Author: Kelly Edwards

Research has confirmed what most of us already knew – following a divorce, women are more likely to lose out on pension-generated wealth than men, putting them at risk of low living standards in later life. For high-net-worth (HNW) couples, pensions are often located abroad and unless you have an experienced international family law Solicitor advising you, the overseas-based pension could fail to be included in the financial settlement.

Debora Price, the co-author of the Pensions and Divorce: Exploratory Analysis of Quantitative Data report and Professor of Social Gerontology at the University of Manchester commented in The Guardian:

“Divorce is a very emotional time for couples. It is especially difficult for them to think about pensions and often, the person with the larger pension – almost always the husband – does not want their pension to be shared as an asset in divorce.

“Women are often very focused on keeping their homes for themselves and the children and are often prepared to give up quite a lot to secure that.”

In this article, we explain how international pensions are dealt with in divorce financial settlement proceedings. However, before covering international pensions, below is a quick guide to how UK pensions are handled.

How pensions rights are divided in a divorce

When a couple divorce there are several options for dividing pensions:

Pension sharing

A Pension Sharing Order provides one spouse with a percentage share (referred to as a pension credit) of their ex-spouse’s pension pot. The pension credit can be assigned to an existing or new pension scheme. This option provides for a clean break concerning pensions.

Pension offsetting

One party retains their entire pension in exchange for other assets such as the family home. If the pension rights are worth less than the offsetting asset, the party receiving the pension under the financial settlement can relinquish the equivalent value of the property.

Pension attachment (formally known as pension earmarking)

In this scenario, the Court will make a Pension Attachment Order. This will provide for a portion of one party’s pension to be set aside for their ex-spouse. The ex-spouse will receive their percentage when the pension starts being paid out.

This option comes with the risk that if the pension holder dies before the pension pays out, the receiving spouse may never receive their percentage of the pension fund.

Applying UK pension sharing options to pension rights-based abroad

In Goyal v Goyal [2016] EWFC 50 (Fam), The Hon. Mr Justice Mostyn adopted the approach that pension sharing under section 24B of the Matrimonial Causes Act 1973 is not available for foreign pensions unless there is compelling evidence that a pension sharing order would be implemented in the overseas jurisdiction. Therefore, if international pension rights make up a considerable portion of the financial assets in a divorce, the jurisdiction where the divorce and financial remedy proceedings are heard will be crucially important.

Pension attachment orders, either lump sum or periodical, are sometimes enforceable in foreign jurisdictions. However, they are rarely used as a solution when dividing foreign pensions due to significant limitations, such as the Court not being able to direct the pension holder to retire at a set time, and the uncertainty surrounding pension attachment orders because they can be varied by the Court.

The financial remedies when sharing internationally based pension rights

The first thing your international divorce solicitor will do is seek legal advice in the jurisdiction the pension rights are located. They will ascertain whether the pension provider would consent to implement a pension sharing or pension attachment order made by an English Court. If the answer is negative, the option of whether an equivalent local order could be made and enforced will be explored.

“Many sport stars quickly declare bankruptcy upon retirement.”

This article explores how the courts in England and Wales can protect players both during and after their careers, and what more can be done to ensure not only that the financially weaker party’s position is secured, but crucially that the paying sport star’s financial position is also protected as far as possible.

Prenuptial Agreements

Since the influential decision of Radmacher v Granatino [2010] UKSC 42, prenuptial and pre-civil partnership agreements have become an important legal tool to protect a party’s existing financial assets at the point that they are entering into a marriage or civil partnership. The agreement can regulate how their assets and income would be managed in the event of a divorce or dissolution, and the consequential financial claims that might arise from that.

This early “asset management” is especially important for a sports star who accrues a large amount of capital during their short playing career. Without the security of a prenuptial or pre-civil partnership agreement, the starting point for courts in England and Wales is to distribute assets equally between the couple. An estimated 40% of footballers declare bankruptcy within five years of retiring. One possible reason for this is that 33% of footballers are divorced within one year of retirement – for example, former England goalkeeper David James’ divorce is often cited as a primary reason for his bankruptcy declaration in 2014.

Essential Criteria for Agreements

A prenuptial or pre-civil partnership agreement is not legally binding on the courts in England and Wales (which can come as a shock to overseas sport stars) but can be an incredibly persuasive factor of a case if certain criteria are met, and something that the judge will attach significant weight to and, in most cases, uphold. The criteria include that:

the agreement is fundamentally “fair” in light of the facts of the case;
it still meets both parties’ needs since it was signed;
it does not prejudice any children; and
both parties received legal advice and disclosed their financial position at the point that it was negotiated and agreed.

“There is no doubt that a prenuptial or pre-civil partnership agreement is the best way for a sports star to secure their assets.”

Subject to the qualifying criteria being met, there is no doubt that a prenuptial or pre-civil partnership agreement is the best way for a sports star to secure their assets. Once they are married or have formed a civil partnership, the next best option would be for them to sign a postnuptial or post-civil partnership agreement, but that only works if their spouse or partner is willing at that stage to agree to contract out of the sharing principle, and define their share simply by way of financial provision sufficient to meet their reasonable needs, which might seem unlikely!

Equal Division of Marital Wealth

Since the case of White v White [2001] 1 A.C. 596, it has been established that the starting position in a financial settlement is an equal division of marital wealth, regardless of who earns the most within the marriage. It is recognised that financial and non-financial contributions (such as running a home and looking after the family) are to be given equal weight by the court.

However, this still results in high-earning sports stars potentially being left exposed to unreasonably high and sometimes unaffordable financial claims, particularly in the absence of a valid prenuptial (or postnuptial) agreement. Claims are often padded in relation to the standard of living that the family has enjoyed during the sports star’s career, but many fail to consider the short career a sports star will enjoy, and the fact that they often fall off a financial cliff edge at the point that they retire from their sport.

