I’m getting a divorce – Will I get support from my employer?

Posted on 14th September 2023 by McAlister Family Law

I’m getting a divorce – Will I get support from my employer?

Going through a divorce is undoubtedly one of the most difficult things a person can experience. Going through a divorce whilst also working however can seem an impossible task. Here, Weronika Husejko looks at the pressure on divorcing couples and explores how employers are providing support to their divorcing employees.

Most people suffer from an extreme amount of stress when separating from their spouse, the breakdown of the marriage being a significant change to their life. In addition to coping with the emotional side of the break-up, spouses must also deal with the practical side, to formalise the separation, which can be overwhelming.

The majority of separating spouses have financial ties, such as jointly owned property, which will need to be divided. One of the toughest parts of a divorce is usually when the couple must make a decision as to how these assets should be divided, particularly in cases where there are not enough to meet both spouses’ needs.

Dealing with these types of financial matters upon separation is challenging and emotionally draining, particularly for those who end up in Court proceedings, due to their time consuming and costly nature. For example, those in Court proceedings are usually required to comply with several Court directions, including attending Court hearings, which is a stressful experience in itself.

A divorce is therefore very demanding and as a result, it is not uncommon for employees experiencing a marital breakdown to feel torn between their job and their divorce, this often having a detrimental effect on their mental health. Historically speaking this has been something which most employees have unfortunately been expected to endure.

The BBC have however recently reported that some companies are beginning to introduce and build policies which are intended to help their employees in navigating a divorce.

By way of example, some companies are offering benefits such as: –

Paid time off to attend things such as solicitors’ meetings or mediation.
Flexible working arrangements
Access to emotional and mental health support
Access to legal advice

There are also organisations in the UK which are trying to promote more family-friendly policies like those mentioned above to help those going through the breakdown of a relationship. For example, the Positive Parenting Alliance have called for a separation to be recognised as a ‘life event’ by employers in HR policies and have also suggested that employees going through a separation should be offered support by way of counselling if needed.

Tesco is one of the first large companies in the UK to provide their employees with this type of support, as recommended by the Positive Parenting Alliance.

In summary, whether you get any support from your employer during your divorce will be dependent upon their specific company policy, so you may wish to consider speaking to your HR department about the options available to you.

It does seem that there is a shift happening with more companies recognising the difficulties involved in a marital breakdown. In my view, this is a positive shift which also demonstrates an increasing awareness of the importance of mental health generally, which will hopefully result in more people receiving the support they need during what is a very difficult time.

If you or someone you know is affected by the issues raised in this blog post, we can provide you with expert legal advice. For more information, please get in touch with our specialist team at hello@mcalisterfamilylaw.co.uk

Are pre-nuptial agreements only for the rich and famous?

Posted on 31st August 2023 by McAlister Family Law

Are pre-nuptial agreements only for the rich and famous?

As seen with the ongoing separation of Hollywood star Kevin Costner, pre-nuptial agreements are often considered something that is limited to the super-wealthy or the Hollywood Hills. McAlister Family Law Associate, Aaron Williams, aims to shed light on what prenuptial agreements entail and whether they hold legal weight in the United Kingdom.

Prenuptial agreements, often referred to as “prenups,” are legal documents that couples enter into before marriage or civil partnership to outline the division of assets and financial responsibilities in the event of separation or divorce. A prenuptial agreement is a legally binding contract that helps couples establish financial boundaries and protect their assets in the event of a relationship breakdown. Although these agreements are more commonly associated with high-net-worth individuals, they can benefit any couple looking to safeguard their financial interests.

The primary purpose of a prenup is to provide clarity and certainty regarding the division of assets, debts, and other financial matters. It allows couples to determine how their property, investments, inheritances, and business interests will be divided in the event of separation or divorce. Prenuptial agreements can also address issues such as spousal support and the allocation of debts, providing a comprehensive framework for resolving potential disputes. Prenuptial agreements are legally recognized in the United Kingdom, but their enforceability is subject to the discretion of the courts. While they are not automatically binding, they carry significant weight if certain conditions are met.

To ensure the enforceability of a prenuptial agreement, it must be entered into willingly, with both parties having received independent legal advice and provided full financial disclosure. The agreement should also be fair and reasonable at the time it is made, taking into consideration the future needs of both parties and any children involved. It is important to note that the courts retain the power to depart from the terms of a prenuptial agreement if they deem it unfair in the circumstances. Factors such as the length of the marriage, the welfare of any children, and significant changes in the parties’ financial situations may be considered when determining the enforceability of a prenup.

