PRE-NUPTIAL AGREEMENTS CARRY MORE LEGAL CLOUT IN ENGLAND AND WALES

The Supreme Court has ruled that Pre-Nuptial Agreements, entered into willingly by both parties are to be given decisive weight unless there are factors which render it unfair as reported throughout the press and the attached is Chanel 4's version.

What this means for the man in the street in England and Wales is that there is now more certainty attached to entering into a Pre-Nuptial Agreement and marriage. Previously the Court would consider a Pre-Nuptial Agreement as one the factors of the case. Now there is legal precedent from the Supreme Court which the lower courts are obliged to follow which states that it will be a decisive factor unless there are special circumstances. Special circumstances could be one party losing their ability to work during the marriage or giving up a successful career to look after the family.

The flip side is that any couple which does not enter into a Pre-Nuptial Agreement from now on will probably find it more difficult to argue that the lesser earning spouse should receive less. The facility is now there to limit their claim so why not use it?

Is Romance now dead? This brings our family law more into line with Europe and America and the real world.

If you have more money than your future spouse ask yourself:

Would my intended be offended if I asked her to sign a Pre-Nuptial Agreement?

If the answer is yes the next question is:

Why?

And then:

Is my intended offended because I am suggesting we may divorce and she may seek to have an equal share of my money?

If the answer is yes the next question has to be:

Why is my intended marrying me?

And then:

Is it for me or my money?

If you don't want to know the answer then the risk is yours!

This case should also give more weight to Post-Nuptial Agreements - those entered into after marriage. The same questions can be asked as above but the tense needs to change and it is a bit like tying a horse up after it has bolted. Anyone who married for money is hardly likely to sign an agreement removing their right to make a claim but you may just want to know where you stand!!

Feuding parents forced to mediate?

So the Government is considering making fighting parents mediate before they can litigate. Not everyone agrees this is a good idea according to the Law Society Gazette.

There is an argument that the state should not waste it's resources allowing parents to battle over the arrangements for their children.

When parents separate 40% of fathers cease having contact with their child within 12 months. Often the reason cited is the mother's behaviour towards the father. There are many cases where it is apparent that the mother is indeed seeking to undermine the child's relationship with the father.

There are also many cases where the father seeks to continue bullying the mother post separation and uses the child as a means of doing so. In both these scenarios the unreasonable parent does not care what harm they cause their child and indeed would refuse to acknowledge it. There are none so blind as those who do not wish to see.

How can mediation help these unreasonable, selfish people come to understand that what they are doing is harmful to their child and they should stop? The Court has started ordering parents to go on Parenting Classes. The feedback has been positive but how to keep up the momentum? Plus, why tar all parents with the same brush? Some are dragged into Court by the other party who is behaving unfairly. Some are forced to use the Courts to make the other be reasonable.

In a recent Court case the father had told the child that the mother was unfair and had texted the mother to say that the child would grow up to hate her. The mother asked the Court to ensure that the child was not told about the proceedings and the father's legal advisor stated that the child should be given age appropriate information. No the child should not!!! It is never appropriate to tell your child anything bad about the other parent, unless the child is in danger.

I think the Courts should make it standard that parents do not discuss each other negatively or the proceedings with their children and if they do serious sanctions will follow.

Telling your child that daddy does not love him because he has gone on holiday with his girlfriend is cruel to your child. Telling your child that mummy is unfair because she will not drive 2 hours to drop her off is unfair to your child. Yes you may manage to get your child to side with you and dislike their other parent but why would you want to do that to your own child? Getting people to appreciate their responsibilities as parents is the crucial step. Most everyone claims to love their own children. Unfortunately not everyone behaves as if they do.

What Happens If My Spouse Goes Bankrupt?

If your spouse is adjudged bankrupt whilst Divorce Proceedings are ongoing then any subsequent agreement concerning the Matrimonial Finances can be set aside by the Trustee in Bankruptcy. Any transfer of property made by the bankrupt would be void except where it is made with the consent of the Court. What this means is that a Consent Order needs to be finalised in order to escape the Trustee in Bankruptcy seeking to reverse any such transfer.

Frequently in Matrimonial Finances the equity in the Former Matrimonial Home is not distributed on an equal basis. If one party receives more than 50% and the other party subsequently goes bankrupt then there is a risk that the Trustee in Bankruptcy will seek to have that transfer of the additional percentage set aside. It is important to act quickly and ensure that the financial matters on Divorce are concluded as swiftly as possible.

In a recent Appeal Warwick (Formerly Yarwood) v Trustee in Bankruptcy of Clive Graham Yarwood [2010] EWHC 2272 (Ch) the High Court ordered that the transfer to the wife of an additional 25% of the property should be given over to the trustees dealing with the husband's bankruptcy as a transfer of the 25% share had not taken place prior to the bankruptcy.

There are other cases which have caused alarm with one spouse deliberately going bankrupt in order to avoid the other's claim. In this instance the reverse happens and there is an attempt to declare the Bankruptcy void as to preventing the transfer of the property to the other spouse.

It is important to take legal advice on all issues when contemplating Divorce particularly if one of the parties is potentially insolvent.