After we’ve divorced, who gets the dog?

Posted on 30th November 2022 by McAlister Family Law

After we’ve divorced, who gets the dog?

From puppies to parakeets, cats to chameleons and everything in between; we are a nation of animal lovers and often the family pet is a valued and beloved member of that family. But what happens to your pets after divorce? Here, Brigid O’Malley looks at PetNups and what the court could decide.

PDSA’s 2022 findings show that 52% of UK adults own a pet. There is an estimated population of 10.2 million pet dogs and 11.1 million pet cats[1] in the UK! So, what happens when your relationship or marriage breaks down… who gets the dog?

Despite millions of us owning pets and them likely being an extremely loved and important part of the family, a pet, in the eyes of the law in England and Wales, is treated in the same way as your jewellery, TV, car and sofas! They are personal belongings – “Chattels”.

This can be a really difficult issue to advise about as animals are a significant part of family life and today’s society. They are often adored by adults and children making disputes over their ownership a sensitive subject.

We can’t agree who keeps the pets – what do we do?

Like with other issues following your separation it is sensible to try and agree with your ex-partner who keeps specific items, pets included. This can, of course, be hard and at times confrontational, but at the end of the day if an agreement can be reached between you it will likely save you the stress, time and legal costs later down the line.

If you can’t agree between yourselves then you could attend mediation to engage in discussions with your ex-partner in a safe and controlled environment, with a qualified mediator to assist you.

Court proceedings are a last resort, but they remain an option. If an agreement cannot be reached it is possible to make a court application for financial remedy as part of your divorce. The Court will consider a set of factors (from s25 of the Matrimonial Causes Act 1973) to determine a fair division of matrimonial assets. The Court can be requested to determine ownership of pets within that but, in practice, this is rare unless the animal has a high monetary valuable such as a thoroughbred racehorse or a pedigree Crufts prize winning dog. Of course, if your pets are very valuable then their value may be considered in the asset pot for division.

The Court can order the transfer of ownership of a pet as part of the proceedings, even if they have no monetary value. The close bond between the parties, any children and their pet would be relevant if the Court was invited to determine the issue of ownership.

If you are not married, then it is likely the pet(s) will stay with whoever is the registered legal owner but it may be possible to make an application to determine ownership through the Small Claims Court – this would be a civil dispute rather than a family one.

When makings its decision, the Court is likely to consider factors such as who is the registered legal owner, who is named on the insurance policy, who is registered with the vet and who generally pays for the care of the animal. Courts in other countries are moving towards an approach where the animal’s welfare is at the heart of the decision making. The Courts in England & Wales may take this into account, but the best interest of the pet is not the primary factor here, the animal is treated as a chattel.

I’ve heard of a “PetNup” – Can I get one of those?

A “PetNup” is an agreement regarding the ownership of a pet and can detail who the pet will live with if the relationship breaks down. It can also cover things like who will pay the costs associated with the animal such as vets’ bills and insurance premiums. A PetNup is not legally binding in the Courts of England and Wales but its contents, if well drafted, carefully considered and entered into without duress could carry significant weight if there was a dispute later down the line.

It would be sensible to consider entering into a prenuptial agreement prior to marriage or a cohabitation agreement when you move in with someone to ensure the ownership of your pets has been discussed and agreed in the event of the relationship coming to an end. A prenuptial agreement or cohabitation agreement can also set out the arrangements for the family finances and child arrangements so it can be a really useful document.

If you are facing a dispute about your cherished pet and want some advice, then contact our team of family experts who can advise you further.

[1] https://www.pdsa.org.uk/what-we-do/pdsa-animal-wellbeing-report/uk-pet-populations-of-dogs-cats-and-rabbits#:~:text=Our%202022%20findings%20showed%20that,of%2010.2%20million%20pet%20dogs

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.