Parlour v Parlour

Former Arsenal footballer Ray Parlour’s high-profile divorce (Parlour v Parlour [2004] EWCA Civ 872) was one of the first of its kind to recognise that a sport star’s earning potential is time limited. It recognised that Mrs Parlour required a significant amount of income while it was still being earnt. Specifically, it was ruled that Mrs Parlour would be entitled to approximately 1/3 of Mr Parlour’s net income for a period of four years. While the judge declared this amount to be fair, due to her supporting him in such a way that facilitated his high earnings, critics may argue that she was not putting in the “labour” herself and that such an award was well in excess of meeting her “reasonable” needs.

Stockpiling

However, another rationale for this financial award, and a method often implemented by the courts for divorcing and separating sport stars, is known as “stockpiling”. This occurs when the party divorcing the star obtains an initial share of the available capital in order to meet their housing needs, and the mortgage is guaranteed by the high-earning athlete. There will then ordinarily be a maintenance sum that will more than meet the needs of the other party’s day-to-day living expenses, similar to the Parlour case, so that the receiving party can save a sum of money and start to overpay the mortgage to live reasonably comfortably after the star’s retirement when the income drops away.

In the case of AB v FC [2016] EWHC 3285, concerning an unnamed Premier League footballer, the judge held that it “was not unreasonable” to allow W to “stockpile” a portion of the sums she received in order to discharge her mortgage liability. This was despite the short length of the marriage. However, as the wife was the primary caregiver to a young child of the family, the judge was attracted by the wife’s arguments that her claims were effectively a quasi-Schedule 1 application and that she was entitled to the large sums awarded.

“Maintenance clauses are often subject to a review clause at the point that the player is estimated to retire and their earnings are expected to reduce dramatically.”

Whilst prima facie this might appear unfair on the high earner, maintenance clauses are often subject to a review clause at the point that the player is estimated to retire and their earnings are expected to reduce dramatically, or when there is a material reduction in their income as a result of a career-ending injury. This ensures that there are measures in place for the paying party to safeguard their income, as maintenance can be reviewed and subsequently reduced following any significant drop.

Conclusion

Although family law is often regarded as a “fair area” of the law, with the courts striving to meet each party’s needs, it could be argued by many that a real conversation needs to take place to explore whether sport stars are adequately protected upon divorce. Whilst it is clear that a pre- or postnuptial or civil partnership agreement does adequately protect these high earners, provided certain criteria are met, it is also clear that those without such protection are left exposed to high financial claims that often leave them bankrupt.

“Early advice is imperative.”

One must question the fairness of those without the knowledge and awareness to obtain a pre- or postnuptial agreement, who are often young sports starts without much life experience at the start of their career journeys, being left so financially unprotected and liable to very high financial claims. However, it must be considered that children are frequently involved in these circumstances, which does of course shift the proverbial goal posts. Furthermore, as evidenced, courts are well aware of the temperamental and short careers enjoyed by sports stars, and seem prepared to adjust their orders accordingly, ensuring that maintenance orders do not go further than is considered reasonable, on the facts of each case. The crucial and key message from the case law where sports stars are involved is that early advice is imperative, right from the moment that they are considering moving in with a new girlfriend or boyfriend, when cohabitation agreements and prenuptial or pre-civil partnership agreements are their best protection, before they legally commit to another person or start having children.

Whilst researching this article we searched extensively through various academic databases for articles discussing the effect perimenopause and menopause has on women who are in the process of divorce. The fact that we found almost nothing on the subject illustrates how little attention has been paid to the potential psychological impact of the two most stressful events a woman can experience occurring at the same time. it is only very recently i.e. this year, that people are starting to talk about it and the effect it can have.

In complex divorce cases where there may be hidden assets, jurisdictional disputes, and multiple mediation sessions and court hearings, both parties have to remain emotionally robust to ensure they can negotiate for what they need to move forward to an independent future. Menopause, however, leaves many women feeling the antithesis of strong, more often words such as exhausted, befuddled, emotional, and confused are used by peri/menopausal women to describe their physical and mental state.

Divorce and peri/menopause are predominantly middle-aged life events. The average age for UK women going through a divorce is 44.5 years. Peri/Menopause usually occurs between the ages of 45-55 years and is accompanied by a variety of symptoms including:

hot flushes – short, sudden feelings of heat, usually in the face, neck, and chest night sweats – hot flushes that occur at night
difficulty sleeping – this may make you feel tired and irritable during the day
a reduced sex drive (libido)

problems with memory and concentration
vaginal dryness and pain, itching or discomfort during sex headaches
mood changes, such as low mood or anxiety
palpitations – heartbeats that suddenly become more noticeable joint stiffness, aches, and pains
reduced muscle mass
recurrent urinary tract infections (UTIs)

Dealing with a divorce whilst battling one or more of the above symptoms is incredibly demanding and may lead to stress-related symptoms, including:

feeling overwhelmed
racing thoughts or difficulty concentrating irritability
feeling constantly worried, anxious, or scared loss of confidence
insomnia and exhaustion
increased or decreased appetite
increased alcohol consumption

Coping with peri/menopause and divorce at the same time comes with enormous emotional, physical, and mental pressures and that is without considering other mid-life challenges such as career demands, teenagers, and ageing parents.

Due to the limited studies on how peri/menopause and divorce affect women mean it is impossible to draw any inferences on the subject. Common sense, however, tells us that should these two major life events happen simultaneously, some women will find it exceptionally difficult to argue for what they need in terms of a financial settlement.

