Noel Gallagher and Sara MacDonald to divorce after 22 years – Does the length of marriage matter?

Posted on 16th January 2023 by McAlister Family Law

Noel Gallagher and Sara MacDonald to divorce after 22 years – Does the length of marriage matter?

Noel Gallagher, Manchester born former Oasis member, and his wife, Sara MacDonald have announced that they are to divorce following a marriage of 22 years. Here Weronika Husejko looks at how the length of a marriage can impact divorce proceedings.

The former couple married in 2011, having begun their relationship in 2001. They have two children together, Donovan, aged 15 and Sonny aged 12, both of whom are still dependent.

It is a commonly queried whether the length of a marriage has any relevance within a divorce financial settlement. The short answer to this question would be yes.

When a Judge considers a financial settlement, they must consider section 25 of the Matrimonial Causes Act 1973. Section 25, amongst other things, specifies that a Judge must in particular have regard to the duration of the couples’ marriage.

What does this mean in practice?

Generally speaking, a marriage usually falls into one of three brackets, that being either a short term, medium term or long term marriage.

A short term marriage would usually be considered to be one of up to 5 years. It should be noted however that a couple cannot divorce until they have been married for a minimum of 1 year. It is more likely that the financial settlement in a short term marriage will take into consideration pre acquired assets. A “clean break” may be considered to be more appropriate in these circumstances. However, this may not always be the case, especially if there are dependent children involved, in which case the focus would be on ensuring that the children’s needs are met.

A medium term marriage would generally be viewed as around 10 years.

Noel and Sara’s marriage would most likely be considered to be a long marriage on the basis that they began living together around 2001, their marriage being a total of 22 years. This is because a period of cohabitation that moves seamlessly into marriage will also be taken into account by the Courts, when considering the length of the marriage.

A longer marriage of this nature can often be more complex when it comes to the financial settlement. The Courts may take a different approach when dividing matrimonial assets in this type of case, compared to that of a short or medium term marriage. By way of example, it is far less likely for the Court to consider Noel and Sara’s respective contributions to the marriage. As a result, it may be that there will be an equal division of assets, unless it is necessary to move away from a 50-50 split to meet the need of one of the spouses.

It may be that Noel and Sara have a pre nuptial agreement, in which case this may be taken into consideration by the Courts, and therefore may have an impact upon the overall financial settlement.

In any event, the Court’s primary interest in their case will be in ensuring that the needs of both Donovan and Sonny are met.

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

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.

Can my children go on holiday with their grandparents if my ex does not consent?

Posted on 26th August 202224th January 2023 by McAlister Family Law

Can my children go on holiday with their grandparents if my ex does not consent?

Taking children on holiday can often be more challenging between separated parents, but can grandparents take their grandchildren on holiday, and how easy is it in a separated family? Here, Michael Compston looks at court orders, parental responsibility, and offers advice to grandparents looking to plan a holiday.

Firstly, who can take children on holiday? This blog assumes that you and your ex- have separated and no longer live together, but that there is no court order in place; if you do have a court order, you should refer to the warning notices within that order.

Only those individuals with parental responsibility have the capacity to make decisions on who may take children out of the country on foreign holidays. Parents acquire parental responsibility most typically at birth; the mother will acquire it by virtue of being the child’s mother, and the Father will acquire parental responsibility if he is married to the Mother at the time the child’s birth or he is named on the child’s birth certificate as the Father. Similar provisions apply for same-sex couples.

With no court order in place, permission of those with parental responsibility is required before taking children on a foreign holiday. This is the case regardless of who the child lives with. Consent should not be unreasonably withheld – why would a parent not want their child to experience a foreign holiday – but if the holiday is at risk of putting a child in danger, or there are concerns about the children not returning, then consent may be withheld. Consent is often withheld because the ex- is worried about their routine time with the child being interrupted. It may be helpful to consider how any lost time could be made up, if consent is being withheld, as a means to broker an agreement.

Grandparents typically don’t have parental responsibility for children – there are exceptions to this, of course, but we are looking at the general position here. Those with parental responsibility are free to delegate childcare to who they consider appropriate to provide such childcare. We see this when parents work longer hours than children are at school or nursery and grandma or grandad need to collect the children and provide childcare for a couple of hours. We don’t often think about the action of delegating that responsibility as it is simply what many working families do as part and parcel of 21^st century life; everybody pitches in for the childcare, especially when both parents work full-time, or close to full-time jobs.

