The Quickest and the Biggest UK Divorces ever?

It seems as though you can barely open a newspaper or magazine nowadays without reading details of another celebrity couple to divorce. Nigella Lawson’s divorce was reported recently as being granted only weeks after pictures of Charles Saatchi apparently assaulting her outside a London restaurant made headline news. Often when the press reports a divorce as having been granted it is referring to the decree nisi in the divorce rather than the decree absolute which finalises the dissolution of the marriage. Either way the Lawson / Saatchi divorce has proceeded very quickly, and this is no doubt attributable to the fact that neither party is making a financial claim against the other.

The Law Society has recently issued a warning that celebrity divorces are unrealistic for the rest of us, and as  most divorces will involve a financial claim being made (even if that is ultimately settled by agreement) parties should not assume their divorce can be finalised with the  same speed as Lawson and Saatchi.

In the same statement the President of the Law Society warns that a cut price online managed divorce could end up costing more in time, money and stress in the long run. He advises it is crucial to take advice from a specialist family law solicitor particularly where there are children and / or financial assets  where an online process is not going to give you important tactical advice as to the options open to you.

Also making headlines this week is a £54 million divorce which has just been ordered in the High Court and which is being described as the biggest divorce pay out in contested UK proceedings. As yet no further details of the case have been released, although I would hazard a guess given there have been little prior press reports about the case that for once it is not about a celebrity couple’s separation.

Sally Leaman

Head of Family Law Gorvins

‘Til death us do part from our matrimonial assets?

A recent case that appeared in the media in May of 2013 highlights the real need for caution and attention to the fine print when it comes to keeping a claim to matrimonial assets alive.

The case was that of a 71 year old man, Mr McIntosh, whose divorce had been made final by decree absolute in 2009 after a 16 year marriage to his wife who later died in 2011.

At the time of the divorce, a financial settlement order was also made by consent that provided for a “clean break” whereby each spouse was to retain those assets already held in their sole names and not be permitted to make any further financial claim against the other – or the others estate – in the future.  This is not an unusual type of order to see.

The oddity here was that Mr McIntosh claimed he did not realise that he was divorced and did not know what the papers he had signed were, because he struggled with literacy.  Supportive of this stated belief was the fact that Mr McIntosh and his wife had continued to live together until Mrs McIntosh’s later death from cancer some two years after the divorce.

The impact upon Mr McIntosh of being both divorced and having the financial settlement order, was that there was no legal basis for him to claim anything from his former wife’s estate.  His former wife’s estate in this case included the matrimonial home itself which she had purchased in her sole name and which is now worth in the region of £350,000.

The house went to Mrs McIntosh’s estate on her death which means that Mrs McIntosh was either intestate or, if she had made a Will, subsequent to the divorce, that it had not made provision for her former spouse.  As there had been a divorce, Mr McIntosh was not her next of kin for intestacy purposes.

Was there anything Mr McIntosh could do?  The answer is no, albeit he did attempt to do so by making an application to the Court to have the decree absolute of his divorce set aside.  His application was refused and indeed such applications would very rarely be granted.  The exact reasons of Lord Justice Ryder who dealt with the matter have yet to be given. 

What should be taken away and filed from this case?

1.    Do not sign anything that you do not fully understand.  You would fully expect a Solicitor to say it, but it makes absolute sense to take independent legal advice first to ensure a reasonable and fair outcome (which may or may not include a right to claim after the other spouse’s death).

 

2.    If you do want to achieve a full and final financial settlement from a spouse then be aware that it is a two step process that requires both (i) a concluded divorce where a decree absolute has been pronounced and (ii) a financial settlement order that has been approved and sealed by the Court.

The reasons for requiring both of these are:-

·         It is not possible to have a financial settlement order without a divorce as a Court cannot consider or approve a financial agreement reached as a Court Order until such time as the mid-point (decree nisi) of a divorce has been reached and

·         It is only the decree absolute of a divorce that makes any financial order final and binding

It is for the above two reasons, that Mr McIntosh’s representatives attempted to attack the decree absolute itself

3.    If you do want to benefit your former spouse or provide for them upon your death but have made no specific provision for this within a financial settlement order (which is possible) then look to your Will provision and be aware that a divorce has the impact of rendering any pre existing Will that benefits your former spouse as void insofar as any reference to that individual appears upon the face of the Will.

So no, it is not death alone that parts you from your matrimonial assets, it could well be a failure to obtain and act upon sound legal advice! 

