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.

Am I entitled to continue the lifestyle to which I have become accustomed if I divorce?

Posted on 13th July 2023 by McAlister Family Law

Am I entitled to continue the lifestyle to which I have become accustomed if I divorce?

The end of a marriage often leads to a lot of financial worry for those involved. One factor that many are concerned about is will they be able to continue to afford the lifestyle that they had with their spouse during the marriage. Here, McAlister Family Law Partner, Fiona Wood, looks at what the judges will consider when dealing with the financial aspects of a divorce.

When a financial settlement is made in divorce proceedings the judge will have to look at dividing the capital assets and pension assets in a way that meets both spouse’s capital needs (this is usually housing needs, paying debts and funding retirement – if there are reasonable pension provisions). Once the Judge decides what capital and pension assets the spouses will have, they can then consider if one spouse needs spousal maintenance from the other, or a capital sum in lieu of spousal maintenance, to assist them to meet their needs.

A judge has to consider the lifestyle that the couple enjoyed during their marriage, when considering what a fair settlement is. However, if the couple’s assets and incomes are modest, inevitably both their lifestyles will be negatively impacted by them divorcing. The greater the couple’s assets and income the more likely they will receive a financial settlement that allows them to continue the lifestyle that they had during the marriage.

When dealing with the financial aspects of divorce it is usual for both spouses to state how much they need to buy a house, if they are not saying that they want to stay living in the family home. Where there is less capital, both of the couple may have to downsize as part of their divorce settlement. If there are more assets one may be able to keep the family home and the other purchase another property of a similar value. The value of a house that is suitable for each spouse depends upon the couple’s assets and can be a point of dispute between the couple.

Divorcing spouses also need to state their income needs. Not only does this include essential expenditure such as mortgage payments, food and utility bills, it can also include less essential expenditure such as holidays, entertainment, gardeners etc. Those with significant wealth have huge schedules of income needs, including staff, private jets and the funding of several properties. If the couple cannot agree their settlement and a judge has to adjudicate on the issue, it is likely that they will be asked about their stated income needs and to justify them. To justify them they need to show that this is the level that you and your spouse spent at during the marriage. It is the lifestyle that you had.

Judges are critical of those spouses whose income needs are more of a wish list than a reflection of the lifestyle enjoyed during the marriage. For example if you and your spouse only had one holiday a year in Europe, if you are now saying that you need sufficient money from your spouse to fund several holidays a year, including long haul destinations, a judge is unlikely to say that this is reasonable.

You are not automatically entitled to continue the lifestyle to which you have become accustomed if you divorce, but the lifestyle that you enjoyed as a couple is relevant, and if there is sufficient capital and income it is likely to be maintained,

If you are worried about your financial future if you divorce, you should take advice from an expert family lawyer.

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

Three’s a crowd – The financial implications of being in a throuple

Posted on 30th March 2023 by McAlister Family Law

Three’s a crowd – The financial implications of being in a throuple

There has been a recent celebrity trend for being in a throuple, with familiar names such as David Haye, Brooklyn Beckham, and Selena Gomez all partaking in the trend. Here, Lisa Brown looks at what it means to be in a throuple and what it means from a financial perspective.

So, what is a throuple?

A throuple is, put simply, a romantic relationship between three people. It can take various forms. Each party may be equally involved or there may be a primary relationship between two of them.

What does it mean legally?

Polyamourous relationships are not recognised legally in the England and Wales. You can only marry or enter into a civil partnership with one person at a time. If you were to marry more than one person outside of the England and Wales, then this would be considered void and can be annulled.

This means that in the eyes of the law, a throuple either lives as cohabiting partners, or two members of the throuple are married or in a civil partnership in a more formal legal relationship compared to the third party of the throuple.

What is the difference from a financial perspective?

Cohabiting couples in England and Wales do not currently have any special protection or rights against each other. Despite popular belief there is no such thing as a “common law marriage” and this remains the case no matter how long the relationship lasts.

What this means is that somebody could be in a 20-year relationship with an extremely wealthy person (or persons) and still exit with nothing.

The starting point for a cohabiting relationship is that you each simply retain what is legally in your name when the relationship ends.

Whilst exiting with what you brought in might seem fair for Una Healey when leaving a relatively short relationship with David Haye and Sian Osbourne, it does very much depend on the circumstances.

With marriage and civil partnerships not an option for all three people at the same time, the only other option for them to consider would be a cohabitation agreement to set out the intention should the relationship/s break down. Cohabitation agreements can be very useful tools although they are not 100% legally binding.

What if two people in the couple get married or enter into a civil partnership?

Should two parties of the throuple decide to legally marry or enter a civil partnership, it would significantly alter the legal relationship between those two individuals, and they would each have potential financial claims against the other for property to be transferred, lump sums to be paid, pensions to be shared and spousal maintenance.

Within a throuple this would mean that the person not in the marriage is in a significantly different position to the other two. This could be a big disadvantage but, in certain circumstances, it may also be an advantage. For example, if the member not in the marriage were significantly wealthier than the other two, they may not want to be exposed to the potential claims that being married brings.

What about children?

Where there are children in a relationship there is also a possibility of one parent making a financial claim on their behalf against the other parent under Schedule 1 of the Children Act 1989.

These types of claims are limited to needs of the child and can include provision of a home (usually until child is 18 or 21), lump sums to meet specific needs and maintenance.

Whether a claim under Schedule 1 is worth making will be dependent on the circumstances including the financial resources of the parents and the care arrangements for the child or children.

If you or somebody you know wants to understand their legal position better whether they are in a couple, throuple, cohabiting, thinking about cohabiting, engaged or married they should contact one of our specialist family lawyers today.

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.

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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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