The Supreme Court has allowed a wife to proceed with a maintenance claim in England, despite divorce proceedings taking place in Scotland.

Charles and Emma Villiers spent almost all of their married life living in Scotland. After they separated in 2012 Mrs Villiers moved to England.

In 2013 she issued divorce proceedings in England, but in the following year Mr Villiers issued divorce proceedings in Scotland. Mrs Villiers agreed to the divorce going ahead in Scotland, and therefore her English divorce petition was dismissed.

However, in 2015 she applied to the English court for a maintenance order. Mr Villiers objected to this, claiming that the English court did not have jurisdiction to deal with the application, because of the Scottish divorce proceedings. However, the English court held that it did have jurisdiction. Mr Villiers appealed to the Court of Appeal, but the Court of Appeal upheld the order. Mr Villiers appealed again, to the Supreme Court.

Last week the Supreme Court dismissed the appeal, by a majority of three to two.

Giving the leading judgment Lord Sales said that the husband’s divorce proceedings in Scotland did not preclude the wife’s maintenance application as they were not ‘related’ actions.

However, giving a dissenting judgment Lord Wilson warned that the decision means that “untrammelled licence” will be “given to a wife to go forum-shopping, in other words to put her husband at an initial disadvantage unrelated to the merits of her case.” Whether this turns out to be so, we will just have to wait and see.

You can read the full judgment here.

Should you go forum shopping?

So can you issue proceedings in England and Wales, rather than another country? And even if you can, should you?

As the fact that this case went all the way to the Supreme Court indicates, the rules on forum shopping are complicated. We could not possibly set them out here. In general, though, you will need some connection with the country where you intend to issue proceedings. It will also depend upon the type of proceedings that are being issued, and whether proceedings have already been issued elsewhere.

But even if you can issue proceedings here, that does not necessarily mean that you should. London may have a reputation for being more generous to wives making financial applications than other countries, but that does not automatically mean that it will be best for wives to issue here (and for husbands to issue elsewhere!).

Clearly, if you are considering issuing proceedings in England and Wales rather than another country then you should take expert legal advice, both upon whether you can issue here, and whether you should. Family Law Café can put you in touch with an expert – for further information, call us on 020 3904 0506, or click here, and fill in the form.

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Family Law Cafe’s accessible team of legal experts from various disciplines expedites the customer’s case and keeps them informed and in control 24/7 through a unique and secure online portal. Family Law Cafe is your start-point for getting matters sorted with strategy, support and security.

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The Coronavirus lockdown is having a serious adverse effect upon the finances of millions. Incomes are reduced and the value of capital assets has been slashed.

But what if your finances have also been affected by a money order made by the divorce court? What if you can no longer afford to pay the money the court ordered? Or what if the money you were to receive is no longer enough? Is there anything you can do about this?

We are talking about the variation of financial orders: can the order be varied, and if so what are the criteria that the court uses to decide whether or not to vary it, and by how much?

Financial orders essentially come in two forms: capital orders and income orders. Capital orders are primarily lump-sum orders, and orders adjusting the ownership of property. The main type of income order is of course a maintenance order, whether for a spouse or a child.

The rules regarding variation of capital orders and income orders are quite different. Income orders can be varied, but capital orders are usually intended to be final.

The main exceptions regarding capital orders are lump sum orders payable by instalments and orders requiring the sale of property. However, the courts are generally reluctant to vary capital orders. For example, the variation of an order to pay a lump sum by instalments is only likely to relate to the timing of the payments. Still, this could be useful if you want to ask the court for more time to pay.

Otherwise, it is theoretically possible to ask the court to set aside a capital order (and make a different one), on the basis that events have occurred since the order was made which alter a fundamental aspect of the order. It could be argued, for example, that a significant reduction in the value of an asset due to the effect of the Coronavirus is one such event. However, setting aside orders in this way is very rare, and the general opinion is that it would be very difficult to persuade the court to order a strike out in these circumstances.

