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

Peaceful co-parenting at Christmas

Posted on 11th December 2023 by McAlister Family Law

Peaceful co-parenting at Christmas

As the festive season is rapidly approaching, most parents are busy planning the Christmas shop, visiting Santa and ensuring that the Christmas elves know what is on their children’s wish list. Here, Amanda McAlister, Managing Partner of McAlister Family Law, looks at the stresses of separated families over Christmas and offers her top tips for peaceful co-parenting.

For separated parents, deciding how the children are to spend their time over Christmas can be extremely stressful, especially when they do not agree. If arrangements are not finalised before the festive break, this can lead to tensions becoming even more fraught, the result being that no one actually then looks forward to Christmas, never mind enjoying it.

As expert child and family lawyers, we are starting to see a significant increase in client enquiries surrounding Christmas contact. Such enquiries vary from how a parent can prevent the other from seeing the children, to imposing a contact arrangement that is unfair to the other. As Christmas is the most magical time of the year, emotions are high, and people do tend to become entrenched in their positions.

I am a divorce parent with two children. I share care with my ex-husband and therefore have experience not only as a children lawyer but also as a parent who does not always see my children on Christmas day. I recently appeared on the BBC Morning Live programme to talk about my top tips for peaceful parenting over the festive period which are:

Children come first.

Remember that Christmas is about what is right for the children. Not what is right for you personally, Grandma or Christmas routines that have previously been in place. Children can adapt and should grow up having memories of special times with both parents. Not just one.

Santa can multitask.

With notification, Santa can multitask and deliver presents to multiple addresses.

Whilst the law does not set out precise rules on how contact should be divided, the view is that children should spend Christmas with both parents. This can be achieved by one parent having Christmas Eve until 2pm on Christmas day and the other having the rest of the time on Christmas day through to the 27^thof December. This arrangement would then be alternated the following year.

For those that don’t relish the thought of a child’s Christmas day being interrupted by going to the other parents halfway through the day, they can agree an arrangement which will involve the children spending Christmas Eve to Boxing day with one parent and then boxing day through to the 27^th or 28^th with the other. Again, this is alternated. This has always worked for my children as they then get to relax and enjoy presents for the whole day and are less grumpy on boxing day when they come to me or go to their dads.

Grow with the children.

Arrangements that were right for a child at 4 years of age may not be right for when they are 14. Trying to force arrangements on older children can create further upset and distress which should be avoided. If you have teenage children, talk to them about what would work for them. This way they feel that they are being listened to and will actually engage in the family celebrations.

Christmas giving

Whilst relations with your ex may still be raw or tense, it is important that this is not seen or felt by the children. If they know that one parent is not happy with the arrangements and makes that clear verbally or through actions, it will impact on the children’s ability to relax and have a good time. This can have consequences in terms of how a child in the long run will recollect their enjoyment of Christmas. Always try to buy a small gift for the children to take to the other parent’s house and encourage them to write a nice card to take with them. That way the children feel that they have the endorsement of the parent that they are not with that day to have a good time.

Co-parenting can be tough but if you always have what is right for the children at the forefront of your mind you will get it right. My son is now approaching 15years of age. He regularly reminds his father and I that we are an “embarrassment” and “sad”. The message that I am trying to get across, is that time flies and before you know it, they do not really want to spend time with either parent. The creation of special memories is what life is about and finding peace is the key to that.

A loving home – best Christmas present ever

Posted on 6th December 2023 by McAlister Family Law

A loving home – best Christmas present ever

One year ago, John Lewis’ Christmas advert aimed to shine a light on the importance of foster carers, yet new figures from OFSTED have shown a loss of foster care families and an increase in children being placed far from home. Here, Nick Hodson looks at the situation and how The Department of Education plans to turn it around.

