Resolution, the association of family lawyers, has made four proposals for the political parties ahead of the general election, which it claims “will make a huge, positive difference to the lives of the hundreds of thousands of people that separate each year”.

In a letter to each of the major parties, Resolution Chair Nigel Shepherd calls on them to make a commitment in the next Parliament to:

1. Allow couples to divorce without blame.
2. Give cohabiting couples, who make up 10% of the population, some basic legal rights.
3. Ensure there is fair access to the family justice system.
4. Give people more financial clarity on divorce.

Mr Shepherd said: “It’s time to end the blame game. A new Parliament is a perfect opportunity for politicians to finally act on no fault divorce, regardless of the outcome on June 8th. This is why I have written to all major parties calling on them to make a clear commitment to modernise family law on this and other key issues for our members, such as rights for cohabiting couples, fair access to the justice system and financial clarity on divorce.”

The letter sets out Resolution’s proposals in each of the four areas.

As to divorce, it says that the current law “leads to unnecessary conflict, makes an amicable separation less likely, and reduces the chances of reaching agreement on children and financial issues.”

As to cohabitation, it says: “The reform Resolution proposes would not give cohabiting couples equal legal status to married couples. But it would provide a legal safety net for those cohabitants who currently – wrongly – believe they have legal rights.”

As to access to justice the letter says: “It is our belief that funding should be provided for free initial advice for people of limited means, to help them identify their options on separation and divorce, helping them to put the needs of any children first, and ensuring they are better informed at the start of the process. This would mean those who go on to represent themselves are better informed about their legal position from the outset.”

Finally, as to financial clarity on divorce the letter says: “Divorce law relating to finances is complex and difficult to understand. Outcomes can be difficult to predict, even for legal professionals. Section 25 of the Matrimonial Causes Act 1973, which determines how money is divided up on divorce, has fundamentally remained unchanged for the last 40 years. The concern is that people separate with little or no understanding of the financial consequences of their break up, making it more difficult for them to reach agreement and placing a greater burden on the court system.”

Family Law Cafe agrees with all of these proposals, and hopes that the parties will take note.

Image: Polling station (way in), by Paul Albertella, licensed under CC BY 2.0.0.

It is quite common for people going through divorce to believe that they should receive a larger financial settlement because of their former spouse’s conduct, but how likely is it that conduct will make a difference to the outcome?

As we have already seen, conduct is one of the factors that the court should take into account when deciding the financial settlement, but only if the conduct is so serious that in the opinion of the court it would be inequitable to disregard it.

In practice this means is that it is actually quite rare that conduct has a bearing upon the settlement. The mere fact that the other party has committed adultery or behaved unreasonably, for example, will normally have no bearing. The most common types of conduct that do have a bearing are where the conduct has had a detrimental effect upon the value of the assets available for distribution between the parties, such as spending excessive sums on gambling. Other types of conduct that do not have a direct bearing on finances would have to be of a particularly serious nature to be taken into account, such as a case in which the husband was convicted of attempting to murder the wife.

In short, it is unusual for a claim that conduct should be taken into account in a divorce settlement to succeed. Accordingly, anyone considering making such a claim should seek expert legal advice before doing so. Family Law Cafe can help you find such advice. To contact us click the Contact link above and fill in the form, or call us on 020 3904 0506.

Image: red card, by Ian Burt, licensed under CC BY 2.0.

A husband who claimed that his former wife should not receive an equal share of his wealth because of his “special financial contribution” has failed in a bid to have an award to his wife overturned.

In 2015 Mr Justice Holman awarded Randy Work’s wife half of his £140 million fortune, rejecting Mr Work’s argument that he had made a special financial contribution towards the marriage. Mr Work appealed, but the Court of Appeal has held that he had failed to show that Mr Justice Holman’s decision was wrong. The appeal was therefore dismissed. The judgment of the Court of appeal can be found here.

It is notoriously difficult to succeed with a “special contribution” claim, and thereby avoid the marital pot being divided equally between the parties. There have only been three reported cases of such claims being successful in the last seventeen years.

Undeterred by that, it has been reported that former footballer Ryan Giggs will argue that he made a “special contribution” to the creation of wealth during his marriage with his wife Stacey. The case is due to be heard before Mr Justice Cobb in the High Court.

