Back to school – or not?

Laurence Fox back to school or not covid children

Back to school - or not?

Laurence Fox, who shares two sons, Winston, 12, and Eugene, nine, with ex-wife Billie Piper, has once again hit the headlines, this time in relation to the “anti-vaxx” row. He has claimed he will take his sons out of school should vaccinations be rolled out for 12-year-olds, saying he fears they will have the Covid jab without his permission.

The question is, can a parent remove a child from school in the first place?

Family Law Associate Melissa Jones looks at the options available.

There is no plan – as of yet – for children in schools to be vaccinated before they return to school in September. But were such a plan in place, would a parent be able to stop their children from going to school? Given that there is a central government policy stating that children must attend school, any parent stopping their child from doing so would be appear to be in contravention of this policy, and likely subject to fines.

Mr Fox appears to be suggesting is that he wants to de-register the children and home school them. To do so, he would need the other parent’s permission as they share parental responsibility (given that they were married to one another) and need to make important decisions like education in consultation with one another.

What is parental responsibility?

Parental responsibility is as per section 3(1) of the Children Act 1989 (CA 1989) which confers all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to a child and his property.

What happens if you cannot agree on home schooling?

If parents cannot agree arrangements for their child or children in respect of their education, they can apply to court for a Specific Issue Order, and the court can address the issue of whether or not a child should remain at their current school or move to the other preferred school (in this case home schooling).

The court application

In the above scenario, if the other parent is strongly opposed to the change of school or home schooling, then they could apply to the court for a Prohibited Steps Order, which is an order that limits when certain rights and duties which can be exercised, such as making decisions about their education.

The court will consider the parents’ opinions and the best interests of the children. The children’s educational development, efficient home schooling techniques and underlying health issues in the family are some of the matters that will be considered by the court when deciding the issue.

Before making an application to the court,  it is expected that parents should try and resolve matters as best they can. Parents might wish to engage in negotiation through solicitors, mediation or arbitration before either one makes an application to the court.

The child’s welfare is the court’s paramount consideration. If you are faced with a request from the other parent to consider moving your child’s school, it is best to take a pragmatic approach and decide as to whether you are simply opposed to the idea in general or whether you could perhaps identify some advantages to the move. With the court considering what is in the child’s best interest, is therefore important for you to do your own research and have the necessary information to inform your decision/position.

Given that children returning to school is imminent – some may have already started the new term – a parent may struggle to get an urgent court hearing, although it may be that the court fixes a date as soon as it can. In the interim, without an order or decision you will need to keep open communication with the other parent.

If you are unsure about what to do in relation to arrangements for your children, we would advise you to seek specialist independent legal advice from an experienced family lawyer. Please do get in touch today. We’re here to help you.

Do grandparents have legal rights?

grandparents rights

Do grandparents have legal rights?

When parents separate, disputes in relation to children of the family can not only include estrangement from a parent but extend to wider family members, particularly grandparents who can often be stuck in between parent’s arguments.

What can those grandparents do in such a challenging situation?  Partner Caroline Bilous explains.

Legally speaking, there are no grandparents’ rights, as usually grandparents do not have Parental Responsibility (all mothers and most fathers have Parental Responsibility, which refers to the legal rights and responsibilities a parent in respect of a child, the most important of which are to provide a home and protect and look after a child) in the same way as a parent might have, although they might acquire it if a parent is unable to care.

However, the Family Court recognises that it is in a child’s best interests to maintain good relationships with close family members, particularly grandparents, even if the parent of the child cannot, and as such, a court order called a Child Arrangements Order may be obtained to protect such relationships.

Do grandparents’ rights include the right to see a grandchild?

Grandparents do not have an automatic right to see a grandchild and above all, whatever the relationship between estranged parents, it is important to step back and try to avoid becoming involved in any disagreement, which is hard to do when it is your own child involved. Maintaining good relationships with the other parent goes a long way in avoiding difficulties further down the line.

Can a grandparent apply to the Family Court to see a grandchild?

Yes, but grandparents do not have an automatic right to apply to court to see a grandchild in the same way as a parent may apply to see and spend time with their own child. However, the Family Court would rarely refuse permission (or leave) for a grandparent to make an application, providing there is no good welfare reason why it should not, providing they can show a close and enduring relationship exists. Also, as a family member, permission is not required if a child has lived with a grandparent for a period of one year prior to the application being made.

