Lisa’s Law celebrates 10-year anniversary!

Lisa’s Law is now 10 years old! After starting with a mere desk in an office in Elephant and Castle, London, in 2012, Lisa’s Law has grown from strength to strength. Fast forward to 2022, as we celebrate our 10-year anniversary, and the company now numbers almost 50 employees and has three London offices.

To celebrate the 10-year anniversary of Lisa’s Law, we hosted a social event last month at a local restaurant in the area with all of our staff. It was fantastic for everyone to be able to get together, enjoy some food, a few drinks (and a few more!) and be able to catch up outside of work.

Led by the vision and drive of our founder and Managing Director, Chuanli Ding, Lisa’s Law couldn’t have got to where it is today without the hard work of all the staff who have contributed over the years, as well as the trust put in us by our loyal clients. Our promise to clients has always been “you instruct, we act”, and our target is to always provide good client service with a competitive price. We pride ourselves on our ability to provide swift solutions to any legal problems or enquiries clients have.

As part of our anniversary celebrations, we also hosted a competition to give back to our loyal customers and followers, with prizes worth £2000 overall. This included three prizes for each of our social media platforms including Twitter, Facebook, LinkedIn, WeChat and LittleRedBook.

Vouchers chosen by the competition winners included those from Amazon, iTunes and Love2Shop. It was great to see some of the comments and feedback regarding the service we had provided and about our blogs and social media, which aims to keep our followers up to date on the latest developments across our legal practise areas. We look forward to hosting further competitions in the future.

Some of the lovely comments we had from entrants to the competition included the following:

I am learning everyday from your posts and been teaching most of the laws I learnt to my kids. You are the most educating page I have been able to come across. Please continue your good works.
I love your updates. Verified and helpful. Your services are awesome. My friend who add an appointment year ago confirms that. Keep doing your great job. Happy anniversary
Good customer service, trustworthy and reliable. @lisaslawsolicitors has been provided quality service. Happy anniversary
Has to be the fact, your social media keeps relevant to moving times, policies and bills. Good to know where to come to find that.

We look forward to continuing to grow and progress as a company. Let’s see what the next ten years brings! Thanks once again to all of our clients who have helped us get to where we are today.

Have questions about this article? Get in touch today!

Call us on 020 7928 0276, our phone lines are open and we will be taking calls from 9:30am to 6:00pm.

Email us on [email protected].

Use the Ask Lisa function on our website. Simply enter your details and leave a message, we will get right back to you: https://lisaslaw.co.uk/ask-question/

Or, download our free app! You can launch an enquiry, scan over documents, check progress on your case and much more!

James Cook

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Sir Mo Farah’s revelation sheds a light on the dark world of human trafficking

It was one of the major talking points of the week. The British icon and most successful track distance runner of all time, Sir Mo Farah, revealed this week that the story he had told the world was, in fact, not true.

Mo Farah (as he is now known), was born as Hussein Abdi Kahin in Somaliland. After losing his father at a young age and being sent by his mother to nearby Djibouti, he was then illegally trafficked to the UK at the age of nine under the name Mohammed Farah and forced to work as a domestic servant. He had originally told the world that he had left Somalia aged eight to join his father. In reality, his father was killed in a civil war in Somaliland.

His PE teacher subsequently rescued him from his domestic servitude situation and helped him to apply for British citizenship under the name Mohammed Farah. Farah would go on to be an icon of British sport, a role model for young runners, and a knight. However it wasn’t until July 2022 that his true story was revealed.

The revelation comes during a time when the UK debate over immigration is highly fractious. The Rwanda policy (which we talked in about recent articles (see here)) has been delayed by the courts but is likely to continue given that it is supported by all of the Conservative leadership hopefuls. Whether Farah’s story has a lasting impact on the immigration debate remains to be seen.

But what does Farah’s case tell us about human trafficking in the UK, and would it have been quite so easy for someone like him to gain citizenship today? Keep reading to find out.

What can we learn about this case from a legal perspective?