It would appear that Ryan Giggs may have an uphill task in persuading the court that he made a “special contribution”, and not just because such claims rarely succeed. In his judgment in 2015 in the Randy Work case Mr Justice Holman made a prescient observation. He said:

“It is clear also that a successful claim to a special contribution requires some exceptional and individual quality in the spouse concerned. Being in the right place at the right time, or benefiting from a period of boom is not enough. It may one day fall for consideration whether a very highly paid footballer, who is very good at his job but may be no more skillful than past greats, such as Stanley Matthews or Bobby Charlton, makes a special contribution or is merely the lucky beneficiary of the colossal payments now made possible by the sale of television rights.”

Was Ryan Giggs merely the lucky beneficiary of the colossal payments now made possible by the sale of television rights, or did he make a “special contribution”? We will have to wait and see, although it could be a while before we find out, as the case is not expected to take place for some time.

If you are involved in financial remedy proceedings following divorce, Family Law Café can help you find the best help and advice. To contact us click the Contact link above and fill in the form, or call us on 0208 768 2278.

Image: 11 Ryan Giggs, by Lordcolus, licensed under CC BY 2.0.

Dr Khoo Kay Peng, the boss of Laura Ashley, has been ordered to pay his former wife Pauline Chai a divorce settlement of £64 million.

Ms Chai had been seeking an equal share of the assets of their marriage, which she claimed were worth at least £205 million, as she said that she had made an equal contribution to the marriage, by staying at home and looking after the children. Dr Khoo, on the other hand, argued that Ms Chai should only receive about £9 million. However, Mr Justice Bodey in the High Court ordered that Ms Chai should receive £64 million, made up of property and cash, in one of the largest settlements in history.

Ms Chai’s lawyer described the settlement as a victory for the ‘home maker’.

Subject to any appeal, the ruling brings to an end long-running and bitter court proceedings between Dr Khoo and Ms Chai, upon which they have spent in excess of £6 million on legal costs.

Mr Justice Bodey’s judgment can be read here.

Image by Elliott Brown, licensed under CC BY 2.0.

After the matrimonial home, pensions are usually the most valuable assets on divorce. How are they dealt with in the divorce settlement?

In general the court will deal with pensions in one of three ways:

• By an ‘offsetting’ arrangement, whereby the party with the pension will keep it and the other party will be compensated by receiving a greater share of other assets. Obviously, this is only possible where there are sufficient other assets available.

• By a pension attachment order, whereby one party will receive part of the other party’s pension when the other party receives it. Note that the receiving party has no control over when the other party takes their pension.

• By a pension sharing order. Under such an order, a proportion of the pension fund is immediately transferred into a pension fund in the name of the other spouse. Note that the other spouse cannot receive this payment as cash, but only as a transfer into a pension in their name. Note also that the basic State Pension cannot be shared, although the additional State Pension can.

The amount that the non pension holder should receive, whether by way of offsetting, attachment or sharing, depends upon the facts of the case, including when the pension was accumulated. For example, if it was accumulated entirely during the marriage then they might expect to receive half, whereas if the other party had the pension prior to the marriage then the non pension holder may only be entitled to a share of the proportion of the pension that was accumulated after the marriage took place.

To ascertain how much the pension is worth the court will require the pension holder to obtain a ‘cash equivalent transfer value’ of the pension from their pension provider. That is usually the figure that the court will use when deciding how much the non pension holder spouse should receive by way of offsetting or pension sharing.

If you would like any further advice about pensions on divorce, Family Law Café can help. To contact us click the Contact link above and fill in the form, or call us on 020 3904 0506.

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Pauline Chai, the former beauty queen and wife of Laura Ashley boss Dr Khoo Kay Peng, has told a judge in the High Court that she is seeking a half share of the assets of their marriage, which she claims are worth at least £205 million.

Ms Chai and Dr Khoo, both Malaysian nationals, were married in 1970. They have five adult children, the youngest of whom has a disability and lives with Ms Chai, who has been habitually resident in England since 2012.

In 2013 Ms Chai issued divorce proceedings in this country. There then followed heavily contested court proceedings, with Dr Khoo seeking to have the case heard in Malaysia, where it is thought that Ms Chai would receive a less generous divorce settlement. That dispute was eventually concluded in December 2015, when the Court of Appeal confirmed that the case should go ahead in this country.

The hearing of Ms Chai’s financial claim began before Mr Justice Bodey last Thursday. She told Mr Justice Bodey that whilst Dr Khoo had been the breadwinner during the marriage, she had made an equal contribution by staying at home and looking after the children, a task that she described as “daunting”. She therefore considered that she should be entitled to an equal share of the assets, amounting to more than £100 million.

Dr Khoo, however, will argue that she should only receive about £9 million.

The hearing is expected to last several weeks.