Maintenance orders, however, are commonly varied. In deciding whether to vary an order the court will have regard to all the circumstances of the case, first consideration being given to the welfare while a minor of any child of the family who has not attained the age of eighteen. The circumstances of the case include any change in any of the matters to which the court was required to have regard when making the order. Accordingly, if the maintenance payer’s income has reduced significantly, then the court is likely to make a significant downward variation in the amount of the maintenance payments.

Of course, the maintenance may be varied back up if the payer’s income subsequently returns to pre-virus levels!

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As usual, the above is just a very brief outline of what can be a complex topic. If you would like to apply to vary a financial order then you should first seek the advice of an expert family lawyer. Family Law Café can put you in touch with such a lawyer – for further information, call us on 020 3904 0506, or click here, and fill in the form.

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Family Law Cafe offers a modern, agile and compassionate approach to family law, giving you a helping hand when you need it and guiding you through the complexities of this difficult and stressful area. Family Law Cafe is your start-point for getting matters sorted with strategy, support and security.

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Over the weekend a national newspaper reported upon a case in which a husband was aggrieved that the court awarded his wife nearly half of his pension pot, including the contributions he made during the years before they were married, and despite the fact that she ‘never bothered’ to save for a pension herself.

The report also suggested that the law regarding the division of pre-marital assets is about to change, which would help people retain assets built up before marriage.

So what exactly is the law now, and is it about to change?

Matrimonial property

The courts do distinguish between ‘matrimonial property’, i.e. assets acquired by the parties during the marriage as a result of their own efforts (which will usually include the matrimonial home), and ‘non-matrimonial property’, which includes assets acquired before the marriage, inheritances and gifts, and assets acquired after the parties separated.

As a very general rule, the court will only divide matrimonial property between the parties, unless the essential needs of one of the parties can only be met by including non-matrimonial property. Accordingly, if the needs of both parties can be met from the matrimonial property then each party can usually expect to retain any assets they owned prior to the marriage. (In the case referred to in the report above it may have been that the court could not meet the wife’s pension needs without including the pension that the husband had built up prior to the marriage.)

The practical effect of this general rule is that non-matrimonial property, including assets acquired prior to the marriage, is more likely to be retained in higher-money cases.

Of course there is a major proviso to this: it is not always easy to separate matrimonial and non-matrimonial property. Very often the two become mixed over time, so that it becomes impossible to quantify what is and what is not matrimonial property. If in doubt the courts are more likely to say that property is matrimonial, rather than non-matrimonial.

Law reform

The newspaper report made mention of both the Government’s Divorce, Dissolution and Separation Bill, and Baroness Deech’s Divorce (Financial Provision) Private Members’ Bill.

The Government’s Bill will just introduce a system of no-fault divorce, without changing the law on division of assets on divorce. Baroness Deech’s Bill, as its name implies, is intended to change the law on division of assets, including essentially preventing the court from awarding one spouse a share of assets that the other spouse acquired before the marriage.

However, as the Baroness’s Bill is a private members’ bill it is unlikely to be passed. The law on division of assets is therefore likely to remain the same for the foreseeable future.

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The above is of course a very brief summary of what can be a very complex area of law. For more detailed advice you should consult an expert family lawyer. Family Law Café can put you in touch with such a lawyer – for further information, call us on 020 3904 0506, or click here, and fill in the form.

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Family Law Cafe offers a modern, agile and compassionate approach to family law, giving you a helping hand when you need it and guiding you through the complexities of this difficult and stressful area. Family Law Cafe is your start-point for getting matters sorted with strategy, support and security.

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When a couple get divorced they will obviously need to sort out what happens to the contents of the former matrimonial home. Unfortunately, this can often be a fraught process, as they argue over who should have what. Here are a few tips that might help make things easier.

1. Difficult as it might be, every reasonable effort should be made to agree the division of the contents with your spouse if you possibly can. If you can’t agree with them direct, then try to agree through lawyers or via mediation. To help you reach agreement, it may be useful to prepare a schedule, setting out the items and their values (see point 3).

2. If you can’t reach agreement, then the court can sort out who has what, but this can be very expensive and time-consuming.

3. It may have cost a considerable amount of money to purchase the contents originally, but their current (second-hand) value is the value that the court will use, and that should be used in any negotiation. Unless you own antique furniture or other items of special value such as paintings, the current value of the entire contents is therefore likely to be minimal. Accordingly, you will not usually want to spend a substantial sum on legal costs arguing over the division of the contents.

