We welcome two new recruits: Brigid O’Malley and Stephanie Eastwood

Left to right: Brigid O'Malley, Amanda McAlister and Stephanie Eastwood

We welcome two new recruits

We’re delighted to announce the recruitment of Brigid O’Malley as Associate and Stephanie Eastwood as solicitor. Both join the team in response to a significant increase in new enquires in both the divorce and finance and children law divisions.

 

Pictured left to right: Brigid O’Malley, Amanda McAlister and Stephanie Eastwood.

Beyond Group’s specialist Family and Children Law practice, McAlister Family Law, has announced the recruitment of Brigid O’Malley as Associate and Stephanie Eastwood as solicitor. Both join the team in response to a significant increase in new enquires in both the divorce and finance and children law divisions.

The practice has climbed the rankings in both Legal 500 and Chambers and Partners year on year; the Group has offices in Manchester city centre and throughout Cheshire. The two new appointees reflect the continued demand for its expertise both in divorce and finance and children law matters.

Brigid, who studied Law at Leeds Metropolitan (now Beckett) University, graduated in 2009 and completed her LPC at the College of Law in Chester in 2010, where she gained a distinction. She qualified as a solicitor in 2014, and acts on behalf of clients seeking advice and assistance in relation to family matters that includes divorce, financial proceedings, civil partnership dissolution, nullity, domestic abuse, and children proceedings. A key member of the Divorce and Finance team, she also has considerable experience in private children law.

Brigid is an accredited Police Station Representative and is also experienced in criminal law, having represented clients at Police stations and magistrates court, and instructing counsel at Crown Court, including handling cases involving serious sexual assault and violent crime. She is particularly experienced in assisting both victims and alleged perpetrators of domestic violence within the family.

Over the last twelve months, the award-winning McAlister Family Law has seen significant growth having recruited two specialist partners, four solicitors and three paralegals.

Said Brigid: “McAlister Family Law is a practice absolutely committed not only to divorce and related finance work, but also to the welfare of children through its unique specialist children teams. To have the opportunity of being able to work on both is incredible.”

Stephanie graduated from Liverpool John Moores University in 2016, where she went on to gain her LPC. She began her career as a paralegal whilst still at university, working first in the field of Personal Injury claims, before going on to specialise in Family Law. She has joined the practice’s specialist children team and will represent both children and parents on all matters including child abduction, child arrangements and adoption.

Stephanie said: “I’m thrilled to join such a forward-thinking family law practice, and to be part of the wider Beyond Group. McAlister Family Law is home to one of the countries’ leading children law practices, having more than eight solicitors on the Law Society Accredited children panel. I am so looking forward to working with such a highly regarded, specialist team.”

Amanda McAlister, managing partner of McAlister Family Law, added: “I’m delighted to welcome Brigid and Stephanie on board. Both are very talented family law solicitors and bring skills and experience that complement the already comprehensive offering here at McAlister Family Law. Like everyone within our practice, they are dedicated to delivering the very highest level of service to our clients.

“They will, I am sure, make a significant contribution to the team as we continue to grow as a practice and cement our reputation as one the UK’s leading family law practices.”

Beyond Group Head Matt Fleetwood said: “The recruitment of Brigid and Stephanie is further evidence of the Group’s strategic growth and most importantly, they are a perfect fit for the Group’s culture and values. McAlister Family Law has been extraordinarily successful since we established the practice three years ago, and it’s great to see it expand further with these new recruits.”

Rylan Clark-Neal announces he and his husband of six years are to divorce

Rylan Clark-Neal to divorce

Rylan Clark-Neal and husband Dan are to divorce

The hugely popular television presenter Rylan Clark-Neal has announced he and his husband, Dan, are to divorce. In a statement released on 28 June, Rylan said: “I have made a number of mistakes which I deeply regret and have inevitably led to the breakdown of our marriage. I have taken time away from work as I am not in a good place at the moment and am seeking help.”