How can I apply to see my grandchild if I’m being prevented from doing so?

It is important that early advice from an experienced child and family lawyer. Time can be of the essence and leaving matters too long can engrain difficult circumstances. Unless there are urgent circumstances, getting an initial court hearing will take a minimum of four weeks or more in any event, and as a first step, you will be required to attend upon a Mediation Information and Assessment Meeting (MIAM) to see if it possible to resolve matters with the assistance of a Mediator.

What orders can the Family Court make?

The court could make a Child Arrangement Order for a grandchild to spend time with a grandparent, in the same way as it could for a parent. Each family is different though and no two cases are the same. Just because you may have heard that one grandparent has obtained a certain order, it doesn’t necessarily follow that you will.

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

Why is September a busy month for divorce lawyers?

September busy month for divorce lawyers

Why is September a busy month for divorce lawyers?

It’s commonly supposed that the New Year is a popular time for disgruntled spouses to make enquiries about filing for divorce, and certainly that’s true, but for the divorce lawyer, September is just as busy.

Why might this be so?  Associate Aaron Williams explains.

Often it’s down to one or more of three factors:

* Thanks to the summer holidays, families have spent more time together than usual, and in close proximity, leading to fault lines in the relationship being exposed

* Established routines to which everyone is accustomed throughout the rest of the year are disrupted

* For many parents, the cost of childcare throughout the summer, plus the expense of going on holiday, can be a tipping point

It’s fair to say these factors tend to feature primarily in relationships that are already under strain. And we divorce solicitors also receive queries from couples already separated who, after what might have been a tense summer, seek to change the arrangement imposed on them by a family court.  Add into the mix the undeniable tensions created by the pandemic and there’s no doubt many relationships have had their fault lines exposed in a very unforgiving way.

What happens next?

Although the No-Fault Divorce Act received Royal Assent in June 2020, the reforms have not yet come into force. Ministers announced that the Divorce, Dissolution and Separation Act 2020 will come into force on 6 April 2022, allowing married couples to divorce without assigning blame or fault.

This means that your divorce petition must prove the marriage has irretrievably broken down by evidencing one of five, specific, statutory facts:

* adultery

* unreasonable behaviour

* desertion, and you have been separated for two years (in practice, this is rare, and difficult to prove)

* two years’ separation, with agreement by both that there should be a divorce (and it’s worth considering that this two years of separation in itself provides a “cooling-off” period – a time for reflection)

* five years’ separation (the consent of the Respondent is not needed)

Although there is no legal requirement for you to appoint a solicitor to handle your divorce and prepare your petition on your behalf, people who attempt to conduct their own divorces without the support and advice of a solicitor are often not aware of the issues it could present in the future, particularly those relating to finances.

For example, finalising your divorce itself is not the only element to separation. Whilst the finances are inextricably linked, a clean break order is required from the Court to sever your link from one another financially. In the absence of getting a clean break order from the court, your spouse – even after divorce – has the capacity to make an application against your estate.

Therefore (hypothetically) should you win the lottery post-separation, your former spouse could make an application for a portion of your winnings.

The best thing to do is speak to a family law solicitor

Doubtless you won’t be surprised then when I say your best course of action is to seek the advice of a family law solicitor as soon as possible.

Whatever the reason, if you or someone you know needs the support of a Family Law Solicitor this September or indeed at any time please do get in touch. We’re here to help you.

Love and marriage – the return

Love and marriage – the return

We’ve had such a great response to our previous Love and Marriage blogs that we thought we’d add some more quotes to our special selection of celebrity words of wisdom about love, relationships and marriage.

Because there’s no doubt that on this topic everyone has their own opinion: some have their own personal deal-breakers, some know for certain the one thing that will melt their heart – and a lot of people will tell you it takes hard work and commitment.

See if you agree!

