New fund to help domestic abuse victims escape abuse and help rebuild their lives.

Posted on 22nd January 202422nd January 2024 by McAlister Family Law

New fund to help domestic abuse victims escape abuse and help rebuild their lives.

The Home Office announced that it is introducing a £2 million pound fund to provide support by way off a one-off payment to victims of domestic abuse to help them leave their abusers. Here, Melissa Jones, Senior Associate, looks at what this means for domestic abuse victims and what the funds covers.

What is the fund and how do I make a claim?

From 31^st January 2024, if you are a victim of domestic abuse and you do not have the funds to leave your abuser (if you live together) then you can apply for a one-off payment of £500 for essential items and support with new accommodation.

In addition to the above, victims of domestic abuse can also apply for a further one-off payment of up to £2500 to “help secure a sustainable independent future, such as putting down a deposit for rental accommodation.”

The fund is set to last until March 2025 initially. Women’s Aid has been reappointed to help deliver this service and as of last year the fund helped over 600 victims to safety.

It has been reported that victims of domestic abuse find it hard to leave their abuser due to the costs of living and accommodation costs.

What is Domestic Abuse?

Domestic abuse is when someone close to you, often a partner or spouse causes you physical, sexual, financial or emotional hardship. It is a misconception that in order for you to be categorized as being in an abusive relationship, there must be physical violence. In many cases there is no physical violence; instead, there is psychological and emotional abuse.

Domestic violence can take many forms. Other than physical violence and threats of violence, you may feel intimidated by things that are said to you, or the manner in which you are treated. You may feel controlled and prevented from spending time with friends and family. Abuse can be verbal; you may feel belittled by your partner at home or in front of others.

Senior Associate, Melissa Jones comments “this is a very good initiative and practical step for victims of domestic abuse who are suffering immensely and do not need the added stress of financial constraints when leaving their abuser. With domestic abuse being linked to depression and homelessness, anything that can help to reduce both of these issues is very much needed. Hopefully this will provide immediate and swift assistance to those that need it”.

If you believe you are, or someone you know is suffering from domestic abuse, then there are ways to help you, and them. At McAlister Family Law we can help victims of domestic abuse by advising them on the most appropriate course of action in their particular situation.

Anyone who requires help or support can contact the National Domestic Abuse Helpline which is open 24/7 365 days per year on 0808 2000 247 or via their website https://www.nationaldahelpline.org.uk

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

Is a divorce on the cards for Kyle Walker and Annie Kilner?

Posted on 18th January 2024 by McAlister Family Law

Is a divorce on the cards for Kyle Walker and Annie Kilner?

After an Instagram story posted by Annie Kilner, it seems that Manchester City star Kyle Walker’s marriage to his childhood sweetheart is at an end. Here, Heather Lucy looks at what will happen if the couple do divorce, how the assets may be divided and how their children’s welfare will be taken into consideration.

On an Instagram story, Annie Kilner has said she is ‘taking some time away’ from her marriage to the football star and online communities are convinced that this means a divorce is on the cards. This seems all the more likely given that Walker has left the family home. Online publications are now speculating whether Kilner is going to have the ‘final revenge’ by seeking a financial settlement on divorce. Whilst this framing is not helpful in trying to have an amicable divorce (which is sensible especially when there are children involved), it does throw up some questions about what will happen to the couple’s finances if a divorce really is on the cards.

Walker and Kilner were married in 2021. On the face of it, it therefore sounds like their marriage was short-lived. This is relevant because the courts take into account the length of a marriage when dividing up matrimonial assets on divorce. They do not, however, limit this to the time since ‘I do’. The relevant timeframe is the length of time since the couple began to live together (if they did so without a break) to when they separated. Walker and Kilner reportedly dated for 12-13 years before they married, though when they first moved in together is not public knowledge. This could, therefore, be an important distinction for the couple as it seems likely to take them from a short marriage to a long one which means that the court would be more likely to use an equal division of the matrimonial assets as a starting point. One fly in the ointment, however, might be the couple’s earlier split in 2019. Kilner will need to take some careful legal advice about this.

