions for Trial (special procedure) but the Courts in their wisdom have, finally, simplified the process somewhat.  If you search the internet many divorce sites will still refer to a Request for Directions for Trial (special procedure) if they have not updated their websites but essentially the process is the same.

There are two documents that you will need to obtain from either a reputable legal stationer (which will involve a cost of perhaps a few pounds) or you can download from the Justice Website which you will find HERE.

Forms Required

The forms that you require depend on the type of divorce that you instigated against your estranged spouse:

a)         If you commenced divorce proceedings based on your estranged spouse’s alleged adultery then you will need Form D80A.

b)         If you commenced divorce proceedings based on your estranged spouse’s alleged unreasonable behaviour then you will need Form D80B.

c)         If you commenced divorce proceedings based on your estranged spouse’s alleged desertion for more than two years then you will need Form D80C.

d)         If you commenced divorce proceedings based on the fact that you had been separated for a period of two years and that your estranged spouse has consented to the divorce then you will need Form D80D.

e)         If you commenced divorce proceedings the fact that your estranged spouse has been separated from you for a period in excess of five years then you will need Form D80E.

The forms are relatively straightforward and simple to complete nowadays and no longer require you to attend a solicitors practice or the Court to get them sworn as an affidavit.  Now you simply complete the form and sign and date the form, paying good attention to the fact that if you have lied on the form then you will potentially be sent to prison.

The (slightly) tricky part

The only slightly tricky part on the sworn statement is on the second page where it states you need to exhibit to your sworn statement as exhibit A the Acknowledgment of Service Form of your estranged spouse and also acknowledge their signature.  If that is the case simply staple the copy of the Acknowledgement of Service Form you have received to the sworn statement and on the top in the middle somewhere quite prominent write an ‘A’ on the Acknowledgment of Service Form you are returning.

There is also provision for your to return the Statement of Arrangements for Children back page, which again you only need to staple to the back of your sworn Statement and somewhere near the top middle mark that document with a prominent ‘B’.

If you are exhibiting a doctor’s report or other statement then you will need to mark that document ‘C’ in the same way.  It is usually the case that you will only exhibit the document A.

That is the first document duly completed ready to send to the Court.  The second document is an application for Decree Nisi which is a Form D84.  You can download from the same Justice website as above.  Again, that is a simple document you need to complete and should be self explanatory.  (The provisions for the conditional order relate to civil partnerships and you therefore generally do not need to deal with that part, unless you are dealing with the dissolution of a civil partnership).

Having signed and dated the application for Decree Nisi you need to send that document together with the sworn statement and the exhibits together to the Court.  I would very strongly recommend taking photocopies of all the documents before you send them (as indeed I would for any document you prepare or letter that you send, as these documents are notoriously lost in transit either by the postal system or by the Court).

Fee

You do not need to pay a fee to make your application for Decree Nisi.

 

The information provided in this article is not intended to constitute legal advice and each relationship breakdown requires careful consideration in our view by a fully qualified Solicitor before decisions are made and before you embark on a certain course of action.

Shak Inayat

Solicitor

0207 183 2898

© Shak Inayat 2013