Firstly, it’s important to point out that the Home Office have made it clear that they won’t be taking action against Sir Mo. Whether this would be the case if he wasn’t one of Britain’s most successful Olympians and a knight of the realm is another matter. To emphasise this point, it was made clear to Farah by his barrister that his British citizenship could be at risk because it was obtained “by fraud or misrepresentations” given that his real name was not Mohammed Farah. However, the Home Office made clear that they wouldn’t be taking action because the assumption is that a child is not complicit when a citizenship is gained by deception.

The case also brings to light the extent to which human trafficking and domestic servitude blights the UK. In 2020, the US State Department estimated that there were approximately 13,000 trafficking victims in the UK. 2021 saw a 10% rise in the number of child trafficking victims who have been identified in the UK, a total of 5,468. 2,477 of these are children, like Mo Farah, who had been trafficked into the UK. While the UK does clearly suffer from the blight of human trafficking, it is also ranked as a Tier-1 country in the US State Department’s annual report. This means that it complies with the minimum standard set by the Trafficking Victims Protection Act of 2000.

The Nationality and Borders Act 2022

While the approach towards tackling human trafficking has improved in the UK with the introduction of the Modern Slavery Act 2015, experts say that the Nationality and Borders Act 2022 has potentially made child victims of human trafficking less likely to come forward. The Nationality and Borders Act can result in a case being weakened if a victim of human trafficking does not come forward quickly, and the process of age-processing young asylum seekers has been taken away from social workers and put in the hands of border officials.

With only 2% of child trafficking victims being granted discretionary leave to remain according to government figures, something they are entitled to under international law. Furthermore, of all over 18’s who were trafficked illegally to the UK as unaccompanied children, just 35% were initially refused asylum in 2020. This puts current and future victims in a very difficult position. The creation of a two-tier asylum system in the Nationality and Borders Act creates a distinction between those who arrived in the UK legally, Group 1, and those who arrive in the UK illegally, Group 2. Farah would therefore have fallen into the Group 2 category, meaning that his route to citizenship would be longer. His path to citizenship now would have been temporary asylum status under the 10-year route, despite not having any control of his actions as a child.

What will happen now?

While Farah has been absolved of any wrongdoing by the police and told by the Home Office that “no action will be taken whatsoever against Sir Mo”, this does not mean that the matter is over. The Metropolitan Police have subsequently launched an investigation into the claims by Farah that he was trafficked into the UK and forced into domestic servitude. This will include investigating the couple which brought him into the UK and made him cook, clean and babysit. We wait to see if anything comes of this investigation.

Our comments

Firstly, we must commend Farah for his bravery in revealing the truth to the world about his true identity and the circumstances which brought him to the UK. Now 39, and no longer an Olympic athlete, it would have been easy for him to continue life with the spotlight off him. Sir Mo’s story has shed a light on the dark underbelly of human trafficking, and one would hope that it may help people and those in positions of power to sympathise with victims of similar circumstances. While we celebrate Farah’s achievements and the fact that the Home Office was so quick to reassure people that there was no threat to his British citizenship, it clearly should not be the case that the same is not true for those with a much lower profile.

Have questions about this article? Get in touch today!

Call us on 020 7928 0276, our phone lines are open and we will be taking calls from 9:30am to 6:00pm.

Email us on [email protected].

Use the Ask Lisa function on our website. Simply enter your details and leave a message, we will get right back to you: https://lisaslaw.co.uk/ask-question/

Or, download our free app! You can launch an enquiry, scan over documents, check progress on your case and much more!

James Cook

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Is breakfast cereal junk food? Yes, according to the High Court!

Is breakfast cereal junk food? That’s what the High Court decided recently when the cereal manufacturer, Kellogg’s, failed in its legal challenge against the government’s new food strategy.

The proposed regulations by the Department for Health and Social Care would mean that foods which are high in fat, salt and sugar would be banned from promotional offers such as buy one get one free and extra free. The measures are set to come in in October 2022.