During the 2019 split, Walker met Lauryn Goodman who is a model and influencer. Together, they had a child, Kairo, and there are speculations that Goodman’s daughter (born in 2023) was also fathered by Walker. Walker and Kilner share three children together. When looking at the division of finances on divorce, the welfare of children of the family will be the court’s priority. Whilst Goodman’s child(ren) may not be considered ‘children of the family’ (which depends on whether they have been treated as such), Walker’s obligations to them are likely to feature heavily in any negotiations that take place.

The length of the marriage and the existence of children are just two of the factors that the court takes into account when considering the financial division between parties on divorce. Please see Fiona Wood’s article on section 25 of the Matrimonial Causes Act 1973 to explore this in further detail.

Historically, Kilner would have been able to issue an application for divorce on the basis of Walker’s infidelity. This, however, changed in April 2022 when the no-fault divorce regime came into force. This means that the couple’s focus will remain on dividing their assets rather than trying to assign blame to each other for the breakdown of the marriage… in the courts at least. Hopefully, if the marriage has broken down irretrievably, both Walker and Kilner will take good legal advice and aim to reach a resolution in a way that will allow a positive co-parenting relationship for their children.

Understanding the division of business assets in divorce: a guide for business owners

Posted on 13th November 2023 by McAlister Family Law

Understanding the division of business assets in divorce: a guide for business owners

Divorce is difficult time for most people. One thing that those divorcing worry about is the financial aspects of their divorce. Business owners worry what impact their divorce will have on their business. Will their business still be viable after the divorce? Will they have to sell their business? Here, McAlister Family Law Partner, Fiona Wood looks at the division of business assets in divorce.

When a couple divorce, before they can be advised what a fair financial settlement is, they both need to provide full details of their assets, liabilities and income. This is known as providing financial disclosure. If you have an interest in a business this needs to be disclosed as part of this process, whether you have shares in a private limited company or a publicly floated company, are a partner in a partnership or are a sole trader. The value of a spouse’s business interests will often be valued within divorce proceedings.

Businesses come in all shapes and sizes. Some are small businesses that have very limited assets and are just an individual working on a self-employed basis, for example an IT consultant who works through a limited company. It is unlikely that this type of business will have a value, as the business is just a vehicle through which that person earns an income. If you take that person away the business has no value, save for any money held in its bank accounts.

Other types of businesses are likely to have a value and will need to be valued, unless a value can be agreed by the spouses. If a business valuation is needed when a couple divorce it is usual for the couple to jointly instruct an accountant, who is an expert in business valuations, to prepare a valuation report. Valuing a business is an art, not a science, so different accountants will attribute different values to the same business. Some accountants are more conservative than others with their valuations. It is therefore important that you take advice upon the right accountant to instruct before going down the valuation route.

Most businesses are valued in one of two ways – a net asset basis or an earnings basis.

Net Asset Basis

Businesses that have significant assets, such as properties, are usually valued on a net asset basis. This is the value of all the assets owned by the business less all of the debts. Where the business owns assets such properties, it may be necessary to get up to date valuations of these before the accountant prepares their report.

Earnings Basis

This method is usually appropriate where a business is trading and generating a profit from that trade. Typically, this method requires the assessment of the likely level of Future Maintainable Earnings and the application of an appropriate multiplier. To do this recent trading performance is usually considered.

Usually, the jointly instructed accountant will undertake both calculations and use the highest figure. Therefore, a trading company could be valued on a net assets basis if its assets have a very high value or alternatively if the recent trading performance has been poor, and therefore the Future Maintainable Earnings are low.

Once the accountant has valued the business, they must also consider the tax that would be payable by the business owner if their interest in the business were sold. This is because the divorce court uses the net value of the spouse’s business interests, when considering what a fair financial settlement is.

If the spouse does not own the whole business the accountant must consider whether the spouse’s interest should be valued on a pro-rata basis or whether a further discount should be applied. Often a discount is applied if the spouse has a minority shareholding in a business.