Prenuptial agreements offer couples a valuable tool for establishing financial arrangements and protecting their assets in case of a relationship breakdown. While not automatically binding in the U.K., a well-drafted and fair prenup, entered into with full disclosure and legal advice, can carry significant weight in court proceedings.

Forced Marriage Protection Orders, what are they and who can apply for one?

Posted on 28th June 202328th June 2023 by McAlister Family Law

Forced Marriage Protection Orders, what are they and who can apply for one?

A marriage should always be someone’s choice, but sometimes people are forced into marriage. In his latest blog for McAlister Family Law, Sereyvudd Pheanouk looks at Forced Marriage Protection Orders and explains who can apply for one.

What is a Forced Marriage?

A forced marriage is where one or both parties do not, or cannot, consent to the marriage.

Forced marriages can occur with anyone from all backgrounds, nationalities, males and females, and does not just happen to young people, but adults as well. Forced marriages are not to be confused with arranged marriages, in which both parties have a say and agree to the union.

Forced Marriage Protection Orders

The Forced Marriage (Civil Protection) Act 2007 provides the Court the ability to grant Force Marriage Protection Orders (FMPO) to protect the victim from coming into any further harm, in relation to the forced marriage.

An FMPO acts as a deterrent for perpetrators to approach the victim, similar to a non-molestation order or injunction. The purpose of the FMPO is to protect the victim from being forced to marry; however, it can also restrict the perpetrator from doing certain acts such as taking the victim out of the country, making marriage arrangements, contacting the victim directly/indirectly, and it can protect the victim from violence.

Powers of arrest can be attached to the order and if breached, the perpetrator could face imprisonment under contempt of Court.

Who can apply for a FMPO?

You can apply for an FMPO if you are:

Being forced into a marriage; or
Already in a forced marriage

A relevant third party of any victim with permission from the Court can make an application for a FMPO on their behalf.

Local Authorities can also apply for a FMPO on behalf of the victim if they consider the victim to be vulnerable or under 18.

An FMPO can be made without notice; however, this is on a case by case basis. This means that the respondent will not be notified that an application for an FMPO has been made. The respondent will receive notice once an order has been granted.

There is no court fee for making an application and legal aid is available for applications subject to a means test.

If you or someone you know is affected by the issues raised in this blog post, we can provide you with advice and assist you in applying for an FMPO. For more information, please get in touch with our specialist team at hello@mcalisterfamilylaw.co.uk

Transparency in the Family Courts – the Dawn of a ‘New Norm’

Posted on 1st June 2023 by McAlister Family Law

Transparency in the Family Courts – the Dawn of a ‘New Norm’

Should the media report on the Family Courts? Here, Ruth Hetherington looks at the role of transparency in the family courts and how transparency orders will protect those families already under a lot of stress.

For many years now, on the whole, the Family Courts sit in private, which means no one else is allowed into the Court hearing except those people involved. Some would say that there is a shroud of secrecy in the Family Courts and decisions are being made behind closed doors. There has been a genuine reason for this … there is a need to protect the privacy of the people involved, particularly children balanced with having the public’s perception, trust and confidence about the way in which the family courts operate.

At present S.12 of the Administration of Justice Act 1960 prevents reporting of most family law cases in the absence of the Judges consent. This legislation was intended to ‘protect and support the administration of justice’.

S.97 Children Act 1989 protects the identity of children. It is a criminal offence if breached.

As it can be seen, currently there is little scope for reporting on any family case.

It would be fair to say that most family cases have been held in private, but the public only get to hear about ‘big money’ cases and predominantly the lives of celebrities when they hit the headlines.

The appetite however for the family courts to be more accessible has been a matter of discussion and debate for many years. The President of the Family Law Division, Sir Andrew McFarlane intends to change all of that.

Sir Andrew McFarlane published a report in October 2021 entitled ‘Confidence and Confidentiality: Transparency in the Family Courts’.

The emphasis now is very much that the veil of secrecy and mystery associated with the family courts needs to be lifted, mainly to provide the public with confidence that the family courts are safeguarding children and their families.

Sir Andrew McFarlane says ‘the time has come for accredited media representatives to be able to not only attend hearings but to report publicly on what they see and hear. Any reporting must however be subject to very clear rules to maintain anonymity of children and families and to keep confidential intimate details of their private lives.

Pilots are now running in Cardiff, Leeds and Carlisle, and they will continue throughout 2023 with data being collated. In essence accredited media representatives and legal bloggers are permitted to attend court hearings, have access to documents and report on the outcome, subject to the terms of a Transparency Order.