Kellogg’s claimed that because their cereal is eaten with milk, this means that they should not come under the category of junk food. This was however dismissed on the basis that the addition of milk would not affect the fact that the cereal was already high in sugar.

Keep reading to learn more about this case.

The government’s anti-obesity strategy

As mentioned before, foods considered to be high in fat, salt, and sugar (HFSS) will be prevented from being able to take part in promotional offers from October 2022. These foods will also be unable to be displayed in high profile locations such as checkouts, shop entrances and aisle ends.

Kellogg’s contention with the regulations is driven by the fact that 54.7% of its products are classed as ‘less healthy’, a term the government uses to define these HFSS foods. Furthermore, 30% of Kellogg’s HFSS foods are sold through location promotions, which will cost the company £5m in profit according to the manufacturer.

The measures have caused a debate in the UK, with some finding it perverse to introduce regulations banning promotion on food during a cost-of-living crisis and at a time when millions of Britons also use food banks.

Nevertheless, there was also a sharp rise in childhood obesity during the Covid pandemic, with 14.4% of 4- and 5-year-olds now classed as obese compared to 9.9% in 2019/2020. In fact, while the measures were originally intended to be introduced in May, they were delayed until October over concerns by Boris Johnson over the cost-of-living crisis.

High Court dismisses Kellogg’s argument

Kellogg’s main argument was that unlike other HFSS foods, cereal is nearly always eaten with milk. Tom Hickman, QC, and counsel for Kellogg, made the case that because cereals are ‘overwhelmingly consumed with milk’, the overall proportion of sugar and salt is slashed and that therefore they shouldn’t be classed as junk food.

While Kellogg’s products like Coco Pops, Frosties, and Crunchy Nut are being measured without the inclusion of milk, other products such as hot chocolate or soup are being assessed with the inclusion of milk or water. Kellogg’s claim that their breakfast cereals are a ‘dehydrated food’, which are intended to absorb liquid which subsequently transforms its shape and texture. However, unlike tins of hot chocolate or soup you find in the supermarket, cereal can be eaten dry. This is certainly a hole in the argument made by Kellogg’s.

Kellogg’s also criticised the way the regulations had been developed, stating that they did not receive proper parliamentary scrutiny. Justice Linden dismissed this idea, pointing out that none of the breakfast cereal manufacturers raised the fact that they didn’t agree with the cereals being judged ‘as sold’ rather than ‘as consumed’, the latter of which formed the basis of Kellogg’s argument.

Following the outcome of the case, Kellogg’s have stated publicly that they will not be appealing against the verdict which the High Court came to. Kellogg’s also warned that this could subsequently result in higher prices for consumers once the regulations come in due to the lost profits which are expected to follow.

Our comments

We think it’s fair to say that the conclusion reached by the High Court in this case is one which the majority of people wouldn’t have too many arguments against. While they may not necessarily agree with the regulations themselves, Kellogg’s didn’t have a particularly strong case in arguing that because of the milk which is generally added to cereal, this means that its products should somehow be excluded from being classed as high in sugar, when they are in fact high in sugar.

However, there may be a happy outcome for Kellogg’s. Following the resignation of Boris Johnson as Prime Minister, the outcome of the Conservative leadership contest will determine whether or not the regulations come into effect in October, or indeed at all.

Have questions about this article? Get in touch today!

Call us on 020 7928 0276, our phone lines are open and we will be taking calls from 9:30am to 6:00pm.

Email us on [email protected].

Use the Ask Lisa function on our website. Simply enter your details and leave a message, we will get right back to you: https://lisaslaw.co.uk/ask-question/

Or, download our free app! You can launch an enquiry, scan over documents, check progress on your case and much more!

James Cook

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Welcome Rita

We are delighted to welcome another new member of the team, Rita Wu, to Lisa’s Law! Rita joins the team as a legal assistant and has already shown her skill and enthusiasm since joining the company last week.

Rita went to Loughborough University’s London campus, where she gained an MSc in Sports Business and Leadership. She also achieved an MSc in International Business Management at Kingston University.

Rita has an extensive background in sports and business, working in the sector for 5 years before coming to the UK.

