Don’t Let the Sun Go Down

p131940-(2)Lewis Hulatt, Consultant Solicitor with Major Family Law, the divorce and family law specialists, comments:

I am not one for spilling things, but admittedly two laptops have been ruined through the application of generous amounts of liquid.   Considering how frequently we have had refreshment to hand when using table-top computers, two spillages in perhaps fifteen years is not bad going for a household.  By using a separate keyboard and wireless mouse, the chances of drenching the body of the machine have been greatly reduced, so I commend that idea to my readers together with a decent screen so that you are freed from having the crucial parts of the machine within splash range.

From all that, you may gather that I try to learn from my mistakes. Solicitors are not routinely taught management, but ‘risk analysis’ is something I get.   Years ago, ‘SWOT analysis’ was a vogue in the business community and it is a useful tool.  You look at Strengths – Weaknesses – Opportunities – Threats.

I wonder if people ever do that with their relationships:

Strengths – as a couple? Do you communicate well?   Are you forgiving to each other? Are you tolerant of the other person’s differences?  Have you been through misfortune and difficulty and survived it?  Do you realise how resilient you have already been?

Weaknesses – what really winds you up about each other? What repeated mistakes or behaviours cause problems?   What never goes right?   Household chores/money/criticism/lack of appreciation?

Opportunities – what can be done to strengthen what you have? Are there new things to try together or apart which might improve your lives?  Opportunities are wide and unpredictable!

Threats – As a long-time family lawyer, I see a lot of these after they have actualised.   What might cause serious damage?  Working away or long commutes.  Distractions and other relationships.   Continual use of smart-phones/email/social media.   Are either of you getting near a zero birthday – 30, 40, 50 or 60?  Are there pressures from family?  Is there a real prospect of a parent dying soon?   Add in job problems or moving house and there is greater risk.

Maybe reflection comes more readily to me through having been involved in both management and mediation, but perhaps we should give ourselves a relationship MOT from time to time?

If those stresses erupt – ‘don’t let the sun go down on your anger’ and find a way to make peace before sleeping.  It can be reasonable to be annoyed, but unreasonable to seethe overnight.

Guidance on financial needs on divorce

Lucinda Connell profileLucinda Connell, senior solicitor with Major Family Law, the divorce and family law specialists, comments:

In June 2016, the Family Justice Council published it’s long awaited “Guidance on Financial Needs on Divorce”. The guidance follows a low commissioned consultation on matrimonial property, needs and agreements which was published in February 2014.

The guidance focuses on financial needs of parties following a marital breakdown as opposed to the other factors which come into consideration when looking at terms of settlement, that of sharing and compensation. The guidance sets out how financial needs should be approached and goes on to deal with the issue of duration of the relationship and marriage.  There are a number of accompanying annexes which contain useful worked examples and tables of relevant cases with short summaries. Another annex contains a helpful commentary on the approach to be taken when considering pensions whilst a third provides practical examples of different types of need and details relevant legal authorities.

The guidance makes interesting and informative reading but it is important to note however that the guidance does not itself change the law; its purpose is simply to disseminate information about the ways in which the court exercises discretion when considering terms of financial settlement and particularly in relation to the assessment of a party’s needs and it is hoped that a more consistent approach will be encouraged.

Divorce settlements and stamp duty changes

Lucinda Connell silhouetteLucinda Connell, Senior Solicitor with family law specialists solicitors, Major Family Law, the best divorce and children law specialists, says:

According to a recent report in the Telegraph, thousands of divorce settlements may potentially be open to appeal as a result of the government’s new stamp duty surcharge which leaves estranged partners unable to buy their own home following a marital split.

The new rules mean that a husband or wife who was granted an interest in a property (for example, a buy to let property or a second home) following a divorce could potentially be liable for thousands of pounds in extra tax when they purchased their own home. The surcharge, which was introduced in April this year, means that anyone who buys an additional property has to pay extra stamp duty of 3% points on top of the existing tax liability for their property’s value.  The tax is particularly likely to affect women who lived with their husband but did not have a stake in the marital home, and who are granted other property following the marital split.  However, it will also affect wealthy couples where one partner moves out of the family home but retains a stake in it, to stop or delay the property being sold because, for example, the couple wished to provide stability for the children.

