How are cryptocurrencies and digital assets treated on divorce?

cryptocurrency and divorce

How are cryptocurrencies and digital assets treated on divorce?

How are cryptocurrencies and digital assets treated on divorce? Partner Fiona Wood examines the issues.

In recent months Bitcoin and other cryptocurrencies have seen a resurgence, with the value of many of these digital currencies now being worth more than ever. The value of the industry itself was worth more than $1trillion in January 2021 and is on course to double in value by the end of March. This has led to a rise in people turning to digital investments during the lockdowns, with many more investors purchasing these rather than more traditional stocks – my colleague Jim Truscott of Beyond Group‘s specialist corporate firm Beyond Corporate has recently commented on this.

So how will digital investments be treated if you are going through a divorce?

Division of assets

Despite having no physical form, there is no difference between how cryptocurrency is treated from other more traditional investments, should a couple divorce. These and the other assets owned by the couple will be divided between them, considering various factors, including the couple’s and their children’s reasonable needs, and the specific circumstances of their case.

However, due to the nature of these assets there are several potential issues that may arise, which are specific to cryptocurrencies, during a divorce. Those issues include:

Issues regarding disclosure

There are concerns that due to the relative anonymity of cryptocurrency trading that a spouse could exploit this to try to hide their assets. In divorce each spouse has a duty to provide full disclosure of their assets. Most of those who hold cryptocurrency do so via a digital exchange, also known as a digital wallet. These wallets hold ‘keys’ and these keys are a sequence of letters and numbers which then correlate to the amount held in the account ledger. The benefit of holding keys in a digital wallet is that a person is able to easily see what they hold, as well as allowing them to buy and sell as they wish. These digital wallets provide records of what cryptocurrencies a person holds, the trades they make and the value of their holdings. This is what will need to be provided in disclosure.

It should be noted that if an asset has not been disclosed, it may be obvious from the other disclosure provided. A judge has the power to infer that there are undisclosed assets, if a reasonable explanation is not provided regarding where money has gone. However, there is no guarantee that all undisclosed assets will be traced. The nature of cryptocurrencies makes these assets easier to hide for those who are not prepared to abide by the law and provide full disclosure.

Issues regarding valuation

Unlike traditional stocks, the values of cryptocurrencies are very volatile and can swing dramatically, with 500% swings within a week not uncommon. This can lead to challenges when valuing assets in divorce proceedings.

Cryptocurrencies will be considered more risky assets in divorce because of this. A judge will often consider it appropriate that both spouses receive some of the more risky assets, so that that they are both impacted by large increases or decreases in their values, thus sharing the risk.

Issues obtaining a freezing order

If one spouse is trying to get rid of an asset in order to frustrate the other’s financial claims in divorce proceedings, you can apply for a freezing order to prevent this happening. This is a difficult application to make successfully regarding cryptocurrencies, but there have been cases where the court has made a freezing order against the digital wallet and the digital exchange who operated the wallet have fully cooperated with the order.

Cryptocurrencies are potentially more problematic to deal with if you divorce. However, the world of cryptocurrencies is a growing one and is likely to feature in an increasing number of divorces.

If you are concerned about how cryptocurrencies owned by you or your spouse will be dealt with if you divorce it is important that you take specialist legal advice. Please get in touch today. We are here to help.

First published in Business Insider North West

New legislation fails the needs of the most vulnerable children in society

new legislation fails the most vulnerable

New legislation fails the needs of the most vulnerable children in society

The pandemic has plunged more young people into the care system, placing pressure on all relevant legal and social work professionals, including the courts and local authorities. It has been reported that three-quarters of children’s residential settings in England are privately run, which can mean that they can choose whether a child fits their criteria rather than questioning whether the placement actually fits the welfare needs of the child.  This means that the most vulnerable children could be placed in unregulated and unsuitable placements.

Senior Associate Nicola McDaid explains further.

 

On Friday 19th February 2021 the Department for Education announced that it will ban the use of unregulated accommodation (this is accommodation which is not Ofsted approved, registered or inspected by the council) for children in care aged 15 and under. This means as from September 2021 through amending

The Care Planning, Placement and Case Review (England) Regulations 2010

it will be illegal to place children in unregulated accommodation.

