Ask the Experts – May 2012

Ask The Experts: This month three members of our senior team answer your business and private client questions…

Q: I rushed into a civil ceremony with my partner after the change in law in 2005, but we have now decided to split up. I am unsure how to pursue a legal dissolution, are the legal obligations the same as a divorce for heterosexual couples?

A: Anita Shepherd, solicitor in our family department: The procedure for obtaining a dissolution of a civil partnership is nearly identical to that of a divorce.  Dissolution proceedings cannot be brought within the first year of the civil partnership.  After this time, in order to obtain a legal dissolution you need to show that the relationship has broken down irretrievably.  There are four grounds for proving irretrievable breakdown; unreasonable behaviour, two years separation, five years separation and desertion.

Unlike divorce proceedings, it is not possible for a civil partnership to be dissolved on the grounds of adultery.  However, sexual infidelity may be one of the factors used to support an unreasonable behaviour Petition.

Once one of the four grounds has been established the legal proceedings are then very similar to those in a divorce. The petitioner sends the ‘Dissolution Petition’ and a ‘Statement of Arrangements for children’ (if there are children involved) to the court. The court will “issue” various papers which the Respondent is then required to complete and return to the court.    As long as the Respondent does not defend the dissolution, which would be very rare, the proceedings can progress.

If the Judge is satisfied that the Petitioner has proved that the civil partnership has irretrievably broken down, he or she will set a date for the ‘Conditional Order’ (the first formal stage of the dissolution) to be made. On that date the Conditional Order will then be made, usually without anyone attending at court. Six weeks and one day after its pronouncement the petitioner may then apply for the Final Order to be issued.  Once the Final Order is issued the civil partnership is legally dissolved and the parties are free to enter into a new civil partnership.  —

Q: I am a company director and I’m considering putting the business into administration and then immediately purchasing its business and assets under a pre-pack transaction.  What are the legal issues for me and my co-directors?

A: Sonio Singh, partner in our corporate department: Pre-pack purchases by the management team of a company are usually advantageous in ensuring a speedy transfer of a business and can minimise the loss of supplier/customer confidence often caused by insolvency proceedings.  Pre-packs can also save jobs.  However, given the potential abuses of pre-packs and their increasing regulation, I would recommend that you consider a number of issues.   Firstly, directors must consider their statutory duties under the Companies Act 2006. The directors are also required to provide detailed information to the Administrator regarding the business of the company so a valid and proper assessment of its business and assets can be made.  The directors must ascertain whether a pre-pack is appropriate by considering the creditors of the company and it is extremely important to conduct as much informal due diligence as possible.

The management team should also ensure that (as far as possible) all wages of the employees are paid up to date and all consultations under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) have taken place.  As well as claims for lack of consultation, employees who are dismissed in contemplation of a pre-pack can claim damages from the purchasing company.

There are several other key factors to consider so always consult a commercial lawyer before proceeding.

Q: One of my long serving employees is currently on maternity leave. She is due to return in the summer and has recently asked whether I will agree to her returning on 3 days a week. I don’t want to lose her but we are a small business and she holds a key role. Am I ok to reject her request?

A: Anna Bunting, partner in our employment department: A woman on maternity leave has the right to return to her job on the terms – including hours – that she enjoyed previously. However, she also has the right to make a request for flexible working so you should consider her request properly before reaching a decision. The first thing you should do is clarify whether she is making a flexible working request as there is a statutory procedure you must follow which involves meeting with her to consider her request and writing to her thereafter to confirm your decision. She also has a right to appeal against the decision. There are strict time limits that need to be adhered to and employees can bring a claim if it is not followed so it is worth taking some advice on how to deal with it. The legislation recognises that an employer may have legitimate business reasons for rejecting a request and there are eight specific grounds that can be raised as a reason for rejection, such asInability to re-organise work among existing staff”, and Detrimental effect on ability to meet customer demand”.

However, you should explore whether you can accommodate her proposals and listen to her suggestions as to how it would work as if she feels you have rejected her request simply because you don’t want a part time worker you may also face claims of discrimination. Job sharing and flexible working arrangements can not only help to keep good staff but also work well.

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