That individual would then be subject to the extra tax. A refund can only be claimed if the separation is “likely to be permanent” and the first home is sold within three years.  The law provides that anyone who sold their main home within the past three years – or, currently, before November 2015 – to buy a new one without paying the extra tax.  However, a quirk means that if there was not a previous main home to sell, liability for the extra tax will arise.  The Telegraph reported that a number of divorce lawyers were unaware of the new law meaning that the potential tax liability was not being factored in to settlements.   This could potentially leave a number of divorce settlements open to appeal, as a spouse could argue that they had been unfairly disadvantaged by the tax which can add thousands of pounds to the cost of purchasing a new home.  Further cases could also involve couples whose settlements had been decided prior to the stamp duty surcharge being announced in November 2015.  In these cases however there are likely to be fewer grounds for an appeal as the law was of course not known at the time settlement was reached.

In this day and age where buy to let properties are wide spread, it is common for a separating couple to agree to transfer ownership of some or all of those properties to the other spouse. It is therefore essential that specialist family law advice is sought at the time of separation and when considering the terms of financial settlement.

 

Divorce: What’s mine is mine and what’s yours is mine…

Anna Hunter profileAnna Hunter, Director and specialist children’s lawyer of Major Family Law, the top Divorce and Children Law specialists in Newcastle, states in this month’s North East Times:

In an ideal world, everyone contemplating moving in with their partner and/or getting married would seek legal advice before doing so and ensure that each party’s financial interests were protected and accounted for in the event that the relationship were to break down at a future date.

Despite the fact that pre-nuptial and post-nuptial agreements are more commonplace in modern conversation, and consistently relied upon by Courts in determining financial provision post break up, most people still shun the idea, not least because it seems antithetic to the process of forging a joint future life.

That being the case, when it comes to divorce, the process by which financial provision is determined relies very heavily on two terms: openness and fairness.

An unlikely couple perhaps and fairness in particular can often be a hotly contested subject within divorce finances. Fairness, nevertheless, is the key to determining what provision will be made. Generally, the accepted starting point is to consider whether an equal division (50:50) of the marital assets would provide a fair settlement.

In broad terms, “fair” to a Judge means ensuring that both parties’ needs (for housing, capital and income) are adequately met out of the available matrimonial assets, and although the starting point is an equal division, that does not necessarily mean that everything each party owns will be split down the middle: here, the Court makes a clear distinction between matrimonial assets, non-matrimonial assets, and post separation accruals.

Examples of non-matrimonial assets include: gifts (of value) to one party, inherited assets, business assets acquired before marriage and, in some cases, assets acquired post separation. Pre-marital assets are common in second marriages as well as in cases where one party’s family has significant financial interests in which that spouse is involved.

Whether an asset is deemed to be a non-matrimonial asset is a matter of fact according to the circumstances surrounding ownership and enjoyment of the asset. In many cases, the longer the marriage, the more likely the presumption that the asset will have become intermingled with other marital assets and therefore will become a matrimonial asset.  In other words, the Court will consider whether the wealth went into the matrimonial pot during the marriage or whether it was kept specifically outside of the parties’ other assets as a distinct and untouchable asset.

The party asserting the existence of pre-marital assets must prove they are such by clear documentary evidence, in other words. evidence of the existence of this asset prior to the marriage and also, evidence that this was not intermingled as an asset during the marriage. If the argument is sustained that a particular asset is a non-matrimonial asset, then in high net worth cases, it may well be excluded from any financial settlement.

The situation is similar when it involves assets accrued after the parties have separated: to be considered a non-matrimonial asset, the benefiting party needs to show that the assets were acquired entirely independently of existing matrimonial assets, for example when a new business venture is established using independent financing. Where an existing matrimonial asset gains value between separation and the determination of financial claims, the Court may well treat the increase in value as a non-matrimonial asset.

