We cannot agree on counselling for our child – What will the court decide?

Posted on 12th January 202312th January 2023 by McAlister Family Law

We cannot agree on counselling for our child – What will the court decide?

According to statistics, nearly one in 10 children and young people are affected by a mental health problem. The good news is that there is now more awareness of this issue and a number of resources available to children and young people who may be suffering. Here, Melissa Jones looks at what the court can decide if parents cannot agree on counselling for their child?

Understandably, separation and divorce can be a difficult and anxious time for children. They might feel confused and believe they need to “pick sides”. They might also believe that the separation of their parents is “their fault” and might be feeling guilty.

Where does this leave you?

Decisions on a child attending counselling would fall under the umbrella of medical decisions. If you both agree, then great, they would attend counselling. If only one parent agrees, this does not necessarily mean that the counselling should go ahead and with such important decisions is not advisable to act unilaterally. This issue should be agreed upon by all of those with parental responsibility for the child(ren).

What is Parental Responsibility?

Under section 3 (1) of the Children Act 1989 “parental responsibility” means all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.

What application do I need to make?

In the absence consent from all those who hold parental responsibility, a parent may wish to apply to the court for a Specific Issue Order, for the court’s permission to enable them to make decisions about the child in the absence of the other parent’s consent.

The application that would need to be made comes under Section 8 of the Children Act 1989 and is for a specific issue application; to specifically address what is the best interests of the children’s education and medical matters. Within the proceedings evidence shall be put forward by both parents to set out how their proposal is in the children’s best interests.

However, prior to making an application, the court would encourage the parties to engage in Alternative Dispute Resolution, to see if matters can be resolved. It may be that if you have spoken to a medical professional or a GP who highly recommends that the child or children attend counselling then you may be better assisted in your discussions with the other parent or in any application to the court.

Most importantly it would be best to understand why the other parent objects to the child(ren) attending counselling. Perhaps they need more information first or would like to speak to the counsellor themselves either on their own or jointly with you.

What will the court decide?

If matters relating to a child’s medical care are put before the Court, the matter then becomes a question of what is best for the child and not what is best for the parents. The Court’s primary consideration will be the needs of the child and will have regard to the Welfare Checklist (s.1 (3) CA 1989) when reaching their decisions. Arguably attending Counselling for the child might be in the child’s best interest and a vital resource to help them deal with their mental health issues. Conversely, it might not be necessary for the child to attend counselling and it may be considered intrusive and invasive given their age, characteristics and understanding. It is of course a balancing act.

Can I not just take them to counselling anyway?

However, if one parent has taken matters in their own hands and begins the process of making medical decisions without the other parents’ consent, that would not be perceived well by the court. In fact, if you choose to ignore the other parent’s views or objections, then they in turn could make an application to the family court to prevent you from making the child(ren) available for counselling. This also comes under Section 8 of the Children Act 1989 and would be for a prohibited steps order; to prohibit the child(ren) from attending counselling.

In all cases and at all times parents are strongly encouraged not just to communicate their wishes, but to co parent effectively for the best interests of their children.

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

Resource: https://www.counselling-directory.org.uk/young-people-stats.html#riskfactors

How will I get a fair divorce settlement if my ex hides their assets?

Posted on 5th January 20235th January 2023 by McAlister Family Law

How will I get a fair divorce settlement if my ex hides their assets?

A common worry that those divorcing have is that their ex will hide assets to prevent them receiving a fair divorce settlement. Thankfully most people who get divorced are honest about their financial circumstances, but what if they are not? Here, Partner Fiona Wood discusses what you can do to if you suspect your spouse is hiding assets throughout financial settlements.

Before a financial settlement is negotiated it is usual for both spouses to give full financial disclosure, confirming all their assets, company interests, pensions, incomes and liabilities. Documentation needs to be provided to support what they state their financial circumstances are, including bank statements for all accounts for at least the last 12 months. If assets have not been disclosed it is often possible to prove this from the documents that have been provided, such as regular transfers from one bank account to another account that has not been disclosed.

Sometimes people give assets to friends or family, shortly before they divorce, in an attempt to exclude them from the divorce settlement. If an asset has been transferred to another person at an undervalue within a period of three years before the divorce, the onus is on the person who did this to prove that it was a legitimate transfer that was not done to reduce their ex’s financial claims. If they cannot prove this, a judge can overturn the transfer, or they can add the amount that has been lost back into the matrimonial pot.

If you are genuinely concerned that your ex is about to give away an asset or transfer it out of the country, you can apply to court for a freezing order. You need good evidence that this is about to happen, to successfully obtain a freezing order, but it is an order that can be made in court proceedings.