It is all very well valuing a business or a spouse’s interest in that business, but the business may not be able to pay out significant sums of money to assist fund a divorce settlement, even if the spouse’s interest has a significant value. The accountant therefore also needs to look at liquidity when they prepare their report. This is the amount of money that can be taken out of the company by the spouse, without impacting its ability to function as a business. The tax consequences of taking this money out of the business must also be considered.

If a business has limited or no liquidity, this is a factor that will have to be taken into account when considering what a fair settlement will be. If it is considered appropriate for the business owning spouse to pay money to their spouse as part of the divorce settlement, the payment of this may take place over a few years if insufficient money can be raised through the business or elsewhere to pay it upfront in one payment. A judge may also say that if the business is sold in the future that the non-share owning spouse should receive a proportion of the net proceedings of sale of their spouses’ shares at that point, if there is insufficient money for the spouse without shares to receive their fair share of all the matrimonial assets, including the value of their spouse’s business interests.

Will a judge order a sale of a business as part of a divorce settlement? If the only owners of a business are one or both spouses, a judge could, in theory, order a sale of the business. However, this would be extremely unusually, as the business is usually a significant source of income for the couple and unless they are both saying that they want the business to be sold this is very unlikely to be ordered as part of a divorce settlement. Usually, one spouse is provided with capital in lieu of their spouse retaining a business or they receive part of the net proceeds of sale of that business if it is sold in the future.

If you are divorcing and have a business, it is important that you obtain advice from an experienced family solicitor who regularly deals with divorces where there are business assets.

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.

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.

Am I entitled to continue the lifestyle to which I have become accustomed if I divorce?

Posted on 13th July 2023 by McAlister Family Law

Am I entitled to continue the lifestyle to which I have become accustomed if I divorce?

The end of a marriage often leads to a lot of financial worry for those involved. One factor that many are concerned about is will they be able to continue to afford the lifestyle that they had with their spouse during the marriage. Here, McAlister Family Law Partner, Fiona Wood, looks at what the judges will consider when dealing with the financial aspects of a divorce.

When a financial settlement is made in divorce proceedings the judge will have to look at dividing the capital assets and pension assets in a way that meets both spouse’s capital needs (this is usually housing needs, paying debts and funding retirement – if there are reasonable pension provisions). Once the Judge decides what capital and pension assets the spouses will have, they can then consider if one spouse needs spousal maintenance from the other, or a capital sum in lieu of spousal maintenance, to assist them to meet their needs.

A judge has to consider the lifestyle that the couple enjoyed during their marriage, when considering what a fair settlement is. However, if the couple’s assets and incomes are modest, inevitably both their lifestyles will be negatively impacted by them divorcing. The greater the couple’s assets and income the more likely they will receive a financial settlement that allows them to continue the lifestyle that they had during the marriage.

When dealing with the financial aspects of divorce it is usual for both spouses to state how much they need to buy a house, if they are not saying that they want to stay living in the family home. Where there is less capital, both of the couple may have to downsize as part of their divorce settlement. If there are more assets one may be able to keep the family home and the other purchase another property of a similar value. The value of a house that is suitable for each spouse depends upon the couple’s assets and can be a point of dispute between the couple.

Divorcing spouses also need to state their income needs. Not only does this include essential expenditure such as mortgage payments, food and utility bills, it can also include less essential expenditure such as holidays, entertainment, gardeners etc. Those with significant wealth have huge schedules of income needs, including staff, private jets and the funding of several properties. If the couple cannot agree their settlement and a judge has to adjudicate on the issue, it is likely that they will be asked about their stated income needs and to justify them. To justify them they need to show that this is the level that you and your spouse spent at during the marriage. It is the lifestyle that you had.

Judges are critical of those spouses whose income needs are more of a wish list than a reflection of the lifestyle enjoyed during the marriage. For example if you and your spouse only had one holiday a year in Europe, if you are now saying that you need sufficient money from your spouse to fund several holidays a year, including long haul destinations, a judge is unlikely to say that this is reasonable.

You are not automatically entitled to continue the lifestyle to which you have become accustomed if you divorce, but the lifestyle that you enjoyed as a couple is relevant, and if there is sufficient capital and income it is likely to be maintained,

If you are worried about your financial future if you divorce, you should take advice from an expert family lawyer.