Transparency orders will set out what can and cannot be reported on. Reporters must and will be bound by that order. The Transparency Order can be varied or removed at any point, by the Court.

The case needs to be conducted in an orderly way and not be prejudiced or compromised. However, how this operates in practice forms part of the Pilot now running.

The pilot will start with public law cases (care proceedings) then private law children proceedings.

The jury is still out, as many family practitioners, are apprehensive of the changes as all families going through the family court are already experiencing stress and anxiety without having to deal with an added layer that their case could be reported on. It may prevent or deter many vulnerable people in seeking access to justice at a time in their lives where help and support is needed.

The message is clear, confidence and confidentiality can be achieved and that there needs to be a major shift in culture.

Legal bloggers

Interesting concept and development within the Pilot in that anyone can ‘blog’ on the law, but can they just attend a hearing? The answer is no. To be able to attend court hearings you must be a ‘duly authorised lawyer’. Blogging can only be for journalistic research or public, legal educational purposes. So…in the busy lives of family practitioners do they have time to attend other court hearings that they are not involved in, would they want to, could this be part of training for young lawyers entering the early part of their career. It remans to be some as to whether there is the ‘up take’ on legal bloggers.

If you need advice on this topic, or any other matters concerning divorce or family law, please get in touch with our team at McAlister Family Law.

Daisy’s Law – New measures to recognise children born as a result of rape

Posted on 23rd March 202323rd March 2023 by McAlister Family Law

Daisy’s Law – New measures to recognise children born as a result of rape

Children born as a result of rape will officially be recognised as victims of crime and receive better support under changes announced by the Government. Here, Rubecca Rahman, McAlister Family Law Paralegal, looks at what the introduction of ‘Daisy’s Law’ will mean for children, victims and survivors of sexual abuse.

On 19^th January 2023 the Government announced that children born as a result of rape will officially be recognised as victims. This follows the Government’s intention to further support victims of such heinous crimes and allow them the opportunity to make the individual accountable for d the crime.

Government statistics suggest that highest ever number of rapes within a 12-month period was recorded by police in the year ending September 2022 and in that same time period, charges were brought in just 2,616 rape cases.[1]

The UK government has announced these changes to the law which will recognise children as victims under the proposal ‘Daisy’s Law.’ England and Wales will be amongst the first countries in the world to bring about such change to their legislation, recognising the horrific circumstances that these children suffer due to no fault of their own.

At present, the lack of explicit reference to people born as a result of rape in the Victims’ Code, which is essentially a code of practice which sets out the minimum standard that all organisations must provide to victims of crime.[2] makes it very difficult for them to claim support and entitlements such as being provided with information about their case. The new laws will allow such children to receive specialist care and support from the criminal justice system which they may have otherwise not have had access to. The change will also allow victims to access counselling and therapy much easier as the government is committed to delivering better outcomes for victims and survivors of sexual abuse.

This landmark piece of legislation follows recommendations from the Justice Select Committee as it seeks to put the needs and voices of victims at the heart of the justice system and increase the accountability of agencies.

The Centre for Women’s Justice (CWJ) found that children born as a result of rape were at risk of suffering serious and long-term harm due to the distressing circumstances of their birth, from infancy well into later life.[3]

Daisy’s Law

Daisy was conceived as a result of rape in the 1970’s and her biological father, Mr Carvel Bennet was never brought to justice, despite her mother reporting the report at the time. He was eventually brought to justice in 2021 using Daisy’s DNA.[4]

As a child, Daisy was raised by an adoptive family, shielded from the truth about the circumstances of her birth. Once she turned 18, she requested her adoption file, hoping to learn more about her birth family and was horrified to learn that her birth mother had become pregnant with her at just 13 years of age. Eventually, Daisy was able to establish a contact with her birth mother and campaigned for her biological father to be brought to justice, offering her DNA as evidence that could be used to prove the prosecution case.

Once this matter was brought before the court, the police were able to secure a conviction against her biological father. Under the criminal law proceedings, Daisy had no rights within law to be kept informed of the progress of the investigation or the prosecution as she was not recognised as a victim of the crime. She therefore worked effortlessly to raise awareness in the press of the difficulties she faced by not being recognised as a secondary victim of rape.

Final thoughts

It is hoped that by working together with other countries to develop a recognised framework, children born of sexual violence will not be disadvantaged by the circumstances of their birth. The call to action has already been endorsed by several countries and organisations and it is hoped this change will have a huge impact on the way matters are dealt with in and out of proceedings and to the victims and those affected by it.