4. If you do have valuable items then if they are not divided equally (see the next point) the party who receives less may be entitled to financial compensation.

5. As with other property, equal division is the starting point (save for personal possessions, which each party should keep), although there may be other considerations, in particular if one party is to have any children living with them then their needs should be taken into account, for example they will obviously need to have the children’s beds.

6. If there are single items over £500 or collections over that amount the court can take them into account as assets. To establish what valuable items are worth a jointly instructed expert can be appointed by the parties or the court.

7. If agreement cannot be reached and there are no items of sentimental value, consider selling the items and dividing the proceeds, rather than going to the expense of getting the court to sort it out.

8. Lastly, all of the contents should usually remain in the matrimonial home until agreement is reached as to their division, or the court has decided the matter. If your spouse starts removing items from the matrimonial home without your consent then you should inform your lawyer immediately.

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If you require further advice regarding the division of the contents of the matrimonial home then you should consult an expert family lawyer. Family Law Café can put you in touch with an expert – call us on 020 3904 0506, or click here, and fill in the form.

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Family Law Cafe surrounds and supports the customer with both legal and pastoral care, end to end, from top barristers to case workers to therapists and mediators, to help the customer get the best possible result with the minimum stress. Family Law Cafe is your start-point for getting matters sorted with strategy, support and security.

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A ‘successful’ divorce should surely be the aspiration for anyone whose marriage has broken down. So what is the secret to achieving a successful divorce?

Before we answer that question we must first of all ask another: what exactly is a ‘successful divorce’?

What is a successful divorce?

What makes a divorce ‘successful’? Well, that may be a matter for each individual. Some may simply measure it by how big a financial settlement they achieved, or by how little the divorce cost.

But we would say that there is more to a divorce being successful than just money. Yes, a satisfactory settlement is important, as is keeping the cost to a minimum. But there are at least two other factors: making sure that the whole process is concluded as quickly as possible, so that you can get on with your life, and making sure that it is as stress-free as possible, so that you can recover emotionally as quickly as possible (marriage breakdown is stressful enough anyway).

All of which really points in one direction: agree matters if you can! By doing so you will (by definition) have achieved a satisfactory settlement, and you will have reduced the cost, stress and time taken to reach a conclusion.

But even if you can’t agree matters, then a measure of success is still possible. Yes, you might have to ask the court to sort things out, but you can still take steps to ensure that the court proceedings are concluded as satisfactorily, cheaply, and quickly as possible.

The most important thing

Of course, there is no one thing that will guarantee a successful divorce. But there is something that is perhaps more important than any other, and a clue to what it is was contained in the opening paragraphs of a recent High Court judgment.

In the case FRB DCA Mr Justice Cohen began his judgment with the following:

“I have been hearing over some 15 days cross-applications by the parties for financial remedy orders.  As this judgment will make clear the scope of this case has encompassed almost every issue that can arise within a matrimonial finance case.  In some ways that is hardly surprising.  I know of no other case where the breakdown of a marriage has engendered litigation on the scale witnessed in this case.”

He then said that the total legal costs incurred by the parties in what he called a “gladiatorial combat” between them exceeded £10 million, and went on to explain that the differences between the parties was in part reflected by the animosity that at least the husband felt towards the wife.

Animosity. That is perhaps the most important thing to avoid, in order to achieve a successful divorce. We realise that it is easy for a lawyer to say this, but it really can’t be emphasised enough: you should make every effort to put animosity to one side when you sort out your divorce.

A little animosity is quite natural and common when a marriage breaks down. But it can also be really destructive, as this case demonstrates. Remove the animosity, and you have taken a great step towards achieving a successful divorce: you can then just concentrate on what really needs to be sorted out, you will not be distracted by attempting to ‘score points’ over the other party and, above all, you will be far more likely to achieve an agreed settlement.

If you want to read Mr Justice Cohen’s full judgment, all 227 paragraphs of it, you can find it here.