Vulnerable children

The government’s change in legislation is intended to ensure that the most vulnerable children are cared for in placements which best meet their needs.

However, this ban does not affect the thousands of 16 and 17-year-olds who already reside in unapproved, unregistered and unregulated placements which can be known as semi-independent or supported accommodation and are not inspected by a regulator in England or Wales.

Sadly, many children aged 16 and 17 years old, having already experienced abuse, trauma and/or exploitation and who may end up in these unregulated settings, are also the most vulnerable children who clearly need the additional support which will not be provided to them under this new legislation.

New legislation

Many legal professionals have already expressed concern that this new legislation won’t meet the welfare needs of these children, at a time when they need it the most, as they progress to adulthood. There is a feeling amongst legal and social work professionals that this could create a two-tier system, with the state effectively washing its hands of young people when they get past a certain age.

The government has promised it will look to introduce national standards for unregulated accommodation for older children in care and care leavers (a child 16 years old or above) to ensure the standard of placements are a high quality and that will meet the welfare needs of these children, but unfortunately such legislation is not yet in force.

Without question this is a very worrying time when the burden on the system means that more unregulated placements are having to be utilised, and it is hoped that the government will make this a priority to ensure that all children of all ages have the best possible care when they are unable to reside with their families.

We are here to support you. Come to us with your questions and our expert team of family lawyers are on hand to give you the assistance you need. Please get in touch today – we’re here to help.

Divorce is not your only option

divorce is not your only option Louise Redknapp

Divorce is not your only option

Louise Redknapp has been reported this weekend as saying she has regrets about divorcing her husband Jamie: “I should have paused for a minute and thought about other people and had just a bit more time to work out why I felt I couldn’t do it anymore. All I know is, I wish I’d tried [to save the marriage].”

She added: “I want to say to anybody who is thinking of running: ‘Just slow down. Don’t run.’ Because once you run too fast, you can’t make up the ground you’ve lost.”

People make decisions that they believe are right at the time, and nobody is criticising Ms Redknapp for taking the path she did. However, it is sobering to think that perhaps the Redknapp’s marriage might still be going strong today had decisions not been made so quickly. Divorce is not your only option.

Our managing partner, Amanda McAlister, explains there is another option available to those unsure as to whether or not they want press the divorce button.

“As a family lawyer of many years’ experience, and someone who has herself been divorced, I can say with certainty that although you will have heard stories of acrimony and bitterness, it doesn’t have to be that way. Being transparent about your emotions, and managing your expectations are two key areas to focus on.

“But for those couples not ready to bring an end to their marriage through a divorce or dissolution of their civil partnership, or who want to allow a period of reflection, there is the option of a Legal Separation.”

What is a Separation Agreement?

A separation agreement, entered into by both parties, is an agreement setting out how the couple’s assets should be divided and whether there should be any ongoing financial support – it can be tailor-made to the couple’s individual circumstances.  Within the document the parties commit to commencing divorce proceedings after they have been separated for two years.

Is a Separation Agreement legally binding?

In a word, no. But if it has been properly drawn up with full financial disclosure, and various safeguards have been met, then the court could hold the parties to it, unless their circumstances have changed substantially since the agreement was signed.

What are the advantages?

It can provide a sound basis for the ultimate financial consent order that should be presented to the court once the divorce or dissolution has reached the appropriate stage. And entering into a separation agreement is far less uncertain that simply deferring the question of the financial settlement until the divorce proceedings are initiated.

And the disadvantages?

In brief, a divorce brings closure, a separation agreement doesn’t. And closure can be extremely important, particularly for children who need certainty, and for the wider family who will then be able to accept that the marriage ending is final.

Remember that although the No-Fault Divorce Act received Royal Assent in June 2020, the reforms have not yet come into force. 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 (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)

“To summarise, whist the prospect of commencing a divorce is incredibly stressful and upsetting, it does provide closure not only to the adults but also children, allowing the whole family to move on. A divorce also allows a binding financial settlement to be achieved ensuring that both parties are provided with financial certainty and security for the future.”