She is also fluent in both Mandarin and English.

Have questions about this article? Get in touch today!

Call us on 020 7928 0276, our phone lines are open and we will be taking calls from 9:30am to 6:00pm.

Email us on [email protected].

Use the Ask Lisa function on our website. Simply enter your details and leave a message, we will get right back to you: https://lisaslaw.co.uk/ask-question/

Or, download our free app! You can launch an enquiry, scan over documents, check progress on your case and much more!

James Cook

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Man wins right to have a surrogacy baby using embryo created with his late wife

In today’s family law article, we will look at an unusual case which made headlines across the internet. It presents a complex moral issue for the parties but one which offers hope and optimism for the claimant involved as well as the few who similar situations in the future.

The landmark ruling gives widower, Ted Jennings, the right to use the last remaining embryo he created with his late wife to try for a baby through surrogacy, despite her lack of written consent.

Keep reading to learn more about this fascinating case involving what could be the UK’s first case of posthumous surrogacy.

Background

Thirty-eight-year-old Ted Jennings had spent a number of years trying to have children with his late wife, Fern-Marie Choya but had so far been unsuccessful. They sought fertility treatment, and but sadly Choya died while pregnant with twin girls conceived by IVF in 2019 after suffering a uterine rupture.

Originally from Trinidad, the couple met in London and married in 2009. They had tried for several years to have a baby but had been unsuccessful until 2018 and had two miscarriages during the intervening years. Following Choya’s death, Jennings tried to use the couple’s last frozen embryo to start a family, however this was rejected by the fertility regulator, the Human Fertilisation and Embryology Authority (HFEA). This is because Choya didn’t give her prior written consent before she died, a requirement for using frozen embryos in surrogacy posthumously.

The case

Although the form provided by the Human Fertilisation and Embryology Authority makes it clear that a man’s consent is required for a partner to use their embryos after his death, the woman’s form did not provide a provision for the same occurrence in the event of her own death. While Jennings accepted that his wife did not give the written consent which is usually required in order for the couple’s embryos to be used, he argued that they were simply not given the information or opportunity to be able to give written consent.

Jennings told the court that he and his wife had decided that they would keep the last embryo for surrogacy in the event that their IVF treatment was unsuccessful. The court ruled that it should not uphold the requirement in Sch 3 of the Human Fertilisation and Embryology Act 1990 to require written and signed consent. The conclusion which was given about Ms Choya’s consent was supported by written evidence from both her family and her friend.

In her ruling, Justice Theis decided that a refusal to allow Jennings to use the embryo for surrogacy would be a disproportionate interference with Jennings’ right to a family life under Article 8 of the European Convention of Human Rights. The ruling also states that Section 3 of the Human Rights Act requires the court, “so far as is possible, to read and give effect to primary and subordinate legislation in a way which is compatible with Convention rights.”

The court ruled that in future, the Human Fertilisation and Embryology Authority “may want to consider whether the form should be reviewed in order to provide the clarity required and avoid this situation occurring again”.

Our comments

This is obviously a complex legal case, representing the first of its kind in the UK at least, but one which many will agree reached a satisfactory conclusion considering the beliefs of Mr Jennings’ late wife and Mr Jennings himself.

Article 8 of the European Convention on Human Rights (ECHR) was of clear importance in this particular case. Also instrumental was Section 3 of the Human Rights Act, which requires the court to interpret primary legislation in a way which is compatible with the ECHR. The influence of the ECHR has been of much debate following the replacement of the Human Rights Act with a proposed British Bill of Rights by the Justice Secretary and Deputy Prime Minister, Dominic Raab. With the Bill of Rights specifically targeting Article 8, it throws into question how similar cases like this will be dealt with if the Human Rights Act was replaced.

Have questions about this article? Get in touch today!

Call us on 020 7928 0276, our phone lines are open and we will be taking calls from 9:30am to 6:00pm.

Email us on [email protected].

