Transparency in the Family Courts – the Dawn of a ‘New Norm’

Posted on 1st June 2023 by McAlister Family Law

Transparency in the Family Courts – the Dawn of a ‘New Norm’

Should the media report on the Family Courts? Here, Ruth Hetherington looks at the role of transparency in the family courts and how transparency orders will protect those families already under a lot of stress.

For many years now, on the whole, the Family Courts sit in private, which means no one else is allowed into the Court hearing except those people involved. Some would say that there is a shroud of secrecy in the Family Courts and decisions are being made behind closed doors. There has been a genuine reason for this … there is a need to protect the privacy of the people involved, particularly children balanced with having the public’s perception, trust and confidence about the way in which the family courts operate.

At present S.12 of the Administration of Justice Act 1960 prevents reporting of most family law cases in the absence of the Judges consent. This legislation was intended to ‘protect and support the administration of justice’.

S.97 Children Act 1989 protects the identity of children. It is a criminal offence if breached.

As it can be seen, currently there is little scope for reporting on any family case.

It would be fair to say that most family cases have been held in private, but the public only get to hear about ‘big money’ cases and predominantly the lives of celebrities when they hit the headlines.

The appetite however for the family courts to be more accessible has been a matter of discussion and debate for many years. The President of the Family Law Division, Sir Andrew McFarlane intends to change all of that.

Sir Andrew McFarlane published a report in October 2021 entitled ‘Confidence and Confidentiality: Transparency in the Family Courts’.

The emphasis now is very much that the veil of secrecy and mystery associated with the family courts needs to be lifted, mainly to provide the public with confidence that the family courts are safeguarding children and their families.

Sir Andrew McFarlane says ‘the time has come for accredited media representatives to be able to not only attend hearings but to report publicly on what they see and hear. Any reporting must however be subject to very clear rules to maintain anonymity of children and families and to keep confidential intimate details of their private lives.

Pilots are now running in Cardiff, Leeds and Carlisle, and they will continue throughout 2023 with data being collated. In essence accredited media representatives and legal bloggers are permitted to attend court hearings, have access to documents and report on the outcome, subject to the terms of a Transparency Order.

Transparency orders will set out what can and cannot be reported on. Reporters must and will be bound by that order. The Transparency Order can be varied or removed at any point, by the Court.

The case needs to be conducted in an orderly way and not be prejudiced or compromised. However, how this operates in practice forms part of the Pilot now running.

The pilot will start with public law cases (care proceedings) then private law children proceedings.

The jury is still out, as many family practitioners, are apprehensive of the changes as all families going through the family court are already experiencing stress and anxiety without having to deal with an added layer that their case could be reported on. It may prevent or deter many vulnerable people in seeking access to justice at a time in their lives where help and support is needed.

The message is clear, confidence and confidentiality can be achieved and that there needs to be a major shift in culture.

Legal bloggers

Interesting concept and development within the Pilot in that anyone can ‘blog’ on the law, but can they just attend a hearing? The answer is no. To be able to attend court hearings you must be a ‘duly authorised lawyer’. Blogging can only be for journalistic research or public, legal educational purposes. So…in the busy lives of family practitioners do they have time to attend other court hearings that they are not involved in, would they want to, could this be part of training for young lawyers entering the early part of their career. It remans to be some as to whether there is the ‘up take’ on legal bloggers.

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.

Daisy’s Law – New measures to recognise children born as a result of rape

Posted on 23rd March 202323rd March 2023 by McAlister Family Law

Daisy’s Law – New measures to recognise children born as a result of rape

Children born as a result of rape will officially be recognised as victims of crime and receive better support under changes announced by the Government. Here, Rubecca Rahman, McAlister Family Law Paralegal, looks at what the introduction of ‘Daisy’s Law’ will mean for children, victims and survivors of sexual abuse.

On 19^th January 2023 the Government announced that children born as a result of rape will officially be recognised as victims. This follows the Government’s intention to further support victims of such heinous crimes and allow them the opportunity to make the individual accountable for d the crime.

