Separated Parents: Contact in the Easter Holidays

Posted on 28th March 2024 by McAlister Family Law

Separated Parents: Contact in the Easter Holidays

Over a quarter of families living in the UK are separated families who are adopting the skills of co-parenting, which itself is a learning curve. School holidays can always be a challenging time to get the balance of co-parenting right. Parents may feel pressure to ensure that holidays are memorable and struggle to know what the best arrangements might be. Here, Charlotte Brenton looks at if it is possible to make it work for both parents and the children over the Easter Break.

It is important for parents to remain child focused, work together and always consider what is in the best interest of the children.

Here are some steps families can take to positively co-parent during the Easter holidays.

Ask your children what they want

Children should grow up having special memories with both parents including in the Easter holidays which is an exciting time for them. If they are old enough, they should have an input as to how they want to spend their time in the holidays.

Parenting Plan

A parenting plan is a great way of planning ahead so parents are not left fearing the unknown when school holidays are approaching. Parenting plans are often recommended by Cafcass (Children and Family Court Advisory and Support Service). They are a written agreement between both parents which cover practical issues for the children. It can be tailored to include the term time and holidays including Easter. It allows parents to put the children’s needs first and allows quality time with both parents for the children.

Communication

It is important that parents are open, clear and respectful whilst communicating about arrangements. There are many ways parents can communicate and this is down to the individuals. Courts are currently particularly keen on separated parents using co-parenting apps to assist with their communication. The apps include shared calendars and secure communication.

Encouragement

However difficult, the general view is that parents should always try to encourage contact between the children and the other parent unless there are real concerns about risk. Consistency and patience is key whilst allowing the children to adapt to any new arrangements. Whilst it may not always be smooth sailing the aim is to allow your children to make positive memories in the Easter holidays.

Other options available

If you are struggling to resolve child arrangements, there are always other options available.

Mediation can be helpful. This allows parents to talk through the issues they are facing with a neutral impartial third party.

Another option, where mediation isn’t appropriate or hasn’t worked is to use legal professionals to try and resolve matters.

If you are making no progress, or where there are real concerns or urgent issues, you can apply to court to make a decision. The court will decide based on what it believes is in the child or children’s best interests.

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

I am Stalker- But what if I’m a victim?

Posted on 18th March 2024 by McAlister Family Law

I am Stalker – But what if I’m a victim?

“I am Stalker” is a new Netflix documentary about convicted stalkers in the US who talk about their personal experiences. Whilst for some viewers it is an interesting watch about true crime, it is actually an awful reality for victims of stalking. Here, Weronika Husejko looks at how victims of stalking can protect themselves through the family court.

Stalking has a fairly wide definition and some examples of stalking under the Protection from Harassment Act 1997 include: –

Following a person
Watching or spying on a person
Monitoring the use by a person of the internet or email

Stalking is generally considered to be a more aggressive type of harassment. However, it is not always easy to identify a victim of stalking. For example, stalking may include purchasing something in another person’s name without their consent.

The police say that the four warning signs of stalking are:-

Fixated
Obsessive
Unwanted
Repeated

If you are a victim of stalking, you may have recourse to some protective remedies via the Family Court.

Non-Molestation Orders

This is a type of injunction which is aimed at protecting you from a range of behaviours that can include stalking and harassment.

This option is available to those who are being stalked by what we refer to as an “associated person”. This includes people such as family members and ex-partners of the victim.

Injunction under Protection from Harassment Act 1976

Victims of stalking can also apply for an injunction under the Protection from Harassment Act. If granted this is a civil order from the Court which prohibits the stalker from taking steps which are considered to be stalking or harassment. The victim may also be able to seek damages from the Civil Court via this route.

This option is available to all who are being stalked, including those victims who are being stalked by a stranger for example.

It is always sensible to speak to a solicitor about the most appropriate options for you in the first instance as this can of course vary dependent upon your specific set of circumstances.

The police can also apply for a Stalking Protection Order on your behalf which is a civil order. They may also refer your case to the Crown Prosecution Service who may decide to prosecute the stalker via the Criminal Courts in addition to the above Family Court remedies.

If you are indeed being stalked or harassed and you feel that you are in danger, we would always suggest that you contact the police. There is also a National Stalking Helpline that you can contact for help.