Changing your children’s last name after divorce

Posted on 8th November 202223rd January 2024 by McAlister Family Law

Changing your children’s last name after divorce

Continuing our series of blogs covering the Brad Pitt and Angelina Jolie relationship difficulties currently making headlines around the world, it is reported that the couple’s son Maddox doesn’t use Pitt as his last name on documents that aren’t legal, using Jolie instead – and wants to make this name change legal. Solicitor George Wilson looks at the options available in this country, and considers the wider implications of such a decision.

It is a matter of record that Maddox Jolie-Pitt has a troubled relationship with his father, especially after an altercation during a private jet flight to Los Angeles, five years ago. Although Maddox wants to drop his father’s name and go from Jolie-Pitt to Jolie, it’s reported that his mother doesn’t support this. What would be the situation here?

Changing your name by deed poll

Under English law, if you are over the age of 16 you can change your name by deed poll, and you do not usually need your parents’ consent to do this. Your parents also cannot change your name for you without your consent.

However, there are some exceptions to the above. If you are subject to

* A ‘Live with order’ whether that is a Child Arrangements Order or Residence Order in England, Wales, or Northern Island

* A Special Guardianship Order in England and Wales

* A Care Order (or interim Care Order) in England, Wales, or Northern Island

* Any other court order which says that your name cannot be changed

If one of the four instances outlined above applies to you, then you’ll need the consent from everyone who has Parental Responsibility for you, for as long as the court order remains in force. The order might be drafted so that it ends on a specific date. If not, then it’s safe to assume that it will come to an end on your 18^th birthday.

If one of the four orders outlined above applies to you, and someone with parental responsibility refuses to give their consent, then you would need to apply for an Order of the Court allowing the change.

What about changing a child’s name?

Anyone under the age of 16 is, in law, a “child”, which means whoever has parental responsibility for the child would have to change the name by deed poll on the child’s behalf. To change the name of a child resident in England, Wales, or Northern Ireland, or overseas, there must be consent from everyone with parental responsibility, and that consent must be in writing.

What happens if the other parent refuses consent?

If only one person with parental responsibility wants to change the child’s name, and everyone else who has parental responsibility for the child won’t consent, then the person who does want to change the name can apply to the Court for a Specific Issue Order.

Usually, unless the Court believes that the link to a family name is better broken, they will be reluctant to take away the name of one of the parents. Courts tend to regard a child’s surname as something fundamental, and an important part of their identity. Even if one parent has had no contact for many years, it’s still seen as important for a child to have the absent parent’s surname, because it may be the last remaining link to them.

That being said, there are very often more important things to consider than the continuation of the link of identity between a child and a parent.

It is worth noting that the closer the child is to the age of 16, the more weight the court will likely give that child’s wishes and feelings.

What if no one gives consent to change your name?

If you are under 16 years of age, want to change your name, but none of the people with parental responsibility for you will consent to it, then you can apply to the court yourself, again for a Specific Issue Order.

You will need to show the Court that you have tried to work out any differences between you and those with parental responsibility before you made the application. You’ll also need to get the Court’s permission to make the application as you’re a child. This is called “Leave of the Court”, and you have to apply for permission first, before the Court would hear your application. The older you are, the more likely the Court are to give their permission to make the application for a Specific Issue Order and you’ll have to prove that you have a sufficient understanding of what you are applying for.

Think carefully before making any decision

Maddox Jolie-Pitt wants to change his surname, but his mother disagrees with this. If he goes ahead however, it’s likely Maddox’s brothers and sisters will have a different surname and they may be unhappy with this. There are wider implications which need to be considered thoroughly. A divorce and various disputes that are still going on many years later is without question going to put a strain on any family. This is why all factors need to be considered carefully and we at McAlister Family Law are here to help should any of these issues affect you and your family.

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

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.

The cost-of-living crisis and its impact on financial remedy proceedings

Posted on 20th October 202224th January 2023 by McAlister Family Law

The cost-of-living crisis and its impact on financial remedy proceedings

One of the most discussed topics over the last few months has been the anticipated increase to the cost of living in the UK. The Office for National Statistics state that 9 in 10 adults in Britain have reported an increase in their cost of living. Here, Weronika Husejko takes a closer look at the impact of the cost-of-living crisis and how it will impact financial remedy proceedings.