As with most legal arguments, there is no absolute. What one man sees as his and his alone may well be deemed by a Judge to fall within joint marital assets to be divided between the parties, and this can include business assets and interests too, so to be protected means taking proactive rather than reactive legal advice from an expert.

 

Marriage Going Down, Cohabitation Going Up

Lucinda Connell profileLucinda Connell, specialist children’s solicitor with Major Family Law, the best divorce and family law specialists, states: As a family lawyer, the statistics with regards to the number of peoples choosing to formalize their relationship by way of marriage is always on interest. The latest figures in this area have now been published by the Office of National Statistics and they show that just over half of the adult population are married.  In 2015 there were 23.8 million people (in England and Wales) who were married. This was 50.6% of the population aged 16 and over. In 2002, married people amounted to 54.8% of the population aged 16 and over. The number of marriages can be seen to have continued to decline.

The population aged 16 and over who were single increased from 29.6% in 2002 to 34.5% in 2015. There were 28.4 million people living in a couple in 2015. This was 60.5% of the population aged 16 and over. This coincides with an increase in people cohabiting who are never married or civil partnered (from 6.8% in 2002 to 9.5% in 2015), as cohabitation has become more common as an alternative to marriage, especially at younger ages. The rise in single population also reflects more people in middle age groups remaining unmarried.

The specialist family lawyers’ organization, Resolution, has campaigned for some time for reform to the (currently) unclear and outdated law which governs the position when a cohabiting couple’s relationship breaks down. A Resolution spokesman, Graeme Fraser, commented:

“These statistics should be regarded by policymakers as a wake-up call that cohabitation is a trend of modern society that is not going to go away. As family lawyers who see the damage caused by the lack of protection for cohabiting couples when they separate, Resolution calls for the urgent introduction of safety net legislation providing legal protection and fair outcomes at the time of a couple’s separation, particularly for children and mothers left vulnerable under the existing law.

In light of the latest ONS data, reform of the law for cohabiting couples should be one of the top priorities for the new Justice Secretary.”

May the Force be with her…

p131940-(2)Lewis Hulatt, South East Consultant with Major Family Law, the best divorce and children law specialists, comments:

Theresa May became our Prime Minister last week – a job that comes from her fellow Conservatives, rather than being the choice of the people.   It is a mandate that is different from that of the President of the United States, who publicly suffers a ‘beauty contest’ to be one of two options for the electorate and then needs to find a way to deal with a Government that may not support his (or her) personal policies.   At least for her the fighting is restricted to which shade of blue is applied to the policies.

What does this mean for family law in the UK?

Avoiding economic calamity, social unrest and harm from terrorists will all rank above establishing a coherent family law regime.  On the liberal side, she voted to permit same-sex marriage, but on the harder side, she favours the erosion of Human Rights.   She would argue that existing interpretation of human rights law endangers the ‘right to life’ of everybody, so easier deportation, more surveillance and a ‘toughening up’ are required.  Again on this she seems a complex person – somebody who correctly identified that the public perception of the Conservatives was as the ‘nasty party’ which needed to be addressed and in an un-Conservative manner got tough on the police for being less trustworthy than she thought right. That shows a sense of realism as well as determination to get change.

I am not much of a student of politics, despite having a tendency of ‘putting the world to rights’, but there is something somewhat Thatcher-like about our new Prime Minister. She has served a long time in Government and expected to be no push-over when discussing terms of Brexit – our looming legal separation from the EU.

However – and this is my final point – when you have a divorce settlement to negotiate – you want somebody who can examine the issues thoroughly, have some flexibility about options and then show determination to get a fair and mutually acceptable outcome.

May she do that?

