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.

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.

Emotional affairs, is it cheating?

Posted on 22nd December 2022 by McAlister Family Law

Emotional affairs, is it cheating?

Emotional affairs, some people don’t count it as cheating and others do. With no physical relationship in an emotional affair, how do family lawyers view it and is it grounds for a divorce? Here, Frances Bentley explores emotional affairs, questions if they should be classed as cheating, and explains whether it is grounds for a divorce.

There has been a lot of focus recently on emotional affairs and what they mean. Some people believe it doesn’t count as cheating because there is no physical relationship with somebody else. Some people think it is worse because that person is becoming emotionally reliant on somebody else, rather than their own partner or spouse.

An emotional affair is bond between two people which mimics or matches the closeness of a romantic relationship but isn’t physical. There has been a survey completed In the USA which concluded that 35% of women and 45% of men had admitted having an emotional affair before.

So why do emotional affairs happen in the first place?

It does raise a question as to whether there is a wider problem within the marriage. There could have been a breakdown in communication, it could be the result of not spending enough time together, or there could be a general lack of happiness within a marriage. Recent reports have looked at emotional affairs and asked some people to comment on their experiences and the impact. Here is what they said:

“It’s now been 6 months and I love him”

“My emotional affair is coming to an end after 2 years. I am feeling sad and pensive”

“I miss my emotional affair now that it’s gone…I feel so alone”.

It is clear that an emotional affair can put incredible strains on a marriage, and even lead to marriage breakdown leading to divorce.

What about Divorce and the Law?

Before the divorce law changed in April 2022, as family lawyers we saw clients who thought that their partner having an emotional affair constituted “adultery”. To them, their spouse having an emotional relationship with someone else had caused their marriage to break down. However, under the old law an affair could only count as adultery if there had been a sexual relationship and if that sexual relationship was with a person of the opposite sex.

This was sometimes a devastating discovery for both individuals whose partner had an emotional affair or had engaged in a same sex sexual relationship. The law came under fire for being completely outdated (and rightly so). We had to advise our clients that rather than the affair being labelled as adultery, they would have to rely on it being “unreasonable behaviour”. Understandably, to them didn’t feel like it carried the same recognition of the affair that had caused the marriage to break down. Adultery and unreasonable behaviour petitions were plagued with issues; more often than not it would result in the other party refusing to accept or admit the behaviour, toing and froing on the wording of divorce petitions, animosity and a feeling of complete lack of control over the process for person applying.

In April 2022 the old divorce law was completely abolished, with the “facts” needing to be relied on (such as adultery and unreasonable behaviour) being removed.

A person applying for a divorce now needs to simply confirm within the divorce application that the marriage has “irretrievably broken down”. There is no need to worry about the other person refusing to accept the behaviour happened or refusing to admit it (which often left a person bringing the divorce having no recognition of why the marriage had broken down).

Although the new divorce application doesn’t require an explanation of what caused the marriage breakdown, the law being simplified now means that individuals who have been on the other side of any affair (whether that be an emotional affair or a physical affair) can relatively simply make a divorce application and confirm there has been “irretrievable breakdown” as a result of the affair. It now allows them an element of control over the divorce process which for many, was much needed.

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

My Spouse Has Hidden Assets – What Can I Do?

Posted on 14th March 202222nd March 2022 by McAlister Family Law

My Spouse Has Hidden Assets – What Can I Do?

Separating from a spouse can be daunting and overwhelming, especially when there are children and financial matters to consider. Most people hope to have a respectful and amicable divorce but what do you do if you suspect or know your spouse is trying (or has succeeded) in moving or hiding assets? You are likely to be very worried and be wondering what your options are. Here Brigid O’Malley discusses the role that hidden assets can play on a divorce and what you can do if you find yourself in this situation.

How are financial matters dealt with upon divorce?

