2013-05-19T16:29:42-04:00 Amanda McAlister http://www.huffingtonpost.co.uk/author/index.php?author=amanda-mcalister Copyright 2008, HuffingtonPost.com, Inc. HuffingtonPost Blogger Feed for Amanda McAlister Good old fashioned elbow grease. tag:www.huffingtonpost.com,2013:/theblog//3.3058678 2013-04-11T04:06:50-04:00 2013-04-11T06:08:55-04:00

Amanda McAlister http://www.huffingtonpost.com/amanda-mcalister/
Rising court costs and recent cuts to legal aid are contributing to increasingly acrimonious splits, impacting on the emotional wellbeing of children, as parents decide to represent themselves in the court room. Instances of venomous testimony against an ex-partner in court are becoming commonplace, and children aren't the only ones to suffer.

Judges are wasting their valuable time in explaining protocols to self-representatives who can often fall behind on the logistics of a case, as well endangering the civility of the affair.
Successive governments have been aware of these problems for some time, and the Family Law Act of 1996 was a measure taken to encourage couples to use mediation as a way of resolving the unsavoury moments of divorce and separation. With extra funds being provided to support mediation, the efficiency of divorce cases are likely to be improved too.

Essentially, mediators help to put in place a plan for parenting that is of benefit to the whole family. Mediation, as its name would suggest, seeks to reduce the tension between the separating couple, encouraging them to work together on their primary role as parents. The Government's recent announcements will help to fund innovative projects to give parents a greater chance of mediation working for their needs. Amongst these innovations, websites and mobile apps are being used to support the mediation process.

This is one of the latest proposals to facilitate a less confrontational divorce process, and this time genuine light can be seen at the end of the tunnel. Along with 6,500 other family lawyers, I am a member of Resolution, the organisation that encourages a constructive and non-confrontational approach to family law matters. Although this isn't the first government decision to seek non-court based outcomes to divorce, the £6.5million funding is likely to be welcomed by the majority of family lawyers and couples separating alike.]]> tag:www.huffingtonpost.com,2013:/theblog//3.2997187 2013-04-02T06:29:44-04:00 2013-04-03T07:05:35-04:00

Amanda McAlister http://www.huffingtonpost.com/amanda-mcalister/ Petrodel v Prest, the boundaries between the corporate world and personal life are blurring, at a lightning-fast pace.

The "veil of incorporation" is a basic principle of law that wedges a clear separation between the individuals who own and run a company and the company itself. This process is most prominently demonstrated when a limited company enters liquidation; the assets of the company are fair game, whereas the director's assets remain entirely protected.

Having followed the Petrodel v Prest divorce case closely, its final ruling may indicate a new era for high-value separations with substantial assets at stake. Oil tycoon Michael Prest, who co-founded Petrodel Resources, a Nigerian oil company, was initially ordered to transfer 14 properties, to his wife, Yasmin Prest in a decision taken by family lawyers. However, on appeal corporate lawyers became involved with the case and the ruling was overturned, stating that the property fell under the ownership of his company and not his person.

With the corporate veil slowly lifting, we are very likely to see an increasing battle between family law and business law in future divorce cases, depending on the final outcome of Petrodel v Prest. Based on my experience, if the Supreme Court rules in favour of Mr Prest, then the ramifications for divorcing couples will be of great significance, meaning a huge scramble will occur to transfer personal assets to businesses associated with the divorcees. However, if the Supreme Court upholds Mrs Prest's appeal, then it will be corporations that will be on the receiving end of widespread change.

The big question remains whether hiding behind the corporate veil will be of any meaning to the everyday man and woman, or if it will remain a luxury loop-hole afforded to only multi-millionaires and the mega wealthy. Michael Prest was criticised by a judge last year for treating court proceedings 'as a game' by pleading poverty when in reality he is one of Britain's most successful businessman. When the stakes are so high for smaller businesses and lower income families, it's unlikely that the rest of us could be so 'playful'.

The best result we can wish for is clear guidance and leadership from the Judges and hope they will put up barriers against would-be cheats, whilst safeguarding those taking the sensible steps in financial planning for their family's future.

One can only hope that by removing the corporate veil, the veil of ignorance will come off with it.]]> tag:www.huffingtonpost.com,2012:/theblog//3.1648412 2012-07-04T04:25:53-04:00 2012-09-02T05:12:16-04:00

Amanda McAlister http://www.huffingtonpost.com/amanda-mcalister/
No doubt there are many divorced people around the world thinking "That's about the only thing my ex and I ever agreed on - not to speak to each other ever again!" but in the legal world this is rather different. The court would only agree to such a radical step if the parties concerned demonstrated that they could not (as opposed to would not) speak with each other. This is particularly pertinent because it seems that the couple cannot even bring themselves to discuss arrangements for their teenage children and instead will employ a 'parent coordinator' to act as the go-between and supervise the contact arrangements and general family dealings. The appointment of this coordinator has therefore been agreed by the court.