Our Managing Partner and award-winning family law expert Amanda McAlister explains how divorce in a same sex relationship will be enacted.

It is reported that Rylan’s well-publicised desire to have children, and Dan’s longing for a TV career, may well be the reason for the split, with insiders saying: “they just couldn’t resolve their differences”.

Whether this is true or not, one partner wanting children and the other wanting to focus on their career is certainly not an uncommon reason for a couple deciding their desire to pursue different life choices means they no longer wish to be together, and therefore filing for divorce.

Irretrievable breakdown

In the courts of England and Wales there is only one ground for divorce and that is the “irretrievable breakdown of the marriage” as set out in the Matrimonial Causes Act 1973.  What this means is that one or both parties to the marriage are not willing, or do not want, to continue living and being in a relationship with one another, having determined that the marriage is over for good.

Whilst there is one ground for divorce, there are five legally accepted facts (or reasons) for a divorce to take place.  Although a no-fault basis divorce is in the pipeline and legislation is planned for April 2022, unfortunately until then, we are still working on a fault-based system.

What are the Five Facts?

In the Petition, the Petitioner (the person who issues the divorce Petition) must prove that the marriage has broken down irretrievably by evidencing one of five, specific, statutory facts:

  • The Respondent’s adultery
  • The Respondent’s unreasonable behaviour
  • Desertion – the Respondent must have deserted the Petitioner for at least two years (in practice, this is rare, and difficult to prove)
  • two years’ separation with agreement by both that there should be a divorce
  • five years’ separation (the consent of the Respondent is not needed)

The most common facts relied upon are adultery, or unreasonable behaviour.

One crucial difference

There is, however, one crucial difference for same sex divorces as opposed to heterosexual divorces, and that is that adultery cannot be used in a same sex divorce. This is due to the current law defining adultery as when “your husband or wife has had sexual intercourse with someone else of the opposite sex”.

On that basis – that adultery can only be grounds for divorce where there has been sexual intercourse between two people of the opposite sex – sexual intimacy between two people of the same sex is not “adultery” for the purposes of obtaining a divorce, if one of those people is in a same sex marriage.

However, in same sex marriages, although adultery is not a ground for divorce, the infidelity could be used as an example of unreasonable behaviour.  Apart from the difference in the terms of the ground of a divorce, the application process is the same for same-sex and opposite-sex couples.

If you are affected by any of the issues raised here, please get in touch with one of our expert family lawyers today. We are here to help you.

McAlister Family Law awarded Highly Commended accolade at the Manchester Legal Awards

MLA Highly Commended

McAlister Family Law awarded Highly Commended accolade at the Manchester Legal Awards

We are delighted to announce that we been awarded the accolade Highly Commended in the Family Law Team of the Year category at the 2021 Manchester Legal Awards.

Amanda McAlister, our Managing Partner, said: “This is a huge achievement for our incredible team that has very much been in the trenches together this year.

“I could not be prouder of them all.”

Beyond Group’s specialist Family and Corporate practices promote four key individuals

Left to right Paul Reay, Jessica Horsman, Amanda McAlister, Matt Fleetwood, Jim Truscott, Angeliki Kotsidou and Aaron Williams

Beyond Group’s specialist Family and Corporate practices promote four key individuals

McAlister Family Law and Beyond Corporate continue to grow as Beyond Group announces annual promotions.

Beyond Group has announced four significant promotions across its specialist corporate law and family law practices.

The Group’s corporate law practice, Beyond Corporate, promotes  solicitor Angeliki Kotsidou to Associate, and the Group’s specialist family and children law practice, McAlister Family Law, promotes Associate Paul Reay to Senior Associate, and solicitors Jessica Horsman and Aaron Williams to Associate.

Angeliki is part of Beyond Corporate’s core corporate transactional team; Paul and Aaron are part of McAlister Family Law’s divorce and finance team, and Jess works within the children team.

