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

New fund to help domestic abuse victims escape abuse and help rebuild their lives.

Posted on 22nd January 202422nd January 2024 by McAlister Family Law

New fund to help domestic abuse victims escape abuse and help rebuild their lives.

The Home Office announced that it is introducing a £2 million pound fund to provide support by way off a one-off payment to victims of domestic abuse to help them leave their abusers. Here, Melissa Jones, Senior Associate, looks at what this means for domestic abuse victims and what the funds covers.

What is the fund and how do I make a claim?

From 31^st January 2024, if you are a victim of domestic abuse and you do not have the funds to leave your abuser (if you live together) then you can apply for a one-off payment of £500 for essential items and support with new accommodation.

In addition to the above, victims of domestic abuse can also apply for a further one-off payment of up to £2500 to “help secure a sustainable independent future, such as putting down a deposit for rental accommodation.”

The fund is set to last until March 2025 initially. Women’s Aid has been reappointed to help deliver this service and as of last year the fund helped over 600 victims to safety.

It has been reported that victims of domestic abuse find it hard to leave their abuser due to the costs of living and accommodation costs.

What is Domestic Abuse?

Domestic abuse is when someone close to you, often a partner or spouse causes you physical, sexual, financial or emotional hardship. It is a misconception that in order for you to be categorized as being in an abusive relationship, there must be physical violence. In many cases there is no physical violence; instead, there is psychological and emotional abuse.

Domestic violence can take many forms. Other than physical violence and threats of violence, you may feel intimidated by things that are said to you, or the manner in which you are treated. You may feel controlled and prevented from spending time with friends and family. Abuse can be verbal; you may feel belittled by your partner at home or in front of others.

Senior Associate, Melissa Jones comments “this is a very good initiative and practical step for victims of domestic abuse who are suffering immensely and do not need the added stress of financial constraints when leaving their abuser. With domestic abuse being linked to depression and homelessness, anything that can help to reduce both of these issues is very much needed. Hopefully this will provide immediate and swift assistance to those that need it”.

If you believe you are, or someone you know is suffering from domestic abuse, then there are ways to help you, and them. At McAlister Family Law we can help victims of domestic abuse by advising them on the most appropriate course of action in their particular situation.

Anyone who requires help or support can contact the National Domestic Abuse Helpline which is open 24/7 365 days per year on 0808 2000 247 or via their website https://www.nationaldahelpline.org.uk

Is a divorce on the cards for Kyle Walker and Annie Kilner?

Posted on 18th January 2024 by McAlister Family Law

Is a divorce on the cards for Kyle Walker and Annie Kilner?

After an Instagram story posted by Annie Kilner, it seems that Manchester City star Kyle Walker’s marriage to his childhood sweetheart is at an end. Here, Heather Lucy looks at what will happen if the couple do divorce, how the assets may be divided and how their children’s welfare will be taken into consideration.

On an Instagram story, Annie Kilner has said she is ‘taking some time away’ from her marriage to the football star and online communities are convinced that this means a divorce is on the cards. This seems all the more likely given that Walker has left the family home. Online publications are now speculating whether Kilner is going to have the ‘final revenge’ by seeking a financial settlement on divorce. Whilst this framing is not helpful in trying to have an amicable divorce (which is sensible especially when there are children involved), it does throw up some questions about what will happen to the couple’s finances if a divorce really is on the cards.

Walker and Kilner were married in 2021. On the face of it, it therefore sounds like their marriage was short-lived. This is relevant because the courts take into account the length of a marriage when dividing up matrimonial assets on divorce. They do not, however, limit this to the time since ‘I do’. The relevant timeframe is the length of time since the couple began to live together (if they did so without a break) to when they separated. Walker and Kilner reportedly dated for 12-13 years before they married, though when they first moved in together is not public knowledge. This could, therefore, be an important distinction for the couple as it seems likely to take them from a short marriage to a long one which means that the court would be more likely to use an equal division of the matrimonial assets as a starting point. One fly in the ointment, however, might be the couple’s earlier split in 2019. Kilner will need to take some careful legal advice about this.

During the 2019 split, Walker met Lauryn Goodman who is a model and influencer. Together, they had a child, Kairo, and there are speculations that Goodman’s daughter (born in 2023) was also fathered by Walker. Walker and Kilner share three children together. When looking at the division of finances on divorce, the welfare of children of the family will be the court’s priority. Whilst Goodman’s child(ren) may not be considered ‘children of the family’ (which depends on whether they have been treated as such), Walker’s obligations to them are likely to feature heavily in any negotiations that take place.

The length of the marriage and the existence of children are just two of the factors that the court takes into account when considering the financial division between parties on divorce. Please see Fiona Wood’s article on section 25 of the Matrimonial Causes Act 1973 to explore this in further detail.