The court will take into consideration a number of factors when determining what a fair financial settlement should be. Those factors are set out in section 25 of the Matrimonial Causes Act (1973). The first consideration is the welfare of any children of the family and the remaining factors will be considered by the Court in order to determine what is a fair distribution of the marital assets in order to meet the needs of both parties. The starting point is an equal (50/50) division of the assets.

It is important to note that each party has a duty to provide full and frank disclosure of their assets, income and liabilities in financial remedy proceedings. This means each party has a legal obligation to be honest and disclose everything they own. This is an ongoing duty throughout the proceedings.

It may be that your fears are alleviated after considering your spouse’s disclosure and they have indeed disclosed all assets you believe they have. However, it may also become apparent from considering the disclosure filed in the case by your spouse that they have moved assets or not disclosed certain items. In such circumstances the Court can:

Make costs orders for your spouse to pay your legal costs.
Make a “Search Order” to discover what assets your spouse has but this is expensive and not a frequently used order of the court.

What can I do if my spouse has hidden assets – how will the Court determine a fair settlement?

The court can draw something called an Adverse Inference if the evidence filed in the case strongly demonstrates one party has not complied with their duty of full and frank disclosure. Effectively, a court may be able to determine one party has failed to disclose all their assets and the settlement awarded would be reflective of this.

Depending upon the facts of each individual case, the allegations made, and the evidence filed, the Court can do a number of things:

Make an Order to set aside the transaction.
Make an Order to add the asset back into the asset pot for division.
Treat the asset as being back in the asset pot, and belonging to your spouse, and adjusting the settlement accordingly.

In order to grant an order to set aside a transaction the court has to be satisfied that your spouse deliberately took steps to try and defeat your claim and that if the transaction was to be set aside you would be granted financial relief, or a different financial remedy order would be made.

The court can “add back” funds to the asset pot if they are satisfied your spouse has recklessly spent money or disposed of funds. This will effectively mean the monies are put back into the asset pot for division.

Sometimes, even if the court is satisfied the transaction was completed in order to dissipate/reduce the assets, an order to set aside that transaction or an order for the asset to be “added back” to the pot will not be made. This might be where there are enough assets in the case meaning a fair order can be made, without the need to set aside the specific transaction.

What can I do if I think my spouse may be about to transfer or hide assets?

If this is the case, an application can be made to Court for a Freezing Order which an injunction to prevent the disposition of an asset or assets. This application can be made urgently if there is evidence that a transfer is imminent. Therefore, you may need to act quickly, and we would encourage you to get immediate legal advice.

If your spouse has already taken steps and disposed of assets, then the Court may grant Orders to either set aside those transactions or “add back” the funds to the asset pot for division.

All of these actions require careful consideration of the allegations, the evidence and the relief that may be sought. Applications of this nature can be expensive, but it is vital you obtain advice immediately if you are concerned your spouse may have hidden or disposed of assets or be in the process of doing this. It may be that an urgent application is needed and the sooner you act, the better.

How is conduct such as gambling taken into account when deciding how to divide assets upon divorce?

Posted on 25th February 202222nd March 2022 by McAlister Family Law

How is conduct such as gambling taken into account when deciding how to divide assets upon divorce?

We are often asked the question whether gambling, by a husband or wife, is taken into account by the court when considering how to divide assets on divorce. The answer to that seemingly straightforward question is usually no, but there are some exceptions. In this blog post, Partner, Caroline Bilous, discusses how an individuals conduct is taken into account when going through divorce proceedings.

The law says that conduct is considered where it would be, in the opinion of the court, “inequitable to disregard it” and where such conduct is “gross and obvious”.

One clear example of conduct that can be taken into account is where the conduct of one party to the marriage leads to a reduction in the family assets, therefore, leaving less in the ‘pot’ to divide. However, the court must be satisfied that there has been “wanton dissipation of assets” in order to be able to punish a person for behaviour such as gambling, reckless spending or other character flaws.

The court’s decision-making process is designed to have regard to all the circumstances and give first consideration to the welfare of any child of the family under the age of 18. The court must consider the needs of each party, such as housing needs, and will only be able to redress this balance where the assets exceed the needs of the parties. It is important to remember that ‘need’ will be measured by considering the available financial resources and the standard of living during the relationship; generally, the longer the relationship the more important the standard of living will be.