 

We are here to support families, whether they are making up, or breaking up. Nobody knows what the future holds, but we want to assure you that you are not alone. Come to us with your questions and our expert team of family lawyers are on hand to give you the assistance you need. We’re here to help.

When parents can’t agree on vaccinating their child

child vaccination

When parents can’t agree on vaccinating their child

Parents, married or separated, will quite naturally disagree on many things. As family lawyers, we see these disagreements a lot but there is a worrying rise of cases where parents cannot agree on vaccinating their child.

Vaccinations have already proved to be a tricky subject for some parents: you may remember parents disagreeing about the MMR vaccination in late 1990s and the now disproven theories about the connection to autism.

It is important to bear in mind that the starting point regarding childhood vaccinations is that everyone who holds ‘parental responsibility’ for a child should be consulted and should consent to children receiving any vaccination.

A recent case has brought the issue regarding whether or not children should receive vaccinations to our attention again.

In December 2020, the court handed down Judgement in the case of M v H (Private Law Vaccination) [2020] EWFC 93, [2020] All ER (D) 115 (Dec)

The court determined whether two children should receive the vaccinations as set out in the NHS vaccination schedule.

The parents concerned had been separated for some time, and had two children from their relationship. The father’s initial application sought a Specific Issue Order, requiring that the children have the MMR vaccine. However, this was later extended to include any further childhood vaccines as per the NHS schedule, any vaccinations that may be required before foreign travel, and any vaccination against COVID-19 (should that become a government recommendation).

However, the mother opposed this application. The Judge hearing the matter, Mr. Justice MacDonald,  decided he would limit his Judgement to only those vaccinations on the NHS schedule, stating it would not be appropriate to determine at present vaccinations for foreign travel, which may or may not be required in the future, and likewise the COVID-19 vaccination. He found there was no evidence before the court on these vaccinations, and therefore it would not be appropriate for him to decide on this.

COVID-19

When giving his Judgment in relation to the COVID-19 vaccination, Mr. Justice MacDonald did however state in paragraph four of his Judgment:

“I wish to make abundantly clear to anyone reading this judgment that my decision to defer reaching a conclusion regarding the administration to the children of the vaccine against the coronavirus that causes COVID-19 does not signal any doubt on the part of this court regarding the probity or efficacy of that vaccine. Rather, it reflects the fact that, given the very early stage reached with respect to the COVID-19 vaccination programme, it remains unclear at present whether and when children will receive the vaccination, which vaccine or vaccines they will receive in circumstances where a number of vaccines are likely to be approved and what the official guidance will be regarding the administration of the COVID-19 vaccine to children.”

Children Act

The parents were going through private Children Act proceedings regarding contact arrangements, however on the recommendations of the children’s guardian, it was agreed this issue should be dealt with separately. The mother represented herself as a litigant in person (it should be noted she did apply for an adjournment to seek legal representation, this being refused by the Judge, who said he did not feel the mother would be prejudiced by matters proceeding without her being legally represented, and that the two statements she had filed demonstrated her understanding of the issues and her ability to argue and put forward her case and position).

The court relied on the statements of the parties only, that is, without any expert evidence, and having nothing from a jointly-instructed medical professional.

The arguments put forward

The mother was opposing the children having their NHS scheduled childhood vaccinations saying her opposition was based on six years’ research; she also referred to an article she had found suggesting a link between the MMR vaccine and autism. The mother directed the court to various articles and papers, including an American paediatrician, Larry Palevsky, and American nephrologist, Dr Suzanne Humphries. It was commented by the Judge that both individuals were vocal advocates against vaccinations. The mother suggested it was not in the children’s best interests to have the vaccinations, suggesting this put them at risk of further health issues, and children whom had not been vaccinated had a better natural immunity to illnesses.