Fiona Shaw

“I’m married to a very unusual person, but maybe it took a very unusual person to be willing to marry me.”  Fiona Shaw

 

 

marriage quotes

“There are people you have mad passionate affairs with and people who you marry. Marriage is finding somebody who you can raise a family with, grow old with and who you want to come home to.” Hermione Norris

 

 

Celebrities Visit BuzzFeed's "AM To DM" - October 15, 2019

“Marriage is like a graph – it has its ups and downs and as long as things bounce back up again, you’ve got a good marriage. If it heads straight down, then you’ve got some problems!” Dame Julie Andrews

 

 

Gwyneth Paltrow

“I asked my dad once: ‘How did you and Mum stay married for 33 years?’ and he said ‘Well, we never wanted to get divorced at the same time.’”  Gwyneth Paltrow

 

 

Will Ferrell - Rotten Tomatoes

“Before you marry a person, you should first make them use a computer with slow internet to see who they really are.” Will Ferrell

 

 

Mickey Rooney

“Always get married in the morning. That way if it doesn’t work out, you haven’t wasted the whole day.” Mickey Rooney (married eight times)

How to have a happy holiday when you’re separated parents

How to have a happy holiday when you’re separated parents

This year more than most, the summer holidays for separated parents can be a difficult and confusing period. Trying to agree if one or both of the parents should be able to spend time abroad with the children can prove to be a tricky subject.

Associate Melissa Jones examines the issues.

Any difficulties in the relationship may well be those of the parents, but it is the children who can reluctantly find themselves in the midst of adult arguments, confused that those to whom they look for guidance are not getting along and often incorrectly blaming themselves for either parents’ upset or even anger. It is easy and perhaps natural for a parent going through such a difficult time to concentrate on themselves at these times, but it is very important if trying to sort arrangements out amicably, not to lose focus of a child’s needs or emotional well-being when they may already be feeling overwhelmed and trying to understand why their parents might not be friends, as well as distress and confusion about their new family circumstances.

The child’s best interests

If charged with deciding, the court will determine matters in accordance with what is in a child’s best interests. As such, and even if it is not what you want to hear personally, try to listen to your children. They may well help you in taking a step back from your own bubble and decide what’s best for them.

Open lines of communication

Good forward planning and open lines of communication with the other parent are essential when working towards organise your children’s summer holiday. Despite past difficulties, there are families who are able to work together to the extent that they can spend a summer break together, although sadly this is not the usual situation. However, regardless of whether you and your former partner are on good terms or not, taking time to come to a mutual decision about what’s best is without doubt the best way forward: from agreeing a safe destination that both parents are happy with to arranging how and where the children are going to spend time with each of their parents over the holiday period, it is by maintaining these open lines of communication that you will achieve a good outcome.

We have seen arrangements agreed where the separated parents have both gone to the same resort or holiday area, and the children have spent one or two weeks with one parent and then spent another week or two with the other parent, meaning that travel arrangements are simplified and there is the smallest amount of disruption possible.

It isn’t easy but it needn’t be difficult either. A little bit of willingness to accommodate the other parent’s request – when they can get time off from work, or if there is a holiday home owned by relatives and can you take a break in the same region to make things easier – can go a long way. Here are McAlister Family Law we encourage our clients not just to try to achieve a respectful divorce, but to remain respectful of one another in the years after that divorce. If you can each try to give a little in order to reach an agreement that will suit everyone involved, particularly your children, in the long run you will be glad you did so.

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

Why is it safe to arbitrate?

arbitration

Why is it safe to arbitrate?

The Family Court is strongly in support of the parties using Arbitration as a means of alternative dispute resolution (ADR) for financial matters so that cases can reach resolution in a speedier manner.  Partner Liz Cowell explains.

 

18 months into the Covid-19 crisis and practitioners are finding that contested proceedings for financial settlement following a divorce are taking many months, if not years, to resolve.

This is partially because the Family Court is flooded with urgent Children Act cases and applications for protection from domestic violence.  These cases are understandably given precedents over financial matters and have increased during the pandemic.

Consent Order

The process itself to obtain financial relief from the court is a one-size-fits-all, the parties having to attend at least two court hearings before the case proceeds to trial, when they find themselves unable to agree a Consent Order.

Due to the overburdened family list, hearings are frequently “bumped” usually for the benefit of urgent Children Act proceedings.

Arbitration

It is the case that the Family Court itself is strongly in support of the parties using Arbitration as a means of alternative dispute resolution (ADR) for financial matters so that cases can reach resolution in a speedier manner.  When an arbitration takes place, an award is made by the arbitrator which is then turned into a Consent Order which the court will ratify.