Use the Ask Lisa function on our website. Simply enter your details and leave a message, we will get right back to you: https://lisaslaw.co.uk/ask-question/

Or, download our free app! You can launch an enquiry, scan over documents, check progress on your case and much more!

James Cook

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Welcome Dongni!

We are very pleased to welcome Dongni Xu, our newest colleague, to Lisa’s Law. Dongni will be working as a legal assistant and has already demonstrated her skill and enthusiasm for the role since joining the company.

Dongni completed her MA in Law and Business at the University of Kent and recently finished her LLM in International Commercial Law in 2021. She is excited about her position as a legal assistant with Lisa’s Law as it allows her to explore a range of legal areas. She is also planning to complete her Solicitor’s Qualifying Examination (SQE) exam next year.

Dongni is fluent in both Mandarin and English. Outside of work, she also enjoys doing Muay Thai and planting.

Have questions about this article? Get in touch today!

Call us on 020 7928 0276, our phone lines are open and we will be taking calls from 9:30am to 6:00pm.

Email us on [email protected].

Use the Ask Lisa function on our website. Simply enter your details and leave a message, we will get right back to you: https://lisaslaw.co.uk/ask-question/

Or, download our free app! You can launch an enquiry, scan over documents, check progress on your case and much more!

James Cook

See Full Bio

A fast track to digital surveillance? European Consumer Organisation takes action against Google

You probably have a Google account, and probably also assume that everything you do on Google’s services is tracked, but do you realise the extent to which Google actively pushes you towards ensuring that you don’t avoid its surveillance practises? The European Consumer Organisation (BEUC) has directly sought to tackle this issue by announcing that it will be taking action against Google.

The action has been brought about over concerns that Google unfairly directs those who sign up towards an increased amount of surveillance. This is in breach of the EU’s General Data Protection Regulation, Regulation (EU) 2016/679 (EU GDPR), which encourages privacy by default for consumers. Since being introduced in 2016, GDPR (General Data Protection Regulation) has been a key component of EU privacy law as well as human rights law.

Keep reading to find out more about the action and the reasons behind it.

BEUC action being taken against Google

The coalition taking action includes ten consumer group organisations from a range of countries across Europe. Although the UK organisations which include Citizens Advice and Which? didn’t take action against Google, they are members of the European Consumer Organisation and have retained an identical form of the GDPR regulation despite no longer being an EU member.

The BEUC added that “tens of millions of Europeans have been placed on a fast track to surveillance when they signed up to a Google account”. They argue that the sign up stage is the crucial point when Google asks users to choose how their account privacy will be handled.

The UK is currently in the middle of seeking to reform its data protection regulations with the Data Reform Bill, which was announced in May’s Queen’s Speech.

How does Google’s sign up process lead consumers down a “fast track to surveillance?”

Google is pretty much a permanent presence in all of our lives. Even if you don’t use a Google phone, the chances are that you use Google’s search engine on a fairly regular basis. Other Google services also include their Android mobile operating system, Chrome browser, YouTube, Gmail, Google Maps and the Google Play Store. Gmail and the Google Play Store require an account in order to use them, making the sign-up process which users undergo particularly pertinent for those services. This means it’s in all of our interests to know how our data is being used and that privacy rules are up to scratch.

When users sign up to a Google account, they must indicate preferences on three different settings. This includes:

1. Web and app activity

2. YouTube history

3. Ad personalisation

If users select ‘express personalisation’ rather than ‘manual personalisation’, then this gives Google permission to track everything a user does across its services (web and app activity, YouTube history, ad personality). While express personalisation takes just one step, manual personalisation takes 5 steps. It is therefore unsurprising that consumers would choose express personalisation over manual personalisation. Despite this, it is not possible to switch the express personalisation settings in one step.

After a legal analysis by BEUC and the agency AWO found that Google’s sign-up process is designed to service the interests of the company as well as against EU data protection law in the following ways:

No data protection by design and by default
Un-transparent and unfair data processing, deceptive design and invalid consent
Breaches of purpose limitation, data minimisation and storage limitation principles

According to the BEUC, all of these factors combined created an experience which is in their view, unlawful processing of customers’ personal data. Furthermore, by making the process convoluted when it comes to being able to avoid surveillance “by design and by default”, this is what puts users on a “fast track to surveillance”.