What impact will this have?

Whilst the Government have recently announced measures to help tackle the crisis, including tax cuts and a £400 energy discount, there are other factors such as inflation which will inevitably increase all of our expenditure going forward.

The cost-of-living crisis is expected to see individuals fall into more debt than usual, experiencing difficulties meeting their standard outgoings and ability to afford other activities such as holidays.

This will be ever more relevant for those going through the process of separation, in particular those with a mid to low income. They will be amongst those most impacted by the significant increase in expenditure, one of the reasons being that it can be very difficult to adjust from a household with two incomes to that of one. Outgoings naturally increase upon separation as there are two households to upkeep as opposed to one.

Will this be taken into consideration within financial remedy proceedings?

When financial remedy proceedings are issued, the Court will direct that both parties are to complete a Form E of their financial disclosure. Within that form, there is a section relating to the income needs of yourself and your children.

Your income needs are your general expenditure, whether that be on an annual, monthly or weekly basis. This involves detailing a list of your regular outgoings such as rent, utility bills, food and clothing. This is an important part of financial remedy proceedings as it allows the Court to see what your outgoings are and how much you need to meet them. They can then compare it to how much income you have.

You are given the opportunity to state not only your ‘current’ income needs, but also your ‘future expected’ income needs. This is because the Court consider both current and future needs. Therefore, in circumstances where you expect your income needs to change, whether that be higher or lower, you can make this clear to the Court within your Form E.

The Form E also includes a ‘liabilities’ section which allows you to disclose any debts you have. Generally, ‘hard’ loans e.g. bank loans or credit cards will be taken into account by the Court, even if they have been incurred post-separation. As a result, if your debts increase due to the current economic circumstances, this may be relevant within financial proceedings.

It follows that if you have been or are going to be impacted by the cost-of-living increase, this may be taken into consideration by the Court within financial remedy proceedings.

Back to school – choosing a school between separated parents

Posted on 4th October 202224th January 2023 by McAlister Family Law

Back to school – choosing a school between separated parents

This time of year, Instagram is full to the brim of ‘first day of school’ pictures, whether it’s a brand-new school or little ones progressing to the next year. But choosing which school a child attends, especially between separated parents, can be an exceptionally difficult process. Here, Ruth Hetherington looks at what the Court may decide if separated parents can’t see eye to eye.

A child’s first day of school is no doubt a big day, whether it’s their first experience of school or going back after the holidays. It is the start of something new for both parents and for the child, a new chapter, either the start of their life in education or progression onto the next phase

The decision of which school a child shall attend is of fundamental importance. It will hopefully provide stability and security for the child during their childhood, and it will

no doubt shapes the child so as to inform their own decision making as an adult. Lifelong friendships will also be formed and therefore how your child progresses through their informative years of education can be a difficult and stressful decision for parents, particularly if there are separated and have different views on how their child should be educated.

Despite the importance that surrounds the decision of which school a child shall attend, sadly it is all too common for one parent to unilaterally make that decision which can be wholly wrong and at times unlawful. If both parents share parental responsibility, they then have a right to have a say in the decision-making process of how and where their child should be educated. This can often be an arduous task for parents, especially if one parent attempts to enrol a child into a school where the consent of the other parent has now been sought or secured.

If you share Parental Responsibility with the other parent , you should consult each other in respect of big decisions that relate to the wellbeing of your child. The decision of which educational placement a child shall attend is a decision where both parents’ views should be ascertained with careful consideration being given to both sides.

If you cannot agree which school your child is to attend, then you should make an application for a Specific Issue Order. This means that the Court is being asked to make the decision for the parents. If one parent tries to make the decision unilaterally, then you could be faced making an application to the Court for a Prohibited Steps Order, preventing the enrolment of your child in the chosen school of the other parent..