We cannot agree on counselling for our child – What will the court decide?

Posted on 12th January 202312th January 2023 by McAlister Family Law

We cannot agree on counselling for our child – What will the court decide?

According to statistics, nearly one in 10 children and young people are affected by a mental health problem. The good news is that there is now more awareness of this issue and a number of resources available to children and young people who may be suffering. Here, Melissa Jones looks at what the court can decide if parents cannot agree on counselling for their child?

Understandably, separation and divorce can be a difficult and anxious time for children. They might feel confused and believe they need to “pick sides”. They might also believe that the separation of their parents is “their fault” and might be feeling guilty.

Where does this leave you?

Decisions on a child attending counselling would fall under the umbrella of medical decisions. If you both agree, then great, they would attend counselling. If only one parent agrees, this does not necessarily mean that the counselling should go ahead and with such important decisions is not advisable to act unilaterally. This issue should be agreed upon by all of those with parental responsibility for the child(ren).

What is Parental Responsibility?

Under section 3 (1) of the Children Act 1989 “parental responsibility” means all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.

What application do I need to make?

In the absence consent from all those who hold parental responsibility, a parent may wish to apply to the court for a Specific Issue Order, for the court’s permission to enable them to make decisions about the child in the absence of the other parent’s consent.

The application that would need to be made comes under Section 8 of the Children Act 1989 and is for a specific issue application; to specifically address what is the best interests of the children’s education and medical matters. Within the proceedings evidence shall be put forward by both parents to set out how their proposal is in the children’s best interests.

However, prior to making an application, the court would encourage the parties to engage in Alternative Dispute Resolution, to see if matters can be resolved. It may be that if you have spoken to a medical professional or a GP who highly recommends that the child or children attend counselling then you may be better assisted in your discussions with the other parent or in any application to the court.

Most importantly it would be best to understand why the other parent objects to the child(ren) attending counselling. Perhaps they need more information first or would like to speak to the counsellor themselves either on their own or jointly with you.

What will the court decide?

If matters relating to a child’s medical care are put before the Court, the matter then becomes a question of what is best for the child and not what is best for the parents. The Court’s primary consideration will be the needs of the child and will have regard to the Welfare Checklist (s.1 (3) CA 1989) when reaching their decisions. Arguably attending Counselling for the child might be in the child’s best interest and a vital resource to help them deal with their mental health issues. Conversely, it might not be necessary for the child to attend counselling and it may be considered intrusive and invasive given their age, characteristics and understanding. It is of course a balancing act.

Can I not just take them to counselling anyway?

However, if one parent has taken matters in their own hands and begins the process of making medical decisions without the other parents’ consent, that would not be perceived well by the court. In fact, if you choose to ignore the other parent’s views or objections, then they in turn could make an application to the family court to prevent you from making the child(ren) available for counselling. This also comes under Section 8 of the Children Act 1989 and would be for a prohibited steps order; to prohibit the child(ren) from attending counselling.

In all cases and at all times parents are strongly encouraged not just to communicate their wishes, but to co parent effectively for the best interests of their children.

If you need advice on this topic, or any other matters concerning children issues, please get in touch with our private child team at McAlister Family Law.

Resource: https://www.counselling-directory.org.uk/young-people-stats.html#riskfactors

How will I get a fair divorce settlement if my ex hides their assets?

Posted on 5th January 20235th January 2023 by McAlister Family Law

How will I get a fair divorce settlement if my ex hides their assets?

A common worry that those divorcing have is that their ex will hide assets to prevent them receiving a fair divorce settlement. Thankfully most people who get divorced are honest about their financial circumstances, but what if they are not? Here, Partner Fiona Wood discusses what you can do to if you suspect your spouse is hiding assets throughout financial settlements.

Before a financial settlement is negotiated it is usual for both spouses to give full financial disclosure, confirming all their assets, company interests, pensions, incomes and liabilities. Documentation needs to be provided to support what they state their financial circumstances are, including bank statements for all accounts for at least the last 12 months. If assets have not been disclosed it is often possible to prove this from the documents that have been provided, such as regular transfers from one bank account to another account that has not been disclosed.

