2016: Year of the Prenup

The Wedding season is almost upon us and we are told the average wedding now costs £20,500. 

The Family Team at Greene & Greene has seen a significant increase in couples seeking Prenuptial Agreements.  There are often practical reasons why having a Nuptial Agreement in place make sense, such as:

1. if one or both of the couple already have property or other material assets; 
2. if one or both of the couple have received or will receive inheritance;
3. if one or both of the couple have been previously married and divorced and want to ensure wealth is passed to their children; and
4. if younger couples are being encouraged to enter into a Nuptial Agreement by their parents to protect wealth within the family. 

As the law currently stands the court should follow a Prenuptial Agreement that is freely entered into by the couple with a full appreciation of its implications provided it is fundamentally fair.  Accordingly, anyone signing a Prenuptial Agreement should expect the court to hold them to its terms. 

Like an insurance policy, hopefully it is something that you will not need to refer to, but latest figures suggest that 42% of marriages end in divorce. 

It is best to plan a Prenuptial Agreement months in advance of the wedding.  However if you are near to the wedding date or you are already married it is not too late because it is possible to enter into a Postnuptial Agreement (one that is signed after the marriage).

For further advice on Nuptial Agreements please contact Melanie Pilmer a solicitor in the Greene & Greene Family Team on 01284 717 418 or melaniepilmer@greene-greene.com. To find out more about Greene & Greene please view www.greene-greene.com and follow @greenegreenelaw on Twitter.

In Divorce “Fair” Doesn’t Always Mean “Equal”

“Sharing is sometimes more demanding than giving” - Mary Catherine Bateson

It is a common assumption that within a divorce the capital assets, such as the house, savings and investments, will be divided equally.

Most of you may be surprised to hear about the recent case involving Essam Aly and his wife Enas, where she was awarded 100% of the capital assets.  The case has been reported as a legal first.

Courts depart from equality every single day on the basis of need.  Sometimes this unequal division is due to varying contributions to the marriage or the fact that they have brought different value assets into the marriage. 

In this case the unequal division was due to the husband’s failure to support his wife and two children after he moved to Bahrain in 2012.  The Judge took the view that Mrs Aly could not rely upon her husband for future provision for her and their children and awarded her 100% of the capital assets to reflect that Mr Aly would retain all of his income and was unlikely to provide any on-going support to his wife and children. 

Although the circumstances are rare, with Mr Aly being based in Bahrain and outside of the reach of the court’s usual enforcement process, this case should be seen as a warning to those seeking to avoid their responsibilities on a breakdown of the marriage.

The Family Team at Greene & Greene have a wealth of experience in advising in relation to the financial aspects of divorce and separation.  All members of the team are trained Collaborative Lawyers.  Greene & Greene also offer a Family Mediation Service and the team has significant experience in drafting Nuptial Agreements.  For further information contact Melanie Pilmer on 01284 717 418 or melaniepilmer@greene-greene.com.  To find out more about Greene & Greene go to www.greene-greene.com and follow @greenegreenelaw.

Fool if you think it's over...

In 1981 Mr Vince and Miss Wyatt married. He was 20 and she was 22. Neither had any assets or income.

They separated in 1984 and Miss Wyatt claimed benefits. Mr Vince began living in an old ambulance. The divorce was finalised in 1992.

Mr Vince built a small wind turbine from recycled materials to generate electricity for his caravan. From this humble start he went on to establish Ecotricity – a company now worth many millions of pounds.

Miss Wyatt made an application for financial support from Mr Vince in 2011. The court and solicitors’ files could not be located (having been lost or destroyed) and so it was unclear whether Miss Wyatt had made any claims for financial provision at the point of divorce or indeed whether those claims had been already dealt with or dismissed.

Mr Vince sought dismissal of Miss Wyatt’s application due to it having been a short marriage of around three years, because they had been separated for over two decades and because if Miss Wyatt had made a claim at the point of separation it would have been dismissed as there were no assets available for distribution.

The Court of Appeal allowed Mr Vince’s application to strike out Miss Wyatt’s claim saying in relation to Mr Vince: “He is not her insurer against life’s eventualities”. Miss Wyatt appealed.

The Supreme Court heard the case in December 2014 and judgment was handed down on 11th March 2015. Allowing Miss Wyatt’s appeal, the Supreme Court Justices said that she had “a real prospect of comparatively modest success” in respect of her financial claim, notwithstanding the passing of over 20 years since the divorce.

Mr Vince and Miss Wyatt have incurred legal costs of hundreds of thousands of pounds and the Supreme Court has indicated that whilst Miss Wyatt’s application “faces formidable difficulties” it is likely she will receive some provision from Mr Vince – possibly sufficient to securely house herself and three of her adult children.

All of this could have been avoided had the financial aspects of the divorce been properly dealt with at the time of the divorce by the parties entering into a clean break order.