If you are going through a divorce during peri/menopause, below are some ideas on how to take care of your physical and mental health during this challenging time.

Find a Divorce Solicitor who you trust and get on with. Divorce, especially one that involves international elements can take months or even years to conclude. You need a Solicitor on your side who you can be

confident will listen to your objectives and provide practical, emotion-free advice on how best to get what you want. It is also advisable to instruct a Solicitor who belongs to Resolution as its Code of Practice encourages members to resolve disputes in a non-confrontational way, thereby reducing stressful conflicts.

Take care of your health. Middle age is one of the busiest times in a woman’s life and it can be exceptionally difficult to find time to eat well, exercise, spend time with friends, and get enough sleep. The studies on stress, however, all show that self-care is essential for mitigating symptoms.

Seek additional support from a Counsellor or other mental health professional if the situation becomes overwhelming.

Wrapping up

It is imperative not to underestimate the effects of going through a divorce at the same time as peri/menopause. If you are struggling with your mental health, reach out to your Divorce Solicitor who can assist you with finding the support you need to move through this challenging life situation.

Edwards Family Law is a niche London-based firm specialising in complex divorce and international family law. To find out more about divorce and financial settlements, please phone +44 (0)20 3 983 1818 or email contact@edwardsfamilylaw.co.uk. All enquiries are treated in the strictest confidence.

One question we are routinely asked by our clients is whether nuptial agreements, either pre or post, carry any weight in Court. After all, after going to the effort of entering into an agreement to protect pre-marital assets, if this held no legal weight, what would be the point?

Take the recent high profile divorce case of Kirsty Bertarelli from Italian-born Swiss businessman Ernesto Bertarelli. As Tatler points out, “The former husband and wife were listed together at 14th place in this year’s Sunday Times Rich List, with a combined estimated fortune of £9.2 billion…” Whilst there is speculation as to the exact amount, it is believed that Ms Bertarelli received a divorce settlement of around £350m, in addition to a property on the shores of Lake Geneva worth £52m, and she retains ownership of an £8m ski chalet in the Swiss resort of Gstaad. This would make Ms Bertarelli the richest “British born divorcee in legal history.” In this case, the couple are believed to have entered into a pre-nuptial agreement when they married in 2000, and it is reported that they wanted to avoid a lengthy and drawn-out legal battle. The existence of the ‘pre-nup’ may have allowed the couple to focus on reaching such an agreement out of court. So just how legally enforceable are nuptial agreements in England and Wales?

Are nuptial agreements legally enforceable?

Contrary to what many people believe, nuptial agreements are not legally enforceable, and the Court has the final say when it comes to deciding how assets should be divided in an application for financial remedy following divorce. The Court will, however, take nuptial agreements into consideration by giving them appropriate weight.

The Court is required to take into account a range of factors when deciding on a financial order in accordance with the Matrimonial Causes Act 1973 (MCA 1973), Section 25; these include:

the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future
the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;
the standard of living enjoyed by the family before the breakdown of the marriage;
the age of each party to the marriage and the duration of the marriage;
any physical or mental disability of either of the parties to the marriage;
the contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family
the conduct of each of the parties.

Based on these factors, the nuptial agreement may be given a lesser or greater weight by the Court.

Nuptial agreements – a matter of fairness

It is important to understand that there is a difference between saying that a nuptial agreement is legally enforceable versus saying that a nuptial agreement carries weight when deciding a financial settlement. The principle that weight should be given to a nuptial agreement was established in the landmark case of Radmacher v Granatino [2010] UKSC 42. In Radmacher, the Supreme Court came to the conclusion that weight should be given by Courts to a nuptial agreement when exercising their discretion under section 25 of the MCA 1973; the judge stated, “The Court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to the agreement”.

All of this means that a nuptial agreement should be given due weight by the Court where it is fair to do so. The word ‘fair’ is key here. The supreme Court referred to other landmark cases, including McFarlane v McFarlane [2006] UKHL 24, in which it was established that fairness should be based on the principles of:

need – i.e. it is fair to take into account the needs of both parties to a divorce;
compensation – this means that if one person is left financially stronger once both parties’ needs are met, the Court may award some compensation to the other person, and;
sharing – i.e. each party to a divorce is entitled to an equal share of their joint assets unless there is a good reason otherwise (i.e. if some assets were acquired before getting married).

The Court will apply a three-part fairness test when faced with a case in which there is a nuptial agreement:

1) That the agreement was freely entered into;

2) Both parties have a full appreciation of the implications of the agreement; and

3) it is fair to hold both parties to the agreement in the context of the circumstances prevailing.

In practical terms it is widely considered that a pre-nuptial agreement should be signed at least 28 days prior to the marriage, and indeed not less than 21 days prior.

The court will consider each agreement and case on the basis of its own context and facts so specialist family law advice is always required whether you are considering entering into a nuptial agreement, or have one and are looking to divorce.

International cases

Different jurisdictions have varying attitudes towards nuptial agreements, but in many cases where there is a nuptial agreement, there will be an international element. Regardless of whether the nuptial agreement was prepared and signed in England and Wales or in another jurisdiction, if the divorce is being heard in England and Wales, the court will apply English law to its assessment of the agreement.

The court will carry out the three stage assessment detailed above when considering the foreign nuptial agreement, in line with the other factors it must consider pursuant to the Matrimonial Causes Act. Where the nuptial agreement was prepared and signed in a jurisdiction in which nuptial agreements are enforceable, this can be good evidence that the parties intended to be bound by it.