Wedding Day Blues

p131940-(2)Our Surrey Consultant, Lewis Hulatt of Major Family Law, the best divorce and children law specialist, says:

Well, the day happened and my long-single friend finally got married last weekend. In marrying, he has taken on the responsibility of step-children, all of whom appeared happy enough about it all.   So they start a new life as a family and my long-term advice was ‘keep communicating’.

The day involved a lot of blog-worthy conversations – even with a couple of other lawyers.

One particular conversation confirmed that it is better for family law solicitors to recommend somebody that they trust to do a good job, rather than represent people they know well.   Many years ago, I went away with a group of people, one of whom tried to recruit me to threaten her husband with losing his son if they ever parted. My observations at the time were that the son was actually more at ease with his father than his mother and let her know that being the main parent was no foregone conclusion.  I didn’t see her much after that…  As everybody predicted, they did separate, but even after an unpleasant divorce, he was still able to take the view that his son’s home environment was more important that mathematical fairness.  ‘Money isn’t everything’ he told me, which is just as well, as his lawyer – recommended by somebody else – didn’t seem to have got him a particularly good bargain.   Clients may all be equal before the law, but not all lawyers devise good deals.

What was particularly good to see was how few of the couples I knew had separated or divorced – almost all the couples who were together even thirty years before, were still in tolerable (or better) relationships with the same person!   Some may never have married, despite long committed partnerships, but apart from those parted by death it was almost a clean sweep of people together after 10, 20 or 30 years.

It may not be good for business to have couples stay together, but as the guy said ‘money isn’t everything’.

The lawyers at Major Family Law are independent and will use their experience on your behalf to look for fair outcomes.

 

 

 

Wife Awarded £75m Divorce Settlement

Lucinda Connell silhouetteLucinda Connell, Senior Solicitor with Major Family Law, the leading divorce and family law specialists, comments:

Christina Estrada, a former Pirelli calendar model, has been awarded a sum of around £75 million by Mrs Justice Roberts in the High Court. Ms Estrada had been seeking £238m from her former husband, Sheikh Walid Juffali, with whom she has a daughter.

According to the report in The Guardian, Ms Estrada had claimed that her reasonable needs meant she required she enough from her ex-husband to afford a luxury home in London worth about £60m, a £4.4m house in Henley-on-Thames and £495,000 for five cars: three in London and two in the US together with £1 million a year for clothes, including £40,000 for fur coats, £109,000 for haute couture dresses and £21,000 for shoes.   Ms Estrada’s lawyers estimated that her former husband is worth £8bn although Juffali, who has had three wives, said in a written statement that this was a grossly exaggerated “fantasy” figure and put his current net worth at £113.8m.

Although her award fell short of the target amount sought by her, Ms Estrada stated:

“I am very grateful for [the court’s] ruling. I have lived in the United Kingdom since 1988 and am thankful for access to the British courts. I never wanted to be here. I always wanted to resolve the matter amicably. This process has been incredibly bruising and distressing. Walid and I were happily married for 12 years and have a beautiful daughter together. He took both a second wife and divorced me without my knowledge.

His use of diplomatic immunity to try and prevent me from access to a legally binding settlement set a worrying precedent. Having grown up in a middle-class family and having enjoyed a successful career until my marriage, I am fully aware that the spectacular life Walid and I led was immensely fortunate and rarefied. And I fully understand how this can be perceived in the wider world. My focus now is to support my daughter and move forward with our lives. For her sake and the sake of our wider family, I hope we can now resolve matters sensibly.”

The Court of Appeal had considered the Sheikh’s claim for diplomatic immunity and decided that his permanent residence in the UK precluded him from availing himself of such protection from his former wife’s financial claims.

This Estrada/Juffali divorce will confirm the UK’s capital city reputation as the divorce capital of the world, where ex-wives can be more confident of being awarded more generous settlements and relatively fast justice for those who can afford the legal fees in such high asset cases.

 

 

They think it’s all over. It is now (20 years after the divorce!)