If the decision relating to a child’s school 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 having regard to the Welfare Checklist (s.1 (3) Children Act 1989) when reaching their decisions. A change of school will undoubtedly bring disruption and upheaval to a child’s life. Their support network and friendships may be broken especially if any change requires either party to relocate. Relocation brings another added complexity to these decisions, as they may also affect the time that one parent spends with their child. These decisions should not be taken lightly and wherever possible an agreed approach between the parents is preferable to a Court making the decision. However sadly we see this scenario on a regular basis and detailed and clear legal advice is also crucial.

The above issues identified are simply the ‘tip of the iceberg’ and of course there are other factors to consider including the ascertainable wishes and feelings of the child, dependant of the age of the child. But they demonstrate why big decisions need and require careful deliberation with the views of both parents being respected and considered.

Children born out of wedlock and separating parents

Posted on 22nd September 202224th January 2023 by McAlister Family Law

Children born out of wedlock and separating parents

The Office for National Statistics have recently reported that the majority of children born in 2021 in England and Wales were born out of wedlock. Here, Weronika Husejko looks at what protection is in place for unmarried couples with children should they decide to separate.

The ONS recently reported that approximately 51.3% of children were born to parents that were not married or in a civil partnership.

Whilst there has been a steady increase in children born out of wedlock over the last decade, it appears that this recent spike has been directly impacted by the COVID-19 lockdown. During the lockdown, many couples were prevented from marrying and entering into civil partnerships. As a result, far more children were born to unmarried parents.

What significance does this have?

The main impact of this trend is upon separation. This is because unmarried couples do not have the same legal protection as married couples when they decide to end their relationship.

Unfortunately, no length of cohabitation results in a married legal status. Common law marriage does not exist in England and Wales.

It is important that parents are aware of the fact that there is different financial provision upon separation for those who are unmarried. For example, married couples are entitled to apply to the Court for various Orders which unmarried couples cannot, such as spousal maintenance.

What can you do to protect yourself?

You may consider putting together a cohabitation agreement. This is an agreement between two people that decide to live together as a couple which can cover various areas including finances and child arrangements.

This type of agreement can also provide for finances upon separation. Unmarried parents can still be entitled to child maintenance and may be able to apply for various financial Orders in respect of the child from the other parent under Schedule 1 of the Children Act. However, a cohabitation agreement can provide unmarried parents with additional protection and certainty as to what the arrangements should be, both financially and with regard to arrangements for their child, in the event that the relationship ends.

It is essential that unmarried parents obtain legal advice upon separation in relation to their children and their options for financial support.

Choosing a new school – what if separated parents don’t agree?

Posted on 15th September 202224th January 2023 by McAlister Family Law

Choosing a new school – what if separated parents don’t agree?

This week we’ve seen Instagram full to the brim of ‘first day of school’ pictures, whether it’s a brand-new school or little ones progressing to the next year. But choosing which school a child attends, especially between separated parents, can be an exceptionally difficult process. Here, Paul Reay looks at what the Court may decide if speared parents can’t see eye to eye.

A child’s first day of school is no doubt a big day, whether it’s their first experience of school or going back after the holidays. It is the start of something new for both parties, for the child, a new chapter, either the start of their life in education or progression onto the next phase. For parents, it is potentially the end of what has been an extremely demanding summer holiday. No doubt, if the camera turned to take a picture of the parent waving off their beloved child, there would be a glisten in their eye at the prospect of being able to have 10 minutes peace.

The decision of which school a child shall attend is of fundamental importance. It is the reality that a child will form close bonds with their classmates, some who could go on to become friends for life. I know from my own experience that the majority of my closet friends I met at school became lifelong friends, some of which became my best man and groomsmen.

Despite the importance that surrounds the decision of which school a child shall attend, sadly it is all too common for one parent to unilaterally make that decision which can be wholly wrong and at times unlawful. Separated parents can often become stuck when making the all-important decision, especially if there are differences in Parental Responsibility. If you share Parental Responsibility with your spouse, you should consult each other in respect of big decisions that relate to the wellbeing of your child. The decision of which educational placement a child shall attend is a decision where both parents’ views should be ascertained with careful consideration being given to both sides.