Sometimes one spouse has complicated finances, often of an international nature, and their ex is concerned that they will not provide a true picture of their assets. In this scenario you can do some research yourself, looking at Companies House and at the Land Registry in the UK, both of which are accessible to the public, and their equivalents in some other countries. I had a case where one spouse failed to disclose a property that he purchased in Florida, but as there is a public land registry in Florida, we were able to show that they owned this property.

There are also professionals who specialise in assets tracing, on an international scale, who use all legal means available to track down assets owned in the UK and across the world. Even if they cannot locate specific assets, they may be able to provide enough information to enable you to convince a judge that there are hidden assets and that this should be taken into account within the divorce settlement.

If you are concerned about your ex hiding assets to reduce your financial claims on divorce, there are several ways in which you can investigate this and there are legal remedies available to you if it transpires that they have done this or they are about to do this.

Understandably Judges are very unimpressed by those who do try to hide assets. There are likely to be cost orders made against them. Also, as Judges have a broad discretion when it comes to deciding what a fair financial settlement is, so the judge may order that they receive a less generous settlement than they would have received if they had not tried to hide assets.

If you have already obtained a financial settlement, but it comes to light that your ex failed to disclose some of their assets whilst you were negotiating that settlement, the financial settlement can be reopened. There are significant consequences for those who try to hide assets. Don’t do it!

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

My Spouse Has Hidden Assets – What Can I Do?

Posted on 14th March 202222nd March 2022 by McAlister Family Law

My Spouse Has Hidden Assets – What Can I Do?

Separating from a spouse can be daunting and overwhelming, especially when there are children and financial matters to consider. Most people hope to have a respectful and amicable divorce but what do you do if you suspect or know your spouse is trying (or has succeeded) in moving or hiding assets? You are likely to be very worried and be wondering what your options are. Here Brigid O’Malley discusses the role that hidden assets can play on a divorce and what you can do if you find yourself in this situation.

How are financial matters dealt with upon divorce?

The court will take into consideration a number of factors when determining what a fair financial settlement should be. Those factors are set out in section 25 of the Matrimonial Causes Act (1973). The first consideration is the welfare of any children of the family and the remaining factors will be considered by the Court in order to determine what is a fair distribution of the marital assets in order to meet the needs of both parties. The starting point is an equal (50/50) division of the assets.

It is important to note that each party has a duty to provide full and frank disclosure of their assets, income and liabilities in financial remedy proceedings. This means each party has a legal obligation to be honest and disclose everything they own. This is an ongoing duty throughout the proceedings.

It may be that your fears are alleviated after considering your spouse’s disclosure and they have indeed disclosed all assets you believe they have. However, it may also become apparent from considering the disclosure filed in the case by your spouse that they have moved assets or not disclosed certain items. In such circumstances the Court can:

Make costs orders for your spouse to pay your legal costs.
Make a “Search Order” to discover what assets your spouse has but this is expensive and not a frequently used order of the court.

What can I do if my spouse has hidden assets – how will the Court determine a fair settlement?

The court can draw something called an Adverse Inference if the evidence filed in the case strongly demonstrates one party has not complied with their duty of full and frank disclosure. Effectively, a court may be able to determine one party has failed to disclose all their assets and the settlement awarded would be reflective of this.

Depending upon the facts of each individual case, the allegations made, and the evidence filed, the Court can do a number of things:

Make an Order to set aside the transaction.
Make an Order to add the asset back into the asset pot for division.
Treat the asset as being back in the asset pot, and belonging to your spouse, and adjusting the settlement accordingly.

In order to grant an order to set aside a transaction the court has to be satisfied that your spouse deliberately took steps to try and defeat your claim and that if the transaction was to be set aside you would be granted financial relief, or a different financial remedy order would be made.

The court can “add back” funds to the asset pot if they are satisfied your spouse has recklessly spent money or disposed of funds. This will effectively mean the monies are put back into the asset pot for division.

Sometimes, even if the court is satisfied the transaction was completed in order to dissipate/reduce the assets, an order to set aside that transaction or an order for the asset to be “added back” to the pot will not be made. This might be where there are enough assets in the case meaning a fair order can be made, without the need to set aside the specific transaction.

What can I do if I think my spouse may be about to transfer or hide assets?

If this is the case, an application can be made to Court for a Freezing Order which an injunction to prevent the disposition of an asset or assets. This application can be made urgently if there is evidence that a transfer is imminent. Therefore, you may need to act quickly, and we would encourage you to get immediate legal advice.

If your spouse has already taken steps and disposed of assets, then the Court may grant Orders to either set aside those transactions or “add back” the funds to the asset pot for division.

All of these actions require careful consideration of the allegations, the evidence and the relief that may be sought. Applications of this nature can be expensive, but it is vital you obtain advice immediately if you are concerned your spouse may have hidden or disposed of assets or be in the process of doing this. It may be that an urgent application is needed and the sooner you act, the better.