Amanda McAlister, Managing Partner of McAlister Family Law, said: “These have been a challenging 12 months, particularly for those people involved in court hearings which have largely been held remotely and which have demanded a lot of family law solicitors. The pandemic has put a lot of strain on families and our workload has been increased significantly. We are absolutely delighted to recognise Paul, Aaron and Jess’ hard work and dedication with these promotions.”

Jim Truscott, who heads Beyond Corporate’s corporate law team, added: “Angeliki has worked extremely hard since qualification, demonstrating tremendous commitment to the corporate team and the wider Beyond Group, and we are extremely pleased to be able to see her progress with us as she moves to the next stage of her career, particularly as the Corporate Law team continues to grow as a result of increasing demand for its services.”

Beyond Group, established a little over three years ago, has gone from strength to strength, with its innovative business structure and outlook. The Group has created an inspiring working environment that is becoming increasingly attractive for client and service-focused teams and individuals who want to work in a positive, engaged and dynamic legal business.

Matt Fleetwood, who heads the Group, said: “We are delighted to be able to announce the promotions of Angeliki, Aaron, Paul and Jess. In what has been a challenging year in many ways, all our teams have worked extremely hard and continue to grow as they face increasing demand for their services.

“These promotions are very well deserved. We are proud to see each of them progress their careers with Beyond Group and we celebrate their commitment and success.”

The Bill and Melinda Gates’ divorce

Bill and Melinda Gates divorce

The Bill and Melinda Gates’ divorce

Our managing partner, Amanda McAlister, offers her expert opinion on the news that Bill and Melinda Gates are to divorce, and looks at some of the issues involved.

I woke this morning to the news that Bill and Melinda Gates were to get divorced. Minutes later my phone starting ringing, as I took one request after another from journalists wanting to cover the story and get my opinion on what a later-in-life divorce involves. It’s no exaggeration to say that almost every media outlet around the world is keen to look closer into why this multi-billionaire couple would want to part after 27 years of a seemingly very successful marriage.

Gates, 65, the fourth richest man in the world, founded Microsoft in 1975 and met his future wife Melinda in 1987, the year he became the world’s youngest billionaire. In 2000 they established the Bill and Melinda Gates Foundation. 

They have three children – Jennifer, 25, Rory, 21, and Phoebe, 18 – and in the message announcing their divorce, they wrote:

“After a great deal of thought and a lot of work, we have made the decision to end our marriage.

“Over the last 27 years, we have raised three incredible children and built a foundation that works all over the world to enable all people to lead healthy, productive lives. We continue to share a belief in that mission and will continue to work together at the foundation, but we no longer believe we can grow together as a couple in this next phase of our lives. We ask for space and privacy for our family as we begin to navigate this new life.”

Prenups and separation agreements

Court documents reveal that the couple do not have a prenuptial agreement. We’re told Melinda, 56, filed for divorce at a court in Washington state, saying “this marriage is irretrievably broken” when asked to explain the split, also revealing there was no prenuptial agreement when they wed on a Hawaiian golf course in 1994.

However, famously Bill used a pro and con list on a whiteboard to decide to whether or not to ask Melinda to marry him, so I suspect the couple may well have approached the ending of their marriage in the same carefully thought-out manner.

Indeed, the document, filed Monday in King County Superior Court in Seattle, notes that the pair has a “separation agreement.” A separation agreement is usually signed at the end of a marriage and lays out the terms of the split – it will, apparently, dictate how the couple will divide up their assets, which include the family home, a $125million compound overlooking Lake Washington on the outskirts of Seattle, a mansion in San Diego, a Santa Fe ranch, a countryside retreat in Wellington, Florida, a lakeside lodge in Wyoming which used to be home to Buffalo Bill and a garage full of Porsches, Ferraris and Lamborghinis. In fact, the Gates fortune is estimated at well over $100 billion, so I’m not surprised Melinda has not requested spousal support, according to the filing.