Image by Keith Laverack, licensed under CC BY 2.0.

A couple who were embroiled in a bitter divorce row over a holiday home in County Galway have settled their case.

Michael and Margie Hanley both wanted to keep the house they owned in the remote Irish village of Corr na Móna, and spent a total of £800,000 on the High Court proceedings. When it was suggested that she live elsewhere in Corr na Móna, or that the couple share the house, Mrs Hanley told Mr Justice Holman that “the village isn’t big enough for both of us”.

It has now been agreed that Mrs Hanley will keep the house. The couple will divide cash and assets totalling between £10 million and £14 million.

Mr Justice Holman told the couple that he was “very, very glad” that agreement had been reached.

Image: Galway, by Phalinn Ooi, licensed under CC BY 2.0.

We’ve seen what types of financial orders the court can make on divorce, but how does the court decide what orders to make? What are the factors the court has to consider?

The law says that says that the court ‘must have regard to all the circumstances of the case, first consideration being given to the welfare while a minor of any child’, having particular regard to the following:

• The income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future;

• The financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future – this is often a crucial factor, especially in cases where the needs of the parties exceeds the available assets;

• The standard of living enjoyed by the family before the breakdown of the marriage;

• The age of each party to the marriage and the duration of the marriage – so that in a very short marriage with no children the court may consider it appropriate that each party only takes out of the marriage what they put into it;

• Any physical or mental disability of either of the parties to the marriage;

• The contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family;

• The conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it – note that the conduct has to be of an extremely serious nature to have any effect upon the financial settlement; and

• The value to each of the parties to the marriage of any benefit which, by reason of the dissolution of the marriage, that party will lose the chance of acquiring – this factor is mainly concerned with pensions.

If you would like advice as to how these factors might apply in your case, Family Law Café can help you find it. To contact us click the Contact link above and fill in the form, or call us on 020 3904 0506.

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An increasingly common issue in divorce proceedings is one party transferring assets abroad, in an attempt to defeat the other party’s financial claims. But is this a good idea, and what can the court do about it?

The first thing to say is that the English court can make orders relating to overseas assets, in the same way as it can make orders relating to assets held in this country.

However, there can be problems with assets held abroad.

Firstly, it can be difficult tracing and valuing the assets. It may therefore be necessary to instruct experts in the country to which the assets have been transferred, and this can obviously add to the expense.

The other problem is enforcing any order made relating to foreign assets in the country to which they have been transferred. It is a matter for the courts in that country whether to enforce an English court order, and there is nothing that the English court can do to force the foreign court to take enforcement action.

In order to avoid the problem of enforcement the English court will often award a greater share of any assets remaining in this country to the other spouse. It should also be said that the English court will take an extremely dim view of any party attempting to thwart the will of the court by moving assets abroad, and doing so may therefore seriously damage that party’s case.

If the assets have not yet been transferred abroad then the court can make orders freezing the assets to prevent them from being transferred.

If you believe that your spouse may have transferred assets abroad to defeat your claim, or that they are intending to do so, then you should seek specialist legal advice immediately. Family Law Café can help you find this – to contact us click the Contact link above and fill in the form, or call us on 0208 768 2278.

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It has been well documented that the number of people divorcing in later life has been increasing in recent years, when divorce rates overall have generally been falling. What is behind the rise of the so-called ‘silver splitter’?

Before answering that question, let’s have a look at the statistics. Figures from the Office for National Statistics show that divorce amongst people aged 60 and over in England and Wales has been rising since the 1990s. For example, in 2011 nearly 9,500 men in this age group divorced, an increase of almost three-quarters compared with 20 years earlier. The trend for women is similar.

What is behind these statistics? Well, several reasons have been put forward.

The first reason is that life expectancy has increased – there are simply more people  aged 60 and over living in England and Wales. In 1991, men aged 60 in England and Wales were expected to live a further 21 years. This increased to 26 years for men aged 60 in 2010. Similar rises have been observed for women. Accordingly, even with a small chance of divorce during each year of marriage, marriages are now more likely to end in divorce and less likely to end in the death of one spouse than they were in 1991.

Another possible reason is a loss of stigma in being divorced.  In 1991, there were 404,000 divorced people aged 60 and over in England and Wales. That figure increased three-fold to 1.3 million by 2010. As it becomes more common to be divorced, there are fewer stigmas attached.

A third possible reason is increasing participation in the labour market by women. The employment rate of women aged 16 to 64 rose from 53% in 1971 to 66% in 2012. This means that women have become more financially independent and are more likely to have built up their own pensions. Therefore in general women are now more able to support themselves outside of marriage than in the past.

