Archives For June 2015

As a seasoned family law practitioner it is a constant source of bewilderment to me and to my clients that in the 21st Century two people who no longer want to live together and want to bring to an end to their marriage can’t do that in a simple, painless way. It is a theme that Lady Hale, our most senior female Judge, has returned to recently, as she again proposes that divorce should be without the potentially corrosive blame and fault finding of the current system.

The grounds for divorce are adultery, unreasonable behaviour, desertion for two years, separation for 2 years with your spouse’s consent, or separation for 5 years and no consent is necessary.
So if you don’t want to have to wait to spend 2 or 5 years apart, you must use a fault-based ground and this is the problem. Why should we have to spell out the problems that lead to the end of the relationship, and what if the kids find it in 20 years amongst your documents?

Unfortunately we are where we are. Adultery is, I presume, self-explanatory. However, Unreasonable Behaviour cannot defined as there will be as many different forms as there are relationship breakdowns. It is rather like the proverbial elephant – difficult to describe, but you’ll know it when you see it!

What ever behaviour that is alleged, the test applied by a Judge is two-fold: do you (subjectively) feel that the actions you complain of are unreasonable; and, would the man or woman in the street (objectively) agree that it is unreasonable.

In any event the behaviour complained about must have taken place in the 6 months prior to the end of the relationship. Anything going back beyond that you are deemed to have accepted.

In the end it comes down to the drafting, and that is where the lawyers come in. The Petition needs to do the necessary job to get the divorce through, but be based on the bare minimum of allegations to not fan the flames of a difficult enough time, and to protect the children from too much knowledge in the future.

Perhaps it is time that Lady Hale’s call for fault-free divorce should be heard and implemented. She has only being saying it for twenty years.

As Mrs Merton put to Debbie Magee – ‘What first attracted you to the millionaire Paul Daniels..?’

For Celebrites and the rich it might be, as Mrs Merton suggested, that you are surrounded by people who may be after your hand in marriage because of the fame (and, therefore, fortune) and to them nothing could be more romantic than saying in writing ‘I love you for you, and not your money.’

But for most people Pre-nuptial Agreements are just not, well, romantic enough! Despite the separation statistics that prove not all frogs turn into Princes, nobody wants to discuss how the finances would be split should you separate and divorce in the future.

This is a rather odd reaction when you think about it though. We don’t, for example, deliberately not get travel insurance before we go skiing on the basis that it would take all the romance out of crashing and seriously injuring yourself in a Country with no NHS…

Pre-nuptial Agreements, or those made after marriage, are gaining in popularity and in the weight given to them by Judges. Baroness Deech, a leading family lawyer, told Radio 4 that a ‘Pre-nup’ may save career women from greedy men:
‘Lots of young women these days are working, earning well, and would feel it extremely unfair if a young man who they marry and perhaps leaves them is going to take with him a sizeable chunk of what they have worked so hard for.”

And what is sauce for the goose is sauce for the Gander.

Pre-nuptials may not be romantic, but with separation and divorce happening to many of us, they may be vital to provide protection and certainty in the process of financial uncoupling.

You may have heard in the news recently that Dale Vince, the millionaire wind turbine entrepreneur, was taken to the Supreme Court by his first wife who he had divorced thirty years previously. They were penniless at the time they separated and did not formally deal with the division of the assets by way of Court Order. Following Mr Vince making it big, his first wife decided to have a go and is now claiming £1.9 million from him.

Mr Vince fought the claim and suggested that it was simply too long ago. The Supreme Court ruled in the first wife’s favour. Despite the passage of three decades she can still make a claim against him.

That is a salutory lesson, not just for eco-millionaires, but for anyone who has not dealt with the finances following divorce. Even if there is nothing to split, as in Mr Vince’s case at the beginning, it is essential to get a Court Order which dismisses any future financial claims arising from that marriage.

There is a second, lesser-known, part to the story of Mr Vince which was not picked up by the press. Because he had married again before dealing with the financial claims from his divorce, he was unable to apply to the Court to dismiss his first wife’s claims at an earlier stage. Preferably before he was worth £58 million. He fell into what is called the ‘re-marriage trap’and I have blogged on the consequences of this too.

The lesson here is to get everything dealt with at the time. It may be more expensive in the short term, but it could cost you far more in the future, as Mr Vince has found out!