It seems, however, that Ms Brinkley is less than impressed with not just her ex-husband but also the legal system, taking to her Facebook page to declare: "I finally won the right to establish boundaries with provisions such as an intermediary to deal with email bullying, verbal and emotional abuse.
"I am hopeful the steps taken will now protect my Constitutional right to quiet enjoyment and peace and serve as a template for the courts to help others avoid the lengthy trials and tribulations that cost taxpayers money, and at a cost to families that CAN be calculated in dollars. But it's the emotional toll which can only be measured in tears that must be considered by the courts and media alike.

"It has been an odyssey of frustration as I have navigated the court system with one goal to find peace and protection for my family from the various forms of abuse at the hands of a narcissist."

As a divorce lawyer, I would have to say that a client using this sort of language about their ex is not unusual, but to do so on such a public forum as Facebook is perhaps unwise. And as is so often the case, it is the children I worry about. Brinkley's children by previous husband Richard Taubman -daughter Sailor, 14 and son Jack, 17 - were both adopted by Mr Cook, so this further fracturing of their family must be extremely difficult to deal with and surely cannot be helped by this incredibly public relationship breakdown.

Unfortunately, divorcing couples are usually so caught up in scoring points against one another they completely forget that there are other, often young, usually vulnerable, lives that will be affected as well.]]> tag:www.huffingtonpost.com,2012:/theblog//3.1607936 2012-06-19T04:13:50-04:00 2012-08-18T05:12:12-04:00

Amanda McAlister http://www.huffingtonpost.com/amanda-mcalister/
The courts in England and Wales will be required to work on the presumption that a child's interests are best served by seeing both parents, unless evidence shows it would be dangerous.

It probably seems pointless here to mention that everyone involved in Family Law works under this presumption anyway, but yes, I shall mention it. Why else be a family lawyer if you don't want to do your best for the child and the family?

It's important to note however that this new law doesn't mean parents have the right to spend an equal amount of time with their children. Nor does it mean that a child cannot make their main home with just one of the parents.

This was a point Government was at pains to make clear, after moves in Australia to give fathers similar rights got snarled up in courts where the judges had to unravel the conundrum of how to give parents equal access without disrupting the child's routine. Children these days are so busy with extra-curricular activities, there's no point insisting the child is with Dad on a Tuesday night when she has swimming lessons 20 miles away at a pool near Mum's house, for example.

There have been many voices raised against the creation of a legal presumption in favour of shared parenting, those voices warning that it could result in an "unacceptable risk of damage to children" in certain instances.

But Children's Minister Tim Loughton, when he launched the consultation of the proposals to amend the Children's Act, Tim Loughton, said that in the majority of cases separating parents frequently resolved contact arrangement disputes without ever going to court.

However, he expanded on this by saying: "We must improve the system where court cannot be avoided -- where disputes are intractable or complex or children's welfare is at risk. We need to clarify and restore public confidence that the courts fully recognise the joint nature of parenting."

But again, I come back to my original point that most judges work from the basic premise that the best interests of the child are served when both parents are involved in their upbringing anyway.

It's also interesting to note that there is rarely if ever a mention of those parents who let contact arrangements lapse for whatever reason. Perhaps they have a new partner who isn't keen on being a step-parent. Perhaps they find, after a year or two, that it's just too much trouble to have their children stay with them at weekends.

I dealt with a sad case several years ago where the parents of two children divorced and the father re-married. His contact with his children lessened and lessened, he didn't stick to the arrangements to have his children every other weekend but instead cancelled whenever it suited, and then he moved several hundreds of miles away at the behest of his new wife and her children.

When the case came to court the judge praised the mother for doing her best to keep the children's father as part of their lives. But, as he sadly pointed out, you can lead a horse to water but you can't make it drink.

The overwhelming majority of divorced parents want to remain a significant part of their children's lives. But at the same time, there are those parents that don't. And I don't hear any voices raised about that issue - do you?]]> tag:www.huffingtonpost.com,2012:/theblog//3.1517984 2012-05-15T11:09:20-04:00 2012-07-15T05:12:09-04:00

Amanda McAlister http://www.huffingtonpost.com/amanda-mcalister/
Setting aside the fact that I cannot think of a single child on the planet that would call their father's girlfriend 'Mummy Two' (never mind a 14- and a 12-year-old) the story raises some interesting points regarding child contact when the parents are divorced.