Nicola Fraser

Senior Associate
Gorvins Solicitors

Avoid a Holiday Headache

It is that time of year…the school summer break and a chance to take the children abroad on holiday. Caution however needs to be exercised in the run up to a family holiday abroad as many parents are unaware of the legalities involving the removal of a child from the country.

 

Disputes in relation to the family trip abroad tend to peak at this time of the year. It is common for separated or divorced parents not to know that they are required to obtain the permission of the other parent or person with parental responsibility regardless of whether it is for a day trip to the continent or a fortnight’s trip to the States.

 

If a child is taken abroad without written permission from the other parent or person with parental responsibility then technically this is child abduction and it is entirely possible for the other parent to instigate child abduction court proceedings because of what is nothing more than an innocent family holiday.

 

If a parent or person with parental responsibility refuses to provide their permission then a court application for permission to take a child on holiday aboard without the others permission will be necessary. When considering such an application, the court will be expecting to see documents confirming the travel plans, reasons for the trip and contact details for the travelling parent and child.

 

It is important that a parent or person with parental responsibility does not automatically assume that they have the permission of the other parent or that permission is not required. Written permission should always be obtained well in advance of any proposed trips abroad as last minute disputes may cause upset to the child and may increase the acrimony between the parents which may have a detrimental effect on the child in terms of agreeing the future arrangements for contact.

 

It is important to note that the situation is very different if a mother alone has parental responsibility and there is no Residence Order concerning a child. If this is the case, permission from the other parent is not strictly necessary although it is always good practice to consult with the other parent. Where a person seeking to take the child abroad has a Residence Order, they are able to take the child abroad without the written permission of the other for up to one month, again however, good practice would be to consult with the other parent.

 

When dealing with children issues, it is extremely important to seek specialist legal advice at an early stage to ensure that there are no difficulties or last minute changes to the family holiday arrangements.

 

Kerry Russell

Divorce rates soar among baby boomers

The results of a recent study I saw showed some interesting facts about an increase in divorces in the baby boomer generation.  It stated that the number of over 60s getting divorced is rising each year, with the number of men in their 60s getting divorced having doubled in 20 years.  There are many reasons which may explain this. People are living longer and enjoying a longer retirement and may not be prepared to put up with an unhappy relationship at a time when they should be able to enjoy themselves without the demands of work or growing children.  Sometimes it can be the reality of spending every day together, precisely because such demands have gone, that can make couples realise they no longer have anything in common.

It is said baby boomers hold 80% of the UK’s wealth and many couples will decide it is not worth struggling on in a difficult marriage when there are sufficient assets for them both to go their separate ways. Whilst it is not true of every case, some clients I have seen in this situation are able to manage their divorce in a very amicable way and are able to remain good friends afterwards. People are more aware now I think of the effect of stress on their health and well being, and are not prepared to put up with a stressful relationship which is making them unwell. Younger couples may decide to stay together for the sake of the children or because financially it is difficult to separate to two households, but where the children have grown up and a good asset base has been built up, those practical considerations are no longer a concern.

A report by Relate stated older people are far more likely to be living on their own than previous generations and were concerned that could lead to isolation and loneliness. Whilst obviously I would not want to detract from those concerns, I have to say my experience of clients in this generation going through divorce is that they  seem to have a strong network of friends and family around them and I often see grown up children giving a lot of support to a parent going through divorce proceedings. Given the rise in divorces of this age group they are also more likely to have other friends or relatives that have been through a similar experience.

 

Sally Leaman

A potential game changer?

A recent high court battle has set a precedent when it comes to including business assets in a divorce settlement.

Michael and Yasmin Prest divorced in 2008 after 15 years of marriage, during which they had four children.

Michael Prest’s limited companies, in the Petrodel Group, were the legal owners of several properties and a court battle has taken place to rule whether these properties should be included as part of the husband’s assets in the divorce settlement.

Despite the fact that the properties were legally owned by the companies and not the husband himself, the High Court initially decided that the properties were assets which the husband did have an entitlement to and therefore awarded the wife various properties as part of the divorce settlement.

The Petrodel Group successfully appealed this ruling at the Court of Appeal, only for the wife to have that ruling over-turned at the Supreme Court. It upheld the original decision that various properties owned by the Petrodel Group of Companies were to be transferred to the wife in order to satisfy her £17.5 million award.

As the husband had purchased the properties using his own funds the Court decided that he did have an interest in them and thy therefore should be considered in the settlement.