Government statistics suggest that highest ever number of rapes within a 12-month period was recorded by police in the year ending September 2022 and in that same time period, charges were brought in just 2,616 rape cases.[1]

The UK government has announced these changes to the law which will recognise children as victims under the proposal ‘Daisy’s Law.’ England and Wales will be amongst the first countries in the world to bring about such change to their legislation, recognising the horrific circumstances that these children suffer due to no fault of their own.

At present, the lack of explicit reference to people born as a result of rape in the Victims’ Code, which is essentially a code of practice which sets out the minimum standard that all organisations must provide to victims of crime.[2] makes it very difficult for them to claim support and entitlements such as being provided with information about their case. The new laws will allow such children to receive specialist care and support from the criminal justice system which they may have otherwise not have had access to. The change will also allow victims to access counselling and therapy much easier as the government is committed to delivering better outcomes for victims and survivors of sexual abuse.

This landmark piece of legislation follows recommendations from the Justice Select Committee as it seeks to put the needs and voices of victims at the heart of the justice system and increase the accountability of agencies.

The Centre for Women’s Justice (CWJ) found that children born as a result of rape were at risk of suffering serious and long-term harm due to the distressing circumstances of their birth, from infancy well into later life.[3]

Daisy’s Law

Daisy was conceived as a result of rape in the 1970’s and her biological father, Mr Carvel Bennet was never brought to justice, despite her mother reporting the report at the time. He was eventually brought to justice in 2021 using Daisy’s DNA.[4]

As a child, Daisy was raised by an adoptive family, shielded from the truth about the circumstances of her birth. Once she turned 18, she requested her adoption file, hoping to learn more about her birth family and was horrified to learn that her birth mother had become pregnant with her at just 13 years of age. Eventually, Daisy was able to establish a contact with her birth mother and campaigned for her biological father to be brought to justice, offering her DNA as evidence that could be used to prove the prosecution case.

Once this matter was brought before the court, the police were able to secure a conviction against her biological father. Under the criminal law proceedings, Daisy had no rights within law to be kept informed of the progress of the investigation or the prosecution as she was not recognised as a victim of the crime. She therefore worked effortlessly to raise awareness in the press of the difficulties she faced by not being recognised as a secondary victim of rape.

Final thoughts

It is hoped that by working together with other countries to develop a recognised framework, children born of sexual violence will not be disadvantaged by the circumstances of their birth. The call to action has already been endorsed by several countries and organisations and it is hoped this change will have a huge impact on the way matters are dealt with in and out of proceedings and to the victims and those affected by it.

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.

References:

[1] https://rapecrisis.org.uk/get-informed/statistics-sexual-violence/

[2] https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/974376/victims-code-2020.pdf

[3] https://www.centreforwomensjustice.org.uk/news/2022/8/15/daisys-law-new-research-commissioned-by-centre-for-womens-justice-demonstrates-why-children-born-from-rape-should-be-recognised-as-victims-in-law

[4] https://static1.squarespace.com/static/5aa98420f2e6b1ba0c874e42/t/62fa26731a8f4921aef8545c/1660561012202/Daisy%27s+story.pdf

The New Age of Social Media v Children’s Rights to Privacy Online

Posted on 16th March 202323rd March 2023 by McAlister Family Law

The new age of social media v children’s rights to privacy online

The growing popularity of online social media platforms such as TikTok and Instagram has paved the way for a newfound presence of ‘kidfluencers’ – children thrust into the online spotlight by their parents or legal guardian, often becoming the face of a personal brand in return for sponsorship deals and paid promotions, with some pages reported to earn thousands of pounds per post.

Here, Eleanor Drury looks at how the influencer marketing industry may put children at risk, and what other jurisdictions are doing to protect them.

Last year, the House of Commons Digital, Culture, Media and Sport committee raised concerns that children are being used by entrepreneurial parents and guardians to capitalise on the growing market, and that a lack of action to regulate this area will lead to children in the industry being exploited. Whilst the UK has previously implemented child labour legislation, this was drafted some time ago and arguably needs to be to address gaps arising from 21^st century ways of life and provide regulation around two key grey areas; firstly, a child’s right to privacy on social media; namely, how content of them is shared and with whom, and secondly, whether profits are protected for the child’s future benefit.