Let me take you back 12 months to the 2022 John Lewis Christmas advert. In it, a middle-aged man is on a mission to learn how to skateboard. He spends weeks trying to master this difficult skill and suffers some bumps and bruises along the way. It is revealed at the end of the advert what his hard work was all about. Along with his partner, he was expecting the arrival of a foster child, Ellie, who loves to skateboard. Ellie was nervous at first about the new house but softens when she spots the carer’s skateboard and poorly arm. His hard work was designed to make Ellie feel comfortable in her new home.

This week, new figures from OFSTED, have shown that there has been a net loss of 1,000 foster care families in the past year and a record number of children being placed far from home. Social workers have described scrambling to find friends and family to take children in urgent need of safety and reported that children are sometimes placed in hotels.

It is estimated that 6,000 new foster families will be needed to meet rising demand.

“We need a lot more foster carers,” said John Pearce, the president of the Association of Directors of Children’s Services. “You used to be able to get a place quickly for younger children. But in significant parts of the country that’s not the case anymore, and that’s driven by a significant increase in the children coming into care.”

In some cases, councils lacking local foster vacancies are sending children hundreds of miles away, breaking family and school ties. There has been a 7% increase in the number of children in care since 2019 in England. But in the past year almost twice as many households quit mainstream fostering than joined. Reasons cited include the rising cost of looking after children and older foster parents choosing to quit after the pandemic.

The Department of Education is launching a £27m recruitment and retention programme, which began in September in the north-east, where demand has soared, and will spread to more than half of England’s local authorities from next April.

One of the joys of representing children is seeing the impact of a positive foster placement on the child’s wellbeing. It can provide them with the safety, stability, and love that they might been deprived of by their birth families. For older children, it can give them the best platform to enter adulthood.

Let us hope that the new campaign will bring the thousands of new families into the fostering system and that many more children like Ellie can live in safe and loving homes.

What is co-parenting and how does it work?

Posted on 27th November 2023 by McAlister Family Law

What is co-parenting and how does it work?

If you have recently separated from your partner and trying to navigate the arrangements for your child(ren) you might have heard the word “co-parenting” and wondered what it means. Here, Melissa Jones, Senior Associate at McAlister Family Law, looks at the term and how it applies it practice.

What is co-parenting?

Cafcass, the advisory service to the court, describe co-parenting as “‘Co-parent’ is a shortened version of ‘co-operative parent’, and co-operation is essential to making things work well for children”.

A few examples of co-parenting are:

Using positive language about the other parent.
Avoid using the term ‘my child’ and instead use ‘our child/children’
Sharing information about your child with the other parent
Avoid involving the children in adult issues that do not concern them or using the children as a ‘go-between’

It is always worth remembering that despite however much we plan for something, things might not work out in the way we want them. Expect a few bumps along the way, as you and the other parent get used to sharing the responsibility for the children.

Can co-parenting really work?

Co-parenting is something that needs time to embed but there is no reason why it cannot work for families.

Take former England Rugby player Ben Foden and his former partner, Una Healey from the Saturdays for example. They have two children aged 11 and 8 and Mr Foden lives in New York with his wife and their own child. Una has recently said the following about co-parenting: “I’m really happy for them that they have summers in New York and that they’re making lovely memories with their dad, stepmother and sister,” and “Our dynamic is probably different to many people’s, but there are lots of people who have families where the parents aren’t together any more. You just manage it as best you can.”

Parenting Apps

The court is especially keen on separated parents using co-parenting apps to assist with their communication and making decisions. In some cases, the use of these apps might help you avoid court all together and they you share calendars and send secure communication.

There are a number of co-parenting apps such as:

Our Family Wizard
2 houses
Talking Parents

Civil, clear and positive communication between is key for co- [parenting to work. Using an app will often give parents less to worry about and in some cases the apps and they can be inexpensive when considered the cost of going to court.

When might co-parenting not work?

There may however be cases where co-parenting cannot work and in particular where there have been findings made relating to domestic abuse or there is an injunction in place which means it would not be appropriate for parents to be in communication with one another. In these cases, other provisions will need to be considered by the parties in terms of a parent being updated about a child and the court might encourage the use of a third party, for example.

