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

MYTH BUSTING

When clients first visit me to discuss getting a divorce I’m often surprised at how many myths surround divorce.  There are quite a few untruths that seem to have become considered ‘fact’, thanks largely to the media   

So, here are my top ten divorce myths and the facts behind the fiction…
 
1.  You can become a ‘common law spouse’ by living together for a certain amount of time.

 Untrue – there is no such thing as a common law spouse. You only become a spouse by going through a legally recognised ceremony of marriage

 2. The divorce finalises any financial claims and once decree absolute is pronounced my ex-spouse can’t make any claims against me.

 Untrue – the divorce dissolves the marriage, however to achieve a binding financial settlement a financial order needs to be made by the court (which can be by consent). Without that order your ex-spouse may be able to make a financial claim against you potentially months or even years after decree absolute.

 3. If I am already separated from my spouse when I start a new relationship that isn’t adultery.

Untrue – if you have a sexual relationship with another person whilst still married the law would class that as adultery even though you are separated (even if it is not therefore the reason for the marriage breakdown).

 4. My spouse committed adultery so the court will award me a greater share of assets as a consequence to punish them.

 Untrue – the fact one party has committed adultery will not entitle the other to a bigger award as a result.

 5. If I wait two years to get divorced, the procedure is quicker and easier than divorcing on the grounds of adultery or unreasonable behaviour

 Untrue – the procedure and timescale is the same regardless of the reason.

6. I can get divorced on the grounds of irreconcilable difficulties.

 Untrue – there is only one ‘ground’ for divorce which is that the marriage has irretrievably broken down and which has to be evidenced by one of 5 facts – adultery, unreasonable behaviour, separation of 2 years with consent, separation of 5 years and desertion.

 7. If I had assets before the marriage or acquired after we separated, I do not need to disclose them and they will never be relevant to the settlement.

 Untrue – there is a duty on both parties to disclose fully details of all their assets irrespective of when they were acquired. If they were acquired before the marriage or after separation the court may treat them differently to other assets acquired during the marriage, (and for instance ultimately leave them out of the ‘matrimonial pot’ for division) but they still have to be disclosed and ultimately if agreement can’t be reached it will be down to the discretion of the court how to deal with these assets, depending on the particular circumstances of your case.

 8. Spousal maintenance is always time limited

 Untrue – in some circumstances the court can order it be paid during joint lives i.e. until one party dies– it all depends on the circumstances of the case

 9. I can’t commence divorce proceedings until I have been to mediation

 Untrue – it is not necessary to attend mediation to get divorced.

 10. It will be cheaper if I don’t instruct a lawyer for my divorce and financial settlement.

 Not necessarily - whilst this may seem cheaper in the short term, in the long term it could prove to be much more expensive if you do not take legal advice. Sometimes the long term effects of a financial settlement can be unexpected and you should take advice as to what is an appropriate settlement for you. Getting advice as to your rights to secure your future is money well spent!

Sally Leaman

Paying a High Price

A recent news story caught my attention concerning an American couple - Jenifer and Mark Evans – who split in 2010 following 25 years of marriage.  Having started off penniless, they amassed a £40 million fortune principally from their financial IT company.

 

Following highly acrimonious proceedings in England, Mrs Evans was awarded just over £18 million (45% of the assets). The Court departed from sharing the assets equally to reflect Mr Evans ‘post separation endeavour’ in the business.

 

The judge criticised the couple saying their dispute had descended into ‘forensic point scoring’ as they became entangled in a bitter battle.

 

Divorce is an emotional process, where resentment and anger can sometimes cloud rational decision making.

 

In the end, the couple has paid a high price for their acrimonious divorce. 

 

They have racked up over £2 million in legal fees and the judge criticised them both for the way they had handled the case and said they were ‘both to blame’ for their ‘unacceptable and disproportionate’ level of  legal costs. He also said that the offers each had put forward to resolve the case were unrealistic.

 

It’s a cautionary tale for feuding couples.  Whilst it is obviously important to achieve a fair outcome to your divorce and it is imperative to get proper legal advice, if you can then achieve a negotiated settlement with the help of your solicitor you could save a lot of money on legal costs and avoid the uncertainty of having a decision imposed on you.