The courts and legislators are faced with a tricky situation whereby the best interests of the child must be finely considered. There is an argument that children in this industry have a better quality of life, presented with further opportunities and greater financial freedom. Does filming and posting your child unboxing gifts, playing pranks or simply singing and dancing along with the latest trends really trigger the need for intervention? Or does the commercialisation for an online audience negate the defence of it simply being ‘play time’?

Given the overwhelming popularity of technology and social media, and the fact that of course not every child posted online is subject to a huge following of strangers on the internet, the courts will likely be keen to avoid a situation in which the floodgates are opened to excess claims and would therefore need to scrutinize a number of variables such as the age of the child, any safeguards put in place to protect the child and how much time and effort is required is of the child. It must also be recognised that the vast majority of parents and guardians post their children online out of love and parental pride.

In 2020, the French parliament adopted a new law on the commercial use of images of children under 16 years old on online platforms. The law aims to protect child influencers and provide a legal framework to prevent their exploitation online. This legislation requires parents and guardians to seek prior government authorisation to produce videos or imagery of children for online platforms where revenue exceeds certain thresholds, along with protecting any income generated by ensuring that only a percentage of this is received by parents and guardians, with the remainder being placed in trust for the child to access during adulthood.

With influencer marketing rapidly on the rise, perhaps UK legislators will decide soon to follow in the footsteps of other jurisdictions and provide a more modernised and inclusive take on pre-existing child labour law.

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.

Do people go into marriage with their eyes wide open?

Posted on 9th March 2023 by McAlister Family Law

Do people go into marriage with their eyes wide open?

When people get married, it’s a whirlwind of romance, excitement and planning the big day. The average modern wedding takes about 11 months to plan, over 528 hours (22 whole days). But how much do the to-be-weds understand about the legal and financial implications of marriage? Here, Frances Bentley looks at how couples can go into marriage with their eyes wide open.

Being in the process of planning my own wedding, I can certainly believe the amount of time that goes into it. It is hard not to get swept up in planning the actual wedding day, and sometimes there is a much lesser focus on what marriage actually means after the big day.

As a divorce lawyer, when clients come to me, they say that they did not understand or appreciate the legal and financial implications of marriage when going into it. It begs the question as to whether there should be more education about it before people get married.

It might seem obvious that marriage means a sharing of each other’s lives, hopefully forever, so maybe it isn’t needed. However, if things don’t work out, a lot of people don’t often understand what would actually happen to their finances on divorce. Maybe it isn’t the most romantic thing to think or talk about before you get married, but actually understanding and knowing the implications might mean that people are going into marriage with their eyes open.

I think it is really healthy to have that conversation and so people know where they stand. In my view, it doesn’t undermine the fact that the plan is to stay together forever, and of course that is what the aim is. I actually think it is a bit of a red flag if your future spouse reacts badly to that conversation.

So how can you protect yourself financially if you are getting married?

One way that couples that are to be married can protect their financial position in the event of a future separation is to enter into a pre-nuptial agreement (or a post nuptial agreement if they are already married).

Nuptial agreements can detail what is going to happen with finances in the event of future divorce and whether, for example, one person’s inheritance, or assets brought into the marriage are to be “ringfenced” from any future division of assets on divorce. It allows both people entering into the marriage with knowledge of the other’s financial position and some clarity.

Whilst nuptial agreements are not technically legally binding in England and Wales, they are being upheld much more by the courts and are persuasive, as long as they have been entered into procedurally correctly, both parties have taken legal advice, and are considered to be “fair” to both parties. They can also be reviewed throughout the marriage to take into account any changes in circumstances and ensure that they remain to be “fair”.

On a divorce, the starting point legally or finances is a 50/50 division of all assets. The court would then look at whether or not that is fair, and whether there should be a departure from that starting point, taking into account a number of factors. The factors include what the parties or any children “need” financially, what contributions have been made prior to, during and after the marriage, the standard of living enjoyed amongst other factors, one being whether there has been any pre-nuptial agreement entered into and whether that should be upheld.