In the circumstance where both parents share Parental Responsibility, but one parent has made the decision on which school the child should attend, without the input or consent of the other, it could be demand unlawful.

Only this week, I was required to issue an urgent application to the Court, seeking a Prohibition Steps Order, preventing a Mother from removing a child from his long established place of education, just because she wanted to up-sticks and move to another part of the country with little or no notice given to my client. Despite raising his opposition to any proposed move his views were not respected, sadly discarded instantly, which happens all too often between separated parents.

If matters relating to a child’s school 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. A change of school will undoubtedly bring disruption and upheaval to a child’s life. Their support network and friendships may be broken especially if any change requires either party to relocate. Geography may require any previous agreement to be tweaked and if it is going to be the case that the child can’t see a parent often, then discussions need to be had about how this is managed; does the child have time in the school holidays, do they have the full week in the October half term?

The above issues identified are simply the ‘tip of the iceberg’ and of course there are other factors to consider including the ascertainable wishes and feelings of the child. But they demonstrate why big decisions need and require careful deliberation with the views of both parents being respected and considered.

How are holidays divided between separated parents?

Posted on 8th September 202224th January 2023 by McAlister Family Law

How are holidays divided between separated parents?

How holidays are divided between separated parents can often be a real concern, but what if parents cannot come to an agreement? Here, George Wilson looks at the factors that the family court will take into consideration when deciding what is in the best interest of the child.

How holidays, be those of a religious nature, linked to the school calendar, or something else, are divided can be a real concern for many separated parents. Many parents have struck a balance in terms of agreeing where, and with whom, a child will spend such holidays. However, sometimes separated parents will look to the family court to decide and help them, and their children. It is first important to note that any determination that the court makes in regard to holiday arrangements will take into account the specific facts of each individual case and look squarely at what is in each child’s best interests.

Often, parents who live close to one another can often reach an agreement between themselves, whereas parents who live many miles away from one another will simply not be able to achieve such an outcome. It is almost impossible to say, with any certainty, how the court would deal with each individual case without a full knowledge of the child(ren) involved, the history of the parents, and any arrangements that are already (or have been) in place. It is possible to provide some insight as to how the court might deal with certain holidays.

In terms of the school holidays, separated parents must consider the summer holidays, Easter, and half-terms.

Often, the summer holiday (being the longest school holiday) will be split on a week on, week off basis, so that there is some routine for the child(ren) concerned and so that both parents are able to spend adequate time with them. That being said, in some cases it may be that a week with each parent, and then two weeks with each parent, may work better due to overseas travel or other plans. It is rare for the summer holidays, assuming they are 6 weeks long, to be divided down the middle on 3 weeks on, 3 weeks off basis. In circumstances where one parent has not spent extended duration’s of time with the child(ren) for a long period, it may be that the court determines that there is some form of stepped plan to arrive at prolonged holiday contact.

In relation to the half-terms, many parents will simply agree to have a set half-term holiday, with the other parent taking either the remaining two holidays or agreeing to take one and divide the third. Other parents may opt for an equal division of all of the half-term holidays, with a handover of the child(ren) taking place at some point during the holiday itself. It really does boil down to what is in the best interest of the child(ren).

Easter and Christmas are slightly more complex given the religious nature of the holiday(s). Easter is often divided in the same way that the summer holiday might be dealt with, with each parent taking a set period of time with the child(ren) depending on working plans and what is best of the child(ren). Christmas can cause further issues given that the holiday is held in such importance for many people. A further blog could be written on Christmas holiday arrangements in isolation; however, many parents will opt to alternate between Christmas and new year on an annual basis. Be sure to look out for a further blog in relation to how such an arrangement might be workable closer to the festive season.

Where specific arrangements for holidays have been put into place for holidays, the usual arrangements will normally be suspended as to provide both parents with sufficient time with the child(ren), and free from the requirement to make the child(ren) available to the other parent.

Holidays are a complex issue, that many parents overlook when reaching an agreement in relation to spending time with their child(ren). It is important to consider the importance of holidays, and how child arrangements will be worked and amended around these periods. Should you wish to discuss matters involving child arrangements around the holiday periods, do not hesitate to contact a member of our specialist children team.