Divorcing after a long marriage

It’s interesting to note that there has been a significant increase in the number of couples filing for divorce who have been married for more than 20 years. I think it’s significant that the Gates’ youngest child recently turned 18: it’s reasonable to assume the couple wanted to wait for all their children to reach adulthood before they announced their formal separation, and I would also say it takes guts to do this after such a long marriage – perhaps even more so when your relationship, and your life, is so public.

How would this divorce be treated here?

Technically, separation agreements aren’t legally enforceable under UK law. But if both parties have been open and honest about their finances and taken independent legal advice about the agreement, then it’s entirely likely the court will decide you should stick to it.

However, under our jurisdiction there is also what’s known as the “millionaire defence”. This is a term created following the case of Thyssen-Bornemisza v Thyssen-Bornemisza (No) [1985] FLR 1069 where a wealthy party put forward a defence to providing full disclosure, on the basis that he had sufficient wealth to pay a lump sum or maintenance to the financially dependent party. In other words, why should the court go to the trouble, time and expense of investigating the millionaire’s means, when it is clear that he/she can meet whatever reasonable order the court is likely to make?

This defence causes some controversy as the court has an obligation to consider the parties’ financial resources properly. Furthermore, in order for the court to conclude that an order is fair and reasonable, it must consider the full and frank disclosure of all material facts, documents and other material. Nevertheless, it remains a viable option for the very wealthy, who are hopeful of keeping the precise details of their finances entirely private.

Keep it respectful

When Amazon founder Jeff Bezos and his wife MacKenzie announced their split after 25 years of marriage, they emphasised that the decision was mutual. But even when a couple part on amicable terms, the financial untangling is likely to be complex, simply because the sums involved, and the assets held, are so huge. However, neither party has said anything derogatory in public about the other, and both have moved on: MacKenzie married again two years after the divorce, her ex-husband Jeff has been with his girlfriend for two years.

I hope Bill and Melinda Gates both go forward in positivity and enjoy a fulfilling and happy future, and in particular I applaud their decision to continue to work together on their charitable foundation – showing respect for one’s ex is vital if they are to be a couple who, instead of being known for how wrong they got their divorce, are known for getting it right.

 

If you would like to consult one of our expert family lawyers about any aspect of divorce or separation, please do get in touch today. We are here to help you. 

We welcome Caroline Bilous as partner

We welcome Caroline Bilous as partner

We are delighted to welcome Caroline Bilous to McAlister Family Law as partner; she joins the team in response to a significant increase in new enquires in both the divorce and finance, and children law divisions.

Caroline is the fourth partner recruited by Beyond Group since lockdown; she will be heading her own specialist team within McAlister Family Law, as well as playing a wider leadership role within the Group, which encourages responsibility and ownership of initiatives.

Caroline was previously a partner and head of the Family department for Davis Blank Furniss, is a highly experienced family lawyer of more than 15 years. Her new role at McAlister Family Law will see her acting on behalf of clients seeking advice and guidance in relation to a wide variety of family matters, including separation and divorce, civil partnership dissolution, financial proceedings and children law proceedings. 

She is also an acknowledged specialist in complete financial and property matters, and a trained collaborative lawyer and a member of Resolution, able to assist her clients resolve their family disputes using alternative means of dispute resolution through the collaborative process.

McAlister Family Law, which is part of Beyond Group, has climbed the rankings in both Legal 500 and Chambers and Partners year on year and has offices in Manchester city centre and throughout Cheshire.  It is home to the leading children law team in the North West which now boasts seven Law Society, Children Panel-accredited, solicitors.

“I am thrilled to be joining both McAlister Family Law and the wider Beyond Group,” said Caroline. “The opportunity to be part of the dynamic leadership team that is being cultivated is incredibly exciting. I’m ready for the challenges ahead.”

Amanda McAlister, managing partner, added: “I am extremely pleased to welcome Caroline to McAlister Family Law: I know she will be a tremendous asset and will make a significant contribution to the development of the practice, as we not only continue our programme of strategic growth but also cement our reputation as one the UK’s leading family law firms.”