If you need advice on this topic, or any other matters concerning divorce or family law, please get in touch with our team at McAlister Family Law.

References:

[1] https://rapecrisis.org.uk/get-informed/statistics-sexual-violence/

[2] https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/974376/victims-code-2020.pdf

[3] https://www.centreforwomensjustice.org.uk/news/2022/8/15/daisys-law-new-research-commissioned-by-centre-for-womens-justice-demonstrates-why-children-born-from-rape-should-be-recognised-as-victims-in-law

[4] https://static1.squarespace.com/static/5aa98420f2e6b1ba0c874e42/t/62fa26731a8f4921aef8545c/1660561012202/Daisy%27s+story.pdf

The New Age of Social Media v Children’s Rights to Privacy Online

Posted on 16th March 202323rd March 2023 by McAlister Family Law

The new age of social media v children’s rights to privacy online

The growing popularity of online social media platforms such as TikTok and Instagram has paved the way for a newfound presence of ‘kidfluencers’ – children thrust into the online spotlight by their parents or legal guardian, often becoming the face of a personal brand in return for sponsorship deals and paid promotions, with some pages reported to earn thousands of pounds per post.

Here, Eleanor Drury looks at how the influencer marketing industry may put children at risk, and what other jurisdictions are doing to protect them.

Last year, the House of Commons Digital, Culture, Media and Sport committee raised concerns that children are being used by entrepreneurial parents and guardians to capitalise on the growing market, and that a lack of action to regulate this area will lead to children in the industry being exploited. Whilst the UK has previously implemented child labour legislation, this was drafted some time ago and arguably needs to be to address gaps arising from 21^st century ways of life and provide regulation around two key grey areas; firstly, a child’s right to privacy on social media; namely, how content of them is shared and with whom, and secondly, whether profits are protected for the child’s future benefit.

The courts and legislators are faced with a tricky situation whereby the best interests of the child must be finely considered. There is an argument that children in this industry have a better quality of life, presented with further opportunities and greater financial freedom. Does filming and posting your child unboxing gifts, playing pranks or simply singing and dancing along with the latest trends really trigger the need for intervention? Or does the commercialisation for an online audience negate the defence of it simply being ‘play time’?

Given the overwhelming popularity of technology and social media, and the fact that of course not every child posted online is subject to a huge following of strangers on the internet, the courts will likely be keen to avoid a situation in which the floodgates are opened to excess claims and would therefore need to scrutinize a number of variables such as the age of the child, any safeguards put in place to protect the child and how much time and effort is required is of the child. It must also be recognised that the vast majority of parents and guardians post their children online out of love and parental pride.

In 2020, the French parliament adopted a new law on the commercial use of images of children under 16 years old on online platforms. The law aims to protect child influencers and provide a legal framework to prevent their exploitation online. This legislation requires parents and guardians to seek prior government authorisation to produce videos or imagery of children for online platforms where revenue exceeds certain thresholds, along with protecting any income generated by ensuring that only a percentage of this is received by parents and guardians, with the remainder being placed in trust for the child to access during adulthood.

With influencer marketing rapidly on the rise, perhaps UK legislators will decide soon to follow in the footsteps of other jurisdictions and provide a more modernised and inclusive take on pre-existing child labour law.

If you need advice on this topic, or any other matters concerning divorce or family law, please get in touch with our team at McAlister Family Law.

Do people go into marriage with their eyes wide open?

Posted on 9th March 2023 by McAlister Family Law

Do people go into marriage with their eyes wide open?

When people get married, it’s a whirlwind of romance, excitement and planning the big day. The average modern wedding takes about 11 months to plan, over 528 hours (22 whole days). But how much do the to-be-weds understand about the legal and financial implications of marriage? Here, Frances Bentley looks at how couples can go into marriage with their eyes wide open.

Being in the process of planning my own wedding, I can certainly believe the amount of time that goes into it. It is hard not to get swept up in planning the actual wedding day, and sometimes there is a much lesser focus on what marriage actually means after the big day.

As a divorce lawyer, when clients come to me, they say that they did not understand or appreciate the legal and financial implications of marriage when going into it. It begs the question as to whether there should be more education about it before people get married.

It might seem obvious that marriage means a sharing of each other’s lives, hopefully forever, so maybe it isn’t needed. However, if things don’t work out, a lot of people don’t often understand what would actually happen to their finances on divorce. Maybe it isn’t the most romantic thing to think or talk about before you get married, but actually understanding and knowing the implications might mean that people are going into marriage with their eyes open.