In my experience, when there is no third party involved child contact arrangements often move along quite amicably. The adults agree a timetable that suits both households and the parents often do each other favours, such as forgoing a weekend because the other has an important family occasion, or having the children at short notice to help the other out.

However, if there is a third party in the picture - in the ex-Mrs Warne's case, Elizabeth Hurley - then reasonable behaviour often goes out the window and instead the children are used as bargaining chips in the battle for supremacy.

I cannot tell you how many clients I have acted for whose ex has made seeing the children a task more complicated than filling in a tax return one hour to deadline and without any receipts. It pains me to criticise my own sex, but so often I have dealt with mothers who stop their ex-husbands from seeing their children as some form of payback for their husband having the temerity to have found a girlfriend.

Now I'm not suggesting for a second that Simone Warne is preventing contact but what I am suggesting is that sometimes, the new girlfriend/wife might care to think carefully before chirpily declaring: "Oh the children absolutely ADORE me, they're already calling me Mummy Bunny Chops!" This kind of boast always, but always, gets back to the ex-wife who will, without exception, react with utter fury. Most content themselves with fuming privately to their girlfriends but a few will decide it is beyond the pale and start being extremely awkward about contact.

Ultimately, the only ones who suffer in such situations are the children, who are usually bewildered, often frightened and almost always trying desperately to please everyone.

La Hurley's son Damian is now 10 years old, although his mother only recently gave up lugging him round on her hip like a giant baby, dressed as Gainsborough's Blue Boy. Warne's children are 14 and 12 years old. I therefore can't help wondering whether "Mummy Two" was Hurley's own construct.

Simone seems a sensible sort of woman so if I was advising her, it would be to rise above it, keep smiling and keep the contact arrangements intact. She might not think so now, but her children will thank her for it one day.]]> tag:www.huffingtonpost.com,2012:/theblog//3.1434492 2012-04-19T19:00:00-04:00 2012-06-19T05:12:01-04:00

Amanda McAlister http://www.huffingtonpost.com/amanda-mcalister/ X Factor judge Dannii Minogue. Whilst everyone has been busy discussing this, the fact that he is apparently no longer engaged to Mezhgan Hussainy seems to have gone under the radar.

However as a divorce lawyer this is something that interests me, not least because he is reported to have given Ms Hussainy his Los Angeles home, reputedly worth $5M.

Mr Cowell has a number of relatively famous ex-girlfriends - including Jackie St Clair, Sinitta and Terri Seymour - and yet it is only Ms Hussainy who became engaged to him, and it is for this reason that her status in law is rather different, as she has, effectively, access to legislation should she so wish.

In essence, under the 1996 Trusts of Land and Appointment of Trustees Act (TOLATA 1996) s.14, she could argue that because she was engaged to Mr Cowell, (and remember, 'engaged' is shorthand for 'engaged to be married'), this engagement demonstrates a deliberate assumption by both parties that the home they shared was a family home. In such a situation an application under TOLATA 1996 may be made by a trustee of land or a beneficiary with an interest in property [my italics] subject to a trust of land. The court has a broad discretionary range of powers to make orders regarding the exercise of the trustees' functions or to the nature and extent of beneficiaries' interests, including a sale or postponement of sale.

In Stack v Dowden the House of Lords issued guidance for cohabitant disputes, including "proof of any intention to share the beneficial ownership of the property that displaces the assumption that beneficial interests do follow the legal title".

Of course, we don't know whether or not a pre-nup was drawn up - it seems likely, given that the couple were engaged - or indeed if they had a living together agreement, both topics I have blogged about in the past.

In any case, it's reported that Mr Cowell has given Ms Hussainy the $5M Los Angeles home they shared anyway, so although some might say he's only pre-empting any legal action from his ex-fiance, I think it would be kinder to suggest that he is simply a very generous man. After all, he did give his ex-girlfriend Terri Seymour a $4.6M house after they split in 2008. Indeed, last year in an interview with the Guardian he said: "You can't have somebody in your life who's become accustomed to a certain thing, and just because you don't want to be in the relationship any more say to them, now everything is cut off. That doesn't make sense."

Whatever Mr Cowell's motives, I rather admire him for his generosity, and it is a mark of that generosity that he has remained on excellent terms with all of his ex-girlfriends - a rare feat indeed.]]> tag:www.huffingtonpost.com,2012:/theblog//3.1379056 2012-03-26T04:28:58-04:00 2012-05-25T05:12:02-04:00

Amanda McAlister http://www.huffingtonpost.com/amanda-mcalister/
The Court order I had secured for her six years ago will probably have to be revisited, since it was assumed at the time that her ex-husband's bonuses would continue to be paid in cash. Now it has been replaced by deferred shares, this arrangement is unworkable.