Having looked into this case, it is pretty unique. The Supreme Court took a lot of particulars of this case into account and inferred that the husband’s reluctance to comply with court orders and his behaviour during the marriage played a part in its decision.

However, this ruling shows that putting assets into a company structure doesn’t necessarily mean they are protected against divorce claims.

This is a fair ruling and shows that a dishonest party cannot hide assets behind company structures. But it’s also important to stress that the ruling has not ignored the principles of Company Law, but it clarifies the law on the circumstances in which courts can lift the corporate veil.

When going through a divorce with a spouse who has a business involvement, it is important to get specialist family law advice.

Kerry Russell

A victory for common sense….and a cautionary tale!

A recent high profile case has brought to light the importance of having a financial clean break order as part of a divorce to avoid unwanted claims from an ex-spouse later down the line.

Dale Vince, a self-made millionaire, thanks to his green energy company Ecotricity, was recently taken to court by his ex-wife of 20 years who was seeking a capital sum and lifelong maintenance, despite the fact Mr Vince made his fortune many years after the couple divorced.

The couple married in 1981, when both were receiving state benefits.  They had a son together and the wife had a daughter from a previous relationship.  They then separated in 1984 and their divorce was finalised in 1992.  Both moved on to other partners who they had children with, Mr Vince having married his new partner in 2006.

 

Mr Vince’s company was launched in 1995 and is now estimated by the Sunday Times Rich List to be worth £90m.

The wife brought a claim for financial remedy against Mr Vince in May 2011, 18 years after they divorced.  Despite her delay in bringing the claim and the lack of any marital assets at the time of the separation the High Court ordered in December 2012 that Ms Wyatt’s claim could proceed to trial.  It also ordered that Mr Vince fund her legal costs of £125,000 to bring the claim.  But in May 2013 the Court of Appeal reversed that decision, struck out Ms Wyatt’s claim and reversed the order for payment of Ms Wyatt’s legal costs.

Two things really strike me about this case:

1. The court should not allow people to be harassed by claims for financial relief that were issued many years after the divorce and had no real prospect of success.
2. There needs to be a clear and accurate financial order at the time of divorce proceedings.  A court order to be dealt with during the divorce process, which records the way in which any marital assets are to be divided between the parties and, more importantly, the dealing of future financial claims would have avoided the costs of the court proceedings.

Thankfully, common sense prevailed in the end and the wife was criticised by the judge for bringing the case to court, but it shows that this kind of action can happen, so people do need to protect themselves from future claims during their divorce. A millionaire lifestyle may be in your future….make sure you protect it!

Kerry Russell  

There's no such thing as a 'quickie divorce'

Myleene Klass is the latest in a long line of celebrities reported to have completed a ‘quickie divorce’ by the press, with media quoting that it took just 100 seconds for a judge to end her marriage to former partner Graham Quinn.

While the media loves these stories, the reality is that there is no such thing as a ‘quickie divorce’.  So although Miss Klass’ marriage was officially ended in 100 seconds last week, it will have been months in the making.

Whether you’re a multi-millionaire celebrity or your average Joe the process of getting a divorce in England and Wales is exactly the same: 

The person seeking a divorce (the Petitioner) must prove that their marriage has ‘broken down irretrievably’. This can be done by providing proof of one of the following: adultery, unreasonable behaviour, two years’ desertion, two years’ separation with consent or five years’ separation.

For any of the above reasons, the Petitioner will need to provide examples to the court.

Once the divorce request, known as the Petition, is lodged with the Court the other spouse, known as the respondent, receives a copy of it from the court and is given seven days to contest or agree to the divorce.

Following this, the Petitioner can apply for the first stage of the divorce process – the decree nisi, which usually takes a couple of months, depending on the court. 

A judge will then pronounce it in court alongside a number of other cases – this is the part the media picks up on.  Then there will be a further wait of six weeks and one day before applying for the decree absolute.  Once this has been pronounced they are legally divorced and both parties will be issued with a certificate.

Finalising finances

It’s worth pointing out that the above process doesn’t include dividing a couple’s assets, which is often the more complicated and time consuming element of a divorce.  This is why the skills of a specialist family lawyer are most needed in order to complete the divorce successfully and protect their client’s assets.

The ‘quickie divorce’ simply doesn’t exist, but a great family lawyer will complete their client’s divorce efficiently, while always protecting their best interests.

Kerry Russell