Final words

When it comes to nuptial agreements, whether drawn up before or after marriage, as long as they are freely entered into in a fair and transparent manner by both parties who understand the full implications of the decisions made, case law requires that Courts give them appropriate weight. In addition, the existence of a nuptial agreement can help focus the parties’ minds during a divorce and can be a good starting point for negotiations to ensure an amicable and timely financial settlement is reached for the good of both parties and any children involved.

Edwards Family Law is a niche London-based firm specialising in high-net-worth divorce and international family law. To find out more about pre or post-nuptial agreements, please phone +44 (0)20 3 983 1818 or email contact@edwardsfamilylaw.co.uk. All enquiries are treated in the strictest confidence.

Forty percent of people are relying on potential inheritances to fund their retirement, according to research conducted for Hargreaves Lansdown. Although this is a risky strategy, the reality of the astronomical rise in property prices over the past 30-odd years has meant many of the baby boomer generation now have million-pound plus legacies to hand down to their children and grandchildren, who are struggling to put away money for retirement or purchase a home of their own.

Given the above reality, when it comes to negotiating a financial settlement following divorce, those who have or expect to inherit considerable wealth will naturally attempt to ensure that it is classed as non-matrimonial, and separated out of the asset pot to be divided.

Is an inheritance classed as matrimonial property?

In the absence of a Pre or Post-Nuptial Agreement, assets acquired during a marriage or civil partnership are likely to be considered matrimonial property and notionally added to the pot that will be divided up between a couple upon divorce or dissolution. However, inheritances are treated differently in that they are not automatically deemed matrimonial property, but this does not mean that they will not be included, if certain criteria are met.

The separation of inherited wealth from matrimonial property was confirmed in the landmark family law case of White v White [2000] UKHL 54; [2000] 3 WLR 1571. Lord Nicholls examined the issue of property acquired during the marriage by one spouse by gift or succession or as a beneficiary under a trust (which he deemed ‘inherited property’ for the sake of brevity).

“This distinction [between inherited property and property acquired before the marriage, and matrimonial property] is a recognition of the view, widely but not universally held, that property owned by one spouse before the marriage, and inherited property whenever acquired, stand on a different footing from what may be loosely called matrimonial property. According to this view, on a breakdown of the marriage these two classes of property should not necessarily be treated in the same way. Property acquired before marriage and inherited property acquired during marriage come from a source wholly external to the marriage. In fairness, where this property still exists, the spouse to whom it was given should be allowed to keep it. Conversely, the other spouse has a weaker claim to such property than he or she may have regarding matrimonial property”.

Does that mean my inheritance is safe from the divorce financial settlement?

Not necessarily. The Court must consider all the factors under section 25 of the Matrimonial Causes Act 1973, namely:

the income, earning capacity, property, and other financial resources each party has access to now and in the reasonably foreseeable future;
the financial needs, obligations, and responsibilities of each of the parties now and in the reasonably foreseeable future;
the standard of living enjoyed by the family before the breakdown of the marriage;
the age of each party to the marriage and the duration of the marriage;
any physical or mental disability of either of the parties to the marriage;
the contributions that each of the parties has made or is likely to make in the reasonably foreseeable future concerning caring for any children of the marriage;
the conduct of each of the parties, if that conduct is such that it would, in the opinion of the court, be inequitable to disregard it; and
the value of any benefit one party will fail to acquire due to the divorce.

The brutal reality is that if the needs of both parties cannot be met by sharing the matrimonial resources available to them both, without recourse to all or part of the inheritance then it is likely that the inherited assets will be included in the matrimonial pot to be divided between the couple.

What other factors could lead to my inheritance becoming matrimonial property?

Several factors could lead to the Court finding that an inheritance is likely to be considered to be matrimonial property rather than separate property, including:

The length of the marriage and intermingling of assets. The longer that you and your spouse have been together, the more likely the inheritance has intermingled with the matrimonial property, to the point where it is impossible to separate it out. For example, often an inheritance is used to make improvements to the family property, which is difficult to separate from the overall value of the home. However, if funds from the inheritance was used to purchase a buy-to-let property and only the inheriting spouse had their name on the title deeds, then it is much easier to declare that the buy-to-let sits outside the matrimonial property pot, if the matrimonial pot is sufficient when divided to meet their needs.
Matrimonial home. If an inheritance is used to purchase the family home itself the Court is more likely to view it as matrimonial rather than separate property.

There are no overarching rules as to whether an inheritance will be treated differently to matrimonial property. Everything will depend on whether, after consideration of the section 25 factors, a fair settlement can be achieved without recourse to the inherited assets or funds. Fundamentally, if the needs of the parties cannot be met by dividing the matrimonial property and assets, then inheritance will almost certainly be added to the matrimonial pot, especially if there are young children involved whose needs will be considered a priority.

Final words

Drafting a Pre or Post Nuptial Agreement will provide an opportunity to protect your inheritance from becoming part of any financial settlement following a divorce. Although not legally binding, if certain safeguards are in place, the agreement is fair and reasonable, and both parties have had the opportunity to take full and independent legal advice involving disclosure on both sides, the Court will give the contents of a Nuptial Agreement considerable weight and are more than likely to uphold its content.

To discuss any points mentioned in this article, including Pre or Post Nuptial Agreements, please contact our office.

Edwards Family Law is a niche London-based firm specialising in high-net-worth divorce and international family law. To find out more about divorce and financial settlements, please telephone +44 (0)20 3983 1818 or email contact@edwardsfamilylaw.co.uk. All enquiries are treated in the strictest confidence.

Most of the high-net-worth (HNW) clients advised and represented by us are relieved when the Court finally grants a divorce-related Financial Order and they can finally put the legal aspects of their divorce behind them. However, although a clean break is highly desirable, the Court can vary Financial Orders sometime in the future if certain circumstances arise.