Google’s signup process and the processing of personal data which follows this runs contrary to the EU’s GDPR in a number of ways.

Other ongoing investigations

At the same time that this investigation is going on, a previous investigation by the BEUC which was filed in February 2020 into Google’s use and collection of location data is also continuing. This followed a complaint against Google over the same matter in 2018.

Ireland’s Data Protection Commission was appointed the lead authority on the complaints and expects to make a decision on the investigation into Google and its handling of location data in the next few months.

The BEUC has a number of suggestions which it believes should be implemented into Google’s practises. Primarily, this includes revising its sign up process in order to make sure that privacy is the default as well as being fully transparent about how the users data will be processed.

It also argues that data protection authorities should enforce and impose an “effective, proportionate and deterrent fine” against Google for any infringement of GDPR.

Our comments

This action taken by the BEUC follows a recent trend of steps being taken across the world against large corporation’s handling of data, particularly in the case of the Online Safety Bill in the UK and the European Parliament’s Digital Markets Act and Digital Services Act, the latter of which seeks to restrain the power of tech giants over the rest of the industry.

While this action has come later than many might have hoped and wished and is yet to yield results, it does seem to be a step in the right direction by the BEUC in attempting to ensure consumers are better informed about their data use and global tech giants like Google are held to account. If the action is successful and BEUC manages to get Google to comply with GDPR then this would certainly be a good result for consumers, not just in the EU but potentially worldwide as well.

Have questions about this article? Get in touch today!

Call us on 020 7928 0276, our phone lines are open and we will be taking calls from 9:30am to 6:00pm.

Email us on [email protected].

Use the Ask Lisa function on our website. Simply enter your details and leave a message, we will get right back to you: https://lisaslaw.co.uk/ask-question/

Or, download our free app! You can launch an enquiry, scan over documents, check progress on your case and much more!

James Cook

See Full Bio

Welcome Amber!

We are delighted to welcome our newest colleague, Amber Zhao. Amber will be joining us as a paralegal and has already displayed great legal knowledge and a brilliant work ethic since she’s been here.

Amber has an extensive academic background, having studied at Central South University(LLB), King’s College London(LLM) and The University of Law (GDL&LPC). Her previous work experience includes working as a legal intern for Zhonglun Law Firm in London, where she assisted in purchase and sale of residential property transactions, as well as Yingke Law Firm in Beijing where she worked in the international business department.

Outside of work, Amber has a range of hobbies and interests. As well as diving, she also enjoys playing musical instruments such as the guitar and the piano.

Have questions? Get in touch today!

Call us on 020 7928 0276, phone calls are operating as usual and will be taking calls from 9:30am to 6:00pm.

Email us on [email protected].

Use the Ask Lisa function on our website. Simply enter your details and leave a message, we will get right back to you: https://lisaslaw.co.uk/ask-question/

Or, download our free app! You can launch an enquiry, scan over documents, check progress on your case and much more!

James Cook

See Full Bio

Prenuptial Agreement vs Postnuptial Agreement, which is better?

Today we will take a look at a subject which comes under Family Law, one of our main practise areas. This article looks at which is better, a postnuptial agreement or prenuptial agreement?

You might be wondering, what exactly is the difference between a postnuptial agreement and a prenuptial agreement? Aside from ‘pre’ and ‘post’ hinting at their true meaning, perhaps a more pertinent questions to ask is: if I want to get a marital agreement, is a postnuptial agreement or a prenuptial agreement the better choice?

Keep reading to find out more.

What is the difference?

A postnuptial agreement is a contract that usually specifies how the assets of the spouses should be divided in the event of a divorce. The reasons for entering into a postnuptial agreement are usually the same as for a prenuptial agreement, mainly to protect one’s property and to achieve certainty. The main purpose is also to avoid assets being commingled throughout the marital estate and to reduce financial disputes in the event of a divorce.