The mother put forward nine arguments:

  • Referencing the comments of Lady Justice King in the case of Re: H (A Child: Parental Responsibility; Vaccination) that, “vaccination is not immunisation”. She submitted that the administration of a vaccination is to help the body develop an immune system to protect from the disease and is therefore not 100% effective. The mother’s submissions were that between two and 10% of cases a vaccination was ineffective
  • That the vaccination did not prevent a party carrying the disease
  • That the diseases which the children were being vaccinated against are generally mild and cause limited difficulties for healthy, well-nourished children
  • That further investigation was required into the ingredients in the vaccinations and, listing the ingredients in the MMR vaccine, the mother stated she objected to these ingredients being injected into her children
  • That the recommendation by Public Health England that children should be vaccinated was out of date, and had fallen behind further research and developments and advances in science, which were suggesting the vaccines caused long term health issues in children
  • That the vaccines cause damage to the children, with the side effects being more detrimental to the children than the benefits. The mother suggested there have been only two deaths of children under 10 from measles in the last 10 years whereas, by comparison, a far greater number of claims have been made for damages against the UK Vaccine Damages Programme Unit
  • That the children should be tested for ‘natural immunity’ before being given any vaccinations
  • That any order forcing her to have the children vaccinated would be an unnecessary and disproportionate breach of Article 8 of the Human Rights Act, right to a family life, and asserting forcing the children to be vaccinated would constitute an assault or grievous bodily harm

This case can be distinguished from previous authorities where vaccinations have been directed on the grounds that the previous case referenced by the Judge Re: H (A Child: Parental Responsibility: Vaccination) was a public law case. The mother submitted in this case there were wider welfare concerns, which did not apply in this matter.

The Children’s Guardian supported the father’s position that the children be vaccinated, stating this was in accordance with the recommendations of Public Health England and NHS Guidance.

The Judgment

In giving his Judgment, Mr Justice MacDonald considered the Guidance on Parental Responsibility and where those holding parental responsibility could not agree on the immunisation of a child, this should be determined by the court.

Mr Justice MacDonald made reference in his Judgment to the case of Re H (A Child: Parental Responsibility: Vaccination), stating the Court of Appeal undertook “a comprehensive review of this area” and reached the following conclusions:

 

  • It cannot be doubted that it is both reasonable and responsible parental behaviour to arrange for a child to be vaccinated in accordance with the Public Health Guidelines but there is at present no legal requirement in this jurisdiction for a child to be vaccinated
  • Although vaccinations are not compulsory, scientific evidence now establishes that it is generally in the best interests of otherwise healthy children to be vaccinated, the current established medical view being that the routine vaccination of infants is in the best interests of those children and for the public good
  • All the evidence presently available supports the Public Health England advice and guidance that unequivocally recommends a range of vaccinations as being in the interests both children and society as a whole
  • The specific immunisations which are recommended for children by Public Health England are set out in the routine immunisation schedule which is found in the Green Book: ‘Immunisation against infectious disease’, published in 2013 and updated since
  • The evidence base with respect to MMR overwhelmingly identifies the benefits to a child of being vaccinated as part of the public health initiative to drive down the incidence of serious childhood and other diseases
  • The clarity regarding the evidence base, with respect to MMR and the other vaccinations that are habitually given to children, should serve to bring to an end the approach whereby an order is made for the instruction of an expert to report on the intrinsic safety and or efficacy of vaccinations as being necessary to assist the court to resolve the proceedings pursuant to FPR Part 25, save where a child has an unusual medical history and consideration is required as to whether the child’s own circumstances throw up any contra-indications
  • Subject to any credible development in medical science or peer reviewed research to the opposite effect, the proper approach to be taken by a court where there is a disagreement as to whether the child should be vaccinated is that the benefit in vaccinating a child in accordance with Public Health England guidance can be taken to outweigh the long-recognised and identified side effects
  • Parental views regarding immunisation must always be taken into account but the matter is not to be determined by the strength of the parental view unless the view has a real bearing on the child’s welfare
  • This approach to the medical issues does not act to narrow the broad scope of the welfare analysis that is engaged

Mr Justice MacDonald held:

“With respect to the vaccines with which I am concerned, in the absence of new peer-reviewed research evidence indicating significant concern for the efficacy and/or safety of one of those vaccines, it is difficult to see how a challenge based on efficacy or safety would be likely to succeed.”

The future

This case reaffirmed the previous Judgment and guidance of Re H (A Child: Parental Responsibility: Vaccination) which still applies in cases where there is a dispute about a child being vaccinated. The court confirmed there is nothing, either in this jurisdiction or abroad, that goes against the recommendations of Public Health England that it is in the best interests for children to be vaccinated.