It is advisable for grandparents to plan their holidays well in advance and they must ensure that they have permission of all individuals with parental responsibility. Written consent is not strictly a legal requirement but it would be a very good idea to have something from everyone who has parental responsibility, in writing, that can be shown to any customs officials querying the legal right to take the children on holiday. This is particularly important when the children have a different surname to the grandparents.

If consent is withheld from any individual with parental responsibility, then the grandparents can apply to court for a Specific Issue Order. They will need permission to make such an application, granted by the court, but getting permission to make the application is usually a formality – this is not the same as permission being given to take the children on holiday. The court will list the matter for a Final Hearing where the parties – grandparents and those with parental responsibility – will give evidence in front of a Judge and have the opportunity to cross-examine (ask questions) of the other parties before the Judge makes a final decision.

The Judge will consider first and foremost what is in the child’s best interests. Judges will encourage the parties to come to an agreement but, if no agreement is reached, then they will decide what is in the child’s best interests and make an order accordingly.

Separated parents and international travel during Covid-19 restrictions

Posted on 18th August 202224th January 2023 by McAlister Family Law

Separated parents and international travel during Covid-19 restrictions

As of August 2022, the Covid-19 pandemic continues to affect international travel, for most, this can mean a last-minute rush to the airport to avoid isolation, but for separated parents the added stress of acquiring consent to travel with their child from the other parent can make holidays even more challenging. Here, Heather Lucy explains how the ongoing Covid-19 pandemic can play a role in organising a holiday between separated parents.

With holiday season in full swing, many parents want to take the opportunity to take their children on holiday. For most families this tends not to be much of an issue, but for families with separated parents there are a few more things to consider. Firstly, if one parent wants to take a child abroad, whether that be permanently or temporarily, the other parent with parental responsibility will need to give consent. However, anyone with the benefit of a Child Arrangements Order, stating that their child is to ‘live with’ them, is legally allowed to remove the child from England and Wales for a period of less than 28 days without the consent of the other parent, even though they have parental responsibility.

What about Covid-19?

As of August 2022, providing you and your child are fully vaccinated, there are 172 countries open to you worldwide, 28 countries that require you to test before you travel, 3 countries that require you to quarantine upon arrival, and only 24 countries fully closed. On the other hand, if either you or your child are unvaccinated or haven’t received all of your vaccinations, only 87 countries are open to you, 71 require you to test before you travel, 19 countries require you to quarantine upon arrival, and 50 countries are fully closed. However, the status of each of these countries so called ‘openness’ can change at any given point.

It is understandable then why any parent may have some reservations around their child travelling abroad with their ex-partner, not least because of the fear that once in the destination country, your ex-partner and child might face a period of self-isolation upon their arrival. Again, changes in the status of ‘openness’ can happen at any time and parents can be caught out with an unexpectedly long stay and issues with accommodation. On top of this, there is the ever-present worry around the risk of the child either contracting Covid-19 or transferring it.

Written consent.

If you do wish to travel abroad with your child, the first step is to seek written consent from the other parent before travelling. If this is something which may prove difficult, try to have an open discussion with the other parent; understand and alleviate any fears that they may have by confirming:

Travel dates and times
Where you will be staying
Explain how you will keep the child safe throughout the holiday
Explain the rules around quarantine and testing if you are traveling to a country where this is required

Compromise and flexibility is key, but what happens if you cannot come to an agreement or if your ex-partner gives consent but then changes their mind?

You can make an application to the court for a Specific Issue Order stating that you can remove the child from the country and the court will make the final decision. On the other hand, if you are the partner who is not traveling and you haven’t given consent and are worried that your ex-partner will travel with your child regardless, you can apply to the court for a Prohibited Steps Order to prevent them from traveling. If you are in this situation, you should seek legal advice urgently as this may also be considered child abduction.

Will the court hear this matter in time?

The court is dealing with a significant amount of cases and there is no guarantee that it will be able to deal with an application such as this as quickly as might be necessary. Our advice is to deal with this matter before it becomes an urgent one. There are alternatives to making a court application, such as engaging your solicitor and seeing if the matter can be negotiated or referring to mediation to see if an arrangement can be reached.

If you are affected by any of the issues outlined here, please get in touch with our specialist teams today.