Do the Beckhams and Rooneys prove you should stay in a marriage and work at it?

Posted on 30th October 202330th October 2023 by McAlister Family Law

Do the Beckhams and Rooneys prove you should stay in a marriage and work at it?

With the press full of stories about the Beckhams and Rooneys and their historical marriage woes, McAlister Family Law Partner, Lisa Brown, raises the question of whether it is the right thing to stay in a marriage when it is floundering or not?

Both the Beckhams and the Rooneys appear to have navigated troubled waters and arguably come out stronger but that is not always the case and there is no one right answer as to how hard is too hard when it comes to fighting for a relationship.

If I start divorce proceedings is there no way back?

From a legal perspective should you decide to start divorce proceedings there is still a way back until the final divorce order as you can effectively ask the court to cancel the proceedings. It is rare that this happens as for lots of people the process of separating their finances and resolving issues in relation to the children can polarise them further. Having said that there are couples who go through the entire process only to get re-married again!

Does it matter if I am the one who ends it?

Sometimes the making of the initial decision can be the hardest part and it can also colour how the parties deal with the practical elements of separation. For example, where it was more one person’s desire than the others, they can feel guilty and end up walking away with less than they deserve.

The process of divorce and all that comes with it is inevitably driven by emotions, but parties do need to understand that with the financial settlement they only get one chance to get it right and if they agree something which is overly generous or, conversely, which doesn’t meet their needs they may end up regretting it.

From a legal point of view, it will not have any impact who ends the relationship nor whose fault it is. Part of the reasoning behind that is that if some account was taken of who left who and the circumstances of that in determining either financial or child arrangement issues then the courts would be full of people arguing about whose fault the demise of the relationship actually was. Relationships are complex and this would lead to greater uncertainty and cost in litigation.

So, what should I do?

There is perhaps a reluctance to speak to a divorce lawyer when a relationship may be struggling- almost as if in doing so you are accepting the relationship is over. Like most things in life though it is far better to be aware of what might happen than end up potentially going into the situation blind.

Added to that there are many different myths about family law which are frequently repeated, but wholly inaccurate and inevitably most people will know somebody who has had a “bad” divorce with it being long fought, expensive, acrimonious or all of those things. This can inadvertently impact your view and cause unnecessary stress and worry.

Speaking to somebody who can guide you through the legal process could help crystallise your decision one way or another. A divorce/ family solicitor shouldn’t be pushing you into a divorce but instead should set out the various legal options and processes to allow you to make an informed decision. Advice given is always completely confidential.

If you are in a relationship that is struggling at present my advice would be to speak to one of our specialist family solicitors so you can make a decision about your future with all of the facts.

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

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.

Love is blind… but what if it’s short?

Posted on 16th November 202224th January 2023 by McAlister Family Law

Love is blind… but what if it’s short?

With both Nick Thompson & Danielle Ruhl (Love is Blind season 2) and Mackenzie Scott & Dan Jewett (the ex-wife of Jeff Bezos and her new husband) set to divorce, the topic of short marriages is one that is bound to be on their minds. Both couples married in 2021 and are in the process of bringing their marriages to a legal end. Here, Heather Lucy looks at how the length of a marriage may affect how assets are split upon divorce.

Both of the couples named above are based in the US but those thinking of divorce in England and Wales may be wondering whether the length of their marriage might impact their potential financial settlements on divorce.

There are no hard and fast rules, or formulas, that state how assets should be divided on divorce. The starting point for the court is that the assets should be divided equally, but they will then consider if there are reasons for moving away from an equal split, for example if assets are considered to be non-matrimonial, such as inherited assets or potentially assets acquired before the marriage. The court will also look at whether each person’s needs would be met by an even split. In making their decision, the court looks at the factors in Section 25 of the Matrimonial Causes Act 1973 which is a checklist of what they should consider. The primary consideration will be the welfare of any children of the marriage and other factors include the couple’s ages and the standard of living during the marriage. The latter would likely bode well for Mr Jewett if he were divorcing in England and Wales considering Ms Scott’s circa $34 billion net worth.

One of the factors to be considered under the Section 25 checklist is the length of the marriage. For the purposes of divorce, any time spent living together immediately prior to the marriage is added to the length of time since ‘I do’ to work out the length of the relationship. There are no set definitions of ‘long marriages’ or ‘short marriages’. Marriages of 10 + years may be seen to be in the ‘long marriage’ territory and one lasting 5 years or less is generally seen to fit the description of a short marriage.

Spouses in a long marriage are seen to have more financial interconnectedness and their assets are more likely to be considered ‘mingled’. This means that the court is more likely to be persuaded that an equal division of the assets is the right approach.

If spouses in a short marriage have no children and are both earning, the court may decide that it is fair to move away from splitting their assets down the middle and instead try return each person to the financial position they were in prior to the marriage. This is made even more likely if the couple had kept their finances separate during the marriage. It is also more likely that divorcing spouses will be able to ‘ring-fence’ assets/property they have brought to the marriage which means that they are kept out of the ‘pot’ being divided. The court will also heavily favour a ‘clean break’ if the marriage was short, if there are no young children, as they will want to cut financial ties between the divorcing couple. This means that it is unlikely that regular payments from one person to the other (maintenance) would be ordered, though it is not impossible.

It is important to remember that the court will look at what each person needs. You might have a short marriage and have no children but, if a move away from equality would mean the other person cannot meet this housing and income needs, the court are unlikely to be persuaded that an equal division of the assets is not the right course of action.