The no nonsense guide to legal myths

Family LawScenarios you may be falling victim of

I have a Pre-Nuptial Agreement so if we separate; I know exactly who will get what.

The truth is that these Agreements are not strictly binding in England and Wales. The factors of fairness and “needs” will still be considered when a Court is deciding how finances should be divided. Pre-Nuptial Agreements will be considered and taken into account, but the terms may not be applied vigorously. However, a well drafted and properly entered into Pre-Nuptial Agreement can still save you a lot of time and money.

As a father, even if you are named on your child’s Birth Certificate you do not automatically have Parental Responsibility. There are two important factors to consider; marriage and your child’s date of birth.

NOTE: If your child was born before 1st December 2003 and you and the mother were not, or are not married, you do not automatically have Parental Responsibility. You can acquire Parental Responsibility by entering into a Parental Responsibility Agreement or by obtaining a Court Order. If your child was born after 1st December 2003, and you are named as the father on the Birth Certificate, you automatically have Parental Responsibility.

This is incorrect. The Decree Absolute dissolves the marriage but it does not deal with the financial claims which arise as a result of your marriage. If you intend to achieve finality and prevent future financial claims, you must obtain a Court Order confirming that you have a clean break. The case of Wyatt v Vince serves as an example that until you have received a sealed Court Orderconfirming a clean break, the door is always open for your ex spouse to return with financial claims in the future.

My name is registered as the father on my child’s Birth Certificate. This does not mean that I have Parental Responsibility.

I have received my Decree Absolute. As the marriage has been dis-solved, my ex spouse no longer has any financial claims arising from our marriage.

Employment LawKnow your rights on workplace disputes

I have been employed for 2 years by my employer and now that I have been dismissed I cannot bring a claim for redundancy pay or ordinary unfair dismissal (unless it is a claim for automatic unfair dismissal) against my employer in the Employment Tribunal.

You need to have 2 years employment to bring a claim for redundancy pay or unfair dismissal unless you were dismissed (or selected for redundancy) for an automatically unfair reason in which case the 2 year service requirement does not apply.

You will be regarded as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that you make a protected disclosure. You are also protected against a detriment (i.e. any action short of dismissal) by any act of failure to act by your employer on the ground that you made a protected disclosure. A detriment covers things such as failure to promote, refusal of training or other opportunities, disciplinary action and reductions in pay, as well as general unfavourable treatment.

You have the right to return to the same job if you have taken Ordinary Maternity Leave (the first 26 weeks). But if you are returning after taking Additional Maternity Leave (the additional 26 weeks) you have the right to return to the same job unless it is not reasonably practicable. If this is the case you must be offered a suitable alternative job that it is appropriate for you in the circumstances. You are entitled to return on terms and conditions not less favourable than you would have had, had you not been absent, including seniority, pension and other similar rights.

I have discovered that my boss is stealing from the business, but I can’tdo anything as once I report my concerns (blow the whistle) my boss can dismiss me and I won’t have any protection against unfair dismissal.

I am taking maternity leave for one year and when I return to work I am entitled to return to the same role.

Personal InjuryEveryday statements that aren’t quite what they seem

Where there’s blame, there’s a claim.

Although this is often the case, there may be other hurdles to overcome and tests to be passed before a claim can be successfully brought.

Expert legal advice should therefore be sought as soon as possible.

This is not the case, as there could be other factors that need to be taken into consideration, such as when someone has cut in front of another vehicle and immediately applied their brakes, and not left enough braking distance. Another example is when someone has performed an emergency stop for no apparent reason.

All rear-end shunts are automatically the fault of the car behind.

Shoplifters will be prosecuted.

The owner accepts no responsibility for injury.

The decision to prosecute can only be made by the Crown Prosecution Service (CPS) based on evidence provided to them by the police.

An occupier of premises cannot evade liability simply by posting such a sign. The law applies whether or not signs are posted.

ProbateWhat to look out for when organising your estate

If I make a Will there is no need for my executor to get probate.

Probate is the legal authority granted by the court to administer an estate. Whether or not it is required depends on the type and value of the assets in the estate. Many people believe that if you make a Will, you give your executor the legal power to deal with your estate, and there will therefore be no additional need for probate.

This is not the case. Probate simply ratifies the terms of the Will, including your executor’s authority.

If an individual dies without a Will, there are certain legal rules that govern who will inherit their estate, commonly known as the ‘rules of intestacy’.

Most people think that their spouse will inherit their entire estate if they die without a Will, but this is not necessarily the case. A spouse is generally entitled to the first £250,000 of the estate plus half of the balance, with the other half going to the deceased’s children.

It is a very common misconception that ‘you can’t leave your debts to someone when you die’ and that an individual’s debts are written off on their death, leaving their loved ones to benefit from his estate.

However, the deceased’s assets will be used first to pay for the funeral, estate administration expenses and personal debts. This may include bank loans, credit card balances and outstanding bills. Any money left over will be distributed to the beneficiaries of the estate.

I’m married, so I don’t need a Will and everything will pass to my spouse.

When I die, all of my debts will not be written off.

WillsDon’t slip up on these common mishaps when managing your affairs

You only need to put a Lasting Power of Attorney (LPA) in place once you have become unable to manage your affairs.

An LPA can only be put in place by the person whose affairs are to be dealt with (known as the ‘donor’). They must be able to understand the LPA and independently decide who they would like to appoint as the person or persons to manage their affairs (known as the ‘attorney’).

Therefore, if a person has lost their mental capacity, it is too late to put an LPA in place.

It is perfectly normal to appoint a beneficiary as an executor to your will, particularly if they are also the only beneficiary to your estate.

An executor cannot be a beneficiary of your Will.

A beneficiary should not be a witness to the signing of the Will.

A beneficiary named in the Will should never act as a witness to the signing of the Will.

If they do, the beneficiary will forfeit their entitlement to the gift in the Will.