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

Co-parenting on Mother’s Day

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

Co-parenting on Mother’s Day

Whilst Mother’s Day is a special time of year, celebrating the enduring love and connection between mothers and their children, for many families, it can be a difficult day. Here, Charlotte Procter looks at how communication, flexibility and planning can keep the best interest of the Child/ren at heart when Co-parenting on Mother’s Day.

There are now over 2.5 million separated families in the UK and this occasion can especially present practical challenges and emotional complexities for families post-separation.

Research consistently underscores the benefits of children maintaining positive relationships with both parents post-separation. These benefits include improved emotional resilience, academic performance, and overall well-being.

It is important that parents remain focused on what is best for the children and take into consideration their wishes and feelings. It is also important to bear in mind the emotional impact on the child if they were not to see their mother on Mother’s Day, and equally if they were not able to see their father on Father’s Day.

An unamicable breakup can involve emotions and resentment. It is important for parents not to allow these feelings to impact their child’s relationship with their other parent. If a child is aware of hostility between their parents, this can have a negative impact on their relationship with their parents.

Special occasions such as Mother’s Day can often be overlooked by parents when making agreements in relation to contact, and making these agreements can be a big task for parents who are not on amicable terms.

Planning in Advance

It is therefore beneficial that discussions about special occasions are had in advance, allowing arrangements to be made in enough time. Having a clear and agreed plan will benefit the children and remove any uncertainty.

Communication is Key

It is also important that parents maintain open and respectful communication whilst making these arrangements. Co-parenting apps, such as talking parents, can assist parents in agreeing contact arrangements for the children.

Remain Flexible

Parents will need to remain flexible with the arrangements made and ensure they remain child focused as changes may need to be made to these arrangements as the children get older.

It may be that the parents already have an agreement in place and Mother’s Day may fall on a day when the child is meant to be with their father. It may therefore be necessary for parents to swap or change weekends to allow the child to spend time with their mother on Mother’s Day, and equally for them to spend time with their father on Father’s Day.

These arrangements can be even more difficult for LGBTQ families as they may need to consider whether to split the day or alternate years.

Encouragement

It is important for parents to support their children in expressing their love and appreciation for their other parent on special occasions, and if they are able to, to help them plan thoughtful gestures or gifts.

Another important consideration is ensuring that children feel like they have the endorsement of the other parent to have a good time, to enable them to make positive memories on important special occasions like Mother’s Day.

Other Options Available

If parents cannot reach an agreement between themselves, going to mediation may be useful. This is a cheaper alternative than going to court and the mediators can help the parents to reach an agreement.

Another useful option, before considering seeking assistance from the courts, may be to seek advice from a qualified solicitor or legal professional.

However, in situations where an agreement has broken down or cannot be reached, it may be necessary for parents to look to the family to court to help them define the time that the children spend with each parent. The child’s welfare is of paramount importance within the family court and so, as part of the court procedures, the child’s wishes and feeling are taken into account.

Regardless of how parents may feel about one another co-parenting is a collaborative effort. By prioritising open communication and making practical agreements, separated parents can create meaningful Mother’s Day celebrations ensuring their children make positive memories with both parents.

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

A second bite at the cherry- will it get harder after Potanina v Potanin?

Posted on 19th February 2024 by McAlister Family Law

A second bite at the cherry- will it get harder after Potanina v Potanin?

There has long been a (legitimate) practice of parties who have international links choosing a jurisdiction for divorce which suits them best. Often this relates to a particular jurisdiction’s approach to maintenance or specific types of assets, such as inherited, pre-acquired assets and so on. It is commonly known as “forum shopping”. Here, Lisa Brown looks at the ongoing case of Potanina v Potanin and their multi-million-pound separation.

The recent appeal decision in Potanina v Potanin [2023] UKSC 3, however, is an example of something slightly different. Put simply, this is having “another go” in England and Wales if the jurisdiction in which you originally divorced may not have resulted in a favourable financial settlement.

Legal basis

Part III of the Matrimonial and Family Proceedings Act 1984 allows a party to make an application to the family court in England and Wales, even where there has been a divorce and financial settlement elsewhere. In order to do so, there must be a substantial connection with England and Wales and the purpose, per the case of Agbaje, is to alleviate the adverse consequences of no, or no adequate, financial provision being made in a foreign court.

Background to Potanina v Potanin

Both parties in this case were Russian nationals. They met as teenagers and married in Russia in 1983. They had 3 children who were brought up in Russia and they divorced in Russia in 2014. It was only after the dissolution of their marriage that Natalia Potanina moved to London.