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Of course, there is one other thing you need to achieve a successful divorce: an expert family lawyer, who will adopt an approach aimed at settling your case amicably, whilst simultaneously looking after your best interests. Family Law Café can put you in touch with such a lawyer – for further information, call us on 020 3904 0506, or click here, and fill in the form.

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Family Law Cafe offers a modern, agile and compassionate approach to family law, giving you a helping hand when you need it and guiding you through the complexities of this difficult and stressful area. Family Law Cafe is your start-point for getting matters sorted with strategy, support and security.

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Bankruptcy of one of the spouses is often a feature of a financial remedy claim on divorce. Sadly, the current pandemic may lead to many more people falling into bankruptcy, as their businesses fail to survive the lockdown.

If this happens to you, can you ask the court to order your spouse to pay a lump sum to discharge your bankruptcy?

The answer to this question was provided by the recent case S v H, decided by His Honour Judge Booth in the Family Court at Manchester.

Briefly, the relevant facts in the case were that the husband had no assets and was the subject of a bankruptcy order, much of his debt having been incurred by his contributions to the family, albeit with borrowed money. Judge Booth calculated that he would need some £270,000 to discharge his bankruptcy and pay off his other debts. The wife, meanwhile, had net assets of more than £3 million.

The husband sought a lump sum sufficient for him to pay off his debts, and leave him with enough to buy a home to live in. The wife sought a dismissal of the husband’s claims against her.

The question arose as to whether the court could make a lump sum order in favour of the husband, in the light of his bankruptcy. Judge Booth found that it could.

He also found that it would be appropriate to discharge the husband’s bankruptcy by way of a lump sum payment by the wife, in view of the fact that most of the bankruptcy debt had been incurred for the benefit of the family.

Accordingly, Judge Booth made an order that the wife pay a lump sum of £270,000, so that the husband could be discharged from his bankruptcy, and pay off his other debts, thereby avoiding any future bankruptcy.

That still of course left the issue of the husband’s housing. Judge Booth decided that the wife should not be liable to pay a lump sum to the husband outright for this purpose. Instead, he ordered that she should pay him £375,000 for him to buy a home, on the basis that the home should revert to her when the husband dies, or no longer needs it.

A very instructive case, showing that you can ask for a lump sum from your spouse to discharge your bankruptcy, and that the court will make such an order, in appropriate circumstances.

You can read Judge Booth’s full judgment here.

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If you are going through a divorce and either you or your spouse have been declared bankrupt then you should consult an expert family lawyer as soon as possible. Family Law Café can put you in touch with an expert – call us on 020 3904 0506, or click here, and fill in the form.

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Family Law Cafe surrounds and supports the customer with both legal and pastoral care, end to end, from top barristers to case workers to therapists and mediators, to help the customer get the best possible result with the minimum stress. Family Law Cafe is your start-point for getting matters sorted with strategy, support and security.

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Everyone is of course seriously concerned about the Coronavirus, and the restrictions that it is putting upon our lives. But what if you are contemplating divorce proceedings, or are in the midst of existing proceedings. How will the virus and the Government’s response to it affect you?

We are still here for you

Family Law Café continues to provide a full service, and we intend to do so for the duration of this emergency.

If you are an existing client then you can contact us as usual.

We are still taking on new clients, who can get in touch with us as outlined below.

And our service is online, so you can access it without having to leave your home. For further details of how our service works, see this post.

Expect delays

The courts are continuing to function. However, court hearings are now being conducted remotely, where possible.

In view of this, and possible court staff shortages as a result of the virus and the measures taken in response to it, you can expect cases to take longer.

Divorce proceedings can proceed entirely online, unless they are defended.

Children arrangements

Obviously, the restrictions upon movement will affect children arrangements between separated parents. The Government has, however, made clear that where parents do not live in the same household, children under 18 can be moved between their parents’ homes.

Of course, special care will need to be taken, and in some cases existing arrangements may have to be suspended. If you cannot agree matters with your (former) spouse, then you should seek legal advice. The President of the Family Division has issued guidance on compliance with child arrangements orders, which can be found here.

Financial remedies

You should also seek advice if you are concerned about the effect of the reduction in value of assets as a result of the financial instability caused by the virus.