Although the Judge was very careful to try and avoid setting any precedent in relation to any possible COVID-19 vaccination, due to the timing of this Judgment, this case may have set a precedent and guidance that could prove highly relevant should it be suggested that children be vaccinated against COVID-19 and this form part of the NHS’s schedule and recommendations. If this was to be recommended by the NHS, it may appear likely that the court would find it difficult to direct children should not be vaccinated.

If you are affected by any of the issues raised here, please seek the advice of an experienced family lawyer. Get in touch with us today. We are here to help.

How to have a respectful divorce – read Amanda McAlister’s top tips

BBC Morning Live

How to have a respectful divorce

Following our managing partner Amanda McAlister’s guest appearance on BBC Morning Live, we thought you might find it useful to read her nine essential tips on how to have a respectful divorce.

I am very often asked if it is possible to have an amicable divorce, to which I always answer yes, it is, but only if both parties want it to be. In my experience, it’s only really when both people in the marriage or civil partnership have been separated for a considerable amount of time that they’re able to get their heads around what the split means for them and all those involved. You cannot escape the fact that divorce means huge change: wanted or unwanted, it’s still an enormous life event that even for the strongest of people, can create significant worry, insecurity and an enormous hit on a normally stable equilibrium.

What do you need to do to have a respectful divorce?

1. Get professional advice, fast

Understandably you will have lots of concerns, and for many those at the top of their list are will I lose the kids, and do I have to move out of my house? An experienced family lawyer will be able to help you with all your questions and take you through the divorce process step-by-step.   This will help to ease some of the fear and panic and will often feel empowering and prepared for what lies ahead.

2. Phone a neutral friend

Speaking of asking your friends, phone someone you know well, but who is neutral. Tempting though it is to speak to family members and your best mates, these people will, understandably but inevitably, take your side and by doing so they often fuel the problem. You need someone clear-eyed and with no axe to grind who will be honest. Only hearing what you want to hear is rarely the answer.

3. Team work is key

Choose your legal team carefully. It’s not going to help you in the long term if you engage the lawyer with the best record and a top reputation if you can’t connect with them. Do you feel your lawyer is empathetic? Will they be available whenever you need them? Do you feel reassured that they genuinely understand all your concerns? Once you’ve found that lawyer, get in touch with that neutral friend, then decide if you need to consult other professionals, such as a pension actuary or a forensic accountant.

4. Positive communication

Treat your divorce as though it’s a business dealing.  No matter how tempted you are to send a highly-charged, emotional WhatsApp or email, first ask yourself – would I send this to a work colleague? Would I call my boss all the names under the sun and accuse him or her of being a terrible person? Probably not, because all actions have consequences and if you provoke the other party in this way, ultimately, you’re not going to achieve what you want. A civilised, respectful divorce.

5. Do not use social media to try to hang onto your ex

We have all seen examples of people using social media to talk about their pain and hurt as they go through a split. A very recent example is that of celebrity couple Alice Evans and Ioan Gruffudd, where Evans announced on Twitter “My husband doesn’t love me” and went on to say he had left her and their children. No matter how much pain and hurt you are feeling, this is not the way forward and rather than bring your ex back to you it is more likely to inflame an already difficult situation and may even entrench your ex’s decision to leave the marriage. And if you have children, imagine how horrible they will feel as their friends tell them they’ve read all about your parents’ arguments on social media. And this leads me to say

6. Do not badmouth your ex to your children

I can’t stress this enough. It won’t achieve anything other than pain, and studies have shown that emotional conflict can be as destructive as physical conflict. Your children love you both, and you both love your children. Why hurt them? Because that’s all that will happen. I have dealt with some heart-breaking cases where children have been alienated from one parent because the other parent has used them as an attempt to punish their ex. It’s the children who suffer and it’s your duty to do the right thing by them. Sound off to your mate over a glass of wine. Tell your solicitor how badly your ex is behaving. Write it all down in a letter and then burn it. But don’t say anything to your children. One day, when they’ve grown up as well-rounded, well-adjusted adults, you, and they, will be grateful that you behaved well. It will be worth it, I promise you.