Understanding the division of business assets in divorce: a guide for business owners

Posted on 13th November 2023 by McAlister Family Law

Understanding the division of business assets in divorce: a guide for business owners

Divorce is difficult time for most people. One thing that those divorcing worry about is the financial aspects of their divorce. Business owners worry what impact their divorce will have on their business. Will their business still be viable after the divorce? Will they have to sell their business? Here, McAlister Family Law Partner, Fiona Wood looks at the division of business assets in divorce.

When a couple divorce, before they can be advised what a fair financial settlement is, they both need to provide full details of their assets, liabilities and income. This is known as providing financial disclosure. If you have an interest in a business this needs to be disclosed as part of this process, whether you have shares in a private limited company or a publicly floated company, are a partner in a partnership or are a sole trader. The value of a spouse’s business interests will often be valued within divorce proceedings.

Businesses come in all shapes and sizes. Some are small businesses that have very limited assets and are just an individual working on a self-employed basis, for example an IT consultant who works through a limited company. It is unlikely that this type of business will have a value, as the business is just a vehicle through which that person earns an income. If you take that person away the business has no value, save for any money held in its bank accounts.

Other types of businesses are likely to have a value and will need to be valued, unless a value can be agreed by the spouses. If a business valuation is needed when a couple divorce it is usual for the couple to jointly instruct an accountant, who is an expert in business valuations, to prepare a valuation report. Valuing a business is an art, not a science, so different accountants will attribute different values to the same business. Some accountants are more conservative than others with their valuations. It is therefore important that you take advice upon the right accountant to instruct before going down the valuation route.

Most businesses are valued in one of two ways – a net asset basis or an earnings basis.

Net Asset Basis

Businesses that have significant assets, such as properties, are usually valued on a net asset basis. This is the value of all the assets owned by the business less all of the debts. Where the business owns assets such properties, it may be necessary to get up to date valuations of these before the accountant prepares their report.

Earnings Basis

This method is usually appropriate where a business is trading and generating a profit from that trade. Typically, this method requires the assessment of the likely level of Future Maintainable Earnings and the application of an appropriate multiplier. To do this recent trading performance is usually considered.

Usually, the jointly instructed accountant will undertake both calculations and use the highest figure. Therefore, a trading company could be valued on a net assets basis if its assets have a very high value or alternatively if the recent trading performance has been poor, and therefore the Future Maintainable Earnings are low.

Once the accountant has valued the business, they must also consider the tax that would be payable by the business owner if their interest in the business were sold. This is because the divorce court uses the net value of the spouse’s business interests, when considering what a fair financial settlement is.

If the spouse does not own the whole business the accountant must consider whether the spouse’s interest should be valued on a pro-rata basis or whether a further discount should be applied. Often a discount is applied if the spouse has a minority shareholding in a business.

It is all very well valuing a business or a spouse’s interest in that business, but the business may not be able to pay out significant sums of money to assist fund a divorce settlement, even if the spouse’s interest has a significant value. The accountant therefore also needs to look at liquidity when they prepare their report. This is the amount of money that can be taken out of the company by the spouse, without impacting its ability to function as a business. The tax consequences of taking this money out of the business must also be considered.

If a business has limited or no liquidity, this is a factor that will have to be taken into account when considering what a fair settlement will be. If it is considered appropriate for the business owning spouse to pay money to their spouse as part of the divorce settlement, the payment of this may take place over a few years if insufficient money can be raised through the business or elsewhere to pay it upfront in one payment. A judge may also say that if the business is sold in the future that the non-share owning spouse should receive a proportion of the net proceedings of sale of their spouses’ shares at that point, if there is insufficient money for the spouse without shares to receive their fair share of all the matrimonial assets, including the value of their spouse’s business interests.