The advantages of using arbitration is that it provides complete privacy, there is consistency, it is a speedier process and although the arbitrator needs to be paid it is cost efficient as there needs to be far less attendance at court and the process can be fine tuned to each and every separate application.

The Family Court’s support for arbitration could not be more clearly set out than in a recent High Court decision of Mr Justice Mostyn A -v- A [2021] EWHC1889 (FAM).

In this case the husband, who had agreed to arbitrate then chose not to be bound by the arbitrator’s decision and tried to get the matter set aside, using an expensive route to appeal to the High Court.  He failed.  Mr Justice Mostyn set out clearly in his judgment the correct way to pursue a challenge to an award – and he also found for the wife.

Hopefully his decision will help to persuade the parties that the process of arbitration provides closure, and the common excuse of some practitioners – that there is no proper means of appeal – has been finally put to bed.

Mostyn J emphasised a previous High Court decision of Lady Justice King in Hayley -v- Hayley [2020] EWCACIV1369 which confirms that a “challenge to an arbitral award should be dealt with broadly the same way and subject to the same principles as a financial remedy appeal in the Family Court from a District Judge to a Circuit Judge” and that this was how he was going to proceed to deal with the husband’s various applications before him.  He helpfully added an Appendix to his judgment which gives clear guidance to practitioners as to how to challenge an Arbitral Award, thus giving practitioners protection before proceeding in this manner.

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

I want a divorce: your step-by-step guide

divorce procedure heather

I want a divorce: your step-by-step guide

“I want a divorce.” But what is the process – what do you need to know? Heather Lucy, family law solicitor, is here to help you with a step-by-step guide covering the divorce procedure.

Special Procedure

Don’t be frightened by this term.  All it means is that when you apply for a divorce in England and Wales, the process, in the vast majority of undefended cases (that is, a case where one of you wants to divorce and the other does not oppose), is called Special Procedure.  All this means is that a judge will consider the divorce petition on paper and neither you nor your spouse will need to attend court to explain why your marriage has broken down.

Please bear in mind there is no such thing as a “quickie” divorce, no matter how many times you might read about this in the media. If you want more details on the length of time a divorce might take, please take a look here.

It’s also important to remember that the reason for the breakdown of your marriage rarely impacts on how the finances are divided.  It is a common misconception for example that adultery makes a difference – more details here. The court will deal with the financial consequences of the end of the marriage separately from the process of obtaining the divorce itself. You do not need to wait to resolve financial arrangements before divorcing, but you should not divorce without first getting advice how it may affect you – I really want to stress this point.

Before you apply for a divorce, you will need either your original marriage certificate or certified copy, as well as a certified translation if your marriage was abroad and the document is not in English.

Applying for a divorce

The divorce procedure is started by sending to the court a divorce application known as the Petition. The party making the application is known as the Petitioner, the receiving party is known as the Respondent, and either party to the marriage can apply to the court for a divorce.

Where possible, we will try to agree with your spouse which party will initiate the process and the grounds for divorce.  This will then allow the divorce procedure to continue on an undefended basis.

Grounds for divorce

There is only one ground for divorce, namely that the marriage has “irretrievably broken down”. To evidence this, the petitioner (applicant) for the divorce will need to rely upon one of

The Five Facts

In the Petition, the Petitioner has to prove that the marriage has irretrievably broken down by evidencing one of five specific statutory facts:

– Adultery

– Unreasonable behaviour

– Desertion (in practice, this is rare, and difficult to prove)

– two years’ separation with agreement by both that there should be a divorce

– five years’ separation (the consent of the Respondent is not needed)

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

The Decree Nisi

Once the divorce petition is issued by the court, it is sent to the Respondent who then usually has 14 days (possibly longer if the Respondent doesn’t live in the UK) to complete return the Acknowledgement of Service to the court.

The court will then send a copy of the Acknowledgement to the Petitioner who then completes and files an Application for Decree Nisi and a supporting Statement.

When the papers are received by the court they will be considered by a judge who, if satisfied with the ground for divorce, will issue a Certificate of Entitlement for Decree Nisi. This will list a hearing date several weeks later, at which the Decree Nisi will be pronounced. This hearing can also be used to consider any applications for or objections to any costs orders sought, if not already agreed.

