Friday, November 20, 2015

Divorce without pain in celebrity land

The fashion in celebrity land appears to be a quiet divorce and continuation of family life . After the media storm of the McCartney break up who even remembers Madonna's divorce? That headline grabbing media magnet managed to get divorced and quietly move on.  How clever is she? I submit that she is unique in this regard.

The uncoupling fashioned by Gwyneth Paltrow et al offers a new landscape where couples spend time together post divorce in what appears happy families doing what families who are still legally and emotionally intact do. This all reminds me of Stepford Wives. Let's pretend we are having fun for the sake of the children, our reputation or to exhibit our exemplary emotional control, self sacrifice and lack of pain and our superiority.

Here's the thing - if you wanted to have Sunday brunch together as a family you would not be divorced. The relief of divorce is not having to spend time together - isn't that after all the point of divorce?

These celebrities are copying what most people do who don't want to get divorced but can't stand the sight of each other - live out their lives in misery still forced to present a united front to the outside. The reason lots of people give for not going through with divorce is financial - they can't afford it. What the fashionable celebrity set are expounding is financial independence via divorce, discreet sexual freedom via divorce but family gatherings a la unhappy marriages.

Is this a good thing?  In my experience couples who spend time together as a family afterwards usually do so because one party cannot move on. It's not about love or kindness it is about control and fear. It does not produce happy memories for the children or even happy children - it is dysfunctional and causes anger and rejection by the children.

Let's look at Halle Berry - what a stormy ride she has had with Olivier Martinez - they are now divorcing as reported in the Telegraph above - they state that they are moving forward with love and respect for each other. Has the passion run out then? It will be interesting to see if they are able to follow Gwyneth in her conscious uncoupling. Here's Gwyneth's explanation:

“What that really means is that even though you hate me and you never want to see me again, we are going to brunch because it’s Sunday and that’s what we do.”

Make your choice but remember - you only have one life and spending Sundays, Christmas and other special times with your ex who you may hate, loath, dislike be repelled by or simply find boring and offensive is endorsed by celebrities.

Tuesday, November 17, 2015

English Courts to Rule on International Spousal Maintenance Claim

English Court to rule on International Spousal Maintenance Claim

It is important to ensure that the financial aspect of your divorce is complete especially if you are a rich international businessman or woman.

In the above case the parties divorced in Slovenia in 2011 and the husband has since remarried. However, the wife moved to London in 2008 and has managed to have her spousal maintenance claim transferred from Slovenia to England where it is assumed the courts will be more generous to her claim.   

As The Telegraph reports:

Last year family judge Mr Justice Moylan gave Mrs Ramadani the go-ahead to claim spousal maintenance in an English divorce court

But Mr Ramadani challenged the decision, saying it was unfair for her to have “a second bite of the maintenance cherry” in the English courts which he said were known for their generosity to dependants.

Today, Lord Justice McFarlane said Mr Ramadani had "fallen a long way short" in his quest to stop his ex claiming a share of his millions. 

She had withdrawn her maintenance claim in Slovenia and was free to move the fight to England, he ruled. 

With the globalization of people's lives and many couples owning assets in mroe than one country forum hunting is an important consideration.  England has a reputaiton for being the most generous to the weaker party and has no limit on the term upon which spousal maintnenace can be set. There are still whole of life orders being made. Some jurisdictions limit this to 3 years. The court has a duty to consider a clean break in very case but will not order one if it will cause undue hardship and there is wide judicial discretion in this regard. Each Judge makes an order based on what he considers fair.

So the lesson for the rest of us is the same as anything else in life - tie up loose ends. How many other things are waiting to be completed - your will? Transfer of your gas and electricity account? 

Many people of course avoid finalising the matrimonial finances on divorce because of the potential cost. they consider that a gamble against a future claim is one worth taking. For some this pays off  but when it goes wrong the costs tend to be far worse. plus, as has been made clear recently by the Supreme Court - there is no long stop date in family law - unlike other areas of law which are governed by the statute of limitations - so a claim could arise 30 years hence... or even longer...

Tuesday, November 10, 2015

Fraud and the Supreme Court's Decision in Sharland

The case of Sharland v Sharland in the Supreme Court confirms that fraud will not be tolerated in the Family Courts and the previous Consent Order was set aside with an order for a re hearing of the wife's claim.
 What does this mean for the rest of us?

If you are found to have committed fraud - for example, deliberately not disclosed assets, undervalued them, lied about your employment - or as in the Sharland case not revealed that you were planning on selling your company shares 100s of millions - then you will have to go through the whole procedure again - or if possible only the steps necessary to  deal  with the issue of fraud. You will also probably be responsible for your ex's legal costs in getting the matter re listed. However, there is no guarantee even if you win an appeal that you will get all of your costs so this is a risk for both sides.