7. Develop a routine from the very outset

Know who is doing what, and when. Children need certainty and they will be miserable if they’re always the child who hasn’t got their PE kit for school the next morning or they’ve left their homework at their Dad’s last night because they thought they would be staying there the following day. If you can’t establish this routine with your ex, then look at mediation. A skilled mediator can put together a plan that works for both of you and takes the heat out of any potential conflict.

8. Grit your teeth and work to transform your relationship with your ex

Something has ended, yes, but something new is beginning. If you have young children together you have many years of dealing with your ex ahead of you, so it’s in your interests to forge a new path. Remember, you don’t have to be friends – that’s often asking too much – but always being angry takes a great deal of energy and effort. Easier for your own mental health, and that of your children, to build new boundaries within which you are civilised partners working respectfully with each other in a way that benefits everyone.

9. Keep in mind that there is, truly, life after divorce

No matter how dark things seem or how hard the road ahead looks, it really does get better. There’s a good life ahead for you. Believe in it.

If you are thinking about getting a divorce, you should obtain advice from a specialist family lawyer. Get in touch today. We are here to help you.

Why you should consider a prenuptial agreement

prenuptial agreement

Why you should consider a prenuptial agreement

In the second in our series of blogs focusing on relationships, partner Fiona Wood looks at prenuptial agreements, and explains why they are no longer something solely for the very wealthy.

Since the Supreme Court decision in Radmacher v Granatino in 2010, which gave prenuptial agreements a legal standing in England and Wales, and as a result of the general public’s increased awareness of the potential benefits of these agreements, they are no longer something that only the rich obtain before they marry. 

Although the divorce rate in England and Wales is reducing, approximately 40% of marriages still end in divorce. In light of this, increasing numbers of people would like to put something in place which would allow them to avoid messy and expensive divorce proceedings if their marriage does end, and also to provide them with financial certainty should this happen.

Many of those considering having a prenuptial agreement have been divorced before and are bringing two families together. They are often keen to preserve their assets, if, sadly, their marriage does not work, for their children, as well as wanting financial certainty.

If there is a prenuptial agreement in place and a couple divorces, the terms of the agreement are a factor which a judge will consider when deciding what is a fair divorce settlement. Whilst the terms of the prenuptial agreement are not automatically followed by a judge, if they meet both spouses’ needs and the agreement has been entered into properly, a judge is likely to order a financial settlement in the same terms as the prenuptial agreement.

For a prenuptial agreement to be entered into properly the following must happen:

  • the couple each need to obtain independent legal advice on the agreement
  • hey both need to provide details of their assets, liabilities and income, and
  • the agreement should be negotiated and signed at least three months prior to the wedding.

This allows the couple to both obtain advice, have plenty of time to consider this advice and therefore make an informed decision about whether they want to sign the agreement.

If you are getting married and think that having a prenuptial agreement may be of benefit to you, you should obtain advice from a specialist family lawyer. Get in touch today. We are here to help you.

Coercive and controlling behaviour: an important family law case

coercive and controlling

Coercive and controlling behaviour

Partner Ruth Hetherington looks at a recent case highlighting an area of domestic abuse: coercive and controlling behaviour.

As a family lawyer of more than 30 years’ experience, I am heartened by the recent judgment by Mr Justice Hayden in F v M [2021] EWFC 4 which highlights an area of domestic abuse that has not always been easily recognised until now: coercive and controlling behaviour.

As the first reported High Court case to analyse in great depth allegations of coercive and controlling behavior, it may be one of the most important to happen in family law for a long time, demonstrating just how difficult it is to evidence the type of coercion and control at play in this kind of case. It is only by examining the history of the relationship in its entirety that the pattern of coercion is truly apparent. Hayden J stated that: “Behaviour, it seems to me, requires, logically and by definition, more than a single act.” In other words, frequently individual acts, in and of themselves, do not offer up an obvious picture of severe coercion and control. Rather, together these actions develop over a significant period of time.

In addition, context is important. Sometimes an action that might appear innocuous in one relationship is, in another, part of a pattern of controlling behaviour, and therefore a single act must be evaluated “in the context of the wider forensic landscape”.

In this case, the court considered the circumstances of two separate families/relationships in which the father was the common denominator, there having been a successful appeal against an earlier decision to exclude the evidence in the second relationship.