The Coronavirus pandemic has resulted in requests for the Court to vary Financial Orders relating to nominal periodic payments. For example, in the recent case of AJC v PJP [2021] EWFC B25, the Applicant was an airline pilot who lost her job due to the ramifications of the pandemic. She asked the Court to temporarily convert a previously granted Nominal Periodical Payments Order into a Substantive Maintenance Order until the airline industry started employing people again. However, the Applicant’s former husband argued that he too had suffered financially because of the Covid-19 pandemic.

In rejecting the application, the Court held that varying a nominal order upwards is different to varying a substantive periodical payment where the payee receiving maintenance of a prescribed amount understands that it may decrease if their income increases and may increase if the payer earns more and they can demonstrate need. It was held to be unreasonable to convert the Order as the Applicant had been financially self-sufficient at the time it was made, eight years had passed, and the parties’ youngest child was now 14 years old. Furthermore, the change in circumstance resulted from the economic impact of a pandemic affecting billions, not from a disadvantage generated by the relationship between the parties.

AJC v PJP illustrates that the Courts will not vary a Financial Order without good cause. However, in certain circumstances, changes are justified. But before we examine how a Financial Order can be varied, let’s briefly recap what they are.

What is a Financial Order?

There are several types of Financial Orders provided by the Court to ensure the financial settlement you have agreed in negotiation and/or mediation (a Consent Order) or a decision by the Court is wrapped up in a legally binding directive.

Common Financial Orders include: Clean Break Orders

Pension Sharing Orders Property Adjustment Orders Maintenance Orders
Lump Sum Orders

Can I appeal a Financial Order?

If you believe the Judge has made a mistake in applying the law to your case, you can apply for permission to appeal the Financial Order issued by the Court. When considering whether to grant permission to appeal, the Court will consider:

a) Whether your appeal has a realistic chance of success, and

b) Is there a convincing reason for the appeal to go ahead?

The Court has several remedies it can grant if your appeal is successful, including:

Affirming the Order.
Setting aside the Financial Oder.
Varying the Order.
Directing the lower Court to consider a specific aspect of the Order again.

What Financial Orders can be varied by the Court?

Under certain circumstances (see below) an application can be made to vary a Financial Order related to the following:

Maintenance pending suit.
Periodical payments and secured periodical payments. Lump sums by instalments.
Provision for children.
Deferred lump sums.

Settlement orders.
Sale of property.
Pension sharing orders (before the decree absolute is granted).

What type of Financial Order cannot be varied?

The Court cannot vary the following type of Financial Orders:

An order for a lump sum or sums under section 23 of the Matrimonial Causes Act 1973, not payable by instalments.

Property adjustment orders (except if they relate to the sale of the property concerned). A pension sharing order after the decree absolute has been granted.

How do I apply to vary or appeal a Financial Order?

The first step to take in applying to vary a Financial Order is to speak to an experienced Family Law Solicitor. They will examine your situation and establish if your existing Order can be varied.

There are several situations in which the Courts will consent to vary a Financial Order, including where one party to the Order:

Exerted undue influence over the other.
Misrepresented their financial situation or committed fraud to achieve the Order they wanted. Misrepresented other facts required to ensure the Order was just and fair.

Financial Orders can also be varied if it is shown that an event has occurred which obliterates the fundamental elements of the original agreement. This is known as a “Barder” event. The Courts have not ruled out the impact of the Coronavirus pandemic as sufficient grounds to qualify as a “Barder” event that could trigger an application to vary a Financial Order however generally these applications are limited in scope and things such as house prices falling or shares in a company being worth more or less is not going to be sufficient to vary an order.

In summary

Applications to vary existing Financial Orders can be made for all sorts of reasons, including ending ongoing spousal maintenance payments to achieve a clean break to a change in financial circumstances due to Covid-19. Our Solicitors specialise in dealing with HNW divorce and financial settlements. We act for both sides, having successfully applied for and defended many cases involving the variation of Financial Orders.

Edwards Family Law is a niche London-based firm specialising in high-net-worth divorce and international family law. To find out more about divorce and financial settlements, please phone +44 (0)20 3983 1818 or email contact@edwardsfamilylaw.co.uk. All enquiries are treated in the strictest confidence.

It is often assumed that mediation is too ‘soft’ an approach for working out a financial settlement in high-net- worth (HNW) divorce and is primarily a mechanism for establishing arrangements for children. However, such an assumption can deny couples the opportunity to take control of the financial settlement process and reach an agreement in a calm, non-confrontational manner.

There are several advantages of mediation in HNW divorce, including:

Confidentiality – the British tabloids are famous for their love of scandal and will viciously latch on to HNW divorce cases that end up in Court. Mediation is a completely confidential process, allowing you to

work through your divorce without the stress of publicity (which can become cruel) and details of your marriage becoming media fodder that could one day be read by your children.

Win-win solutions – unlike formal litigation, mediation is not a win-lose process. The Mediator, who will be experienced in family law matters, will work with you and your spouse to help you reach a fair agreement and allows you both to move on to positive futures.

Mediation is voluntary – no one can force you to attend mediation, unlike Court where one party can issue proceedings. This alone provides a platform where communication is based on mutual co-operation and respect, providing a robust foundation for a positive outcome.

Choosing mediation does not mean you will lack legal support. Your Divorce Solicitor will advise and represent you throughout the mediation process, ensuring your interests are protected.

However, because the mediation process is designed to be used by people who may not have legal representation, it is free from the legalese and procedures found in Court, allowing you greater control over how things are run.