Sometimes people give assets to friends or family, shortly before they divorce, in an attempt to exclude them from the divorce settlement. If an asset has been transferred to another person at an undervalue within a period of three years before the divorce, the onus is on the person who did this to prove that it was a legitimate transfer that was not done to reduce their ex’s financial claims. If they cannot prove this, a judge can overturn the transfer, or they can add the amount that has been lost back into the matrimonial pot.

If you are genuinely concerned that your ex is about to give away an asset or transfer it out of the country, you can apply to court for a freezing order. You need good evidence that this is about to happen, to successfully obtain a freezing order, but it is an order that can be made in court proceedings.

Sometimes one spouse has complicated finances, often of an international nature, and their ex is concerned that they will not provide a true picture of their assets. In this scenario you can do some research yourself, looking at Companies House and at the Land Registry in the UK, both of which are accessible to the public, and their equivalents in some other countries. I had a case where one spouse failed to disclose a property that he purchased in Florida, but as there is a public land registry in Florida, we were able to show that they owned this property.

There are also professionals who specialise in assets tracing, on an international scale, who use all legal means available to track down assets owned in the UK and across the world. Even if they cannot locate specific assets, they may be able to provide enough information to enable you to convince a judge that there are hidden assets and that this should be taken into account within the divorce settlement.

If you are concerned about your ex hiding assets to reduce your financial claims on divorce, there are several ways in which you can investigate this and there are legal remedies available to you if it transpires that they have done this or they are about to do this.

Understandably Judges are very unimpressed by those who do try to hide assets. There are likely to be cost orders made against them. Also, as Judges have a broad discretion when it comes to deciding what a fair financial settlement is, so the judge may order that they receive a less generous settlement than they would have received if they had not tried to hide assets.

If you have already obtained a financial settlement, but it comes to light that your ex failed to disclose some of their assets whilst you were negotiating that settlement, the financial settlement can be reopened. There are significant consequences for those who try to hide assets. Don’t do it!

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

What will I stand to get out of the matrimonial assets?

Posted on 15th December 2022 by McAlister Family Law

What will I stand to get out of the matrimonial assets?

With the United Kingdom on the cusp of a cost-of-living crisis and inflation at record highs, divorcing couples will likely face concerns now more than ever as to how finances are to be treated upon divorce. The biggest question on the minds of divorcing couples is often, ‘what will I stand to get out of the matrimonial assets?’ Here, Aaron Williams looks at what the court considers when looking at how to divide assets on divorce and how they aim to meet the ‘needs’ of each party involved.

So, what does the Court consider when looking at how to divide assets on divorce?

As with many things, there is no one size fits all answer to separating matrimonial assets. The principal aim of the court is to ensure that there is ‘fairness’. Unfortunately, fairness has a broad horizon in the context of family law, and it is largely left to the discretion of the judge as to the outcome of the matter.

The court has a duty to consider all circumstances of a case, this is done so using the principal piece of legislation in divorce; that of the Matrimonial Causes Act 1973, in particular the factors listed in section 25(2)(a) – (h) which can be found here: – https://www.legislation.gov.uk/ukpga/1973/18/section/25

The phrase ‘needs trumps all’ is often cited when assets are limited assets in matrimonial finance cases. The starting point in any matrimonial finance case is to consider an equal division of what has been built up by the parties during the marriage; however, an equal division of assets is not always appropriate in every case to achieve fairness.

So where does that leave separating couples? Well matters largely come down to the circumstances of the parties, the standard of living and the resources available to meet needs. What was enough to meet the needs of one household may not necessarily be enough to meet two.

When settling the matrimonial assets, there is no discrimination between separating couples regarding their respective roles in the relationship. For example, where one party has typically taken the breadwinner role, whilst the other party is the home maker, their roles are to be regarded as equal irrespective of what they have contributed financially.

So, how does the court implement section 25 of the matrimonial causes act?

When assessing how to separate who should have what proportion of the assets of the marriage, the first consideration of the court is that of the needs of any children.

The court then look to meeting the needs of both parties, principally looking to ensure that each person’s housing needs, and income needs are met.