Settlements that have not been finalised will normally take into account the current value of assets.

It is possible that settlements that have recently been finalised could be reopened, if there has been a significant change in the value of assets. However, this would be unusual – if you think it may apply to you, you should seek urgent legal advice.

Get in touch

For further information and advice upon any of the above matters, contact us. If you are a new client, call us on 02 03 9 04 05 06, or click the ‘Sign up’ button at the top of the page, and complete the form.

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Family Law Cafe’s accessible team of legal experts from various disciplines expedites the customer’s case and keeps them informed and in control 24/7 through a unique and secure online portal. Family Law Cafe is your start-point for getting matters sorted with strategy, support and security.

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Divorces are taking longer than at any time since December 2014, when the Ministry of Justice began publishing quarterly Family Court statistics.

The latest statistics, for the quarter April to June 2019, show that for those granted Decree Nisi in that period, the mean average time from the date of the divorce petition was 33 weeks, up 5 weeks from the same period in 2018, and the mean time from the petition to Decree Absolute was 58 weeks, up 3 weeks compared to the same period in 2018.

The statistics also show a decrease in the number of divorce petitions issued. There were 28,144 divorce petitions issued between April and June 2019, down 13% from the same quarter in 2018. Financial remedy applications also decreased by 5%, but private law children applications (primarily for child arrangements orders) increased by 3% compared to the equivalent quarter in 2018.

Private law children applications are also taking longer. In April to June 2019, it took on average 28 weeks for private law cases to reach a final order, up 3 weeks from the same period in 2018.

Elsewhere, other statistics published by the Ministry of Justice revealed that more family cases are being resolved by mediation. In the quarter April to June 2019 mediation starts increased by 22% and outcomes increased by 13%, compared to the same period last year.

You can find the Family Court statistics here.

If you would like advice about taking divorce proceedings, Family Law Café can help. To book a free initial consultation with us click the green button at the top of this page and fill in the form, or call us on 020 3904 0506.

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Family Law Cafe surrounds and supports the customer with both legal and pastoral care, end to end, from top barristers to case workers to therapists and mediators, to help the customer get the best possible result with the minimum stress.

Image: Calendar, by Dafne Cholet, licensed under CC BY 2.0.

 

According to various media sources, American singer, songwriter, and actress Miley Cyrus is preparing to divorce her husband, Australian actor Liam Hemsworth. Some of the reports suggest that the divorce will be the ‘smoothest of all time’, and could be completed by the end of October, thanks to a prenuptial agreement that the couple entered into before they were married last December. Apparently, the document says that the couple, who do not have any children, will simply retain their own property, and make no financial claims against each other.

So, can a prenup make a divorce quicker and smoother? It is certainly possible, but there are a couple of caveats.

Prenuptial agreements are not legally binding in this country, but the divorce court will usually give effect to them where they are freely entered into by each party with a full appreciation of the implications of the agreement, unless it would not be fair in the circumstances to hold the parties to the agreement, for example because it failed to meet the needs of one of the parties, or of any children. This means that even if the terms of the prenup are fair when it is entered into, it may no longer be fair when the marriage breaks down, due to the circumstances of the parties having changed.

Obviously, if the prenup is given effect by the court then that can indeed make the divorce quicker and smoother, by doing away with the need to have a time-consuming argument over financial and other arrangements following the divorce.

If you are considering entering into a prenup, or if you would like further advice on the subject, Family Law Cafe can help. To book a free initial consultation with us click the green button at the top of this page and fill in the form, or call us on 020 3904 0506.

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Family Law Cafe’s accessible team of legal experts from various disciplines expedites the customer’s case and keeps them informed and in control 24/7 through a unique and secure online portal.

Image of Miley Cyrus at the Capital Pride Festival, Washington DC 2017, by Ted Eytan, licensed under CC BY 2.0.

A survey by the investment company Fidelity International has found that a third of women would not be able to cope financially if their relationship ended tomorrow.

The survey, of 2000 individuals, also found that women between the ages of 55 and 64 years old are the most likely to find themselves financially vulnerable in the event of a relationship breakdown. One reason for this, of course, is the lack of adequate pension provision.