I think it is really healthy to have that conversation and so people know where they stand. In my view, it doesn’t undermine the fact that the plan is to stay together forever, and of course that is what the aim is. I actually think it is a bit of a red flag if your future spouse reacts badly to that conversation.

So how can you protect yourself financially if you are getting married?

One way that couples that are to be married can protect their financial position in the event of a future separation is to enter into a pre-nuptial agreement (or a post nuptial agreement if they are already married).

Nuptial agreements can detail what is going to happen with finances in the event of future divorce and whether, for example, one person’s inheritance, or assets brought into the marriage are to be “ringfenced” from any future division of assets on divorce. It allows both people entering into the marriage with knowledge of the other’s financial position and some clarity.

Whilst nuptial agreements are not technically legally binding in England and Wales, they are being upheld much more by the courts and are persuasive, as long as they have been entered into procedurally correctly, both parties have taken legal advice, and are considered to be “fair” to both parties. They can also be reviewed throughout the marriage to take into account any changes in circumstances and ensure that they remain to be “fair”.

On a divorce, the starting point legally or finances is a 50/50 division of all assets. The court would then look at whether or not that is fair, and whether there should be a departure from that starting point, taking into account a number of factors. The factors include what the parties or any children “need” financially, what contributions have been made prior to, during and after the marriage, the standard of living enjoyed amongst other factors, one being whether there has been any pre-nuptial agreement entered into and whether that should be upheld.

The court will look at what is fair and reasonable, in all of the circumstances of the case, and if, the pre-nuptial agreement remains to be fair and reasonable, it is very likely to be upheld and assets brought into the marriage are likely to be protected. It does therefore offer protection and clarity and an understanding of the other person’s financial position before the marriage.

If you need advice on this topic, or any other matters concerning divorce or family law, please get in touch with our team at McAlister Family Law.

No Fault Divorce – the Good, the Bad, and the Neutral

Posted on 7th January 202218th March 2022 by McAlister Family Law

No Fault Divorce – the Good, the Bad, and the Neutral

Our managing partner, Amanda McAlister, recently appeared on BBC Morning Live discussing what the incoming no fault divorce law is and what it will mean for couples that are currently considering a divorce.

In this blog, Heather Lucy, Solicitor at McAlister Family Law, discusses the pros and cons of the new law in more depth.

People considering divorce are often surprised to hear that, in most circumstances, there will need to be an element of ‘blame’ to begin proceedings immediately. The current legislation says that a marriage will only be dissolved on its ‘irretrievable breakdown’ which must be evidenced with one of five facts

Unreasonable behaviour – assigns blame
Adultery – assigns blame
Desertion – very rare and now archaic
Two years’ separation with consent – does not assign blame but stops the divorcing couple moving forward
Five years’ separation (no consent needed) – does not assign blame but more time in limbo

Many people wanting to divorce want the change to happen as soon as possible and to get through this time of their life in as pain-free a manner as possible. Practitioners and campaigners have been calling for no-fault divorce for many years and it is set to soon become a reality. But what does it actually mean and what are the consequences?

What’s happening?

There is to be a reform to the law on the breakdown of marriages for the first time since 1973. Splitting couples will no longer need to evidence the ‘irretrievable breakdown’ of the marriage but can, instead, just give a statement to the court to say that the marriage has broken down irretrievably – there is no need to pick one of the five factors above. Couples will also be able to jointly petition for divorce for the first time.

The new law is due to come into place in April 2022 though it was initially scheduled for June 2021.

The Good

Less hostility – this helps with avoid souring relations between the divorcing couple. Often there are financial matters to sort out and children to co-parent. Splitting up is never pleasant but it can be achieved amicably and no-fault divorce is likely to help this.
Less likely to end up in court – currently, divorces can be contested and this can lead to very expensive and protracted proceedings. Fortunately, this is rare but the risk is removed with no-fault divorce except in exceptional circumstances.
More cost-effective – there will need to be less correspondence between solicitors attempting to agree a divorce petition that is palatable to both people. This will save costs.

The Bad

Some people fear that this amendment to the law will make it too easy to get divorced and it detracts from the sanctity of marriage. This is combatted by a minimum timescale of 6 months from submission to final order.
It is not clear whether the government will be ready for the law to come into effect in April 2022 so anyone waiting for the introduction of no-fault divorce cannot be certain of when they can divorce.

And the…neutral

People seeking legal advice on divorce often assume that assigning blame to one party will give them an advantage when sorting out their finances. This is very rarely the case so the introduction of no-fault divorce will not make a difference.

If you are thinking about divorce and want to discuss your options, including whether waiting for the new rules to come into force, please do not hesitate to contact us.