At McAlister Family Law we are seeing an increasing number of cases where this type of abuse is clearly described. Although this particular case is quite an extreme example, there is no doubt this type of abuse needs to be recognised and addressed, especially as the victims are often isolated and behaviours may appear innocuous without proper context. I thought this a particularly pertinent point:

“Broader professional education on the scope and ambit of coercive and controlling behaviour is likely, in my view, to generate greater alertness to abuse of this kind which too frequently lies buried or only superficially investigated.

Finally, it is important to bear in mind the words of Mr Justice Hayden: “what is really being examined in domestic abuse of this kind is a pattern of behaviour, possibly over many years, in which particular incidents may carry significance which may sometimes be obvious to an observer but to which the victim has become inured.”

In short, Hayden J has provided all family law professionals useful guidance in that coercive and controlling is more than a single act, it has to be put into context, professionals need to look at the wider picture and the way in which we present these cases may not fit the kind of templates frequently used in family cases.

Family practitioners need to be alive to all types of domestic abuse, including those that may not be easily recognised, but nonetheless cause the victims and their families untold psychological and emotional consequences.

 

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

Is my spouse entitled to share my bonuses if we divorce?

divorce and money

Is my spouse entitled to share my bonuses if we divorce?

Many companies offer a bonus scheme to their employees; the financial sums received under these schemes by employees range enormously. For some, the bonuses they can receive are significant, and in some circumstances they can double their salary for the year. How will these bonuses be treated if a couple divorce? Partner Fiona Wood offers her advice.

Matrimonial assets

Bonuses that are acquired whilst the couple are together are usually considered matrimonial assets. This is the case if the bonus is received after separation but is for a financial period whilst the couple were together. In this scenario the bonus received will be put into the “matrimonial pot”, along with all the other matrimonial assets that are to be divided between the couple, either by agreement between them or if there is no agreement, as ordered by a judge.

If one spouse receives a bonus that relates to a period of work undertaken after the couple separated, this money will not automatically be ring-fenced and remain with the spouse who earned it. The parties’ financial needs have to be considered first when looking at what is a fair settlement. Unless there are significant matrimonial assets, a judge will not be able to ignore the bonus when looking at how the matrimonial assets should be divided, when considering the issue of need. Need is usually having money to enable you to buy somewhere suitable to live and money to meet your living expenses.

Bonuses earned in the future

What about bonuses earned in the future? Once the appropriate division of assets and pensions has been undertaken, you have to also consider whether it is appropriate for one spouse to pay spousal maintenance to the other spouse going forward. If spousal maintenance is not needed, as both spouses earn enough to meet their income needs, a clean break order will be made, preventing either spouse from making any financial claims against the other in the future. All bonuses received after the clean break will remain with the spouse who has earned them.

Whilst the law says that there should be a financial clean break between a couple if this is possible, in many cases one spouse cannot manage financially without spousal maintenance from the other going forward. In this scenario the amount paid as maintenance will depend upon the income that both spouses receive, taking into account their earing capacities, any other sources of income that they both have, and their reasonable income needs. If one spouse regularly receives large bonuses, a judge will not ignore these and can, if considered appropriate to meet reasonable need, order that a percentage of any net bonus received be paid to the other spouse, in addition to monthly payments, as part of the spousal maintenance payments.

It is worth noting that the Court of Appeal in the case of Waggott v Waggott [2018] stated that an earning capacity is not an asset that is capable of being shared on divorce. Therefore, one spouse is not entitled to half of the other’s income, even when an equal division of the assets and pensions are considered appropriate on divorce. Spousal maintenance should be calculated on a needs basis rather than on a sharing basis.

Child maintenance

With regard to child maintenance, this is governed by the Child Maintenance Service, whose calculation will take into account the payer’s previous year’s income when calculating the appropriate amount of child maintenance that should be paid. Bonus payments received will therefore be taken into account when calculating child maintenance. This can cause problems for some people who receive large bonuses some years but not in others. In this scenario they will have to be reassessed each year that their income changes, if they have not managed to agree the amount of child maintenance payable directly with their former spouse.