Beyond Group Head Matt Fleetwood said: “The appointment of Caroline as a partner within McAlister Family Law is further evidence of the Group’s strategic growth. We are extremely pleased she has joined us, bringing with her the rare combination of expertise and human perspective that is the key to the success of all our businesses. We are all delighted to have her on board.”

How can I enforce a Children Act Order?

how can I enforce a Children Act Order?

How can I enforce a Children Act Order?

“They’re ill.”

“You were late by five minutes.”

“They don’t want to see you.”

“It isn’t on this week, you have your dates wrong.”

Above are just a handful of reasons that a parent might hear as to why a Child Arrangements Order cannot be complied with. But is this right and does this ultimately trump a court order? Associate Melissa Jones explains.

How can you enforce a Children Act Order? If you have been involved in Children Act Proceedings and obtained a final court order, there are consequences if a party breaches an order, as follows:

(a) They may be held in contempt of court and be committed to prison or fined; and/or

(b) The court may make an order requiring them to undertake unpaid work (an enforcement order) and/or an order that they pay financial compensation.

How does this really work in practice?

Essentially, the court makes the order and expects parents to ensure it works on the ground. There may be times though when a child is ill, or there is an emergency, for example , which might mean that the child arrangements cannot go ahead on occasion. However, this should not happen repeatedly and if it does then unless the other parent has “reasonable excuse” for not allowing the contact, then they would appear to be in breach of the order.

What is the enforcement court process?

There  is still an expectation that you take steps to resolve matters before applying to the court. As you may have heard before, the court is a last resort. It is best practice, before an application is made, to address the issue with the other party and inform them of the implications of not doing so.   If the matter is not resolved, then you may have little choice but to apply to the court for enforcement.

What happens when I make my application?

You can make an application to enforce the order if you feel that it has  not been complied with. At the first hearing the court can be asked to consider the facts of the alleged breach and, in some cases, if these breaches are not agreed, list a hearing to determine those facts. The court can also decide, if after listening to the reason(s) for non-compliance, if CAFCASS or Social Services need to get involved.

The court process usually follows the same process as your last case (the one where you obtained your final order), that is:

* First Hearing Dispute Resolution Appointment (FHDRA)- the purpose of the hearing is to try and agree matters as much as possible

* Review hearing- this will be listed if matters cannot be resolved at the first hearing and the non-compliance issue remains live. It might have been that a report was ordered at the FHDRA for CAFCASS or Social Services to complete, for review at this hearing

* Final hearing- where the court will make an order after listening to evidence from the parties

The bottom line in these types of cases is, that there is an order in force, and it should be adhered to. If a parent is not able to comply with an order, they are able to make an application to ‘vary’ the order to ensure that they do not indirectly continue to breach an order.

If the court finds that a party has not complied with the order it can take a number of steps as detailed above, but one of lesser known options, and quite a rarity, is to order a transfer of residence, with the child going to live with the other parent. The latter happened in the following case: Re C (A Child) [2018] EWHC 557 (Fam)

Given the implications of not adhering to an order and the court’s robust approach, it is best to get advice as early as possible.

If you are affected by any of the issues raised here, please get in touch today.  We are here to help you.

What the Family Mediation Voucher Scheme means for you

government mediation voucher

What the new Family Mediation Voucher Scheme means for you

In an attempt to battle the ever-rising number of cases before the family court, the Government is introducing a one million pounds mediation scheme to help separating parents avoid stressful court cases.

Associate Melissa Jones takes a closer look at what this new scheme could mean for you.

new family mediation vouchers

2000 families will be given £500 in total to use towards the costs of mediation. At present, if a mediation referral is made, either one party or both parties contribute to the fees, or there may be an exemption if certain criteria is met or legal aid applies.

The statistics provided by the government indicate that more than 70% of couples who use mediation resolved their issues outside of court.

Could mediation really help me?

The scheme is aimed at families who have disputes relating to private law children matters or financial matters relating to children of the family.