Do bear in mind that the Decree Nisi is actually an interim stage in the divorce procedure – it isn’t the final divorce, it is a document that says that the court does not see any reason why you cannot divorce.  Once you have your Decree Nisi, you can apply for the

Decree Absolute

Usually, the Petitioner waits until the finances have been agreed and approved by the Court before applying for the final decree of divorce, known as the Decree Absolute.  If the divorce has taken place before the finances are resolved and one of the parties dies then, potentially, benefits to which the other would have been entitled to by virtue of the marriage will be lost (an obvious example is a spouse’s pension).

International divorce procedure

Some people may be entitled to begin divorce proceedings in more than one country: if that is the case, we can assist in helping you to decide which is the better jurisdiction for you (and your family) as the divorce process varies widely from country to country, even within Europe, including as to financial outcome, timing and arrangements for your children. Speed can be of the essence in making the decision.  If you think this might apply to your situation, please do get in touch without delay.

Respectful divorce

Finally, I’d like to stress that here at McAlister Family Law we believe very strongly in achieving what we call a respectful divorce, wherever possible.  Our managing partner, Amanda McAlister, has spoken about this extensively in the media and shares her advice here as to the best way forward for couples who are divorcing.

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

Can my ex make a claim against the assets and income I’ve generated since we separated?

business assets fiona wood

Can my ex make a claim against the assets and income I’ve generated since we separated?

Until a financial order is obtained within divorce proceedings either spouse can make a financial claim against the other. When considering what a fair financial claim is, a judge will look at all the assets owned by the couple at the time they divorce. What if one of the couple has significantly increased their assets since separation? Will their spouse benefit from this just because they did not divorce sooner after they separated?

Partner Fiona Wood, who is particularly accomplished at dealing with divorce cases where there are substantial and complex assets, explains further.

When marriages end the couple are not always in a rush to get divorced. Emotionally it is often a very difficult time and many people wait until after they have been separated for some time before formalising their separation by obtaining a divorce and a financial order within their divorce proceedings.

Until a financial order is obtained within divorce proceedings either spouse can make a financial claim against the other. When considering what a fair financial claim is, a judge will look at all the assets owned by the couple at the time they divorce. What if one of the couple has significantly increased their assets since separation? Will their spouse benefit from this just because they did not divorce sooner after they separated?

There are no strict rules regarding how a judge should divide the assets when a couple divorce

There are no strict rules regarding how a judge should divide the assets when a couple divorce, only guidelines. Judges therefore have a lot of discretion regarding the financial orders that they make. However, the main factor that judges must consider is the needs of the couple and their children (up to the age of 18). Need is usually having somewhere to live and money to live on, although how much is required to meet these needs will vary from case to case. If the couple’s needs can only be met by taking into account all of the assets, including those acquired after the couple separated, then all of the assets will go into the matrimonial pot for distribution between the couple.

Ring-fencing assets

If there are more than sufficient assets to meet the couple’s needs, it may be possible to ring-fence some or all of the assets that have been acquired after the couple separated. For example if one spouse started a new business after separation and at the time of the divorce this business had a significant value, if there are more than enough assets to meet the couple’s needs without taking the business into account, a judge could ignore some or all of the value of this business when dividing the other assets between the couple.

What if the asset existed at the time the couple were together, but it has increased in value significantly since separation? If the growth in value is just latent growth, such as an increase in value of a property owned by one of the couple as a result of a general increase in property prices, a judge is unlikely to say that this asset should be ring-fenced before the assets are divided between the couple.

If the growth in the asset since separation is as a result of significant efforts by one of the spouses since separation, for example a business increasing significantly in value over a period of time after separation due to a change in direction taken by the business owner, a judge may ring-fence some of the value in the business before the assets are divided between the couple. Some of the value of the business is likely to be included in the matrimonial pot as the business that existed at the time of separation provided a springboard for the growth of the business.

A judge’s discretion

When calculating how much should be ring-fenced, the Court of Appeal in Hart v Hart (2017) used both an arithmetical and a broad-brush approach to make this decision, which gives judges quite a large discretion regarding how they deal with this issue.