The cost of going to Court

Even people with significant assets and plenty of money to fund ongoing divorce litigation may baulk at the true cost of going to Court. Legal bills of hundreds of thousands of pounds are easy to achieve. But the cost of litigation is not just financial. Going to Court is stressful and can be time consuming. Furthermore, as it is by nature adversarial, it does little in the way of helping parties learn to put aside their differences and communicate compassionately, something that will be essential going forward if children are involved.

Mediation on the other hand is a great deal cheaper than going to Court. It is also quicker and deliberately designed to make parties feel safe and confident in expressing their needs and opinions. And if matters cannot be resolved by mediation, the option to file Court proceedings remains available.

The process of mediation

A MIAM is the first stage in the mediation process whereby a trained mediator explains the process and the benefits to each party. Not all cases are suitable for mediation, including those in which one party is bankrupt, there is evidence of domestic violence, there are child protection concerns, both have already attended a MIAM in the last four months, or there is a significant risk of harm or hardship. It is also important to understand that mediation is not mandatory, but the attendance of the MIAM is (except in the situations listed above) if you wish to apply for a Family Court Order.

You can choose to attend a MIAM on your own, or with the other party. During the first session, the Mediator will gather information to determine if mediation is a suitable way to resolve your dispute.

If, after the MIAM, you decide mediation is not the right process for you, or the Mediator deems it to be inappropriate, then you will be given a form that proves to the Court you have considered mediation.

If both parties agree to mediation, what happens next?

If both parties and the mediator agree mediation is appropriate, then you will be informed of the next steps. Mediation is a purely voluntary process in which two people can seek to resolve a dispute with the assistance of a trained mediator. It is highly effective in situations in which both parties are open to resolving the dispute at hand, and for any financial matters, there must full financial disclosure.

Mediation is also useful where there has been a previous arrangement, which needs to be updated (perhaps as children get older).

The discussion can be undertaken face to face, but it is possible to use separate rooms; this is sometimes referred to as ‘shuttled mediation’.

During the session, your Mediator will:

Listen to both parties to determine what needs to be worked through
Ensure that both people are heard equally – this is important to ensure a fair process and outcome Offer any guidance or information relevant to the discussion
Advise you if it will be necessary to seek input from other services or specialists

Work towards an agreement which is fair to both parties, always considering the needs of any children involved

It might be necessary during the process to consult with a Solicitor to validate the legality of what is being agreed or discussed – your Mediator will advise how this can be done.

It is important to understand any agreement during mediation is not legally binding, but it can be made legal by drawing up a consent order (drafted by your Solicitor), which must be approved by a Judge. This is essential. To find out more read our blog post on consent orders here.

Final words

Mediation is truly effective as a method of resolving HNW divorce disputes. Many people who initially believe it will not be effective for their situation change their perspective during the MIAM process, realising that it is highly preferable to the cost and stress of going through the Court process. For the long-term benefit of all involved, especially for children, it is important to consider the merits of a non-confrontational method of resolving family disputes. Of course, there will always be contexts in which the Courts must be involved, and it might be that mediation achieves only a partial agreement, leaving a final point to be decided by a Judge – but as they say, you will not know until you try.

Edwards Family Law is a niche London-based firm specialising in high-net-worth divorce and international family law. To find out more about divorce and financial settlements and the benefits of mediation (and whether it is appropriate in your case) please phone +44 (0)20 3983 1818 or email contact@edwardsfamilylaw.co.uk. All enquiries are treated in the strictest confidence.

There is a saying that all psychopaths are narcissists but not all narcissists are psychopaths. For anyone who has been in a relationship with a narcissist and is attempting to divorce them, this fact may seem a small mercy. Unfortunately, many successful people have significant narcissistic traits, therefore, we often deal with spouses in high-net-worth and international divorce who are trying to escape a narcissist.

The term narcissist is used a great deal these days. However, someone with Narcissistic Personality Disorder (NPD) is very different from a person who enjoys posting selfies. Often charming and personable in public (including the courtroom), someone with NPD can be controlling, superficial, manipulative, and downright dangerous. Although the English family law system is geared towards encouraging couples to work out financial settlements and arrangements for children between themselves or through mediation rather than going to Court, a narcissist will thrive on dragging out proceedings as long as possible. Furthermore, someone with NPD is unlikely to ever admit they did anything wrong and will blame you for the relationship breaking down. This can often lead someone to question their sanity and start to believe they are wrong – this is known as “gaslighting”.

To stay strong and sane, you need to instruct an experienced, tough Divorce Solicitor who will refuse to engage with your spouse’s gameplaying and will tenaciously fight to ensure you and your children’s best interests are protected, especially concerning the financial settlement.

What is Narcissistic Personality Disorder?

NPD is a recognised mental illness. According to the Diagnostic and Statistical Manual of Mental Disorders (DSM), a guidebook used by mental health professionals, people with NPD have five or more of the below traits:

A grandiose sense of self-importance
Preoccupation with fantasies of unlimited success, power, brilliance, beauty, or ideal love

A belief that one is special and can only be understood by or associate with special people or institutions A need for excessive admiration
A sense of entitlement (to special treatment)
Exploitation of others

A lack of empathy

Envy of others or the belief that one is the object of envy Arrogant, haughty behaviour, or attitudes

Like all mental health issues, narcissism is a spectrum. People such as Bill Gates, Kayne West, Donald Trump, and Mariah Carey have all been accused of displaying narcissistic traits which may make them difficult to be married to. However, this does not necessarily mean they have full-blown NPD.

Regardless, the more narcissistic characteristics a person has, the more difficult it will be to divorce them.

