If you read celebrity gossip magazines (no judgement here), you may have seen the recent articles about noughties tabloid favourite and ex-Atomic Kitten, Kerry Katona. If you haven’t (and who could blame you), she has essentially launched a scathing and public attack on ex-husband and former Westlife heartthrob, Brian McFadden.

Sit back and relax, because I’m going to tell you all about it.

Background

Kerry and Brian married in 2002. They divorced just four years later but share two children, Molly and Lilly, now aged 21 and 20 respectively. With the early to mid-noughties being the golden age of public interest in celebrity couples, both their relationship and subsequent separation attracted a ton of media attention.

In recent years, people have grown understandably less interested in the lives of the in-active former girl/boy band members, but the subject of their ugly divorce is being somewhat resurrected by tabloids in light of comments made by Kerry on Ellie McKay’s 'On A Mission' podcast.

Kerry’s comments about her issues with Brian when separating relate to many aspects of family law and it sounds messy and complicated.

So what really happened?

Divorce

We know that Kerry and Brian got divorced, but on the podcast, Kerry said, "We had to legally be separated, if, like, for six years, before we could get divorced.”

As of April 2022, 'No-Fault Divorce' is in effect, meaning a person doesn’t need a reason to apply for a divorce, nor do they have to blame the other person for the relationship breakdown. Further, it is no longer necessary for the other party to consent to the divorce.

However, when Kerry and Brian separated, a person had to rely on one of six facts to support the one ground for divorce, namely the irretrievable breakdown of marriage. Those facts were adultery, unreasonable behaviour, desertion, two-years separation with the other party’s consent or five-years separation, without the other party’s consent being required.

It's not clear where Kerry’s reference to six years comes from, but her description of the separation and divorce indicates that the party who petitioned for divorce failed to obtain the consent of the other. If Kerry’s savage comments about Brian are to be believed, she could have divorced him based on his unreasonable behaviour.

Jurisdiction Issues

People can get married in any country they wish. Where they get divorced, however, is a little trickier.

Kerry explained, "He didn't want to get divorced in England because we got married in Ireland” and "I didn't want that, if Brian doesn't love me I want a divorce, so I wanted to get divorced in England, because I was an English citizen.”

Kerry could have brought proceedings in England had she wished if:

1. She and/or Brian were habitually resident in England (or Wales), meaning, in simple terms, they were living there;
2. She and Brian were last habitually resident in England (or Wales) and one of them still resided there;
3. She and/or Brian had been habitually resident in England (or Wales) for at least six months immediately before the application was made and were then domiciled there (meaning they treated it as their permanent home or had significant connections there); or
4. She and Brian were both domiciled there.

As such, Brian’s comments about being married in Ireland were pretty insignificant if Kerry had wanted to pursue a divorce in England.

Consent Order

Often divorcing couples can agree between themselves how to divide their assets without having to involve the court. However, its important that the financial settlement is recorded in a document called a consent order which is then approved by the court, making it legally binding.

It seems from Kerry’s comments that she and Brian went down this route. “I signed a piece of paper saying, 'you keep your money, give me me [sic] kids” and "I said look if you don't want me, you don't love me, I don't want your money, just give me half the money from the house that we sell, and I will sign a piece of paper, just give me my kids” she said.

It is entirely possible that Kerry and Brian agreed to sell their house, split the net proceeds equally between them and sign a consent order to this effect. However, the family court keeps arrangements for the children and financial matters completely separate. No financial consent order would include provision for a father signing away his relationship with his children. In fact, even in children proceedings, this is something the court would only order if it genuinely thought it was in the best interests of the children.

Essentially, its highly unlikely that an agreement exists between Kerry and Brian which sets out both their financial settlement and arrangements for their children unless it is an agreement that has not been endorsed by the court. If this is the case, they both took a huge risk. Even after a divorce is finalised, the parties will only be properly financially separated when a consent order is approved by the court. If this really was the case, then had Brian’s post-Westlife solo career proven a success (spoilers: it didn’t), he could have had to pay Kerry a lot more than was originally agreed.

Parental Responsibility and Child Maintenance

We stated above that child arrangements and finances are kept separate. So where does child maintenance fit into that. In short, it is the Child Maintenance Service (CMS) who has jurisdiction over child maintenance rather than the family court.

The amount of maintenance payable by one party to another depends on both the income of the paying party and how often they have care of the children. Kerry said "I didn't get maintenance money off Brian” on the podcast. She also refers to Brian moving to Australia following their divorce, which would have made it very difficult for her to enforce any maintenance order she might have had. She could only have enforced a maintenance order if:

• Brian was in the service of the Crown (such as in a foreign embassy);
• Brian was member of the UK Armed Forces;
• Brian worked in oversees for a UK based company; or
• Brian worked overseas on secondment for certain organisations such as a health trust or local council.

All of the above seem doubtful for the ex-boyband star, meaning Kerry’s complaint seems both genuine and justified.

Financial Settlement and Spousal Maintenance

During the podcast, Kerry also commented, “There was a ''Ray Parlour situation'' in football where the wife is entitled to half of his money for the rest of his life. So Brian was s******g himself.”

We touched on sharing capital as part of the divorce process above, but what about income? A spousal maintenance order or a periodical payments order requires one party to pay the other a sum of money on a monthly basis. This is usually because one spouse is financially weaker than the other and therefore requires ongoing financial support even after the divorce. It seems Brian was worried about this because of another public, celebrity divorce.

Ray Parlour is a former footballer who went through a high-profile divorce in 2001. It settled in 2004 with Ray giving his wife two mortgage-free houses and £250,000. However, they were unable to negotiate an arrangement over income. Ray’s wife was awarded more than £4million, including a share of Ray future earnings. However, this was a landmark case and rather exceptional. The judge took into account Ray’s wife’s efforts to curb his addiction to the 'laddish' footballer drinking culture, which meant she had played an important role in his career and thus his income and therefore deserved a share.

This kind of decision is rare. In most cases, the amount of maintenance a person will receive is calculated by balancing the income and earning capacity of each person against their needs, taking into account their specific circumstances.

Pre-Nuptial Agreement

I know what you’re thinking - How can I ensure I don’t end up in Kerry Katona or Brian McFadden’s shoes? We’ve all been there.

In my view, Kerry and Brian ought to have prepared a pre-nup, namely a written contract that entered into before the wedding.

A pre-nup would have protected their assets acquired before they were married and it would have prevented any uncertainty about the division of property acquired during the marriage upon separation. It could have provided both Kerry and Brian peace of mind at the outset of their marriage and would have minimised the risk associated with negotiations and litigation following separation. Kerry could have felt more confident that she would always be able to provide for her children and Brian’s sleepless nights over Ray Parlour prevented.

Everyone’s a winner.