Will Britney Spears be protected by prenup in third divorce?

Posted on 17th August 2023 by McAlister Family Law

I’m getting divorced, do I have to go to Court?

News of Britney Spears’ pending divorce from her third husband, Sam Asghari, has been widely reported in the press. Sadly, only a year after their wedding, their marriage appears to be over, with Sam filing for divorce in Los Angeles. Here, McAlister Family Law’s Divorce and Finance Partner, Fiona Wood, looks at the divorce application and questions if Britney’s prenup will protect her.

It is understood that Sam has asked the court to provide him with “spousal support”, which is maintenance from Britney to meet Sam’s income needs whilst they sort out their divorce, and for her to provide him with money to pay his legal fees.

These applications made by Sam to the US court are the equivalent of making an application for interim maintenance and for a Legal Services Payment Order in England. If one spouse cannot meet their reasonable income needs during the divorce and the other spouse can afford to fund these, a judge can order the wealthier spouse to pay interim maintenance to the other spouse until a financial settlement is reached in their divorce.

It is also possible in England to make an application to court that your spouse provide you with money to fund your ongoing legal fees – known as a Legal Services Payment Order. To make this application successfully you have to show that you cannot afford to fund your own legal fees, you cannot obtain a commercial loan from two lenders to fund your legal fees and that your spouse can afford to pay them.

It is reported that Britney and Sam signed a prenuptial agreement before their wedding, to protect the wealth that Britney accumulated before they married. Under Californian Law the prenuptial agreement is thought to be “ironclad”. However, there is speculation that Sam will try to renegotiate the terms of the prenuptial agreement by threatening to release embarrassing information about Britney.

The law in England regarding prenuptial agreements is different to that in other countries, but they are still an important way of protecting assets if you divorce. Here a prenuptial agreement is not automatically binding if a couple divorce. It is an important factor that the court will take into account when consider a fair financial settlement. The reported cases show that as long as both spouse’s needs can be met, the divorce court is likely to uphold the terms of their prenuptial agreement or if it does not fully uphold it, the presence of the prenuptial agreement will reduce the settlement received by one spouse from what they would have received if no prenuptial agreement had been signed.

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

I’m getting divorced, do I have to go to Court?

Posted on 3rd August 2023 by McAlister Family Law

I’m getting divorced, do I have to go to Court?

Separating from your spouse and getting divorced can be a very difficult and stressful experience for many reasons. You will probably have many questions. Here, Weronika Husejko takes a closer look at one of our most frequently asked questions by those about to go through the divorce process – do I have to go to Court?

In terms of the divorce itself, it is very rare that you will have to attend Court. The new ‘no fault’ divorce procedure does not allow for your spouse to dispute the divorce generally, unless they do not agree that the Court has jurisdiction or that the marriage was valid. This was not the case previously.

Prior to the no fault divorce procedure, the spouse applying for the divorce could apply for a Costs Order against the other spouse, effectively asking the Court that an Order is made that they pay all of their divorce costs. This was another reason for dispute in the past. However, the Court will now only make Costs Orders in divorce proceedings in very rare circumstances. As a result, there are now fewer opportunities for dispute in divorce proceedings, which significantly reduces the chance of any Court attendance.

When you are going through a divorce, the financial element is usually dealt with separately. Many couples are able to negotiate and reach a financial settlement outside of the Court arena e.g. via solicitors, mediation or between themselves. This would usually mean that you do not have to attend Court, unless you are already in Court proceedings at the time that you reach the agreement. When a financial settlement is reached in this way, a Consent Order reflecting your agreement can be submitted to the Court alongside a form which summarises your respective financial positions. The Court will usually consider this type of application on paper in the couple’s absence. They may request that the couple attend Court in rare circumstances, for example, if they have serious concerns regarding the proposed division of the assets.

If one spouse makes an application to the Court for a financial remedy order, (this is an application asking the court to deal with the financial aspects of their divorce), this may result in both spouses having to attend Court. This is the most common reason for Court attendance generally within a divorce. This is because when financial remedy Court proceedings are issued, the case will automatically be listed for a ‘First Appointment’. This is an administrative hearing. However, more frequently these days, the need for this type of hearing is circumvented by the spouses agreeing the ‘directions’ which are needed to move the case forward e.g. the instruction of a surveyor to value a property.

The second hearing is the ‘Financial Dispute Resolution Appointment’. This is a negotiation hearing whereby both spouses will usually attend Court with their legal representatives. If the spouses do not reach an agreement at this hearing, the case will be listed for a ‘Final Hearing’, whereby they will have to attend Court to give evidence. However, this is less common as most cases settle at the negotiation hearing.