In the early days of the marriage, they were not well off but, in the 1990s, Vladimir Potanin became hugely wealthy.

Between 2014 and 2018 there were 5 separate proceedings litigated in the Russian courts, there were also proceeding in the US and Cyprus.

The central issue, in terms of the provision by the Russian courts, was that whilst marital assets were divided equally, this only included assets legally owned by the parties and excluded the various trusts and companies in which the husband held almost all of his wealth.

The result ultimately was that Natalia Potanina received payments to her that she says totalled $41.5m and Vladimir Potanin says totalled $84m- in either case a fraction of what she would have received if all of the beneficially owned assets had been included.

English proceedings

On 8 October 2018 Natalia Potanina issued an application under section 13 of the 1984 Act for leave to apply for financial relief under Part III (on the basis she had been habitually resident here for 1 year).

The application was made without notice by Cohen J on 25 January 2019. Whilst the judge’s strong inclination was to order a hearing on notice to Mr Potanin, he was ultimately persuaded by Leading Counsel not to, and he granted leave.

As the application was granted without notice Mr Potanin had 7 days to apply to set this aside which he duly did. His application was heard by Cohen J on 3 and 4 October who then dismissed the wife’s application commenting that:

“if this claim is allowed to proceed then there is effectively no limit to divorce tourism”

Natalia Potanin then appealed this decision and her appeal was allowed by King LJ on the basis that whilst she felt the way it should have been dealt with was a hearing with both parties present, having made the decision not to do that, there were limitations on the judge’s ability to set aside his original decision which effectively meant that unless the court had been misled or a decisive authority overlooked the application to set aside should be adjourned to be heard with the main application. The initial order granting leave was restored.

The Supreme Court (2 judges dissenting), however, did not feel that the law did/ should presently restrict a judge’s powers on a set aside application in the way described by King LJ. They felt that on a such an application the court should consider whether the application should be set aside because the conditions for leave are not met. They were, however, not critical of the Court of Appeal’s approach in the circumstances and given the procedural history (set out in the judgment).

So where are we now?

The test on an application to set aside leave in these types of cases should be to decide a fresh hearing both sides whether the order should be made or not. It may be there is now procedural reform in respect of these types of application.

The case has been hailed as a “win” for Vladimir Potanin but, for Natalia Potanina, all was not lost as she had also challenged the set aside decision on the basis that:

She has satisfied the test for the granting of leave in any event.
The application shouldn’t be dismissed insofar as the court has jurisdiction under Maintenance Regulation.

These points of appeal have gone back to the Court of Appeal to be decided and so the case goes on….

The court did point out that the facts of this case were probably an unreliable guide for most people given the husband was on of the richest people in the world and the wife already has many millions of US dollars. Put simply, in their case all this litigation and the costs that go with it are worth it in terms of what there is to lose/ gain.

For most people that may not be the case and therefore if the test for leave is effectively to be “harder” it is all the more important to get early advice from a specialist family solicitor with experience in jurisdiction issues.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

If you or someone you know is affected by the issues raised in this blog post, we can provide you with expert legal advice. For more information, please get in touch with our specialist team at hello@mcalisterfamilylaw.co.uk

Peaceful co-parenting at Christmas

Posted on 11th December 2023 by McAlister Family Law

Peaceful co-parenting at Christmas

As the festive season is rapidly approaching, most parents are busy planning the Christmas shop, visiting Santa and ensuring that the Christmas elves know what is on their children’s wish list. Here, Amanda McAlister, Managing Partner of McAlister Family Law, looks at the stresses of separated families over Christmas and offers her top tips for peaceful co-parenting.

For separated parents, deciding how the children are to spend their time over Christmas can be extremely stressful, especially when they do not agree. If arrangements are not finalised before the festive break, this can lead to tensions becoming even more fraught, the result being that no one actually then looks forward to Christmas, never mind enjoying it.

As expert child and family lawyers, we are starting to see a significant increase in client enquiries surrounding Christmas contact. Such enquiries vary from how a parent can prevent the other from seeing the children, to imposing a contact arrangement that is unfair to the other. As Christmas is the most magical time of the year, emotions are high, and people do tend to become entrenched in their positions.

I am a divorce parent with two children. I share care with my ex-husband and therefore have experience not only as a children lawyer but also as a parent who does not always see my children on Christmas day. I recently appeared on the BBC Morning Live programme to talk about my top tips for peaceful parenting over the festive period which are:

Children come first.