Will a judge order a sale of a business as part of a divorce settlement? If the only owners of a business are one or both spouses, a judge could, in theory, order a sale of the business. However, this would be extremely unusually, as the business is usually a significant source of income for the couple and unless they are both saying that they want the business to be sold this is very unlikely to be ordered as part of a divorce settlement. Usually, one spouse is provided with capital in lieu of their spouse retaining a business or they receive part of the net proceeds of sale of that business if it is sold in the future.

If you are divorcing and have a business, it is important that you obtain advice from an experienced family solicitor who regularly deals with divorces where there are business assets.

The Russell Brand Scandal: Does the UK need to alter the age of consent?

Posted on 19th October 2023 by McAlister Family Law

The Russell Brand Scandal: Does the UK need to alter the age of consent?

In light of Channel 4’s recently aired ‘Dispatches’ documentary which saw a number of women make allegations against Russel Brand, there are calls from the public to amend the age of consent in the UK. Here, McAlister Family Law’s Eleanor Drury explores at what a change in the law may look like.

Channel 4’s ‘Dispatches’ documentary, saw a number of women make allegations of rape, sexual assault and emotional abuse against comedian and online personality Russell Brand, including one allegation from a woman going by the name of Alice, who discloses that she first engaged in a sexual relationship with Brand aged just 16 whilst he was in his 30’s, there are calls from the public to amend the age of consent in the UK in order to protect teenagers from engaging in unhealthy and potentially dangerous relationships with older individuals.

At present, the legal age of consent in the UK is 16. This was introduced by virtue of the Criminal Law Amendment Act 1885, to decriminalise 16 year olds who chose to engage in a sexual relationship with their peers. Despite English Law viewing anybody aged under 18 as a child, the law surrounding consent does not reflect this nor mirror the lack of autonomy given to 16 year olds in other areas such as the legal drinking, marriage, or voting age. Perhaps legislators failed to anticipate that the current law would allow for situations whereby children are able to consent to sex with adults double their age, where there is undoubtedly huge differences in status and significant power imbalances.

In the documentary, ‘Alice’ describes how Russell Brand would send cars to collect her from school and take her to his home where the pair would have sex. She claims that he became increasingly controlling, encouraging her to lie to her family and friends about their relationship and even sexually assaulted her by removing a condom without her knowledge. Research indicates that 16% of teenage girls with older boyfriends experience severe physical violence, compared to 6% of girls in a relationship with a partner of the same age. Naturally teenagers, by virtue of their age, are vulnerable and more likely to be targeted and manipulated by older individuals.

Any amendments to the law would need to be considered on a practical basis. Whilst some people are calling for it to be made illegal for anyone older than 21 to have sex with those aged between 16-18, this is arguably too restrictive and would create situations whereby a 20 year old could have a legal relationship one day, then the following day turn 21 and be open to punishment from the law. Perhaps a more workable solution would be to implement barriers within the law whereby 16 & 17 year olds can only consent to sex with somebody who is within 5 years of their age.

Age of consent varies around the world with some countries such as India, Turkey and Uganda setting 18 as the age in which a person can legally consent. In South Korea and Nepal, the age of consent is even higher; set at 20.

Whilst it is important to note that the age of consent across the world varies to reflect the traditions, religion, culture, and history of a particular country, it certainly interesting to consider if, and how, the UK might decide to vary legislation, particularly as the ‘Me Too’ movement continues to gain momentum.

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.

Kanye to pay $200,000 / month in child maintenance. What lessons can be learned from the settlements of the ultra-rich?

Posted on 2nd December 20222nd December 2022 by McAlister Family Law

Kanye to pay $200,000 / month in child maintenance. What lessons can be learned from the settlements of the ultra-rich?

In the long line of staggering elements of Kanye West’s most tumultuous year, him agreeing to pay a $200,000 (around £165,000) a month settlement to his ex-wife, Kim Kardashian, for child support, is not even the most surprising or jaw-dropping. Here, Michael Compston discusses how this figure was decided upon and what lessons can be learned from the settlements of the ultra-ultra-rich for the remainder of society.