How has this situation arisen? Well, in general terms, English law assumes that when divvying up the marital pot, assets should be shared equally (this doesn't take into account post-nuptial agreements, which are binding, and pre-nuptial agreements, which are not but which are often taken into account by the judge). This assumption has meant that the financially poorer partner - frequently the wife - often gains a very favourable settlement. As far as my client was concerned, she received a lump sum, maintenance payments from her ex-husband's salary and a share of his annual bonus every year.

But now many investment banking bonuses are being given as deferred shares, so my client is probably going to have to be a lot more flexible about when she receives her share of her husband's annual bonus and so we will have to seek a new agreement. Both parties are keen to avoid acrimony and indeed the expense of going to court, as both realise that nobody has a crystal ball with which to gaze, hopefully, into the future. There is no doubt however that these days one cannot assume bonuses will be paid in cash - or paid at all in some cases - and that as far as deferred shares go, we all know share prices go down as well as up.

I would add that years ago it was not uncommon for bankers going through a divorce deliberately to defer their bonuses, their income magically plummeting prior to going to court. A good divorce lawyer and forensic accountant swiftly see through this charade, but the current economic uncertainty makes this sort of situation very complicated. ]]> tag:www.huffingtonpost.com,2012:/theblog//3.1346760 2012-03-15T05:35:30-04:00 2012-05-15T05:12:01-04:00

Amanda McAlister http://www.huffingtonpost.com/amanda-mcalister/
It made me think of the weddings I've attended, years later finding myself acting for either the bride or groom in their divorce. You don't have to be a betting person to know that the odds of a first marriage succeeding are only 66% and for second marriage even lower.

And in the equine world there are a multitude of husbands and wives running successful equine businesses together, but when they get divorced they face a very particular set of problems.

Firstly, the equestrian business has to be valued. Now you wouldn't ask an estate agent to value your horse anymore than you'd ask an equine valuer to tell you how much your house is worth, but often this is an area where people fail to engage an expert in order to "save money", sometimes with catastrophic results. I always tell my equine clients this is one area where it really is horses for courses.

Secondly, many co-owners of yards live together but aren't married. I was asked only last week by one woman in this position whether or not she was entitled to anything if she and her partner split up. In a word, no. Cohabitees have no rights to spousal maintenance, pensions or savings/policies that are in your partner's sole name. The only claim a cohabitee may have is in relation to real estate (your home, in other words). You can, however, get a Living Together Agreement drawn up to protect, for example, your share of a joint property, something I would strongly advise anyone in this or a similar situation.

In addition, one of the biggest hurdles equine and indeed many farming businesses face is the conundrum of having substantial assets but almost none of them being liquid. I have had clients worried sick that this means they'll have to sell their business and telling me they can see no way out of the situation. But in such cases, although the judge will have the final say, most courts are reluctant to force the selling of any business if that's what brings in the money. And it may well be that whoever wishes to buy the other party out is given a period of time to raise the necessary funds.

So if you're lucky enough to be going to Cheltenham this week or indeed the next time you're enjoying a glass of champagne at the races, remember that sometimes the enviable world of glossy horse flesh has its own, very particular set of hurdles to overcome.
]]> tag:www.huffingtonpost.com,2012:/theblog//3.1194152 2012-01-09T12:00:10-05:00 2012-03-10T05:12:01-05:00

Amanda McAlister http://www.huffingtonpost.com/amanda-mcalister/
For some however, New Year is a siren call to a more radical change. We divorce lawyers always see a spike in enquiries at this time, peaking during the first full working week of the year. But what prompts people to decide call time on their marriage and start anew? I have found a number of common factors in the enquiries I receive.

Firstly, the pressure to have the perfect family Christmas is often too much to bear, particularly for the woman. Without wishing to generalise, my experience is that it matters not one iota how successful the woman is, how high-flying or well-paid her job; she is usually the one who takes responsibility for the festive season and all that this involves.

Secondly, family. Christmas is the one time of year when it is obligatory to see both your immediate and extended family, regardless of whether or not you get on with them. Couples find themselves with their parents and in-laws taking up residence in the spare rooms for what seems like an eternity, with grumbling children none too happy about being turfed out of their bedroom so that Granny and Grandad can stay. Or perhaps couples have to take themselves and their children to the back end of beyond to stay with a relative who views central heating as a luxury and considers a bath containing four inches of tepid water akin to an expensive spa treatment. One child is inconsolable because he's left his Nintendo DS at home and the other waits until you're 200 miles from home before opening her backpack to reveal she's brought Mrs Miggins the guinea pig with her. Whatever the situation, the stress-o-meter is up to crisis level.

