FIND OUT MORECamilla Beamish Solicitor T:01892 506 128E:camilla.beamish@crippslaw.comIf you would likefurther advice pleasecontact:onthe abolition of thedefault retirement ageHow is the law going to change?By abolishing the default retirement age (DRA),meaning employees cannot be forced to retire justbecause they have reached 65.What are the reasons for this change?Demographic changes mean that the population isageing and evidence indicates many people are notsaving enough to live comfortably in retirement. Byworking for longer, they will have the opportunity tobuild up retirement savings. In addition, the DRAhas been challenged as being inherentlydiscriminatory and unfair.If my employer has already served me withnotice of retirement is this still effective?If you are or will be 65 (or reach your company'snormal retirement age) before 1 October 2011, andyour employer has served you with notice ofretirement on or before 5 April 2011 and followedthe DRA procedure the notice will be effective.Under the DRA rules, an employer could give anemployee a maximum of 12 months' and aminimum of 6 months' notice of their retirement.Assuming my notice of retirement underthe DRA is effective can I make a requestto continue working beyond the proposedretirement date?You may request the retirement date be put back atany time between three and six months before theproposed retirement date. If your employer agreesto an extension, they are only likely to agree to arevised date of retirement that is six months or lessafter the proposed date. The reason for this isbecause any longer period would require theretirement process to be started again, which theemployer cannot now do.Can my employer continue to operate acompulsory retirement age after 1October 2011?Yes, but only if they can show that it is a'proportionate means of achieving a legitimateaim'. Employers will need to show that they haveweighed up the discriminatory effect of a fixedretirement age against the benefit achieved by thebusiness and that they have considered whetherthere is a less or non discriminatory way of achievingthe desired aim. Most employers are likely to find itdifficult to objectively justify a compulsoryretirement age.If I have already indicated to my employerthat I will retire on my 65th birthday can Ichange my mind now?If you have given formal written notice to leave onthat date, then your employer does not have toallow you to withdraw that notice. If the notice hasnot been given formally, it may be possible tochange your mind. Can my employer ask me when I plan toretire?Your employer should not ask you direct questionsabout your retirement plans if they want to avoid apossible claim for age discrimination. Generalquestions about your future plans are permissible,for example in the context of business planning oras part of a discussion about your career objectives.If you bring up the subject of retirement then theycan ask you about your plans. Can my employer stop providing me withbenefits such as private medicalinsurance, permanent health insurance orlife assurance just because I have reachedthe age of 65?Yes. These benefits will be exempt from the principle ofequal treatment on age grounds. Employers will be able to stop providing these benefits once you have reached the current state pension age of 65, even if you decide to continue working.From 1October2011employerswill nolonger beable todismiss theiremployeesjust becausethey havereached theage of 6510CRIPPSLIFEiQ&A

Divorceadvice on division of assets in relation to trustsWhichever way you look at it, divorce isusually a bruising process and it is oftenthe division of the assets which causesmost acrimony. After the failure of a marriage, both parties willinevitably feel that they have some claim to theassets that had been enjoyed by them. Thevalue of houses, investments and other propertyare relatively easy to identify and so they will allbe brought into the divorce proceedings. More difficult though is to make a claim onassets which are seemingly out of reach ofeither the husband or wife, for instance if theyare shielded by a trust. A trust is essentially astructure under which assets are held bytrustees to manage them for the benefit of one of more beneficiaries. There are two different types of trust which may be relevant in divorce proceedings. An interest in possession trust is one in which the husband or wife is entitled to the income. What the courts look at is therelationship between the beneficiary and thetrustees and whether, if the beneficiary askedfor capital, the chances are that the trusteeswould give it to them. The other type of trust is discretionary; abeneficiary is not entitled to receive anythingbut instead there is a class of potentialbeneficiaries. This means that the trusteesdecide who does or does not receive a benefit.The courts are increasingly looking behindthese trust structures to consider: who madethe trust and what its purpose was, whetherpayments have been made in the past to abeneficiary and whether the trustees haveusually followed the wishes of the beneficiary. Even trusts held offshore can be brought intoaccount by the courts now. There have been a string of high profile cases,most notably Charman v Charman, where nearly50% of the husband's £130 million fortune washeld in an offshore trust in Bermuda. Onappeal, the wife successfully argued that thetrustees would be likely to exercise their powersfor the benefit of the husband and her share wasincreased to 37% of all the husband's assets. However, not all trusts are caught. In A v A2007, the wife failed to show that the trust wasa sham. Cripps Harries Hallfamily specialistpartner, Amanda Andrews, comments, "justbecause assets are held in an offshore trust,does not make it a sham trust. The mere factthat the trustees happen to agree with abeneficiary on a course of action does notnecessarily mean they have not exercised theirindependent discretion."On wills, Mary-Anne Gribbon, private clientpartner at Cripps, comments "parents who areworried about their child's matrimonialdifficulties should consider putting their estateinto a discretionary trust in their wills. It may notbe bombproof but it provides some protectionand is the best option available."The divorce courts are moving in the directionof looking behind trusts and not allowingpeople to hide assets, even if they are offshore,from their considered gaze.There's anold saying"you canrun butyou can'thide"CRIPPSLIFE11FIND OUT MOREFor more informationplease contact:Amanda AndrewsPartnerT:01892 506 159E:amanda.andrews@crippslaw.comi