In addition, a postnuptial agreement can cover all the same assets as a prenuptial agreement (eg: real estate, savings, pensions, and high-value artwork, jewellery, etc.).

As we saw above, a postnuptial agreement and a prenuptial agreement are pretty much the same. So, what’s the difference?

Well, really the only difference is that (and this is a key one): A prenuptial agreement is made before the marriage, while a postnuptial agreement is formed after the marriage (and while the couple is still married).

So, if you are very busy leading up to your wedding and have a lot of work to prepare and consider, you may not have had time to consider whether to sign a prenuptial agreement, or at all. At this point, then, you’ll find that a postnuptial agreement is helpful.

In addition, a couple’s circumstances may change in many ways after marriage, for example, new information may emerge, a significant inheritance or other windfall may appear in the family, or you may discover that there are some issues that jeopardize the future of your relationship and marriage. These things happen! In such cases, a postnuptial agreement will help give you peace of mind.

Are prenups and postnup agreements legally binding in the UK?

Like prenuptial agreements, postnuptial agreements are currently not automatically legally binding in the UK. The court will not be compelled to follow any directions in the postnuptial agreement. However, just because courts are not bound by postnuptial agreements, which they usually take into account, postnuptial agreements can still play a big role in financial division.

The UK Supreme Court in Radmacher v Granatino gave the following guidance for family courts to follow when deciding whether to enforce a prenuptial or postnuptial agreement.

“The court should enforce an agreement freely reached by each party with full knowledge of its impact, unless under the circumstances it would be unfair to require both parties to abide by its agreement.”

This essentially means:

Each party should receive independent legal advice before entering into a postnuptial agreement, they should not feel coerced, etc.;

Both parties should understand the full extent of any financial requirements they may waive by signing a postnuptial agreement (for example, any hidden wealth that would reduce the effectiveness of the agreement);

The first duty of the court is to ensure that the needs of both parties are met, especially where children are involved.

It is important to note that the terms in the agreement need to “ensure the needs of both parties”.

Prenuptial Agreement V Postnuptial Agreement, which is better?

We believe that the two are incomparable and that they work equally well in protecting property.

If you have to compare, well, they have some differences in the difficulty of signing. A prenuptial agreement is made before marriage, so it’s easier to decide who owns what when both spouses are living independent lives. In other words, the two will be easier to negotiate.

Certain assets become more difficult to separate after a period of marriage, so making a postnuptial agreement can be difficult. The two sides need more time to discuss how to divide.

However, once an agreement is reached, both prenuptial and postnuptial agreements are equally valid as long as the necessary steps are taken to ensure that the agreement is taken into account by the court.

Then, if according to experience, when you enter a marriage, there are changes that you did not expect before the marriage, please sign a post-nuptial agreement in time, such as:

Inheritance during marriage
child’s birth
To start a new company/commercial enterprise, you need to record the ownership interest in assets
Contents of a postnuptial agreement

Some common elements of a postnuptial agreement include:

Matrimonial residence – couples can decide in advance who has the right to stay, or if the property should be sold if the marriage breaks down;
Property portfolios and estates – note that estates or property owned before marriage are sometimes automatically retained in marital property;
Alimony – if one party is financially better off, they can agree in advance to support the other party in the event of a divorce;

Savings, shares and pensions – the full extent of these assets should be stated in advance;

Business Assets – This is especially important if one party has substantial business interests before or after the marriage.

How do I make a postnuptial agreement?

For couples considering entering into a postnuptial agreement, the first thing both parties should do: List all assets for financial disclosure, and then decide how to distribute those assets in the event of a divorce.

Also, any intent on spousal support (support) and other financial arrangements should be indicated.

It’s worth noting that many married couples think they can use an online postnuptial agreement template downloaded from the web to create their postnuptial agreement. However, while these templates include the basic terms of an agreement, it does need to be drafted in a specific way by a lawyer to be legally binding.