Before we begin, let’s look at some background. West, or Ye as he now likes to be known, is 45 and Kardashian is 42. They married in 2014 and divorced in 2022, being married for some 8 years. The couple happily had four children together, North (9), Saint (6), Chicago (4) and Psalm (2).

For starters, West and Kardashian have agreed to there being no spousal maintenance being paid to either. This, given their extraordinary wealth – both being estimated as being worth at least $1billion individually in the last twelve months, though West’s current status may be “just” that of a 9-figure millionaire – is perhaps not surprising. What they have agreed is for West to pay the sum of $200,000 a month to Kardashian for child support.

The concept of child support, or child maintenance in England & Wales, is one whereby one parent pays a monthly sum to the other parent to ‘support’ or ‘maintain’ the children. The use of the word ‘maintain’ is perhaps more helpful in understanding what the concept of child support actually is. The children must be maintained in the lifestyle that they have become accustomed to. It is most commonly paid by the parent with whom the children spend less time, though in the West v Kardashian case the arrangements in the US case for the children are seemingly shared. The mechanism by which a court would consider maintenance is paid is found under the Matrimonial Causes Act 1973, though most separating couples will use the maintenance calculator on the Child Maintenance Service website.

In some cases where the ultra-ultra-rich are not concerned, this might extend to items such as ballet lessons, horse riding, art workshops etc. If the couple used to holiday abroad twice a year, then the children should still be able to do so upon divorce, if it can be afforded. Divorce should not be a reason why a child is not able to continue to take part in the activities that they enjoyed when the family lived together all under one roof.

In cases of the West children, the activities are slightly more extravagant. They will not be staying at chain hotels but staying at the most luxurious accommodation worldwide. It is not uncommon for either parent to fly by private jet; those tickets do not come cheap even for the uber-wealthy. The elder children have become accustomed to that lifestyle and would not be expected to have to go without, irrespective of how detached from the norm we may consider that to be. As a family very much in the “A-List”, there are security costs to ensure their safety. All of this has a cost, even to the billionaires.

Schooling is often a big factor. As part of financial settlements upon divorce in England and Wales, the court can make specific school fees orders that ensure a child is kept in the level of education to which they have become accustomed. The West children all attend a fee-paying school and if this was being dealt with in England and Wales it would not be expected to stop attending that school, or a school of similar standing especially as they progress from elementary (primary) to high (secondary) school, because of their parent’s divorce. It is understood that the couple have agreed to share the school fees, which will have been factored into the $200,000 a month payment; not only this, but college funds will need to have been carefully considered for all four.

West and Kardashian have, perhaps sensibly, avoided the need for a trial by reaching a settlement. This is behaviour that would be encouraged regardless of the parties’ wealth and behaviour that we would encourage in those individuals struggling to reach an agreement. By avoiding the trial, they have avoided the considerable expense and emotional difficulty of having their finances and activities laid bare in front a judge, before a decision is made without necessarily having their agreement.

The same principle applies in the ‘real world’, In England and Wales if you attend a final hearing on finances, you are handing over the power to make decisions to a Judge. Negotiations beforehand may result in an outcome that, whilst not ticking every box, might just be a better settlement for both, rather than risk a Judge falling closer to the opponent’s side of the spectrum than yours.

West’s 2022 has been chaotic, to say the least. He has lost a number of endorsements as a result of anti-semitic rants and has been suspended from Twitter. Mega companies such as Adidas and Balenciaga have cut all ties with him. This will no doubt impact his finances for years to come and it may be that the $200,000 a month payment to Kardashian is unaffordable in the future. West will need to bring the matter back to court and provide sufficient evidence that his means have dwindled to the extent he cannot pay the sum agreed. The same principle operates in any settlement in England and Wales; if there is a material change in the financial circumstance of the paying party, then it is only fair that a reassessment be considered. A party cannot simply choose not to work or not be employed to an appropriate standard to try and frustrate the other parent; it is unlikely that if the case was being dealt with over here we would see West stacking shelves in a supermarket any time soon, as he would be accused of failing to maximise his earning potential.

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