Negotiating financial settlements with a narcissist

It is extremely difficult to negotiate the terms of a financial settlement with someone with NPD. Because they lack empathy, they can’t consider the needs of you and any children as they are fixated on their desires. Although Family Law Solicitors, especially those who are members of Resolution, try to help couples settle without going to Court, such an aim is often impossible if one spouse is a narcissist.

Because someone with NPD or significant narcissistic traits will never admit they are in the wrong, you may think it is simply easier to let them have what they want in terms of the financial settlement so you and your children can get out of the situation and find some peace. Rather than jeopardise your right to a fair financial settlement, in so far as possible, have all communications regarding your divorce go through your Solicitor. A Divorce Lawyer experienced in HNW divorce will undoubtedly have come across narcissists many times and will have the emotional detachment and the strategies to sort out the financial settlement efficiently and effectively, regardless of any game-playing by your spouse.

Arrangements for children

Studies show that growing up with a narcissistic parent is incredibly damaging for a child. One group of scholars have stated:

“Narcissistic parents cause attachment injuries to their children through the frequent abdication of their parental role. Such parents view their children as a natural extension of themselves. Thus, the child’s shortcomings are met with greater intensity, as they are perceived by the parent as their own failure. In an attempt of self-protection and to recover their sense of self-worth, parents distance themselves from the children, leaving them confused and emotionally abandoned. At the same time, parents may psychologically merge with their children, whereby, the children are narcissistic extensions of their parents; their children’s achievements and successes are presented as their own.”

Although a narcissist is focused on themselves, they may not hesitate to fight for your children to primarily reside with them in order to exert control or hurt you. Any attempt by you to protect your children from the narcissistic parent is likely to result in accusations of parental alienation.

An experienced Family Solicitor will be well versed in such tactics and will, if required, organise for expert witness reports setting out the impact of the narcissistic parent’s behaviour on your children, especially if it tips over into abuse in terms of coercive and controlling behaviour.

In summary

Divorcing a narcissist is difficult for everyone involved. More than ever, it is vital that you instruct a Solicitor who is not only experienced in HNW divorce but also in managing cases where one spouse exhibits narcissistic traits.

“You will never get the truth out of a Narcissist. The closest you will ever come is a story that either makes them the victim or the hero, but never the villain.”

― Shannon L. Alder

Edwards Family Law is a niche London-based firm specialising in high-net-worth divorce and international family law. To find out more about divorce and financial settlements, please phone +44 (0)20 3983 1818 or email contact@edwardsfamilylaw.co.uk. All enquiries are treated in the strictest confidence.

The average age for getting divorced in England and Wales is 46.9 years for men and 44.5 years for women, and on average, those that do divorce do so after 12.5 years of marriage. These statistics make sense – it is now well-recognised that happiness dips in our mid-40s , only to rise again in our fifth decade. The mid-40s is also when many people are juggling children, elderly parents, and work, leaving little time for nurturing a marriage. But if a couple moves past these difficult years and remains together, we assume they have made it and can look forward to a happy retirement in wedded bliss.

Unfortunately, couples can and do divorce later in life. The recent shock announcement that Bill and Melinda Gates have decided to divorce after 27 years of marriage is a recent example. And when people divorce later in life, the financial settlement aspect of the process can prove highly complex, as there has been time to build wealth and there are the inheritances of adult children to consider. Divorce after 60 often involves dividing a greater amount of assets — such as the family home, overseas property, family businesses, pensions, maintenance, and tax planning.

For those divorcing after 60, below are some of the main things to consider.

Pensions

If you are approaching retirement, dividing your pension will be your top consideration. In July 2019, the Pension Advisory Group (PAG) released a report entitled, A guide to the treatment of pensions on divorce . The paper was endorsed by Sir Andrew McFarlane, President of the Family Division and the contained guidance is considered best practice when it comes to dividing pensions.

There are three main ways pensions are allocated in the event of a divorce:

· Offsetting – the value of pension assets is offset against other assets such as property. A common solution is one partner takes a lesser share of any pensions in favour of staying in the family home.

· Pension Sharing Orders – the clean break solution. Pension assets are divided (not necessarily equally) at the time of divorce.

· Pension Attachment Orders (formally known as earmarking) – the Court will make a Pension Attachment Order providing for a portion of one party’s pension to be set aside for their ex-spouse. The ex-spouse will receive their percentage when the pension starts being paid out. This option comes with risks as the receiving spouse will get nothing if the pension owner dies before the date the pension assets start to be paid.

There are other options such as deferred pension sharing or lump sum payments that may also be considered. Your Family Law Solicitor will go through all the possibilities and advise which one is best for your circumstances.

Tax

Dividing a lifetime worth of assets that have had ample time to mature will likely result in tax implications such as Capital Gains Tax on buy to let properties and/or investments. Another consideration is the impact of dividing property and assets on any Inheritance Tax planning you have in place.

Beware of financial hardship

Divorcing later in life can dramatically affect your wealth at a time when financial security is needed most. When negotiating your financial settlement, you need to think about your future health needs, the lifestyle you plan to enjoy in retirement, and the possibility of meeting a new partner.

Women need to take particular care when choosing a Family Lawyer as research by the Pensions Policy Institute found the average divorced woman has less than a third of the pension wealth of the average divorced man. This is because a greater percentage of women take breaks in their careers to look after children and elderly parents. Even when they return to employment, women are more likely than men to work part-time.

In summary

The financial implications of divorcing later in life are usually greater than that of someone in their 30s or even 40s as younger people still have time to re-build wealth. The key to ensuring you retain, at least to some extent, your pre-divorce standard of living, is to speak with an experienced divorce lawyer who understands how to negotiate financial settlements consisting of considerable assets and property.