With regard to earnings that one spouse has earned after separation, again provided that there are sufficient assets to meet the couple’s needs without using money saved from post-separation income and bonuses, this money is likely to be ring-fenced. The case of Waggott v Waggott (2018) removed earning capacity from the matrimonial pot, allowing income received after separation to be treated differently if there are sufficient assets to meet the couple’s needs without having to use this money.

If you would like to know more about the issues raised here, please get in touch today. We are here to help.

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

Rylan Clark-Neal to divorce

Rylan Clark-Neal and husband Dan are to divorce

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

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

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

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

Irretrievable breakdown

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

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

What are the Five Facts?

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

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

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

One crucial difference

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

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

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

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

Does having an affair affect your divorce settlement?

Matt Hancock affair

To what extent is an affair taken into account when dividing assets on divorce?

Over the past few days Matt Hancock’s resignation as health secretary over an affair with his aide Gina Coladangelo has played out in the full glare of the media. It is understood that Mr Hancock, a father of three, has left his wife of 15 years, Martha; his relationship with Ms Coladangelo is described as “serious”.

Partner and family law expert Caroline Bilous looks at the implications of Mr Hancock’s conduct, explaining to what extent an affair is taken into account when resolving the division of assets on divorce. 

The law, specifically the Matrimonial Causes Act 1973 section 25(2)(g), says that a person’s conduct is taken into account only where

“…the conduct is such that it would in the opinion of the court be inequitable to disregard it.”

The law contained within this key piece of legislation was supplemented by the House of Lords decision in Miller v Miller and McFarlane v McFarlane in 2006 [2006] 1 FLR 1186 which provides that only in truly exceptional cases where conduct is “gross and obvious” will it be taken into account.

When is conduct taken into account? 

The law in England today does not enable a court to punish a person for their behaviour and instead the process is designed to achieve an outcome that has regard to all the circumstances of the case, one that mist give first consideration to the welfare of any child under the age of 18 and only in exceptional circumstances, where the assets are in excess of need will a parties conduct have an impact upon the outcome. It is important to note that need will be measured by assessing available financial resources and assessing the standard of living during the relationship and generally the longer the relationship’s duration the more important the standard of living will be.

In 1972,Wachtel v Wachtel [1973] EWCA Civ 10 Lord Denning made it clear that:

The court should not reduce its order for financial provision merely because of what was formerly regarded as guilt or blame.  To do so would be to impose a fine for supposed misbehaviour in the course of an unhappy married life.”

This is an extremely poignant extract and one that broadly sums up the courts approach to personal conduct today in that the role of the court is not to redress marital unhappiness and that such arguments have no place before the financial remedy courts.

In clear contrast however is where conduct takes the form of dissipation of assets by one party to the marriage causing a depletion in the assets available for division. The other party in this scenario would then seek to add back those assets that have been taken to redress such conduct.

For the court to add back assets that have been spent, the court has to be satisfied that there has been “wanton dissipation of assets”.  In Martin v Martin [1976] Fam 335, Cairns LJ said:

“A spouse cannot be allowed to fritter away the assets by extravagant living or reckless speculation and then to claim as great a share of what was left as he would have been entitled to if he had behaved reasonably.”

Bennet J in Norris v Norris [2003] 1 FLR 1142 said:

“…of course a spouse can spend his or her money as he or she chooses but it is only fair to add back into that spouse’s assets the amount by which he or she recklessly depletes the assets and thus potentially disadvantages the other spouse…”

Non-disclosure

There can also be issues of non-disclosure or a lack of financial transparency which could also fall within section 25 (2)(g) conduct.

In NG v SG (Appeal: Non-Disclosure) [2011] EWHC 3270 (Fam), Mostyn J stated that

“…the Court must be astute to ensure that a non-discloser should not be able to procure a result from his non-disclosure better than that which would be ordered if the truth were told. If the result is an order that is unfair to the non-discloser it is better that than that the Court should be drawn into making an order that is unfair to the Claimant”.

Therefore, while each case is treated entirely on its own merits and circumstances, as the law stands, an affair itself is highly unlikely to be taken into account when dividing assets on divorce. However to understand more about your rights our specialist team of family solicitors are here to help guide you through with a breadth of experience through these complex and difficult circumstances.

 

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

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Manchester, M15 4PZ

SOCIAL MEDIA:
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HOW CAN WE HELP?

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