For further advice on how to protect your assets following a relationship breakdown, please contact Melanie Pilmer, a solicitor in the Greene & Greene family team, on 01284 717418 or melaniepilmer@greene-greene.com. Follow us on Twitter @greenegreenelaw.

Food for thought

The encouragement by the judiciary to utilise alternative dispute resolution and collaborative law in matrimonial matters has seen an increase in separating couples attempting to resolve matters themselves by way of informal discussions without legal representation.

There are, however, potential traps for the unwary. The husband in the recently reported case of BE v DE would not have anticipated that a meeting with his wife at a restaurant would be used against him in later proceedings.

The case turned on whether the restaurant meeting was carried out on a “without prejudice” basis. The wife thought that the meeting was to try and get the relationship back on track, but the husband came to discuss a financial agreement he had prepared. Crucially, if the meeting was determined to be on a without prejudice basis the wife would not be able to refer to the document within court proceedings. The court decided that the meeting was not without prejudice and as such the wife was entitled to refer to the document produced by the husband at the restaurant, which was harmful to his case.

This decision is a reminder of how important it is for separating couples to tread carefully and seek advice at an early stage. If documents or discussions between a couple are not on a without prejudice basis they could be referred to in later proceedings.  Advice at an early stage will identify the various options for resolving disputes.  If an informal meeting is to take place, which may be an excellent way to resolve issues, consider whether you should seek advice and devise a strategy so as to avoid storing up problems for a later date.

For more information please contact Melanie Pilmer, a solicitor in the Greene & Greene Family and Matrimonial Team on 01284 717418 ~ melaniepilmer@greene-greene.com ~ @greenegreenelaw.

Child Arrangement Orders - All Change?

As from the 22nd April 2014 Residence and Contact Orders in family cases have been consigned to the history books and replaced by the new Child Arrangements Order. So what has changed?

The Child Arrangements Order will regulate with whom a child is to live, spend time or otherwise have contact and when that will take place. The Court will be making the same decisions as before, but the reason for the change is to remove the labels of “residence” and “contact”. There is encouragement for parents to resolve matters amicably and the new legislation confirms parents must attempt mediation before issuing Court proceedings.

There is a new presumption of parental involvement. It will be presumed, unless the contrary is shown, that involvement either direct or indirect of the parent in the life of a child will benefit the child’s welfare. The welfare of the child remains paramount in making any decision.

This presumption does not mean any particular division of a child’s time is required. Will this lead to more shared parenting decisions? Perhaps not – the Court has for a long time started from a viewpoint that it is normally in a child’s best interests to have both parents involved in their life.

What if you already have a Residence or Contact Order? From 22nd April this will be treated as a Child Arrangements Order. A Residence Order will be treated as an Order that provides with whom and when a child is to live with a person and a Contact Order will be treated as with whom and when a child is to spend or otherwise have contact with a person. The legality of these older Orders will not be affected, they will remain valid and enforceable.

For more information please contact Melanie Pilmer, a solicitor in the Greene & Greene Family and Matrimonial Team on 01284 717418 ~ melaniepilmer@greene-greene.com ~ @greenegreenelaw.

A Fresh Approach to Divorce Funding

The law changed in 2013 to enable a spouse to obtain an Order compelling the other to make a payment to them in respect of their legal costs. This is called a “Legal Services Order”.

Ideally you will be able to resolve financial matters swiftly and cost effectively with the help of your Lawyer and possibly assistance from a Mediator.  If not the costs of proceedings can cause great anxiety.  The change in the law is particularly helpful for the weaker financial party who believes that they cannot afford to obtain good quality legal representation.

These changes became effective at the same time as Legal Aid was largely abolished (save in certain exceptional cases), however, please note that Legal Aid is still available for Mediation.

So, how can you obtain a Legal Services Order?  The Court cannot make a Legal Services Order unless it is satisfied that without the payment from one spouse, the other would not reasonably be able to obtain legal services. The spouse applying to the Court has to demonstrate that they cannot obtain a loan to pay for their legal fees, that their Solicitors will not enter into a deferred payment arrangement and meet certain other conditions which conclude also with the possible effect that making an Order would have on the paying party.

In addition to the change in law a number of commercial organisations have also begun to provide funding loans for legal costs.

If you believe that you are trapped because you have insufficient funds to pay legal fees then a Legal Services Order (or the availability of funding loans) may provide you with the help you need.

For further information contact Stuart directly on 01284 717493 ~ stuarthughes@greene-greene.com.

Stuart Hughes - 01284 717493  |  Kate Chandler - 01284 717513  |  Juliet Harvey - 01284 717448

Stuart has worked for Greene & Greene Solicitors since July 2012, joining the partnership in December 2013. He specialises in Family Law with considerable experience dealing with all aspects of relationship breakdown, divorce, separation, finances and disputes concerning children.

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