The information provided to date suggests there is an eligibility element to accessing the scheme in the first place, but if you do happen to obtain a voucher what can you expect from mediation?

What is mediation?

Mediation is a form of alternative dispute resolution which can help you achieve the resolution of many issues on which the court would otherwise decide. There are of course cases where mediation is not suitable – cases concerning domestic abuse or child protection issues for example – and the mediator will confirm this from the beginning.

Even with the pandemic, mediation is open and still accessible to hundreds of families up and down the UK and this is being achieved with remote appointments (via Zoom or Skype).  This might even seek to reduce any anxiety you have of being in the same room as your ex or former partner.

A trained mediator will allow both parties to speak and will look to see what matters can be agreed upon. It is a prerequisite to court that the parties attend mediation. The court places emphasis on mediation from the beginning and rightly so because the court is a last resort and if it can be avoided, it should.

Why it works

It is far better to reach an agreement between yourselves than have a court impose an order upon you. Mediation is effective in helping you negotiate an agreement regarding child arrangements or a division of property.

It is a positive if you and the other party who takes up this scheme, as it implies that you both have a joint goal of resolving your dispute.  If you do reach an agreement during mediation you can then take legal advice on this and make sure that any agreement is in your best interest.

Where it does not work

It is of course not suitable for those who simply will not engage in negotiations, or are unwilling to be flexible or to compromise, as this will be a counterproductive exercise.

A mediator also has no power to force you or the other party into an agreement and anything discussed in mediation is “without prejudice”, meaning you cannot rely on this in court proceedings.

What is being proposed?

What is being proposed under the Government’s mediation scheme is that once the parties have attended mediation and reached an agreement, it is then considered by a court before making it into a legal binding and enforceable court order.

It remains to be seen how this will work in practice, as mediators are precluded from giving legal advice and as such, the usual practice is that, if an agreement is reached, your solicitor would then advise you on the agreement before this is ratified by court. Thus, there is a question mark over when and at what stage you will engage your solicitor during the scheme, before the matter is considered by a court and what happens once you are in court proceedings.

We advise those who do take up the scheme to you stay in touch with their solicitor during the mediation process, and to ask for advice as matters progress.

If you are affected by any of the issues raised here, please get in touch today.  We are here to help you.

New legislation fails the needs of the most vulnerable children in society

new legislation fails the most vulnerable

New legislation fails the needs of the most vulnerable children in society

The pandemic has plunged more young people into the care system, placing pressure on all relevant legal and social work professionals, including the courts and local authorities. It has been reported that three-quarters of children’s residential settings in England are privately run, which can mean that they can choose whether a child fits their criteria rather than questioning whether the placement actually fits the welfare needs of the child.  This means that the most vulnerable children could be placed in unregulated and unsuitable placements.

Senior Associate Nicola McDaid explains further.

 

On Friday 19th February 2021 the Department for Education announced that it will ban the use of unregulated accommodation (this is accommodation which is not Ofsted approved, registered or inspected by the council) for children in care aged 15 and under. This means as from September 2021 through amending

The Care Planning, Placement and Case Review (England) Regulations 2010

it will be illegal to place children in unregulated accommodation.

Vulnerable children

The government’s change in legislation is intended to ensure that the most vulnerable children are cared for in placements which best meet their needs.

However, this ban does not affect the thousands of 16 and 17-year-olds who already reside in unapproved, unregistered and unregulated placements which can be known as semi-independent or supported accommodation and are not inspected by a regulator in England or Wales.

Sadly, many children aged 16 and 17 years old, having already experienced abuse, trauma and/or exploitation and who may end up in these unregulated settings, are also the most vulnerable children who clearly need the additional support which will not be provided to them under this new legislation.

New legislation

Many legal professionals have already expressed concern that this new legislation won’t meet the welfare needs of these children, at a time when they need it the most, as they progress to adulthood. There is a feeling amongst legal and social work professionals that this could create a two-tier system, with the state effectively washing its hands of young people when they get past a certain age.