The court will look at what is fair and reasonable, in all of the circumstances of the case, and if, the pre-nuptial agreement remains to be fair and reasonable, it is very likely to be upheld and assets brought into the marriage are likely to be protected. It does therefore offer protection and clarity and an understanding of the other person’s financial position before the marriage.

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.

Online sex abuse of primary school children increases over 1000% since pandemic – How far will the Online Safety Bill protect them?

Posted on 31st January 2023 by McAlister Family Law

Online sex abuse of primary school children increases over 1000% since pandemic – How far will the Online Safety Bill protect them?

It is a shocking and deeply sad fact that thousands of children ranging from new-borns to teenagers are targeted and subjected to horrific sexual abuse every day in this country. Here, Solicitor Nikki Bradley looks at the dangers children are being exposed to online and how the Online Safety Bill may make a difference.

Online forums and social media platforms are saturated with child sexual predators. Many of these people “catfish” their victims by hiding behind pseudonyms and falsifying information about their lives including their ages, backgrounds, appearance and gender. This is all done in the hope of maximising their chances of abusing vulnerable children which, as a result of the pandemic and increased popularity of remote platforms and social media technology, has caused online child sex abuse to skyrocket.

The Internet Watch Foundation (IWF) are a charity whose sole aim is to eliminate online sex abuse of children by finding and removing all traces of this material. On 27^th January 2023, IWF published stark and harrowing findings. Their research shows that since 2019 the number of sex abuse images of children aged 7-10 distributed online has increased by 1,058%.

Do we really know what dangers children are being exposed to online?

Our reliance on the digital world seems to have become normal post pandemic. Many primary school children now have iPads, smart phones, social media accounts but no matter how well we think we are policing it, the IWF statistics speak for themselves.

Online child abuse is not just still happening, it is thriving. Online predators are merciless and are taking full advantage of the fact that children are now regularly using digital platforms to assist their development socially and educationally. In 2022 the IWF found 63,050 reports of children aged 7-10 being tricked and coerced into performing sexual acts on camera, 14% of which were classed as Category A material – the very worst category of abuse.

Will the Online Safety Bill make a difference?

The purpose of the Online Safety Bill is to protect children (and adults) from online abuse by making social media companies legally responsible for their safety and increasing accountability for their online content and procedures. It proposes to do this by means such as enforcing age limits, rapidly removing and preventing illegal content for appearing, providing children with clear ways to report online problems and ensuring online risks on the biggest social media platforms are more transparent.

Progress of the Bill through Parliament has recently stalled following a rebellion of more than 50 MPs seeking an amendment introducing a two-year criminal sentence for tech bosses that fail to protect children viewing inappropriate online content. The Culture Secretary has described the criminal liability factor as giving the Bill “additional teeth”. It has since had the final approval of MPs and will now progress through the House of Lords before becoming law.

Final thoughts

It is hoped that this Bill will make a real difference to child online safety. The world appears to be live to the risks children face online and the UK is taking action to protect young people. However, the dangers of the internet extend far beyond TikTok and Instagram which comprise merely the surface of the digital world as we know it.

Whilst the Bill certainly appears a strong move in the right direction to keeping children safe from harm, it will not affect the vast expanse of the dark web which will continue to shield and anonymise thousands of online predators whilst also distributing their harmful content. Much more thought needs to be given as to how we can tackle the abuse of children in the “hidden” internet and how we can better police under the surface child sex abuse activity.

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.

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.

Noel Gallagher and Sara MacDonald to divorce after 22 years – Does the length of marriage matter?

Posted on 16th January 2023 by McAlister Family Law

Noel Gallagher and Sara MacDonald to divorce after 22 years – Does the length of marriage matter?

Noel Gallagher, Manchester born former Oasis member, and his wife, Sara MacDonald have announced that they are to divorce following a marriage of 22 years. Here Weronika Husejko looks at how the length of a marriage can impact divorce proceedings.

The former couple married in 2011, having begun their relationship in 2001. They have two children together, Donovan, aged 15 and Sonny aged 12, both of whom are still dependent.