The short answer is that you do not necessarily have to attend Court in order to get a divorce. Whilst it is not always possible to avoid Court proceedings, divorcing couples are generally encouraged to try to reach an agreement outside of the Court arena. The best outcome in a divorce is arguably a financial settlement which the couple have agreed, as opposed to a decision which has been imposed upon them by a Judge.

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.

Back to school – choosing a school between separated parents

Posted on 4th October 202224th January 2023 by McAlister Family Law

Back to school – choosing a school between separated parents

This time of year, Instagram is full to the brim of ‘first day of school’ pictures, whether it’s a brand-new school or little ones progressing to the next year. But choosing which school a child attends, especially between separated parents, can be an exceptionally difficult process. Here, Ruth Hetherington looks at what the Court may decide if separated parents can’t see eye to eye.

A child’s first day of school is no doubt a big day, whether it’s their first experience of school or going back after the holidays. It is the start of something new for both parents and for the child, a new chapter, either the start of their life in education or progression onto the next phase

The decision of which school a child shall attend is of fundamental importance. It will hopefully provide stability and security for the child during their childhood, and it will

no doubt shapes the child so as to inform their own decision making as an adult. Lifelong friendships will also be formed and therefore how your child progresses through their informative years of education can be a difficult and stressful decision for parents, particularly if there are separated and have different views on how their child should be educated.

Despite the importance that surrounds the decision of which school a child shall attend, sadly it is all too common for one parent to unilaterally make that decision which can be wholly wrong and at times unlawful. If both parents share parental responsibility, they then have a right to have a say in the decision-making process of how and where their child should be educated. This can often be an arduous task for parents, especially if one parent attempts to enrol a child into a school where the consent of the other parent has now been sought or secured.

If you share Parental Responsibility with the other parent , you should consult each other in respect of big decisions that relate to the wellbeing of your child. The decision of which educational placement a child shall attend is a decision where both parents’ views should be ascertained with careful consideration being given to both sides.

If you cannot agree which school your child is to attend, then you should make an application for a Specific Issue Order. This means that the Court is being asked to make the decision for the parents. If one parent tries to make the decision unilaterally, then you could be faced making an application to the Court for a Prohibited Steps Order, preventing the enrolment of your child in the chosen school of the other parent..

If the decision relating to a child’s school 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 having regard to the Welfare Checklist (s.1 (3) Children Act 1989) when reaching their decisions. A change of school will undoubtedly bring disruption and upheaval to a child’s life. Their support network and friendships may be broken especially if any change requires either party to relocate. Relocation brings another added complexity to these decisions, as they may also affect the time that one parent spends with their child. These decisions should not be taken lightly and wherever possible an agreed approach between the parents is preferable to a Court making the decision. However sadly we see this scenario on a regular basis and detailed and clear legal advice is also crucial.

The above issues identified are simply the ‘tip of the iceberg’ and of course there are other factors to consider including the ascertainable wishes and feelings of the child, dependant of the age of the child. But they demonstrate why big decisions need and require careful deliberation with the views of both parents being respected and considered.

Children born out of wedlock and separating parents

Posted on 22nd September 202224th January 2023 by McAlister Family Law

Children born out of wedlock and separating parents

The Office for National Statistics have recently reported that the majority of children born in 2021 in England and Wales were born out of wedlock. Here, Weronika Husejko looks at what protection is in place for unmarried couples with children should they decide to separate.

The ONS recently reported that approximately 51.3% of children were born to parents that were not married or in a civil partnership.

Whilst there has been a steady increase in children born out of wedlock over the last decade, it appears that this recent spike has been directly impacted by the COVID-19 lockdown. During the lockdown, many couples were prevented from marrying and entering into civil partnerships. As a result, far more children were born to unmarried parents.

What significance does this have?

The main impact of this trend is upon separation. This is because unmarried couples do not have the same legal protection as married couples when they decide to end their relationship.

Unfortunately, no length of cohabitation results in a married legal status. Common law marriage does not exist in England and Wales.

It is important that parents are aware of the fact that there is different financial provision upon separation for those who are unmarried. For example, married couples are entitled to apply to the Court for various Orders which unmarried couples cannot, such as spousal maintenance.

What can you do to protect yourself?

You may consider putting together a cohabitation agreement. This is an agreement between two people that decide to live together as a couple which can cover various areas including finances and child arrangements.

This type of agreement can also provide for finances upon separation. Unmarried parents can still be entitled to child maintenance and may be able to apply for various financial Orders in respect of the child from the other parent under Schedule 1 of the Children Act. However, a cohabitation agreement can provide unmarried parents with additional protection and certainty as to what the arrangements should be, both financially and with regard to arrangements for their child, in the event that the relationship ends.

It is essential that unmarried parents obtain legal advice upon separation in relation to their children and their options for financial support.