If the court finds that there has been a reduction in the family assets and that the conduct of that party was “wanton”, the other party would then invite the court to add back those assets that have been taken to redress such conduct. The affect of the “add back”, if the court decides that such action is appropriate, would then increase the assets that the party responsible for such conduct would have in their possession ‘on paper’. For example, if there has been a reduction in a bank account due to one party’s conduct by £50,000 then the affect of the “add back” would mean that they would be considered by the court to already have £50,000 of the matrimonial assets and this can then be taken into account when deciding how the balance of the matrimonial assets should be divided.

In reality however, even if the court finds that one party’s conduct is so significant that it should be take into account, if the assets are insufficient to meet the needs of the parties, then it is unlikely to make a difference when a court decides what order should be made.

Therefore, whilst each case is treated entirely on its own merits and circumstances, as the law stands, a person’s tendency or addiction to gambling is unlikely to be taken into account. If you are unsure if conduct will have an impact on your divorce settlement, then please contact our specialist team of family solicitors who are here to help guide you through.

What happens to the ring when the Valentine’s Day romance dies out?

Posted on 11th February 202224th January 2023 by McAlister Family Law

What happens to the ring when the Valentine’s Day romance dies out?

Valentine’s Day is coming up: a day when every restaurant is fully booked with tables for two, the price of red roses skyrockets, and many couples end the day engaged to be married. In our latest blog post, Lisa Brown, Partner of our Divorce and Finance team discusses what happens to the engagement ring if things don’t work out?

Many anthropologists consider the giving of a ring it to be a tradition dating back to the ancient Egyptians, who believed circles were symbols of eternity. Wedded couples would exchange ring made from braided reeds which were worn on the left-hand ring finger. It was believed that this finger was the only finger with a vein that led directly to the heart, the Vena amoris. As romantic as that sounds, the reality is, no matter how much we want to believe that decorating our veins with precious metals, there is no answer to eternal romance.

If one half of an engaged couple calls off the wedding, what happens to the engagement ring?

Not every engagement leads to a wedding, and even for those who do get married, there may be a divorce down the line. As divorce lawyers, it’s not unusual for the soon-to-be-ex-couple to argue about who keeps the engagement ring, particularly if the ring was expensive.

One half of the couple will put forward the argument that they bought it, so they own it. The other half of the couple, naturally, will advance the argument that the ring was given to them as a gift, so they can claim rightful ownership.

What does the law say about engagement rings?

The Law Reform (Miscellaneous Provisions) Act 1970 states:

“The gift of an engagement ring shall be presumed to be an absolute gift; this presumption may be rebutted by proving that the ring was given on the condition, express or implied, that it should be returned if the marriage did not take place for any reason.”

This means that unless there was an agreement to return the engagement ring if the wedding was cancelled, then the recipient is under no obligation to return the ring.

What if the engagement ring is a family heirloom?

If the engagement ring is a family heirloom, perhaps passed down through the family for many generations – and the recipient was made aware of this at the time – then it may be easier to succeed in an argument that the ring should be returned if the wedding is called off. However, no matter how sentimental the ring may be, if there has been no agreement made that the ring must be returned to the proposer, the Act still stands.

How do you ensure that you keep the ring if things don’t work out?

Many couples now enter into a prenuptial or postnuptial agreement. If the parties feel really strongly about it, provision for the fate of the engagement ring can be included in the agreement as a specific term should the couple divorce. Otherwise, the same general rule applies: the engagement ring is an absolute gift (and therefore not returnable) unless there was a condition made about the ring being returned when it was given.

So, if you are planning to ask your loved one to marry you this Valentine’s Day, maybe consider the future of the ring. We know that thoughts of break-ups and divorces should be the last thing on your mind, but If the ring has a lot of sentimental value, it might be worth protecting it in some way.