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.

Married at First Sight UK – Are they really married and does it matter?

Posted on 3rd November 202224th January 2023 by McAlister Family Law

Married at First Sight UK – Are they really married and does it matter?

Married at First Sight first hit TV screens in 2015 and for the first 5 series the couples were legally married. However, after adopting the Australian (more entertaining) format last year the couples no longer get legally married. Here, Lisa Brown looks at the implications involved with marrying a stranger and what the law requires of legally married couples.

Nevertheless, much has been made in the recent series (7) about the fact that the parties are “married”. It all starts with the individuals dropping the bombshell on their loved ones that they are getting “married to a stranger” and when Whitney and Matt coupled up the criticism came thick and fast based on the fact that they were “married” to other people.

For the purposes of the show perhaps it doesn’t matter because the point is that they buy into the principle but legally it makes a very big difference.

Being married is a change to your legal status and if things don’t work out you have to apply to the court to either have that marriage annulled or get divorced.

Further, when couples get married, they gain the ability to make a financial claim against the other person under Matrimonial Causes Act 1973.

One of the peculiarities of the law as it stands is that a couple could live together for 25 years but not be able to make a financial claim against each other (save in limited circumstances) but somebody can get legally married at first sight, never live together and divorce as soon as they can and they would be able to make a claim. That claim could include property being transferred to them, a share of the other’s pension, a lump sum of money being paid and /or monthly sums being paid (spousal maintenance).

In “Married At First Sight” circumstances the reality is that it is unlikely that such a claim would be particularly fruitful and generally the expectation would be that they would exit the marriage with what they brought in but the ability to do it remains.

The Matrimonial Causes Act sets out at section 25 a checklist of factors which are taken into account when deciding the outcome of a financial claim. One of those factors is the duration of the marriage but there are a number of others and the family court has a wide discretion.

Whilst not relevant to the Married At First Sight couples it is also worth knowing that the court will generally “run in” periods of seamless cohabitation prior to the marriage when considering the length. So, if, as in the above example, you lived together for 25 years and then you got married it is likely that the court would consider it to be a long marriage even if you separated just weeks after the actual marriage. This scenario could make a huge difference to the financial outcome of a case.

Arguably, most couples getting married are largely ignorant of the changes they are entering into from a legal perspective and Married At First Sight doesn’t assist with this (not least because no matter what they say the couples aren’t actually married). Some people may also think they have rights they do not because they have lived together for a certain period of time, but no such rights exist and “common law marriage” is a myth.

Whilst not the most romantic thought people should consider their legal status in their relationship and the impact that this can have to ensure that they are properly protected and have a full understanding.

If you or somebody you know wants to understand their legal position better whether they are cohabiting, thinking about cohabiting, engaged or married they should contact one of our specialist family lawyers today.