Racing round the kitchen on Christmas Eve, trying to accomplish 15 things at once whilst one's other half makes helpful remarks along the lines of "if you had a proper SYSTEM you'd get a lot more done, you know" is not conducive to a happy relationship, so it's no wonder that come the New Year people think they've had enough and want out.

However, looking at the January divorce spike logically, my experience is that if a relationship is foundering then all that Christmas does is expose the fault lines that perhaps have been ignored or disguised throughout the year. It's no coincidence that the end of the summer holiday period also sees something of a rise in enquiries; when people are forced to spend extended amounts of time together they often find that those personality quirks or attitudes that get swallowed up in day-to-day life are suddenly magnified in all their uncomfortable glory. Also, it may be that couples, aware that their relationship is on the rocks, decide to wait until after Christmas before making their decision to split a formal one. The festivities also often involve a lot of alcohol, a known disinhibitor. I've had plenty of clients come to me in January having been told some unpleasant truths by their partner at 2am on January 1 and wanting to divorce them as a result.

Whatever their reasons, a strong relationship will withstand any difficult situation, bedecked with fairy lights or not. And on that note, may I wish you all a happy, prosperous and stress-free 2012.]]> tag:www.huffingtonpost.com,2011:/theblog//3.1147721 2011-12-14T19:00:00-05:00 2012-02-13T05:12:01-05:00

Amanda McAlister http://www.huffingtonpost.com/amanda-mcalister/
Data published by the Office for National Statistics (ONS) revealed that 119,589 couples got divorced in 2010, an increase of 4.9% since 2009, when there were 113,949 divorces. In other words, 5,640 more couples got divorced.

Yet this spike follows several years of decreases and is the first year there has been an increase since 2003; however, the figures still equate to a rate of 11.1 people divorcing per 1,000 of the married population in 2010. This is up from a rate of 10.5 in 2009, according to the ONS.

What can we read into such statistics? Many have been quick blame the recession, citing money troubles as being a key factor in divorce; in fact I took part in a panel discussion on BBC Radio 5 Live a few days ago on this very subject. But after 14 years of practising family law, I would have to say I am not entirely convinced this is the case.

Not having enough money for one's basic needs is a grinding, deeply depressing and extremely worrying position and for those in that situation, this stress may eventually expose pre-existing fault lines in a marriage. But equally, one could argue that people cling to one another in difficult situations, needing one another's support. It's when one half of a couple fails to provide that emotional bolstering that the other half may take a long, hard look at the relationship.

I would also suggest that as society has changed, and in particular a woman's role in that society, so the dynamics of the family unit has changed too. Earlier this year the ONS released figures that showed some 66.5% of mothers were in work in the final three months of 2010. Obviously, this includes both full and part-time work, but 15 years ago, ONS figures revealed that 23.1% of mothers worked full-time, compared with 29% at the end of last year. In other words, more women are working.

This may well mean that many families are dependent on two, not one, salaries and so economic pressures are more intense, particularly when the parents have decided to divorce.

When a client comes to me wanting to file for divorce, I always remind them that in a divorce solicitor's office, they must remove, insofar as they can, the emotion of the situation and look at the dissolution of their marriage contract as just that - that is, to view it in as business-like a way possible, particularly so when it comes to finances. Divorcing within an economic downturn requires careful though and analysis as fortunes can go up as well as down and future financial needs must be considered.

In fact a business analysis is an incredibly useful way to approach a domestic split. Say a couple both own shares in a business: many people believe a court would order the business to be sold and the profit split equally, but this is extremely unlikely. A restructuring is often the most viable business option in order to enable funds to be released.

The current economic climate means it is of vital importance that the business is valued correctly - a business might be valued at £10M in the initial divorce settlement, so one partner has to buy out the other for £5M (assuming equal shares). But if the value of the company then falls and shares drop dramatically - they'll still have to pay out if that was the original agreement. Rather like a prenup (yes, I'm going back to prenups again and I will never stop advising people about to embark on marriage to get one drawn up).

Of course, one partner might consider he or she has made a more significant contribution to the business, even if they have equal shares. I have dealt with such a situation, where my client insisted: "the original concept was mine and it was my contacts that built up the business" but opposing counsel was adamant her client's was adamant that without her client's business nous and unwavering support the business would never have got off the ground in the first place. So might a stay-at-home mum put her case when divorcing her husband (or vice versa).