Whatever the reasons for the increase, there can be particular problems getting divorced in later life, for example regarding pension arrangements. If you are aged over 60 and are involved in, or are contemplating, divorce then you should seek specialist advice. Family Law Café can help you find this – to contact us click the Contact link above and fill in the form, or call us on 0208 768 2278.

Image: Hand in Hand by Garry Knight, licensed under CC BY 2.0.

If a same-sex couple wish to formalise their relationship then they have two options: to enter into a civil partnership, or to get married.

A civil partnership gives legal recognition to same-sex relationships, putting the civil partners in a similar legal position to married couples.

A civil partnership is formed by having the partnership registered. The formalities and procedure are not dissimilar to those for marriage.

Civil partnerships may be dissolved in the same way as marriages, save that the term ‘dissolution order’ is used instead of ‘divorce’. The grounds for a dissolution order are the same as for divorce, save that a civil partner may not rely upon adultery to prove that the civil partnership has broken down irretrievably. The procedure is similar to that for divorce.

As with marriage, civil partnerships can be annulled. It is also possible to obtain a ‘separation order’, which is the equivalent of judicial separation between spouses.

When a civil partnership is terminated, the court can make the same financial orders as it can when a marriage is terminated. The factors that the court takes into account when deciding what orders to make are similar, and the procedure is much the same.

Since March 2014 it has also been possible for same-sex couples to get married.

A same-sex marriage can be dissolved in the same way as an opposite-sex marriage. However, it should be noted that only conduct between the respondent to the divorce and a person of the opposite sex may constitute adultery for the purposes of divorce. Accordingly, if the respondent had sex with someone of the same sex that would not be adultery, although it would be unreasonable behaviour.

The court can make the same financial orders on the dissolution of a same-sex marriage as it can on the dissolution of an opposite-sex marriage.

For further advice contact Family Law Café by clicking the Contact link above and filling in the form, or by calling us on 020 3904 0506.

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Most family disputes on divorce or relationship breakdown, such as disputes relating to finances or arrangements for children, are resolved out of court. In fact, contested court proceedings should be used only as a last resort, if you are unable to resolve the dispute by agreement.

Most agreements are reached either between the parties direct, or more commonly in negotiations between their lawyers.

If it is not possible to agree matters direct or between lawyers then there are three main other possibilities to consider before issuing court proceedings (or even after proceedings have begun). These ways of resolving disputes are often referred to as ‘Alternative Dispute Resolution’. They are:

Mediation – Whereby an independent trained mediator will help the parties try to reach an agreement. Mediation will normally involve several ‘round the table’ meetings between the couple and the mediator. If the parties are able to reach an agreement then the mediator will prepare a document setting out the terms of the agreement, and send copies to the parties. If, on the other hand, the mediator does not believe that there is any possibility of an agreement being reached, then they will bring the mediation to an end. Note that any agreement reached in mediation is not binding – the parties are entitled to take legal advice upon the terms of the agreement before it is finalised, for example by a court order. Note also that mediation is completely voluntary, and not all cases are suitable, for example, most cases where there has been domestic violence. There is a fee for mediation, although legal aid is available, subject to eligibility. Since April 2014 it has been compulsory to attend a Mediation Information and Assessment Meeting (‘MIAM’), at which it is assessed whether the case is suitable for mediation, before taking a family dispute to court.

Collaborative Law – Collaborative law requires each party to instruct a specialist collaborative family lawyer, i.e. a lawyer who has undergone special training to do collaborative work. Once this has been done, the parties and the lawyers sign an agreement to work together as a team to resolve issues without going to court. If either party should then start court proceedings, the collaborative process will end and the collaborative lawyers will cease to act for either party. Once the agreement has been signed, the parties and their lawyers will then attend four-way ‘face to face’ meetings, at which they will endeavour to reach a settlement. If a settlement can be reached, the lawyers will draw up an agreed document that is then submitted to the court, for approval.

Arbitration – Whereby the parties agree that their case will be decided by a trained arbitrator (the parties can also have their own legal advisers). The decision of the arbitrator will be legally binding, and may be made into a court order. The arbitrator will charge a fee, which will normally be shared between the parties. Advantages to arbitration over court proceedings include that the process is usually much quicker, that it is usually cheaper and that it is confidential.

If you would like any further information about Alternative Dispute Resolution Family Law Café can help. To contact us click the Contact link above and fill in the form, or call us on 020 3904 0506.