Will court fee increase in family courts negatively impact access to justice?

Posted on 7th February 20247th February 2024 by McAlister Family Law

Will court fee increase in family courts negatively impact access to justice?

When a relationship ends, those that are married or in a civil partnership have no option but to issue a divorce application if they want to legally formalise their separation. Along with the divorce application, separating couples may also need to pay for a financial order application and a parental order application. Here, Fiona Wood looks at the recent announcement that there will be an increase to all court fees in 2024, and raises the concern that low income households may find themselves unable to make necessary family applications.

If a couple do decide to divorce, as well as issuing a divorce applicaition, they also need to obtain a financial settlement which needs to be approved by a judge if it is to be binding and enforceable. Even if the separation is amicable, a court fee is payable when a divorce application is made and a court fee is payable when a financial agreement is submitted to court for a judge’s approval.

A court fee is also payable by separated parents if they are unable to agree arrangements for their children and need to make an application to court (known as a Parental Order application) to ask a judge to assist them with this issue.

If there are ongoing proceedings regarding finances or children, there can be additional smaller court fees that have to be paid within the court process.

You may be exempt from these fees if you have limited or no income and little or no savings. However, many of those making family court applications have to pay these fees.

The court fees were last increased in September 2021. It has recently been announced that there will be an increase of 10% in all court fees in 2024, including those in family cases. The date for the fee increase has not yet been announced. The main court fees in family proceedings are as follows:

Divorce application – current fee £593 – new fee £652
Financial Order application (if finances not agreed) – current fee £275 – new fee £303
Financial Order application (if agreed) – current fee £53 – new fee £58
Parental order application – current fee £232 – new fee £255

The rationale for the increase is that the court fees are needed to help fund the court system. We are told that in 2022/2023 cost £2.3 billion to fund the court system and £727 million of this was funded from court fees. As the cost of running the court system increases the fees are increased to assist with this cost.

Whilst it is understandable that money needs to be raised to fund that court system, there is a concern that increasing the court fees will prevent many on low incomes from making necessary family court applications.

Legal fees for those who have separated and who need to make an application asking court regarding finances or arrangements for their children, are a struggle for many who have limited income or savings. Legal Aid is only available in very limited circumstances to deal with the legal issues that can arise when a relationship ends. To qualify for Legal Aid not only must you have very limited income and capital, but there must also have been recent domestic violence.

For those of limited means who do not qualify for Legal Aid, many have no option but to represent themselves within the court process. The number of case where both spouses/cohabitees represent themselves within family court proceedings has increased by 25% between 2013 and 2022, which shows how many are struggling with funding the court process. Increasing the court fees will only make this more difficult for them and could leave some unable to afford access to the family court.

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

Three’s a crowd – The financial implications of being in a throuple

Posted on 30th March 2023 by McAlister Family Law

Three’s a crowd – The financial implications of being in a throuple

There has been a recent celebrity trend for being in a throuple, with familiar names such as David Haye, Brooklyn Beckham, and Selena Gomez all partaking in the trend. Here, Lisa Brown looks at what it means to be in a throuple and what it means from a financial perspective.

So, what is a throuple?

A throuple is, put simply, a romantic relationship between three people. It can take various forms. Each party may be equally involved or there may be a primary relationship between two of them.

What does it mean legally?

Polyamourous relationships are not recognised legally in the England and Wales. You can only marry or enter into a civil partnership with one person at a time. If you were to marry more than one person outside of the England and Wales, then this would be considered void and can be annulled.

This means that in the eyes of the law, a throuple either lives as cohabiting partners, or two members of the throuple are married or in a civil partnership in a more formal legal relationship compared to the third party of the throuple.

What is the difference from a financial perspective?

Cohabiting couples in England and Wales do not currently have any special protection or rights against each other. Despite popular belief there is no such thing as a “common law marriage” and this remains the case no matter how long the relationship lasts.

What this means is that somebody could be in a 20-year relationship with an extremely wealthy person (or persons) and still exit with nothing.

The starting point for a cohabiting relationship is that you each simply retain what is legally in your name when the relationship ends.

Whilst exiting with what you brought in might seem fair for Una Healey when leaving a relatively short relationship with David Haye and Sian Osbourne, it does very much depend on the circumstances.