Historically, Kilner would have been able to issue an application for divorce on the basis of Walker’s infidelity. This, however, changed in April 2022 when the no-fault divorce regime came into force. This means that the couple’s focus will remain on dividing their assets rather than trying to assign blame to each other for the breakdown of the marriage… in the courts at least. Hopefully, if the marriage has broken down irretrievably, both Walker and Kilner will take good legal advice and aim to reach a resolution in a way that will allow a positive co-parenting relationship for their children.

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.

Maya Jama receives legal letter demanding £800,000 ring back

Posted on 26th January 2023 by McAlister Family Law

Maya Jama receives legal letter demanding £800,000 ring back

Maya Jama receives legal letter demanding the return of £800,000 engagement ring to ex-fiancé Ben Simmons. Here, Lisa Brown looks at what happens to the ring if an engagement is called off.

The new Love Island host and basketball player ended their relationship last summer after Ben’s proposal to Maya over the Christmas period. This week, Maya reportedly received a letter demanding the return of Ben’s engagement ring, but if one half of an engaged couple calls off the wedding, what happens to the engagement ring?

Not every engagement leads to a wedding, and even for those who do get married, there may be a divorce down the line. As divorce lawyers, it’s not unusual for the soon-to-be-ex-couple to argue about who keeps the engagement ring, particularly if the ring was expensive.

One half of the couple will put forward the argument that they bought it, so they own it. The other half of the couple, naturally, will advance the argument that the ring was given to them as a gift, so they can claim rightful ownership.

What does the law say about engagement rings?

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 unless there was an agreement to return the engagement ring if the wedding was cancelled, then the recipient is under no obligation to return the ring.

What if the engagement ring is a family heirloom?

If the engagement ring is a family heirloom, perhaps passed down through the family for many generations – and the recipient was made aware of this at the time – then it may be easier to succeed in an argument that the ring should be returned if the wedding is called off. However, no matter how sentimental the ring may be, if there has been no agreement made that the ring must be returned to the proposer, the Act still stands.

How do you ensure that you keep the ring if things don’t work out?

Many couples now enter into a prenuptial or postnuptial agreement. If the parties feel really strongly about it, provision for the fate of the engagement ring can be included in the agreement as a specific term should the couple divorce. Otherwise, the same general rule applies: the engagement ring is an absolute gift (and therefore not returnable) unless there was a condition made about the ring being returned when it was given.

So, if you are planning to ask your loved one to marry you this Valentine’s Day, maybe consider the future of the ring. We know that thoughts of break-ups and divorces should be the last thing on your mind, but if the ring has a lot of sentimental value, it might be worth protecting it in some way.

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.

School admissions season – what happens if we disagree?

Posted on 19th January 2023 by McAlister Family Law

School admissions season – What happens if we disagree?

January is never an easy month. It is one of the few times in the year where two 31-day months follow one after the other, spring feels like a lifetime away and pay day even further. On top of that, it’s school administration season. Here, Michael Compston looks at what happens if parents cannot agree on a school and how the choice can be made both inside and outside the court.

The local authority deadlines vary from authority to authority, but generally primary school deadlines are in place for the middle of January. Miss that deadline and your child runs the risk of not being accepted into their first-choice school and the application being considered as a late application.

Secondary school applications tend to run on a slightly different timetable, with deadlines being earlier in the academic year. However, we find that secondary school applications follow a more structured process as children/parents tend to be guided through this by the primary school during the child’s final year.

Children getting ready for primary school do not always have that information or guidance readily available, so this blog aims to consider how to resolve any issues arising out of primary school admissions.

Most if not all Local Authorities now process these applications online. The process is fairly straightforward; you go to the prospective schools, decide which ones you like or do not like, then select those schools in preferential order.

But what happens if you and the child’s other parent disagree? If you both have parental responsibility for a child, then it is incumbent on you both to come to a decision together. One of you may favour the school with strong academics or greater extra-curricular provision, whereas the other favours the school with more green space or a better pupil to teacher ratio. If you cannot agree on the preference order, how do you resolve matters?

Outside of court

The first solution is a simple one. Talk to each other. It might sound simple but actually discussing your preferences and why you think one school is better than the other can open up topics for discussion that you might not have considered.

If you are not able to reach a decision by discussing the matter between yourselves, then another option is to attend mediation. Mediators are trained to facilitate discussion between parents across a broad range of matters, not just limited to discussions around child contact. They can offer a neutral perspective and encourage back and forth discussion between the two of you.