For reassurance, making a postnuptial agreement should be a process that requires the assistance of a family lawyer. More importantly, both parties should have an independent lawyer so that a contract can be made that meets the needs of both parties.

Things to look out for when entering a Postnuptial Agreement

Entering into a legal contract is a big step and you need to think a bit more. Here are five things you need to keep in mind when considering a postnuptial agreement:

First, fully consider the child.

Courts will always prioritize the needs of children in a divorce, so the postnuptial agreement should take into account their financial needs.

Second, seek legal advice.

Each party should seek independent legal advice before signing a postnuptial agreement.

Third, the misunderstanding of wealth.

Postnuptial agreements are more useful not only for high net worth individuals and couples, but also for ordinary couples to avoid disputes during divorce and avoid high legal fees.

Fourth, prenuptial agreements.

Couples who decide to change the terms of an existing prenuptial agreement can rescind the agreement and create a postnuptial agreement in its place.

Fifth, regular review.

Postnuptial agreements should be regularly reviewed to see if they need to be amended. Like other agreements of this type, prenuptial agreements should be regularly reassessed and updated to reflect any changes in your circumstances, such as buying a new home or having children.

We generally advise clients to review the postnuptial agreement every four to five years to make sure it’s up-to-date and accurate.

If you are considering entering into a prenuptial or postnuptial agreement, please contact our professional family matrimonial lawyers. Our team of family law solicitors have many years of experience and can provide you with professional advice.

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James Cook

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Man who resided in UK for 22 years under false identities found to have had human rights infringed

In today’s article, we look at a recent case, R (on the application of AM) v Secretary of State for the Home Department. This case concerns a person that had been living in the UK for over 22 years but had continuously provided false identities as well as convictions in the UK.

A person who has been living in the UK continuously for over 20 years can make an application for leave to remain under paragraph 276ADE of the Immigration Rules. The rules indicate that leave to remain may be granted to a long residence applicant if he or she has lived continuously in the UK:

for at least 20 years; or
for at least 7 years (and the applicant is under 18 years of age); or
for at least half of his life (and the applicant is aged between 18 and 25 years); or
for less than 20 years (and the applicant has no ties to the country to which he or she would have to go if required to leave the UK).

R (on the application of AM) v Secretary of State for the Home Department

AM was a Belarus national who came to the United Kingdom in 1998. He made a number of applications over the past 22 years where he lied about his identity and nationality. He had also been convicted of a number of offences.

The Secretary of State had determined that he should be deported however due to the unclear circumstances regarding AM’s identity and nationality, it was not possible to deport him not was there a realistic prospect of him being deported in the near future. This left AM in a state of ‘limbo’.

AM issued Judicial Review proceedings in the Upper Tribunal against the Secretary of State. The Upper Tribunal held that despite AM’s conduct over the last 22 years, the refusal to grant AM leave had infringed his rights under article 8 of the European Convention on Human Rights which reads:

1 Everyone has the right to respect for his private and family life, his home and his correspondence.

2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

The Secretary of State appealed the decision to the Court of Appeal.

The Court of Appeal

The Court of Appeal held that the Upper Tribunal had correctly applied the law. The Court of Appeal declared that the Upper Tribunal had paid regard to the following:

The public interest in the maintenance of effective immigration control
AM’s own responsibility for his ‘limbo’ situation
AM’s criminal convictions and the public interest in his removal
AM’s vulnerabilities
The prospect of removal was remote

Considering the above the Court of Appeal held that after considering the above, the Upper Tribunal was not wrong and that the Tribunal was entitled to find a that there was an infringement of AM’s rights under art 8 of the ECHR.

Accordingly, the appeal was dismissed.

Our comments

The case shows that the Secretary of State must seriously consider a person’s fundamental rights under the European Convention on Human Rights. Although providing false identities and nationalities is certainly not condoned, we are pleased that the Tribunal and the Court of Appeal recognised the length of time that he had been in the UK and the impact that it has had on his private life.

Should you require assistance in making a long residency application on the basis of 20 years continued residence, then please do get in touch.

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James Cook

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