Remember that Christmas is about what is right for the children. Not what is right for you personally, Grandma or Christmas routines that have previously been in place. Children can adapt and should grow up having memories of special times with both parents. Not just one.

Santa can multitask.

With notification, Santa can multitask and deliver presents to multiple addresses.

Whilst the law does not set out precise rules on how contact should be divided, the view is that children should spend Christmas with both parents. This can be achieved by one parent having Christmas Eve until 2pm on Christmas day and the other having the rest of the time on Christmas day through to the 27^thof December. This arrangement would then be alternated the following year.

For those that don’t relish the thought of a child’s Christmas day being interrupted by going to the other parents halfway through the day, they can agree an arrangement which will involve the children spending Christmas Eve to Boxing day with one parent and then boxing day through to the 27^th or 28^th with the other. Again, this is alternated. This has always worked for my children as they then get to relax and enjoy presents for the whole day and are less grumpy on boxing day when they come to me or go to their dads.

Grow with the children.

Arrangements that were right for a child at 4 years of age may not be right for when they are 14. Trying to force arrangements on older children can create further upset and distress which should be avoided. If you have teenage children, talk to them about what would work for them. This way they feel that they are being listened to and will actually engage in the family celebrations.

Christmas giving

Whilst relations with your ex may still be raw or tense, it is important that this is not seen or felt by the children. If they know that one parent is not happy with the arrangements and makes that clear verbally or through actions, it will impact on the children’s ability to relax and have a good time. This can have consequences in terms of how a child in the long run will recollect their enjoyment of Christmas. Always try to buy a small gift for the children to take to the other parent’s house and encourage them to write a nice card to take with them. That way the children feel that they have the endorsement of the parent that they are not with that day to have a good time.

Co-parenting can be tough but if you always have what is right for the children at the forefront of your mind you will get it right. My son is now approaching 15years of age. He regularly reminds his father and I that we are an “embarrassment” and “sad”. The message that I am trying to get across, is that time flies and before you know it, they do not really want to spend time with either parent. The creation of special memories is what life is about and finding peace is the key to that.

A loving home – best Christmas present ever

Posted on 6th December 2023 by McAlister Family Law

A loving home – best Christmas present ever

One year ago, John Lewis’ Christmas advert aimed to shine a light on the importance of foster carers, yet new figures from OFSTED have shown a loss of foster care families and an increase in children being placed far from home. Here, Nick Hodson looks at the situation and how The Department of Education plans to turn it around.

Let me take you back 12 months to the 2022 John Lewis Christmas advert. In it, a middle-aged man is on a mission to learn how to skateboard. He spends weeks trying to master this difficult skill and suffers some bumps and bruises along the way. It is revealed at the end of the advert what his hard work was all about. Along with his partner, he was expecting the arrival of a foster child, Ellie, who loves to skateboard. Ellie was nervous at first about the new house but softens when she spots the carer’s skateboard and poorly arm. His hard work was designed to make Ellie feel comfortable in her new home.

This week, new figures from OFSTED, have shown that there has been a net loss of 1,000 foster care families in the past year and a record number of children being placed far from home. Social workers have described scrambling to find friends and family to take children in urgent need of safety and reported that children are sometimes placed in hotels.

It is estimated that 6,000 new foster families will be needed to meet rising demand.

“We need a lot more foster carers,” said John Pearce, the president of the Association of Directors of Children’s Services. “You used to be able to get a place quickly for younger children. But in significant parts of the country that’s not the case anymore, and that’s driven by a significant increase in the children coming into care.”

In some cases, councils lacking local foster vacancies are sending children hundreds of miles away, breaking family and school ties. There has been a 7% increase in the number of children in care since 2019 in England. But in the past year almost twice as many households quit mainstream fostering than joined. Reasons cited include the rising cost of looking after children and older foster parents choosing to quit after the pandemic.

The Department of Education is launching a £27m recruitment and retention programme, which began in September in the north-east, where demand has soared, and will spread to more than half of England’s local authorities from next April.

One of the joys of representing children is seeing the impact of a positive foster placement on the child’s wellbeing. It can provide them with the safety, stability, and love that they might been deprived of by their birth families. For older children, it can give them the best platform to enter adulthood.

Let us hope that the new campaign will bring the thousands of new families into the fostering system and that many more children like Ellie can live in safe and loving homes.

What is co-parenting and how does it work?

Posted on 27th November 2023 by McAlister Family Law

What is co-parenting and how does it work?