The lower courts in Sharland had not allowed the appeal on the basis that the substantial non disclosure would not have resulted in a different order and therefore it was a waste of time to re hear the matter as the court would arrive at a similar conclusion.

The Supreme Court disagreed and held that the husband's non disclosure was material and the judge would have made a different order if he had known about it. The Court of Appeal had made their decision on the evidence before them but the key is what would the evidence have been before the trial judge so the Courts should not have removed the possibility of a fair hearing from Mrs Sharland.

It will be interesting to see what happens - company could have been floated for £600 million but husband said it was worth £47 million - but they did not go ahead - the valuation of his shares will no doubt be the focus of the re trial but how much is hope value - what if he never sells? The wife already had 30% of his shares awarded to her. What I don't understand from her perspective is if she was prepared to settle for 30% of £47 million why is 30% of £600 million not enough?

So, setting aside the difficulties of uncovering the fraud in the first place what should the everyday lawyer and client take from this? If you are seeking justice and Mrs Sharland is quoted as saying it was a matter of principle not money then the court is available to give you a fair trial. However, most people do not have £10 million to back up their principle. If you uncover fraud - clearly you need legal advice as to whether it is worth going back to court. Each case is judged upon its own facts and each case has a different judge whose interpretation of fair differs from each other.

Monday, November 09, 2015

What Happens After Decree Absolute?

The divorce process in England and Wales is made of the seven stages. It is fault-based and the majority of petitions are based upon what is known as "behaviour". Once you have jumped through all of the necessary administrative hoops you are granted Decree Absolute. 

What is the impact of finally being divorced?

Whether it is the cause for celebration or commiseration there are important legal aspects:

 1. You can no longer inherit from your former spouse's estate. It is therefore important to update your will. If you are left anything in your ex-spouse's will and they subsequently die it will be treated as if you pre-deceased them and therefore any property left to you will be cancelled. If you have left anything to your ex-spouse the same applies and the risk of leaving the whole estate to your ex-spouse means that you would die intestate.

2.You will lose any entitlement to your ex spouse's pension. It is important to assess whether you need to make a claim for pension sharing or pension attachment order prior to applying for Decree Absolute.

£. If the property you are residing in is the sole name of your ex spouse you will need to vacate the property as you will lose your matrimonial home rights upon Decree Absolute. It is therefore important to resolve the matrimonial finances and ensure a Consent Order is drawn up outlining how the assets are to be divided upon divorce.

It is important that any agreement reached is made into a Court Order to ensure the agreement is binding and to limit any future potential claims. If agreement cannot be reached the Court can order a division of the assets and income based upon their decision as to what is fair. The court has a wide remit and is governed by judicial discretion.

Even after Decree Absolute the court's powers in relation to matrimonial finances continue. If you do not have a Court Order your ex spouse can return to Court decades later provided they have not remarried and make a claim on your assets. 

This has happened in the Wyatt v Vince case - the wife made a claim over 20 years after divorce - the husband was very wealthy and the wife was in poor financial circumstances.  The Supreme Court have allowed her case to proceed. This highlights how important it is to apply for a clean break even if you have few assets.

So it is important to get advice and consider your long term best interests - even if you wantt to bury your head and pretend it is not happening to you. It is so much better to make an informed decision than to receive a shock later...

Monday, December 15, 2014

Cohabitation Rights

What rights do cohabiting couples have upon separation? It is very different to matrimonial law and at present the weaker party financially has to rely on land law, and if there are children, an application under the children act for the benefit of the child is possible.

There is a private members bill going through the House of Lords at the moment. This will give qualifying cohabitees the right to make a claim for financial assistance and the right under the law of intestacy to inherit if their partner should die.

However, there is an opt out clause.  This means that the parties can choose to be excluded from the legislation provided they have had legal advice. No doubt, if the bill is passed, a large majority of cohabitees who are aware of it will take advantage of this opt out. 

Why do we need such a law?  A large number of cohabitees in long term relationships are vulnerable to be left homeless and with nothing should the relationship break down. This is unfair - especially if there are children involved. However, marriage would move the unfairness over to the wealthier partner so it is not difficult to understand why cohabitation is so popular.

What is fair? Matrimonial Litigation is based upon seeking a Judge's interpretation of that. Unless the new law, if it passes, is prescriptive, as in the Child Maintenance Assessment, which will of course result in unfairness to some, then the courts will be awash with new claims. No legal aid will be available for such matters so litigants in person and delay are likely.

If you live with someone and move into their house and make no financial contribution to the purchase or capital contributions to the mortgage then at present when the relationship breaks down you have no right to remain in the house or claim a capital lump  sum in order to rehouse. Some could have purchased a home in their own right but instead paid for holidays and carpets, food and entertainment, clothes furniture etc. The financial contribution they made was not towards the asset - the bricks and mortar  so it is ignored when the asset is left to be divided. No share but thank you for everything you have paid for. This is relationship disadvantage.