The government has promised it will look to introduce national standards for unregulated accommodation for older children in care and care leavers (a child 16 years old or above) to ensure the standard of placements are a high quality and that will meet the welfare needs of these children, but unfortunately such legislation is not yet in force.

Without question this is a very worrying time when the burden on the system means that more unregulated placements are having to be utilised, and it is hoped that the government will make this a priority to ensure that all children of all ages have the best possible care when they are unable to reside with their families.

We are here to support you. Come to us with your questions and our expert team of family lawyers are on hand to give you the assistance you need. Please get in touch today – we’re here to help.

Divorce is not your only option

divorce is not your only option Louise Redknapp

Divorce is not your only option

Louise Redknapp has been reported this weekend as saying she has regrets about divorcing her husband Jamie: “I should have paused for a minute and thought about other people and had just a bit more time to work out why I felt I couldn’t do it anymore. All I know is, I wish I’d tried [to save the marriage].”

She added: “I want to say to anybody who is thinking of running: ‘Just slow down. Don’t run.’ Because once you run too fast, you can’t make up the ground you’ve lost.”

People make decisions that they believe are right at the time, and nobody is criticising Ms Redknapp for taking the path she did. However, it is sobering to think that perhaps the Redknapp’s marriage might still be going strong today had decisions not been made so quickly. Divorce is not your only option.

Our managing partner, Amanda McAlister, explains there is another option available to those unsure as to whether or not they want press the divorce button.

“As a family lawyer of many years’ experience, and someone who has herself been divorced, I can say with certainty that although you will have heard stories of acrimony and bitterness, it doesn’t have to be that way. Being transparent about your emotions, and managing your expectations are two key areas to focus on.

“But for those couples not ready to bring an end to their marriage through a divorce or dissolution of their civil partnership, or who want to allow a period of reflection, there is the option of a Legal Separation.”

What is a Separation Agreement?

A separation agreement, entered into by both parties, is an agreement setting out how the couple’s assets should be divided and whether there should be any ongoing financial support – it can be tailor-made to the couple’s individual circumstances.  Within the document the parties commit to commencing divorce proceedings after they have been separated for two years.

Is a Separation Agreement legally binding?

In a word, no. But if it has been properly drawn up with full financial disclosure, and various safeguards have been met, then the court could hold the parties to it, unless their circumstances have changed substantially since the agreement was signed.

What are the advantages?

It can provide a sound basis for the ultimate financial consent order that should be presented to the court once the divorce or dissolution has reached the appropriate stage. And entering into a separation agreement is far less uncertain that simply deferring the question of the financial settlement until the divorce proceedings are initiated.

And the disadvantages?

In brief, a divorce brings closure, a separation agreement doesn’t. And closure can be extremely important, particularly for children who need certainty, and for the wider family who will then be able to accept that the marriage ending is final.

Remember that although the No-Fault Divorce Act received Royal Assent in June 2020, the reforms have not yet come into force. This means that your divorce petition must prove the marriage has irretrievably broken down by evidencing one of five, specific, statutory facts:

  • adultery
  • unreasonable behaviour
  • desertion (in practice, this is rare, and difficult to prove)
  • two years’ separation, with agreement by both that there should be a divorce (and it’s worth considering that this two years of separation in itself provides a “cooling-off” period – a time for reflection)
  • five years’ separation (the consent of the Respondent is not needed)

“To summarise, whist the prospect of commencing a divorce is incredibly stressful and upsetting, it does provide closure not only to the adults but also children, allowing the whole family to move on. A divorce also allows a binding financial settlement to be achieved ensuring that both parties are provided with financial certainty and security for the future.”

 

We are here to support families, whether they are making up, or breaking up. Nobody knows what the future holds, but we want to assure you that you are not alone. Come to us with your questions and our expert team of family lawyers are on hand to give you the assistance you need. We’re here to help.

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