If you have recently separated from your partner and trying to navigate the arrangements for your child(ren) you might have heard the word “co-parenting” and wondered what it means. Here, Melissa Jones, Senior Associate at McAlister Family Law, looks at the term and how it applies it practice.

What is co-parenting?

Cafcass, the advisory service to the court, describe co-parenting as “‘Co-parent’ is a shortened version of ‘co-operative parent’, and co-operation is essential to making things work well for children”.

A few examples of co-parenting are:

Using positive language about the other parent.
Avoid using the term ‘my child’ and instead use ‘our child/children’
Sharing information about your child with the other parent
Avoid involving the children in adult issues that do not concern them or using the children as a ‘go-between’

It is always worth remembering that despite however much we plan for something, things might not work out in the way we want them. Expect a few bumps along the way, as you and the other parent get used to sharing the responsibility for the children.

Can co-parenting really work?

Co-parenting is something that needs time to embed but there is no reason why it cannot work for families.

Take former England Rugby player Ben Foden and his former partner, Una Healey from the Saturdays for example. They have two children aged 11 and 8 and Mr Foden lives in New York with his wife and their own child. Una has recently said the following about co-parenting: “I’m really happy for them that they have summers in New York and that they’re making lovely memories with their dad, stepmother and sister,” and “Our dynamic is probably different to many people’s, but there are lots of people who have families where the parents aren’t together any more. You just manage it as best you can.”

Parenting Apps

The court is especially keen on separated parents using co-parenting apps to assist with their communication and making decisions. In some cases, the use of these apps might help you avoid court all together and they you share calendars and send secure communication.

There are a number of co-parenting apps such as:

Our Family Wizard
2 houses
Talking Parents

Civil, clear and positive communication between is key for co- [parenting to work. Using an app will often give parents less to worry about and in some cases the apps and they can be inexpensive when considered the cost of going to court.

When might co-parenting not work?

There may however be cases where co-parenting cannot work and in particular where there have been findings made relating to domestic abuse or there is an injunction in place which means it would not be appropriate for parents to be in communication with one another. In these cases, other provisions will need to be considered by the parties in terms of a parent being updated about a child and the court might encourage the use of a third party, for example.

Understanding the division of business assets in divorce: a guide for business owners

Posted on 13th November 2023 by McAlister Family Law

Understanding the division of business assets in divorce: a guide for business owners

Divorce is difficult time for most people. One thing that those divorcing worry about is the financial aspects of their divorce. Business owners worry what impact their divorce will have on their business. Will their business still be viable after the divorce? Will they have to sell their business? Here, McAlister Family Law Partner, Fiona Wood looks at the division of business assets in divorce.

When a couple divorce, before they can be advised what a fair financial settlement is, they both need to provide full details of their assets, liabilities and income. This is known as providing financial disclosure. If you have an interest in a business this needs to be disclosed as part of this process, whether you have shares in a private limited company or a publicly floated company, are a partner in a partnership or are a sole trader. The value of a spouse’s business interests will often be valued within divorce proceedings.

Businesses come in all shapes and sizes. Some are small businesses that have very limited assets and are just an individual working on a self-employed basis, for example an IT consultant who works through a limited company. It is unlikely that this type of business will have a value, as the business is just a vehicle through which that person earns an income. If you take that person away the business has no value, save for any money held in its bank accounts.

Other types of businesses are likely to have a value and will need to be valued, unless a value can be agreed by the spouses. If a business valuation is needed when a couple divorce it is usual for the couple to jointly instruct an accountant, who is an expert in business valuations, to prepare a valuation report. Valuing a business is an art, not a science, so different accountants will attribute different values to the same business. Some accountants are more conservative than others with their valuations. It is therefore important that you take advice upon the right accountant to instruct before going down the valuation route.

Most businesses are valued in one of two ways – a net asset basis or an earnings basis.

Net Asset Basis

Businesses that have significant assets, such as properties, are usually valued on a net asset basis. This is the value of all the assets owned by the business less all of the debts. Where the business owns assets such properties, it may be necessary to get up to date valuations of these before the accountant prepares their report.

Earnings Basis

This method is usually appropriate where a business is trading and generating a profit from that trade. Typically, this method requires the assessment of the likely level of Future Maintainable Earnings and the application of an appropriate multiplier. To do this recent trading performance is usually considered.