Court proceedings

Should mediation not work, then the last recourse is to ask the court to make a decision by making a Specific Issue Order to decide that specific point. Alternatively, if the other parent is refusing to allow you access to the application and is preparing to submit the application themselves, it could be an application for a Prohibited Steps Order to prevent them submitting the application. Either way, both applications would be considering the same thing – what is in the best interests of the child.

This can be a costly exercise and a time-consuming exercise too. You are essentially asking the court to make a decision that, ultimately, is about what is best for the child. The court has not met your child, the court does not have the knowledge of the schools that the parents have, so you must think carefully before asking the court to intervene and make a decision that will have a long-lasting effect on your child’s education; if the child remains in their school, they will be in primary for seven years or secondary for five, so it is an important decision.

If you do end up in court proceedings, the court must consider what is in the child’s best interests. The court would almost certainly say initially that this is a decision that the parents should come to themselves; after all, the parents know the child better than the court. You would most likely both need to prepare witness statements on why you consider that your order of schools is the most suitable and then be prepared to argue your case in front of a judge.

Whilst this is very much a last resort, it is important to remember that this is the last recourse for the court. If you cannot agree, the court will likely want order you both to give evidence. It is far, far better if you can resolve matters between yourselves, with or without the help of a mediator, rather than reverting to the court process.

One Final Thought

Throughout all of these avenues for resolving any dispute on school choices, it is important to remember that the ultimate decision on where a child goes to school is down to the Local Authority in terms of state schools. The order of preferences is still important, as it will help to inform the decision of the Local Authority, but the decision is ultimately one for them.

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.

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.

Emotional affairs, is it cheating?

Posted on 22nd December 2022 by McAlister Family Law

Emotional affairs, is it cheating?

Emotional affairs, some people don’t count it as cheating and others do. With no physical relationship in an emotional affair, how do family lawyers view it and is it grounds for a divorce? Here, Frances Bentley explores emotional affairs, questions if they should be classed as cheating, and explains whether it is grounds for a divorce.

There has been a lot of focus recently on emotional affairs and what they mean. Some people believe it doesn’t count as cheating because there is no physical relationship with somebody else. Some people think it is worse because that person is becoming emotionally reliant on somebody else, rather than their own partner or spouse.

An emotional affair is bond between two people which mimics or matches the closeness of a romantic relationship but isn’t physical. There has been a survey completed In the USA which concluded that 35% of women and 45% of men had admitted having an emotional affair before.

So why do emotional affairs happen in the first place?

It does raise a question as to whether there is a wider problem within the marriage. There could have been a breakdown in communication, it could be the result of not spending enough time together, or there could be a general lack of happiness within a marriage. Recent reports have looked at emotional affairs and asked some people to comment on their experiences and the impact. Here is what they said:

“It’s now been 6 months and I love him”

“My emotional affair is coming to an end after 2 years. I am feeling sad and pensive”

“I miss my emotional affair now that it’s gone…I feel so alone”.

It is clear that an emotional affair can put incredible strains on a marriage, and even lead to marriage breakdown leading to divorce.

What about Divorce and the Law?

Before the divorce law changed in April 2022, as family lawyers we saw clients who thought that their partner having an emotional affair constituted “adultery”. To them, their spouse having an emotional relationship with someone else had caused their marriage to break down. However, under the old law an affair could only count as adultery if there had been a sexual relationship and if that sexual relationship was with a person of the opposite sex.

This was sometimes a devastating discovery for both individuals whose partner had an emotional affair or had engaged in a same sex sexual relationship. The law came under fire for being completely outdated (and rightly so). We had to advise our clients that rather than the affair being labelled as adultery, they would have to rely on it being “unreasonable behaviour”. Understandably, to them didn’t feel like it carried the same recognition of the affair that had caused the marriage to break down. Adultery and unreasonable behaviour petitions were plagued with issues; more often than not it would result in the other party refusing to accept or admit the behaviour, toing and froing on the wording of divorce petitions, animosity and a feeling of complete lack of control over the process for person applying.

In April 2022 the old divorce law was completely abolished, with the “facts” needing to be relied on (such as adultery and unreasonable behaviour) being removed.

A person applying for a divorce now needs to simply confirm within the divorce application that the marriage has “irretrievably broken down”. There is no need to worry about the other person refusing to accept the behaviour happened or refusing to admit it (which often left a person bringing the divorce having no recognition of why the marriage had broken down).

Although the new divorce application doesn’t require an explanation of what caused the marriage breakdown, the law being simplified now means that individuals who have been on the other side of any affair (whether that be an emotional affair or a physical affair) can relatively simply make a divorce application and confirm there has been “irretrievable breakdown” as a result of the affair. It now allows them an element of control over the divorce process which for many, was much needed.

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

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.