Whatever the latest ONS statistics, one thing remains constant. There are thousands of daily pressures on every relationship of which money, or the lack of it, is just one.
]]> tag:www.huffingtonpost.com,2011:/theblog//3.1066755 2011-11-01T19:00:00-04:00 2012-01-01T05:12:01-05:00

Amanda McAlister http://www.huffingtonpost.com/amanda-mcalister/ Downton Abbey, you probably won't enjoy this blog post)

Like millions of others, I am utterly gripped by the ITV period drama, Downton Abbey (although I find it impossible to watch without remembering this splendid spoof written by Jennifer Saunders).

Fellow fans will have watched the relationship - one could hardly call it a romance - develop between Lady Mary Crawley (aristocrat, no money) and Sir Richard Carlisle (vulgar, rich as Croesus).

Lady Mary and her frightfully common "you're wearing the wrong tweed" suitor are now engaged, Lady Mary because she wants plenty of money and Sir Richard because he has said money but no class and his future wife has it in imperious spades.

Muddying these clear, business-like waters however is Lady Mary's longing for Downton Abbey's heir, Matthew Crawley. Recently we discovered that Matthew had been grievously injured fighting in France and as a result his, ahem, gentleman parts were no longer in working order. Mary has been stoically wheeling Matthew round the grounds of the Abbey looking longingly at the back of his perfectly tousled blonde locks whilst Sir Richard in turn has been staring out of various windows at the pair of them, enquiring "Should I be jealous?" of anyone within earshot.

Which raises the question - what happened back then when one party wanted to break off an engagement?

These days it's as easy as breathing and there is little point in involving solicitors, although I have previously blogged about couples arguing over expensive engagement rings. But 1919 was a different time altogether. Yes the world was changing but a man's promise of engagement to marry a woman was considered by most legal jurisdictions a legally binding contract. If the man were to change his mind he would be said to be in "breach" of this promise and subject to litigation for damages.

Small chance of course of Sir Richard changing his mind but it is absolutely inevitable that Lady Mary will try to wriggle out of her engagement to Sir Richard now that Matthew's "tingling" has miraculously turned into a full blown recovery and equally inevitable that Sir Richard will have none of it.

Unless a dowry of money or property had changed hands, a man was unlikely to recover anything in a "breach of promise" suit against a woman, even supposing he filed one. Of course, Sir Richard holds the trump card here as Lady Mary's reputation, and thus any chance of making a suitable marriage, would be ruined if her little secret about the dead Turk in her bedroom ever came to light.

Every week as I watch Downton I think how interesting it is that those once interfering jurisdictions have now mostly become incredibly reluctant to intervene in personal relationships. Of course, sometimes anachronistic laws remain, technically, on the statute books but any actions arising from them are most unlikely. Yet it wasn't until 1970 that the law abolishing breach of promise was passed in parliament, becoming law in 1971. Astonishing, isn't it? And much, much too late for Sir Richard Carlisle.
]]> tag:www.huffingtonpost.com,2011:/theblog//3.1023690 2011-10-21T08:40:20-04:00 2011-12-21T05:12:01-05:00

Amanda McAlister http://www.huffingtonpost.com/amanda-mcalister/
Anyone from Manchester will tell you The Stone Roses were one of the best-loved and most influential bands to emerge from the "Madchester" scene (not that I could tell you too much about those times, given that I was sitting my A Levels at the time) so to hear that they've reunited is, hand on heart, brilliant news. I've cancelled everything for next June because they're playing Heaton Park in Manchester at the end of that month.

You might remember their acrimonious split in 1996, when they vowed never to work together again and it got me to thinking about divorcing couples who say the same thing, then get married again years later (Elizabeth Taylor and Richard Burton, anyone?)

It's therefore rather ironic to find out that the reason, supposedly, that The Stone Roses are reforming is because singer Ian Brown needs to pay for an expensive divorce from model Fabiola Quiroz.

I don't think anyone knows exactly why Brown and guitarist John Squire fell out quite so spectacularly - all one can find out is that it was over "legal wrangles" - but it's not surprising that financial need has brought them back together. I can think of quite a few couples who have done something similar.

One client was a woman who had an affair, left her husband for her lover and three months later packed her bags again and moved back in with her husband. The lover didn't have anywhere near as much money as she thought he did and she found that she loved her previous life of luxury rather more than she loved her new boyfriend. A forgiving husband took her back. He told me that maintaining a previously unfaithful and now guilt-ridden but grateful wife would be less expensive than maintaining her as an on-the-market divorcee. I rather felt they deserved each other, to be frank.