Some move in and pay for nothing. Live off their partner for years and expect it to continue.  These people will benefit from the new law also if it is passed.  Obtaining fairness for some results in unfairness for others.  It is a bit like vaccination - the public policy will always result in a minority of losers.

The headline cases are the women who move in, have children, run the household and then when the children are older are left with nothing when the relationship ends and their partner goes off with a younger model and begins the cycle all over again.

The law cannot legislate to assist people in making better life choices, but it can assist with resolving the financial mess such choices can result in.

Thursday, October 30, 2014

Is It Worth getting a Pre Nuptial Agreement

Nobody wants to see a bride cry but YES it is worth getting a Pre Nuptial Agreement.

Here's why:

It is one of the factors that will be taken into account upon divorce.

Is it decisive?




1. Both parties have been given the opportunity to take legal advice

2. Full financial disclosure has taken place

3. There has been no fraud or mistake

4. It is fair in the circumstance

5. There has not been a fundamental change since it was drafted


It is likely to be upheld.

It is soo unromantic...

My partner will say I do not love him/her if I ask for such a thing...

Here is your reply:

"Darling... I am sure you love me and are not marrying me simply for my money so there is no loss to you in signing this. I love you more than space and this will just prove to little, old insecure me that you love me too.  You have no idea how awful it has been being pursued by gold diggers up until now.  I am soo relieved that we have found each other and our love is real."

Use your own words but you get my drift...

Nobody gets married with the intention of divorce...

Actually that is not true. Gold diggers do and they are some of the best actors in town

I knew one decades ago.  She was young, attractive, loud and confident.  Not drop dead gorgeous but a 7 out of 10.  She was dating a very, wealthy man. He was a 3 out of 10 if he was lucky and she had a mean nickname for him. Each time he saw her he bought her a designer handbag. She loved the bags but he thought she loved him.  He had just got divorced.  He had poured his heart out to her.  He had married a beautiful blond and before they were married she was all over him.  On their wedding night she said "Don't make a marathon of it." The tale gets worse and he caught her inflagrante and was recovering from a very expensive divorce.  What did he do? Console himself with the next one.The only change he had made was the hair colour. It was another sad ending. I wanted to call and warn him but knew he would not believe me.

Don't let this happen to you.  Get a pre nup. Call me...

Monday, September 15, 2014

The Little Book of Divorce Questions

 The Little Book of Divorce Questions  is available now on Amazon .

In an agony of indecision?

Can't decide whether to stay or go?

Making such a decision is usually choosing the least worst option.  It is a bit like deciding whether to have an abortion - you don't want an abortion or a baby. Both choices are not what you planned in life.  In order to escape choosing what you don't want you live on in anxiety and pain.  Pondering, pondering... should I stay or should I go? For some people this process can go on for many years.  They turn to addictions to support them - alcohol, food, shopping, work, exercise.

Information is power. Working out what your options are can help you decide what you want.

Often money is a major consideration - even the very rich don't want to be less rich and there are lots of extremely wealthy people who are still together because they don't want to split their empire. So a question to ask yourself:

If the genie was before you and doubled your assets so that you could both have what you have now - would you leave?

A question for the less wealthy:

If you won the lottery would you:

A. Use it to build a new life with your partner.

B. Split it 50/50 and divorce.

C. Hide it from your partner and divorce.

Your honest answer to the above will tell you what you want.

My new book will answer a lot more questions like this.

Making such a decision is not an easy one and sometimes people choose to stay together because they cannot face the thought of an uncertain future with insufficient money. At least you can make the decision and then live with it - rather than anxiously considering if you are doing the right thing all the time. 

The choice to separate and divorce will affect the rest of your life - make an informed choice from a position of strength. try to give yourself a break from the pressure and to allow yourself to accept that you are not perfect and that divorce and separation is not a sign of failure but a sign of strength and growth.

There are lots of resources to help people cope. Counselling can be a great support - provided you find the right counsellor for you. 

There are also lots of resources online to help your children  Bastows Children's Page has some useful links.

Whatever choice you make - be kind to yourself.  There are no mistakes in life - only lessons.

Thursday, August 07, 2014

The Little Book of Divorce Questions

Coming soon...

How do you know if it is time to get divorced?
What should you do?
How do you decide?
What are the legal considerations?
What is the emotional impact?

If you are considering getting divorced this is one of the most difficult and traumatic decisions of your life.  Bereavement is traumatic but it is not your decision. Choosing to divorce means taking the decision to radically change the course of your life and those closest to you.  The emotional impact of such a decision should not be underestimated.