Looking at the matter holistically the court will principally consider the financial needs, obligations, and responsibilities which each of the parties to the marriage have or is likely to have in the foreseeable future (s.25(2)(b) MCA 1973). The court will look at the general resources of the parties and will broadly separate the needs of parties into capital needs and income needs. Capital needs, is often that of significant single capital outlays, purchasing a property, furnishings, replacement car etc. Income needs is that of the day-to-day costs that parties require on a monthly basis to live.

When trying to determine whether the parties have the means to meet these needs, the court will consider Income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future. Commonly referred to as the financial disclosure process, the parties are expected to provide ‘full and frank’ financial disclosure. This includes determining through the assistance of expert evidence or agreeing by consent, the value of any assets owned by the parties, including property, businesses, trust assets, chattels, and pensions. The court will also need to ascertain the parties’ respective incomes, whether they have to capacity to increase their income, receive a bonus etc. The process ultimately aims to ensure that no stone is left unturned.

With all this in consideration the court has a great deal of flexibility to in their approach to financial settlement, which in turn allows the court to ensure (as far as possible) that an outcome reached is fair to both parties, and that neither party nor dependent children are left in need. However, this level of flexibility also carries its own disadvantages as it can be difficult for parties to envisage how a judge may determine the respective parties’ needs.

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

Love is blind… but what if it’s short?

Posted on 16th November 202224th January 2023 by McAlister Family Law

Love is blind… but what if it’s short?

With both Nick Thompson & Danielle Ruhl (Love is Blind season 2) and Mackenzie Scott & Dan Jewett (the ex-wife of Jeff Bezos and her new husband) set to divorce, the topic of short marriages is one that is bound to be on their minds. Both couples married in 2021 and are in the process of bringing their marriages to a legal end. Here, Heather Lucy looks at how the length of a marriage may affect how assets are split upon divorce.

Both of the couples named above are based in the US but those thinking of divorce in England and Wales may be wondering whether the length of their marriage might impact their potential financial settlements on divorce.

There are no hard and fast rules, or formulas, that state how assets should be divided on divorce. The starting point for the court is that the assets should be divided equally, but they will then consider if there are reasons for moving away from an equal split, for example if assets are considered to be non-matrimonial, such as inherited assets or potentially assets acquired before the marriage. The court will also look at whether each person’s needs would be met by an even split. In making their decision, the court looks at the factors in Section 25 of the Matrimonial Causes Act 1973 which is a checklist of what they should consider. The primary consideration will be the welfare of any children of the marriage and other factors include the couple’s ages and the standard of living during the marriage. The latter would likely bode well for Mr Jewett if he were divorcing in England and Wales considering Ms Scott’s circa $34 billion net worth.

One of the factors to be considered under the Section 25 checklist is the length of the marriage. For the purposes of divorce, any time spent living together immediately prior to the marriage is added to the length of time since ‘I do’ to work out the length of the relationship. There are no set definitions of ‘long marriages’ or ‘short marriages’. Marriages of 10 + years may be seen to be in the ‘long marriage’ territory and one lasting 5 years or less is generally seen to fit the description of a short marriage.

Spouses in a long marriage are seen to have more financial interconnectedness and their assets are more likely to be considered ‘mingled’. This means that the court is more likely to be persuaded that an equal division of the assets is the right approach.

If spouses in a short marriage have no children and are both earning, the court may decide that it is fair to move away from splitting their assets down the middle and instead try return each person to the financial position they were in prior to the marriage. This is made even more likely if the couple had kept their finances separate during the marriage. It is also more likely that divorcing spouses will be able to ‘ring-fence’ assets/property they have brought to the marriage which means that they are kept out of the ‘pot’ being divided. The court will also heavily favour a ‘clean break’ if the marriage was short, if there are no young children, as they will want to cut financial ties between the divorcing couple. This means that it is unlikely that regular payments from one person to the other (maintenance) would be ordered, though it is not impossible.

It is important to remember that the court will look at what each person needs. You might have a short marriage and have no children but, if a move away from equality would mean the other person cannot meet this housing and income needs, the court are unlikely to be persuaded that an equal division of the assets is not the right course of action.