Maybe it's like that for The Stone Roses. One band member needs to pay off an ex-wife and the other band members haven't had exactly stellar careers (although bass player Mani did join Primal Scream) so they're all going to benefit from getting back together. It's amazing what people will do when they need the cash, isn't it? All that "never again" schtick gets forgotten.

Anyway, just as couples that break up then make up don't really care what their reasons are, they're just glad to be back together, so it is for the Stone Roses. I only hope that their new material lives up to their old.
]]> tag:www.huffingtonpost.com,2011:/theblog//3.997773 2011-10-06T07:51:50-04:00 2011-12-06T05:12:02-05:00

Amanda McAlister http://www.huffingtonpost.com/amanda-mcalister/
Unfortunately for Nancy, her erstwhile boyfriend, former England football manager Sven-Göran Eriksson found her less than fascinating and the relationship broke up in 2006. Nancy, who recently burst onto our television screen in Strictly Come Dancing (achieving only a score of 12, poor soul), has recently let it be known that she is not at all happy about Eriksson wanting to sell the £1.8 million Mayfair flat she lives in.

It transpires that Eriksson bought the flat for both of them - an important point, this, if it can be proved - and Nancy has sought legal advice to ascertain, I imagine, her chances of hanging onto to the apartment in Eaton Place.

What's more, we're told she plans to sue her former partner for a financial settlement intended to recognise their decade-long relationship.

Nancy, when she isn't being fascinating, is a lawyer and a property lawyer to boot, although whether Italian property law is the same as English property law I have no idea. Nonetheless, she could have a case against Eriksson.

If she can demonstrate that the intention was for both she and Eriksson to share the property (I have to say it would have helped her case enormously if they had been engaged to be married because if engaged it is very difficult to move away from the 50:50 split) then that allows her to claim for a declaration or enquiry as to the beneficial interest, similar to the procedure for resolving disputes under Section 17 of the Married Women's Property Act 1882. She need not necessarily have her name on the title deeds either; she may be able to claim an interest in the property if she'd made a direct financial contribution towards the mortgage and other expenses or if she had paid for substantial improvements or even acted to her own detriment, giving up her own property for example or compromising her previous lifestyle. Case law, however, is ambiguous on the subject.

As Nancy slips on her dancing shoes this week and prays she doesn't get entangled in her feather boa again, one thing she should bear in mind is that potentially, this will be no waltz through the courts. Litigation cost rules will apply, because this case will not be covered by Family Law (where each party bears their own costs). Costs are an important and integral part of litigation. Before pursuing any court proceedings Nancy should give serious consideration to the likely costs involved, as there is a very real risk that it could end with her being ordered to pay Eriksson's legal costs. And that could mean, as it so often does in litigation cases, that the costs incurred exceed the amount that is recovered.

Nancy told the Sunday Times this year that "I don't know anyone who does as much as I do. I'm a lawyer first of all. I do public affairs. Call it lobbying." If she truly is a lawyer first, she'll think very, very carefully. And not just about the quickstep.
]]> tag:www.huffingtonpost.com,2011:/theblog//3.969903 2011-09-19T12:21:46-04:00 2011-11-19T05:12:01-05:00

Amanda McAlister http://www.huffingtonpost.com/amanda-mcalister/
Cinq à sept was regarded as a way for said affluent Frenchman to, er, enjoy himself without having to bother his wife with anything as dull as marital sex, particularly if the marriage was made on the basis of money or the joining of dynastic families. All parties were apparently content with this arrangement.

To paraphrase Bob Dylan, it seems the times they are a-changing. My Huffington Post colleague Dr Yvonne K. Fulbright recently blogged on a French divorce case where a judge in Nice fined a 51-year-old man £8,500 for not having sex with his now ex-wife. The judge's decision was based on French civil code article 215, which holds that married couples must agree to a "shared communal life." In the judge's eyes, this means: "sexual relations must form part of a marriage".

Dr Fulbright has already expertly covered the emotional and sexual implications of this ruling, so I am going to look at the legal aspects and consider whether such a ruling might ever be made in the UK. In short, it's possible but on rather a different legal premise.

As the concept of human rights has, thankfully, developed, the belief of a marital right to sexual intercourse has been widely discredited. There was a time when the rights of either spouse of a marriage included the right to the other's consortium (company), cohabitation (sexual intercourse) and maintenance during the marriage. The old action for restitution of conjugal rights was abolished in 1971. However, it was not until December 1993 when the United Nations High Commissioner for Human Rights published the Declaration on the Elimination of Violence Against Women - establishing marital rape as a human rights violation.