By contrast, only about one in five men felt they would not be able to support themselves financially in the event of a relationship breakdown.

A spokesperson for Fidelity said that, in addition to typically earning less and therefore saving less, women tend to take more time off work than men, which ultimately results in less time to pay into a workplace pension.

The findings emphasise the need for expert advice in the event of marriage breakdown, to ensure the best possible financial settlement. Family Law Cafe can put you in touch with an expert. To book a free initial consultation with us click the green button at the top of this page and fill in the form, or call us on 020 3904 0506.

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Family Law Cafe surrounds and supports the customer with both legal and pastoral care, end to end, from top barristers to case workers to therapists and mediators, to help the customer get the best possible result with the minimum stress.

Image: Pound coins, by J D Mack, licensed under CC BY 2.0.

Once again it appears that the record for the biggest money divorce to be dealt with by the courts in this country is to be broken. And once again it seems that it will be the wife of a Russian oligarch who will be seeking to break the record for the largest divorce award. That record is thought to be held by Tatiana Akhmedova, who was awarded £453 million in 2016.

That record, however, could be eclipsed by Natalia Potanina, the former wife of Vladimir Potanin, who made his reputed £15 billion-plus wealth in metals, following the break up of the Soviet Union. Mrs Potanina is reportedly seeking a lump sum of £5.76 billion, claiming that she was by his side as he built up his fortune from nothing.

The couple were together for some 31 years and had three children (all of whom are now grown up), before they separated in 2013. They were subsequently divorced in Russia, but Mrs Potanina has been living in London since 2016, hence the claim in the High Court. The courts in this country are considered by many to be considerably more generous to wives than the courts in many other countries (financial claims can be pursued here following foreign divorces, if either party lives here).

Most people, of course, can only dream of such sums. No matter what your wealth, however, Family Law Cafe can help you through your divorce. To book a free initial consultation with us click the green button at the top of this page and fill in the form, or call us on 020 3904 0506.

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Family Law Cafe offers a modern, agile and compassionate approach to family law, giving you a helping hand when you need it and guiding you through the complexities of this difficult and stressful area.

Image of Nornickel office in Norilsk by Ninara, licensed under CC BY 2.0. Mr Potanin is the largest shareholder in Nornickel.

In the last few days the breakdown of the marriage of the celebrity chef and television presenter Paul Hollywood has been in the news, occupying many column-inches in the popular press. However, as with so many celebrity divorces, the stories perpetuate various common myths surrounding divorce.

The stories all refer to Mr Hollywood’s new relationship with a 24 year old woman, and speculate that his wife Alex will issue divorce proceedings on the basis of his adultery. However, we are told, Mr Hollywood denies that he has committed adultery, as the relationship only began after he and his wife separated. We don’t know whether this report is true, but it does highlight a myth about adultery: that it can only happen if the husband and wife are still living together. This is simply wrong: adultery is still adultery even if they are separated.

The stories also suggest that Mr Hollywood’s adultery could have a bearing upon any financial settlement. Again, this is a myth. Adultery has no bearing whatsoever. In fact, the conduct of the parties only has a bearing in an extremely small number of cases, when it is especially bad.

The other myth comes from the report that Mrs Hollywood is seeking to “have her day in court”, where she can finally have her “say over the end of their 20-year marriage”, following the breakdown of mediation between the parties regarding financial matters. This suggests that she will have an opportunity “get her own back”, by blaming her husband in court for the breakdown of the marriage. She will not. If the parties are not able to resolve financial matters by agreement, there will be a financial remedies hearing, but the court will not be interested in the reasons for the breakdown of the marriage, as they are not relevant to the issue of any financial settlement.

If you would like advice regarding the factors that are relevant to any financial settlement, Family Law Cafe can provide it. To book a free initial consultation with us click the green button at the top of this page and fill in the form, or call us on 020 3904 0506.

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Family Law Cafe offers a modern, agile and compassionate approach to family law, giving you a helping hand when you need it and guiding you through the complexities of this difficult and stressful area.

Image of Paul Hollywood by Tim Fields [CC BY 2.0], via Wikimedia Commons.