Joanne profileJoanne Major, Principal of Major Family Law, the best divorce and family law specialists, comments in this month’s Luxe Magazine: 

The case of Wyatt v Vince has, in the last couple of years, become perhaps the most infamous divorce settlement case in recent history. Legal action has been ongoing since 2011 when Ms Wyatt launched her claim for financial settlement against her former husband, Mr Vince.

Last year, the Supreme Court ruled that Ms Wyatt was entitled to bring the claim notwithstanding that the parties had been divorced for some 18 years at the time the action was commenced, confirming that there is no time limit for ex-spouses to apply to a court for a financial settlement following a divorce.

Despite the length of time since the couple divorced, they had never obtained a final Order from the Court dismissing all financial claims against each other. Like many others, the couple – being somewhat impecunious throughout their relationship – believed there was no need to obtain any Order in respect of financial settlement when there was nothing to divide.

Subsequent to the divorce, however, Mr Vince found wealth and recognition with a green energy business he founded and is now a multi-millionaire. By comparison, Ms Wyatt, who raised the couple’s son alone, continued to live in modest circumstances.

Mr Vince had sought to have Ms Wyatt’s claim struck out without ever proceeding to a hearing on the basis there was no foundation for the claim. Such a process exists in general civil claims (where it is known as summary dismissal), and indeed most legal actions are subject to a time limit in which to bring the suit.

The Judges hearing the appeal to the Supreme Court were unanimous, however, in ruling that applications for financial settlement following divorce are not suitable for a summary determination as to whether the application should be allowed to proceed. They were clear that any such application should be considered irrespective of whether there appears any real prospects of the claim succeeding, unless the application is not legally recognisable.  This would include where a financial Order had already been made or the Applicant had remarried.

Finally, this month, the application was heard by High Court Family Judge, Mr Justice Cobb who determined that Ms Wyatt was “entitled to receive a modest capital award following the breakdown of this marriage” approved the settlement the parties had negotiated by agreement of a £300,000 lump sum payment to be made by Mr Vince to Ms Wyatt.

Mr Vince earlier labelled the decision to allow Ms Wyatt’s claim to proceed as mad. Had he sought legal advice at the time the parties separated, he would almost certainly have been advised to pursue an order dismissing his and Mrs Wyatt’s respective claims to prevent any such future application should his financial position improve.

This would have saved him not only the £300,000 lump sum awarded, but also the additional £325,000 he has paid (by order of the court) towards Ms Wyatt’s costs. On top of that, of course, are his own legal costs which are likely to be staggering

There is a strong and clear lesson in this landmark decision: parties should seek to obtaining a financial remedy order within the divorce proceedings irrespective of their financial circumstances at the time. An Order simply dismissing each party’s financial claim (present and future) against the other (a “clean break” order), prevents a later claim like this one should one of the parties’ financial position change. A Decree Absolute is only evidence of the end of a parties’ marriage and does not bring an end to financial claims.

 

 

 

Mr & Mrs: Call the Mediator

p131940-(2)Lewis Hulatt, South East Consultant of Major Family Law, the top divorce and family law specialists, comments:-

I like mediation as a tool to help people settle disputes. The BBC decided to open the toolbox and show people mediation in practice with the help of National Family Mediation(NFM).   Each week, the show concentrates on the stories of three couples dipping in and out of sessions and footage of their lives outside mediation – we get the back-story in a way that the mediators themselves probably have no clue about.

Although it makes ‘good telly’, it may not be representative. Saying that, I can recognise the kind of interpersonal conflicts that us family lawyers deal with all the time – particularly how unresolved issues like jealousy and control interfere.  The women shown are presented as somewhat unreasonable, selfish, bitter and ignorant. That may be editing, but the mediators largely fail to re-frame what is said to reduce conflict or make them sound less unreasonable.

I was amazed that NFM did not appear to require appropriate financial disclosure before reaching a deal or explain its necessity.

Although I warmed to Irene, the younger mediator, the miserable and disengaged mediators did little to ‘sell’ mediation apart from the old NFM line of lawyers being an expensive alternative.

After this programme, I think the public might prefer the alternative.