But what do we do when one spouse refuses to have sex with the other? I state with absolute confidence that 99% of the divorce petitions I draft features sex, or the lack of it, in the breakdown of the marriages concerned. We UK lawyers however are more likely to put forward a conduct argument than the right to a "shared communal life" as described by the judge in Nice. If a spouse has explicitly expressed the desire for sex within marriage, for the husband or wife to deliberately withhold sex from their spouse may be viewed by a court of law as a form of emotional abuse.

Consider the man whose wife refuses, for no apparent reason, to have sex with her husband. He may well suffer huge loss of self esteem, mental health problems brought on by the rejection, and a massive loss of confidence resulting in his losing his job. This would provide a wholly credible conduct argument.

Two years ago I handled the divorce case of a woman whose husband had sexually abused their children. Because the family unit was effectively destroyed, the woman was unable to work full-time as her children needed stability and a loving, protective parent there for them as much as possible. Yes, it's an extreme example but nonetheless technically, one can, and I did, raise it as a conduct argument when petitioning for divorce.

These are dangerous waters to navigate for any divorce solicitor and one can quite see how the tradition of cinq à sept developed. If all parties are agreeable, even if they don't implicitly acknowledge the terms of their marriage/relationship, then husband and mistress, wife and lover, might argue that such an 'arrangement' satisfies all concerned.

The problem comes when one party is dissatisfied. We don't know exactly what happened in the case of the French divorce - the husband claimed health problems and tiredness for his lack of libido - but rest-assured, sex, or lack of it, is the commonest cause for the breakdown of marriage.
]]> tag:www.huffingtonpost.com,2011:/theblog//3.955113 2011-09-12T05:50:32-04:00 2011-11-12T05:12:02-05:00

Amanda McAlister http://www.huffingtonpost.com/amanda-mcalister/
It is worth bearing this in mind when considering the new ruling of China's Supreme Court: from now on, the person that buys the marital home (or the parents who provide the money to do so) keeps the property after the divorce.

Previously, Chinese woman would look on prospective bridegrooms with a seriously wary eye unless they owned their own home (and preferably a car as well). But court spokesman Sun Jungong explained the judgement: "Based on feedback from the public consultation, [the court found that] the parents of those who pay for the properties fear their wealth will be lost if their children divorce. In reality, many parents pour their savings into properties for their married children."

In the UK of course our courts take a different attitude. When a married couple separate all property - whether jointly owned or not - goes into one marital pot of all the couple's assets, so to speak. It is then divided up according to what the couple, and their solicitors, decide is fair.

However, the Supreme Court ruling has to be seen in the wider cultural context of Chinese society in order to appreciate just how seismic a move this new ruling is.

China's rising economy (almost double digit annual growth for the past 30 years) has seen a concomitant increase in divorce rates. Precise figures are hard to find, but it seems between 1.1 and 2.68 million couples in China decided to call it a draw in 2010. At the same time, property prices have soared, yet opportunities for career advancement and financial gain are still far greater for men than they are for women. Since property prices are seriously out of synch with per capita income in China, as Sun Jungong said it is quite common for the bridegroom's parents to stump up to purchase their son's marital home.

Add into this mix China's one child policy (introduced in 1978 and which has resulted in a male-female ratio countrywide of 118:100) and the traditional preference for a son over a daughter, and you can see how China's veneration of the tradition of marriage was bound to come a cropper as women started to see marriage purely as a way of owning property.

The result has been the so-called "flash divorce", whereby the woman seduces her man, moves in with him, marries him, swiftly divorces him and takes the house as her divorce settlement.

This new ruling - reported this week on the New York Times website - will, at a stroke, take away the incentive to do this. It would be interesting to see how British couples would take to such a ruling though. It might certainly end the desire of many young women to marry premiership footballers, if nothing else and probably put an end to the term "gold-digger".

Many people, certainly those of my parents' generation, will say that they feel divorce is now too easy; blame is not apportioned, there is little, if any social stigma attached to it and the increasing trend of judges to award joint custody agreements means that parents should, in theory at least, continue to co-parent despite separating.

Whether we need legal intervention as to who gets what when couples split is less certain. I certainly believe in marriage as an institution and I can say, hand on heart, that I have never yet had a client in my office who has clearly married someone with the express intention of taking them for all they've got. Mediation is certainly an excellent way forward - I had a client only last week who decided during the mediation process that he still loved his wife and they are now back together - but mediation presupposes the couple will first try to work things out.

Perhaps China should consider legally binding pre-nups instead.

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