With marriage and civil partnerships not an option for all three people at the same time, the only other option for them to consider would be a cohabitation agreement to set out the intention should the relationship/s break down. Cohabitation agreements can be very useful tools although they are not 100% legally binding.

What if two people in the couple get married or enter into a civil partnership?

Should two parties of the throuple decide to legally marry or enter a civil partnership, it would significantly alter the legal relationship between those two individuals, and they would each have potential financial claims against the other for property to be transferred, lump sums to be paid, pensions to be shared and spousal maintenance.

Within a throuple this would mean that the person not in the marriage is in a significantly different position to the other two. This could be a big disadvantage but, in certain circumstances, it may also be an advantage. For example, if the member not in the marriage were significantly wealthier than the other two, they may not want to be exposed to the potential claims that being married brings.

What about children?

Where there are children in a relationship there is also a possibility of one parent making a financial claim on their behalf against the other parent under Schedule 1 of the Children Act 1989.

These types of claims are limited to needs of the child and can include provision of a home (usually until child is 18 or 21), lump sums to meet specific needs and maintenance.

Whether a claim under Schedule 1 is worth making will be dependent on the circumstances including the financial resources of the parents and the care arrangements for the child or children.

If you or somebody you know wants to understand their legal position better whether they are in a couple, throuple, cohabiting, thinking about cohabiting, engaged or married they should contact one of our specialist family lawyers today.

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.

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.

Married at First Sight UK – Are they really married and does it matter?

Posted on 3rd November 202224th January 2023 by McAlister Family Law

Married at First Sight UK – Are they really married and does it matter?

Married at First Sight first hit TV screens in 2015 and for the first 5 series the couples were legally married. However, after adopting the Australian (more entertaining) format last year the couples no longer get legally married. Here, Lisa Brown looks at the implications involved with marrying a stranger and what the law requires of legally married couples.

Nevertheless, much has been made in the recent series (7) about the fact that the parties are “married”. It all starts with the individuals dropping the bombshell on their loved ones that they are getting “married to a stranger” and when Whitney and Matt coupled up the criticism came thick and fast based on the fact that they were “married” to other people.

For the purposes of the show perhaps it doesn’t matter because the point is that they buy into the principle but legally it makes a very big difference.

Being married is a change to your legal status and if things don’t work out you have to apply to the court to either have that marriage annulled or get divorced.

Further, when couples get married, they gain the ability to make a financial claim against the other person under Matrimonial Causes Act 1973.

One of the peculiarities of the law as it stands is that a couple could live together for 25 years but not be able to make a financial claim against each other (save in limited circumstances) but somebody can get legally married at first sight, never live together and divorce as soon as they can and they would be able to make a claim. That claim could include property being transferred to them, a share of the other’s pension, a lump sum of money being paid and /or monthly sums being paid (spousal maintenance).

In “Married At First Sight” circumstances the reality is that it is unlikely that such a claim would be particularly fruitful and generally the expectation would be that they would exit the marriage with what they brought in but the ability to do it remains.

The Matrimonial Causes Act sets out at section 25 a checklist of factors which are taken into account when deciding the outcome of a financial claim. One of those factors is the duration of the marriage but there are a number of others and the family court has a wide discretion.

Whilst not relevant to the Married At First Sight couples it is also worth knowing that the court will generally “run in” periods of seamless cohabitation prior to the marriage when considering the length. So, if, as in the above example, you lived together for 25 years and then you got married it is likely that the court would consider it to be a long marriage even if you separated just weeks after the actual marriage. This scenario could make a huge difference to the financial outcome of a case.

Arguably, most couples getting married are largely ignorant of the changes they are entering into from a legal perspective and Married At First Sight doesn’t assist with this (not least because no matter what they say the couples aren’t actually married). Some people may also think they have rights they do not because they have lived together for a certain period of time, but no such rights exist and “common law marriage” is a myth.

Whilst not the most romantic thought people should consider their legal status in their relationship and the impact that this can have to ensure that they are properly protected and have a full understanding.

If you or somebody you know wants to understand their legal position better whether they are cohabiting, thinking about cohabiting, engaged or married they should contact one of our specialist family lawyers today.