It is a commonly queried whether the length of a marriage has any relevance within a divorce financial settlement. The short answer to this question would be yes.

When a Judge considers a financial settlement, they must consider section 25 of the Matrimonial Causes Act 1973. Section 25, amongst other things, specifies that a Judge must in particular have regard to the duration of the couples’ marriage.

What does this mean in practice?

Generally speaking, a marriage usually falls into one of three brackets, that being either a short term, medium term or long term marriage.

A short term marriage would usually be considered to be one of up to 5 years. It should be noted however that a couple cannot divorce until they have been married for a minimum of 1 year. It is more likely that the financial settlement in a short term marriage will take into consideration pre acquired assets. A “clean break” may be considered to be more appropriate in these circumstances. However, this may not always be the case, especially if there are dependent children involved, in which case the focus would be on ensuring that the children’s needs are met.

A medium term marriage would generally be viewed as around 10 years.

Noel and Sara’s marriage would most likely be considered to be a long marriage on the basis that they began living together around 2001, their marriage being a total of 22 years. This is because a period of cohabitation that moves seamlessly into marriage will also be taken into account by the Courts, when considering the length of the marriage.

A longer marriage of this nature can often be more complex when it comes to the financial settlement. The Courts may take a different approach when dividing matrimonial assets in this type of case, compared to that of a short or medium term marriage. By way of example, it is far less likely for the Court to consider Noel and Sara’s respective contributions to the marriage. As a result, it may be that there will be an equal division of assets, unless it is necessary to move away from a 50-50 split to meet the need of one of the spouses.

It may be that Noel and Sara have a pre nuptial agreement, in which case this may be taken into consideration by the Courts, and therefore may have an impact upon the overall financial settlement.

In any event, the Court’s primary interest in their case will be in ensuring that the needs of both Donovan and Sonny are met.

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

What will I stand to get out of the matrimonial assets?

Posted on 15th December 2022 by McAlister Family Law

What will I stand to get out of the matrimonial assets?

With the United Kingdom on the cusp of a cost-of-living crisis and inflation at record highs, divorcing couples will likely face concerns now more than ever as to how finances are to be treated upon divorce. The biggest question on the minds of divorcing couples is often, ‘what will I stand to get out of the matrimonial assets?’ Here, Aaron Williams looks at what the court considers when looking at how to divide assets on divorce and how they aim to meet the ‘needs’ of each party involved.

So, what does the Court consider when looking at how to divide assets on divorce?

As with many things, there is no one size fits all answer to separating matrimonial assets. The principal aim of the court is to ensure that there is ‘fairness’. Unfortunately, fairness has a broad horizon in the context of family law, and it is largely left to the discretion of the judge as to the outcome of the matter.

The court has a duty to consider all circumstances of a case, this is done so using the principal piece of legislation in divorce; that of the Matrimonial Causes Act 1973, in particular the factors listed in section 25(2)(a) – (h) which can be found here: – https://www.legislation.gov.uk/ukpga/1973/18/section/25

The phrase ‘needs trumps all’ is often cited when assets are limited assets in matrimonial finance cases. The starting point in any matrimonial finance case is to consider an equal division of what has been built up by the parties during the marriage; however, an equal division of assets is not always appropriate in every case to achieve fairness.

So where does that leave separating couples? Well matters largely come down to the circumstances of the parties, the standard of living and the resources available to meet needs. What was enough to meet the needs of one household may not necessarily be enough to meet two.

When settling the matrimonial assets, there is no discrimination between separating couples regarding their respective roles in the relationship. For example, where one party has typically taken the breadwinner role, whilst the other party is the home maker, their roles are to be regarded as equal irrespective of what they have contributed financially.

So, how does the court implement section 25 of the matrimonial causes act?

When assessing how to separate who should have what proportion of the assets of the marriage, the first consideration of the court is that of the needs of any children.

The court then look to meeting the needs of both parties, principally looking to ensure that each person’s housing needs, and income needs are met.