If you are concerned about the financial settlement that your will receive if you divorce,  please get in touch today. We are here to help you.

With this ring…

engagement ring

With this ring…

For many people, February is the month of romance, because Valentine’s Day is right in the middle of it. Cards, roses, champagne, maybe even a proposal of marriage. So this month, our expert family lawyers are looking at all the issues that surround engagement and marriage, starting with the engagement ring.

The engagement ring is special. There’s a lot of nonsense talked about how much it should cost – that’s an entirely personal decision – but what is important is what it symbolises: a promise between two people of the intention to marry.

Sometimes the ring is a family heirloom, handed down from one generation to the next. Sometimes the couple buy it together. Sometimes the proposal is entirely planned between the two people concerned, for others it comes as a complete surprise to one of them.  But if, once all the excitement has died down, and after consideration, one half of an engaged couple decides to call off the wedding, what happens to the engagement ring?

Do I have to return the engagement ring?

The Law Reform (Miscellaneous Provisions) Act 1970 states:

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

This means that the gift of an engagement ring is presumed to be just that – an absolute gift. However, where an engagement ring is, for example, a family heirloom, and if it can be shown that the gift was made on condition that it would be returned if the marriage does not take place, then the ring should be returned.

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

Does adultery make a difference to your divorce settlement?

adultery and divorce

Does adultery make a difference to your divorce settlement?

Sometimes a client comes into our offices, extremely upset as their marriage has broken down because their other half has found someone else and wants to start their life afresh with them. Sometimes that new client wants “revenge” and sees the possibility of punishing, financially, their soon-to-be-ex-spouse through the ensuing divorce.

By and large the court is not interested in why the marriage is ending

In fact, one of the most common assumptions around divorce is that there will be a financial impact if one partner has had an affair and left the marriage as a result. But this rarely makes any difference to the overall division of assets, because when it comes to money, by and large the court is not interested in why the marriage is ending, but rather what resources each party has available, and how they are to be divided fairly.

Does adultery count against me during my divorce?

No, it doesn’t.  It is one of the myths around divorce that the unfaithful party should be treated more harshly, but a marriage breaks down for many reasons and is rarely attributable only to one person’s actions.  There may be multiple problems already present in the relationship which has led one party to commit adultery, and judges understand this. In the eyes of the Court, determining how the matrimonial assets should be divided is based entirely on fairness.

In practice, this means that should you commit adultery and this is the cause of the irretrievable breakdown of the marriage, you are unlikely to receive a less favourable financial outcome because of this, nor will the person who did not commit adultery achieve a more favourable one.

The Court is under a duty to consider all the circumstances of the case and in particular the Section 25 Factors, and apply these to the facts of the particular case. The starting point when it comes to division of assets is 50/50 and the court is able to apply an element of discretion as to the award.  No two cases are identical.

The courts are not there to judge you and your marriage

It’s also worth bearing in mind that adultery in and of itself is not quite enough from a legal perspective to sue for divorce. If you want to divorce your spouse on the grounds of adultery, you must also state that you find it “intolerable” to continue living with your spouse.  Ask yourself if the adultery is the sole reason for that situation. It may only be the last, the very final, stage in the collapse of the marriage.

Finally, here’s something worth bearing in mind.  There is a six month time limit from finding out about the adultery – wait any longer than that to petition for divorce, and the family courts will take it as read that you didn’t find the adultery intolerable at all.  And despite television programmes and films encouraging us all to think you have to obtain proof of adultery and be able to name the other person, you don’t.  If your spouse won’t admit the adultery, then you can proceed on the basis of unreasonable behaviour instead.

Remember: no matter how betrayed, or how guilty, you feel, infidelity is not against the law and the courts are not there to judge you and your marriage.  They are there to try and reach as fair an outcome as possible and to ensure the welfare of any children you have with your soon-to-be-ex.  It’s different if truly appalling behaviour has taken place – domestic violence for example – but thankfully such extremes do not affect most divorcing couples.

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

MCALISTER HQ LOCATION:

Second Floor, Commercial Wharf

6 Commercial Street

SOCIALS:
HOW CAN WE HELP?
HOW CAN WE HELP?

If your enquiry is urgent please call

+44 (0)333 202 6433