Extract from my new book:

If you have purchased this book, you are probably facing the agonising decision of whether to change your life dramatically and divorce your spouse. This is not a decision to be taken lightly or quickly. Most people agonise over this decision for many years. The process of indecision is the primary cause of pain. It is possible to uncover what you really want and assess whether remaining with your husband or wife, or divorcing them is the right decision for you.

The reason the decision is so painful is the fear of the unknown and the uncertainty as to whether either decision will be the right one. It can be compared to the agonising decision over an abortion. Many people end up in a position whether they neither want to have a child or an abortion. Uncovering your emotional response and the true choice which is the right outcome for you, is a similar process when you are getting divorced.

What choice are you facing? Whether to remain unhappily married or to obtain a divorce and face the future alone, perhaps without ever meeting another partner and perhaps being equally unhappy.

I hope that my book will help you work through one of the most important decisions you will ever have to make...

If the Answer is yes I do want to divorce... then The Little Book of Divorce is there to help you with the next step.

Saturday, August 02, 2014

Children Aged 10 and Over to have a say in the Family Courts

The Government have decided to allow children to have a voice in the family courts.  Where parents are arguing over what is best for their children the Governement will now allow the children themselves to voice their opinion direct to the Judge - rather than be interviewed by CAFCASS or ignored completely if no CAFCASS report is commissioned.

Is this a good idea?

Yes. The Government have selected the age of 10 because that is in line with other legislation - for example the criminal age of responsibility - if children are deemed old enough to take punishment for their actions they should be old enough to have a say in their own life.

A child's wishes and feelings are one of the factors to be taken into account when the court determines what is in the child's best interest.  It is not necessarily determinative - a child not always knowing what is in their own best interest - for example most children would choose not to go to school or the dentist.

The factors taken into account are called the Welfare Checklist as detailed here  Children Act Matters and include the following:

- The wishes and feelings of the child, in light of the child’s age and understanding. - The child’s physical, emotional and educational needs.
- The likely effect on the child of any change in their circumstances.
- The child’s age, sex, background and any characteristics the court considers relevant.
- Any harm the child has suffered or is at risk of suffering.
- How capable each of the child’s parent’s (and any other relevant person in relation to whom    the court considers the question to be relevant) is of meeting the child’s needs.
- The range of powers available to the court.

Baroness Hale (as she was then) in Re D  (a Child), A Hague Convention case, explains the importance of the views of a child in general terms, emphasising that it is the child more than anyone else who has to live with the reality of any order that the court makes:

 There is a growing understanding of the importance to the children involved in children’s cases.  It is the child, more than anyone else, who will have to live with what the court decides. Those who do listen to children understand that they often have a point of view which is quite distinct from that of the person looking after them.  They are quite capable of being moral actors in their own right.  Just as the adults may have to do what the court decides whether they like it or not, so may the child.  But that is no more a reason for failing to hear what the child has to say than it is for refusing to hear the parent’s views’

The announcement of the legislation can be read here...Simon Hughes speech at the Voice of the Child Conference

Thursday, July 24, 2014

What's The Deal with Holiday Contact for the non resident parent?

This can be an area of never ending dispute.Something that should be a pleasure turns into a battle. When parents separate some find it hard to accept that the other parent - who has different parenting values, skills and attitudes has a say in their child's upbringing. Couples who stay together argue over their differing parenting styles so this can become so much more acute when they are no longer a unit. The battle can be over winning - proving that they are right and they lose touch with the fact that a child is in the middle - suffering.

Here's what  happens:

1. Mum wants to know every detail of who is travelling, where they are staying etc but thinks nothing of moving her new boyfriend into her home without dad being told anything about him. 

2. Mum refuses to release the passport.

3. Mum refuses to allow the child to go skiing with dad.

4. Mum considers it is her right to veto what dad chooses to do.

5. Dad refuses to allow a change in the contact order (child care arrangements order Since April 2014) so that mum can take the children to Disneyland for 2 weeks

6. Dad refuses to allow the children to miss school and this is the only time mum can afford to go.

This is about the child's life. In every case if asked the child would respond:

"I want to go and I don't want to be in the middle and I don't want my parents to fight.  It's all my fault - if I had not been born they would not be fighting".

If the parent's cannot agree there is only one solution - an emergency Court Application. This can be effective and Judges are well used to dealing with such disputes. The Government likes people to Mediate - particularly in Children Act Applications.  Sometimes there is not time to Mediate. Sometimes the other party can deliberately delay matters with no intention of Mediating. Whatever the circumstances a Court Application can be made quickly if appropriate. Each case is decided on its own facts and the overriding principle is what is in the child's best interest. Where parent's views differ sometimes a judge is needed to decide.