Looking at the matter holistically the court will principally consider the financial needs, obligations, and responsibilities which each of the parties to the marriage have or is likely to have in the foreseeable future (s.25(2)(b) MCA 1973). The court will look at the general resources of the parties and will broadly separate the needs of parties into capital needs and income needs. Capital needs, is often that of significant single capital outlays, purchasing a property, furnishings, replacement car etc. Income needs is that of the day-to-day costs that parties require on a monthly basis to live.

When trying to determine whether the parties have the means to meet these needs, the court will consider Income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future. Commonly referred to as the financial disclosure process, the parties are expected to provide ‘full and frank’ financial disclosure. This includes determining through the assistance of expert evidence or agreeing by consent, the value of any assets owned by the parties, including property, businesses, trust assets, chattels, and pensions. The court will also need to ascertain the parties’ respective incomes, whether they have to capacity to increase their income, receive a bonus etc. The process ultimately aims to ensure that no stone is left unturned.

With all this in consideration the court has a great deal of flexibility to in their approach to financial settlement, which in turn allows the court to ensure (as far as possible) that an outcome reached is fair to both parties, and that neither party nor dependent children are left in need. However, this level of flexibility also carries its own disadvantages as it can be difficult for parties to envisage how a judge may determine the respective parties’ needs.

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

Vulnerable children Vs The cost of living crisis

Posted on 8th December 20228th December 2022 by McAlister Family Law

Vulnerable children Vs The cost of living crisis

The UK is currently set to suffer from yet another national crisis. With the soaring rates of inflation set to reach an all-time new height, the devastating effects are being felt by many families, especially those in the most vulnerable situation. Here, Rubecca Rahman looks at the effect the cost of living crisis may have on children in the most vulnerable households.

Basic needs such as heating, food and clothing are all factors which will be affected once the crisis hits. Many families are facing the devasting reality of living within the crisis and for many vulnerable families the reality is real. The cost-of-living crisis is not just an economic challenge. It also has knock-on effect on a person’s mental health and social wellbeing – particularly for the many young people that face the prospect of a cold, hungry and uncertain winter.

Many independent organisations have warned of the consequences the cost-of-living crisis will have on a child’s health, education, and wellbeing. According to statistics, 1 in 3 children already live within poverty. These numbers are set to rise even further due to the recent inflation rates. The causes of the rise in inflation are complex. Years of austerity combined with dormant wages and cuts to benefits has left many exposed to financial risk. Then came the global Covid-19 pandemic which rocked families even further and pushed many families below the line of poverty.

The effect and impact of poverty is well known. However, a less well-known fact is the growing evidence that poverty is a major factor in child abuse and neglect – one the leading reasons for children entering the care system. Whether it’s the failure or inability of a parent to care for and provide the basic needs for the child or a parents’ helplessness to escape an abusive partner because of financial hardships, there are more and more children facing the risk of entering care. As a result, children are not able to reach their full potential. Their chance of a safe and happy childhood is immediately taken away.

Throughout the years, child poverty has risen significantly and the rise in the number of children entering care has coincided with rising child poverty cases. The most recent figures available show 4.3 million children living in poverty. Furthermore, in England, children in the most deprived 10% of neighbourhoods are over ten times more likely to be in care or under some type of a protection plan. Further research also suggests children living in low-income households are three times more likely to suffer from some form of mental health problems than their more affluent peers. Additionally, children born into poverty are more likely to experience a wide range of health problems, including poor nutrition and chronic disease. Poverty also places an additional strain on families and relationships leading to further struggles.

Unfortunately, it is unlikely these figures will fall anytime soon, as the full impact of the pandemic and the cost-of-living becomes apparent, the situation is likely to worsen. The cost-of-living is expected to accelerate pre-existing trends of greater poverty and inequality within the UK. A child centred approach is therefore fundamental in safeguarding and promoting the welfare of every child. This approach focuses on the child’s needs when making decisions about their lives and working in partnership with them and their families to come to an agreement.

What does this look like in reality? Children must be put at the forefront of any discussion between parents and/or legal parties to ensure that they are warm, well fed and most importantly safe. Reach out to family members or obtain professional help and assistance to care for the child. Ultimately it is important to safeguard their interest and needs.

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