Usually, the jointly instructed accountant will undertake both calculations and use the highest figure. Therefore, a trading company could be valued on a net assets basis if its assets have a very high value or alternatively if the recent trading performance has been poor, and therefore the Future Maintainable Earnings are low.

Once the accountant has valued the business, they must also consider the tax that would be payable by the business owner if their interest in the business were sold. This is because the divorce court uses the net value of the spouse’s business interests, when considering what a fair financial settlement is.

If the spouse does not own the whole business the accountant must consider whether the spouse’s interest should be valued on a pro-rata basis or whether a further discount should be applied. Often a discount is applied if the spouse has a minority shareholding in a business.

It is all very well valuing a business or a spouse’s interest in that business, but the business may not be able to pay out significant sums of money to assist fund a divorce settlement, even if the spouse’s interest has a significant value. The accountant therefore also needs to look at liquidity when they prepare their report. This is the amount of money that can be taken out of the company by the spouse, without impacting its ability to function as a business. The tax consequences of taking this money out of the business must also be considered.

If a business has limited or no liquidity, this is a factor that will have to be taken into account when considering what a fair settlement will be. If it is considered appropriate for the business owning spouse to pay money to their spouse as part of the divorce settlement, the payment of this may take place over a few years if insufficient money can be raised through the business or elsewhere to pay it upfront in one payment. A judge may also say that if the business is sold in the future that the non-share owning spouse should receive a proportion of the net proceedings of sale of their spouses’ shares at that point, if there is insufficient money for the spouse without shares to receive their fair share of all the matrimonial assets, including the value of their spouse’s business interests.

Will a judge order a sale of a business as part of a divorce settlement? If the only owners of a business are one or both spouses, a judge could, in theory, order a sale of the business. However, this would be extremely unusually, as the business is usually a significant source of income for the couple and unless they are both saying that they want the business to be sold this is very unlikely to be ordered as part of a divorce settlement. Usually, one spouse is provided with capital in lieu of their spouse retaining a business or they receive part of the net proceeds of sale of that business if it is sold in the future.

If you are divorcing and have a business, it is important that you obtain advice from an experienced family solicitor who regularly deals with divorces where there are business assets.

A three minute marriage – How soon can I get divorced?

Posted on 12th October 2023 by McAlister Family Law

A three minute marriage – How soon can I get divorced?

Rumours are circulating online about a couple in Kuwait who were married for a grand total of three minutes. Here, McAlister Family Law’s Heather Lucy looks at how this can happen and whether it would be legally possible in England and Wales.

A three-minute marriage? How is that possible? Apparently, the couple were married in front of a judge and, when they were leaving the courtroom, the bride stumbled. Instead of helping her, the groom mocked her, and the (rightfully?) angry bride asked the court to immediately bring their marriage to an end. The judge agreed and their marriage was dissolved. This may be an urban legend being spread on the internet, but it does pose the question of whether it would be possible to do the same in England and Wales.

In England and Wales, it is not possible to make an application for divorce until you have been married for 12 months. You then have to wait a further 20 weeks from when the court issues your application to become eligible for a conditional order which is the next step in bringing your marriage to an end. This cooling off period may feel unnecessary if you separated less than a year into your marriage but it is almost impossible to dispense with it.

The conditional order is a key step in your divorce. It means that the court are satisfied that you and your partner can be divorced (and you are able to apply for the final order 6 weeks and a day later), and it allows them to make orders about financial matters. This is often a key concern for people who are separating, and they are keen to have the certainty of a final order in place.

If you split up with your partner before a year has passed, then either one of you (or both of you together) might choose to apply to the court for a judicial separation order. These orders are also sometimes sought by people who may not want to divorce for religious reasons but who do want to separate.

It is key to note that a judicial separation order is different to a divorce. One important point is that being judicially separated does not mean that you are legally single and therefore you cannot remarry. Further, a divorce will impact any pre-existing wills and is relevant to the order of inheritance under intestacy laws, but you are still married if you are judicially separated so you will need to think carefully about reviewing your will.

If you judicially separate from your partner, you can apply to the court for a financial order. The range of powers open to the court differs from those available under divorce. The court cannot make a Pension Sharing Order if you are judicially separated and there can be no ‘clean break’ in respect of your finances. You can record that you and your partner intend to get divorced after a year has elapsed and that there should be a clean break order then, but this is not binding.

If you have been married for less than a year and want to legally separate from your partner, then it would be sensible to speak to a specialist family lawyer who can discuss your individual circumstances with you and set out your options moving forward.