How would Stallone’s alleged misconduct sit with the Courts of England and Wales?

Posted on 1st September 202224th January 2023 by McAlister Family Law

How would Stallone’s alleged misconduct sit with the Courts of England and Wales?

Sylvester Stallone hit the headlines once again recently, after news broke that his wife of some 25 years, Jennifer Flavin, had filed for divorce. In his latest blog post, George Wilson takes a closer look at how Stallone’s alleged misconduct would sit with the Courts of England and Wales.

The divorce suit was filed just days before a video emerged of Stallone, now 76 years old, covering up a tattoo of Flavin on his bicep with a picture of Butkus, the bull mastiff from the Rocky film franchise. Although Stallone was not shy about disclosing the video to the world at large, it has been alleged by Flavin that he hasn’t quite disclosed things he should have and has hidden marital assets within the divorce proceedings. Flavin’s legal team further state that the Stallone has:

“engaged in the intentional dissipation, depletion and/or waste of marital assets which has had an adverse economic impact on the marital estate”

Naturally, Stallone’s solicitors have denied any sort of misconduct.

How would Stallone’s alleged misconduct sit with the Courts of England and Wales?

In the jurisdiction of England and Wales, all parties to financial remedy proceedings within divorce owe a duty of full and frank financial disclosure to the Court and, in turn, their spouse. Essentially, parties within the proceedings must disclose all of the available information about their assets and income, by way of detailed financial disclosure, usually on the standard document used for such disclosure, Form E. Such disclosure will include evidence of the value of properties parties have an interest in, copies of bank statements linked to bank accounts in their name, evidence of their income and income needs, evidence of other assets such as investments and ISAs, valuable chattels such as artwork, jewellery, and watches, and motor vehicles.

Parties will also need to provide evidence of dividend counterfoils, company accounts, tax returns, and any liabilities they might have against their name. This list is by no means exhaustive, and parties are often shocked at how much detail they are required to provide within their financial disclosure. A blank Form E can be found at this link for ease of reference.

If parties to a divorce refuse, or fail to provide the required disclosure, the consequences (and remedies available to the Court and their spouse) are very serious. The court is likely to draw “adverse inferences” about parties who fail to provide the required disclosure. Essentially, this means that the Court can, and will, assume a spouse has something to hide and can make robust assumptions about the trust value of their assets and level of their income. Furthermore, if the divorce (and financial remedy proceedings) has concluded and one spouse believes that their ex-spouse had hidden assets, it may be possible to reopen the case. The court can reopen any case if it finds there has been deliberate and fraudulent non-disclosure of assets by one spouse.

Such assets, now visible and disclosed, will come under scrutiny, and the court can decide as to how the same should be divided. Perhaps the worst outcome of being found ‘guilty’ of non-disclosure, is the Court finding that a spouse has been in contempt of court and if the contempt has been deliberate, then the guilty spouse can be fined or even have a custodial sentence forced upon them. It is therefore of paramount important to work with a solicitor to ensure that the disclosure you provide is full and frank.

Stallone has also been accused of dissipating marital assets. Dissipation of assets occurs when one spouse has used, given away or otherwise transferred, converted, wasted, mismanaged, or adversely affected assets that would have been subject to division and distribution. Dissipation of assets may be in the form of the quick sale of assets such as property, stocks and shares, or other chattels such as artwork. Dissipation can also be more subtle and can be in the form of significant ‘gifts’ to friends and family, substantial cash withdrawals, gambling, or other unusual and possible reckless purchases. The court will see such dissipation of assets as an act of litigation misconduct.

Under the Matrimonial Causes Act 1973, it is possible for one spouse to apply to freeze certain assets belonging to the other, to reduce the risk that they are dissipated. In such circumstances, it is essential to act quickly, with the assistance of solicitor, should you suspect that your spouse intends to dissipate assets, as it is much more difficult to deal with the assets once they have been dissipated.