Edwards Family Law is a niche London-based firm specialising in high-net-worth divorce and international family law. To find out more about divorce and financial settlements, please phone +44 (0)20 3983 1818 or email contact@edwardsfamilylaw.co.uk. All enquiries are treated in the strictest confidence.

Getting divorced is often quoted as one of the most stressful experiences someone can go through. It is never an easy decision. It is one of the most important financial transactions you will do. It is therefore vital to ensure the team you instruct is the right one for you. Your solicitor should make your divorce easier to deal with rather than a stressful process. We often get asked how easy it is to change solicitors once the process has already begun. the short answer is, it should be easy.

If you want to discuss changing lawyers today, pleas get in touch.

How to choose a family lawyer?

Divorce and Family Law is becoming more and more complex and it is a highly specialised field. Judges have a wide discretion when deciding what a financial settlement should be and therefore there is not a one size fits all. It is important if you have a complicated divorce that you instruct a solicitor that has experience in dealing with the issues in hand and is up to date with the law on the topic. An example of a complicated case might be those with complex asset structures, company interests to consider, arguments about whether assets are “matrimonial” or not, where there might be international considerations and where there might be pre or post nuptial agreements.

Word of mouth recommendations for family lawyers are sometimes the best way to choose a solicitor. Indeed, at Edwards Family Law a large part of our work comes from referrals and previous clients. If you think your case might be more complicated than a friend’s, those lawyers may not have the experience to deal with your case.

If you are unsure about your current legal team and want to see if we can help, get in touch today.

Why change family solicitors?

Divorce is a very personal thing. It is vital that you have a good relationship with your solicitor, and you feel that you trust them both personally and in the advice they give.

One of the most common issues is when someone feels their lawyer lacks confidence in their advice and cannot think on their feet. If your lawyer always says they need to “get back to you” when you ask them a question, then something is probably wrong. If they do not have confidence in their own ability, it is difficult to see how they can expect you to have confidence in them. You should always be able to voice your concerns without fear of being made to feel stupid or shouted at and with an answer being given quickly.

Unfortunately, the relationship between solicitor and client can often deteriorate to the point of no return. The most common reasons we are approached for include;

· a concern about overcharging or high fees;

· lack of confidence in the advice being given;

· concerns about or lack of strategy in the case and feeling like you have no idea what is going on;

· A failure to return calls or emails and frequent unavailability to deal with your case;

· concerns about lack of progress on the case and missing court deadlines;

· a lack of trust;

· not being listened to or heard in any way or that the important facts that they are giving to their solicitors have been overlooked.

· the solicitor does not know or remember the finer details about the case;

Ultimately if you lose trust or confidence in your solicitor for whatever reason, you should at the very least seek a second opinion. If you want to get a second opinion, please get in touch.

In what circumstances can I change solicitor?

If you have concerns about your solicitor and the advice you are receiving, you should seek a second opinion from a specialist family lawyer. To give that opinion, most lawyers will need some basic background information about your case with a snapshot of the assets. A good lawyer will ask the right questions in that initial phone call but any documents you have should be provided before your initial consultation if you are going to get the most from it.

It may well be that the second opinion is the same as the advice you have already received, and this gives you a new sense of optimism and reassurance that your case is on the right track. If not, or you still feel that the confidence and trust has gone, you can switch to new lawyers completely and immediately.

When should I change?

You are legally allowed to change solicitors at any time. You will have to pay any final bill and our experience tells us to ask for an up to date bill of costs before you confirm you are moving lawyers. Only once your final bill is paid will you be able to have your papers released and so it is important you consider any important dates before deciding to go ahead. If you are thinking of changing solicitors and there are court deadlines looming, we would recommend speaking to other lawyers as soon as possible and if necessary asking your existing lawyers to stop work (especially if you are concerned about the advice you are being given or generally quality of work).

In addition, the timing of when you change might be crucial. If there are hearings coming up you may want to ensure you have changed teams so that the strategy going into that hearing is correct and you have confidence moving forward that nothing has been missed. Even if it is a week before the next hearing, if the new lawyer has the time and wherewithal to read in on your case, they will make it happen. On the other hand, it might be more appropriate for you to stay with your existing legal team until that hearing has taken place.

How long does it take?

Appointing a new solicitor for your divorce or family proceedings is simple and straightforward. Once you have paid your final bill, your old solicitors should release your files to your new solicitors’, and you will need to confirm to your old solicitors that you authorise this. Your old solicitors should get the file ready quickly, but if they are slow or seek to delay matters, your new solicitors can and should be able to move it along.

Your new solicitors will then tell the other side and the court that they are acting for you. It will then be a question of your new solicitors reading into your case and getting to grips with all the detail. The time this will take will depend on how long your case has been going on and how complex the disclosure might be together with what other work your new solicitors have. Your new solicitors should be able to give you a clear indication on this. If they cannot, they are probably not going to be an improvement.

If you want to find out how long it might take for us to take on your case, get in touch today.

Is it going to cost me a lot in fees to change lawyers?

You should always try to get an indication on how long the reading in process will take (both in terms of time and costs). The time this takes will also depend on how the file has been put together. We often find that if a file has been put together badly or is disorganised, it is a good reflection on how the case has been managed. Your new solicitor should then be able to discuss the strategy for your case. If you have a good idea of the amount of papers in your case then this will help us give a clear idea on timing and costs.

Is it too late to change solicitors?

If you have already had a final hearing and final orders have been made it will be too late to re argue your case. In limited circumstances you can appeal, and you should consult another solicitor to determine your chances of success. In addition, depending on the advice you received from your existing solicitor you may have a claim for professional negligence. In any other situation, even leading up to a final hearing, you can change lawyers if you need to.

If you think any of the above issues are relevant to your case, have lost confidence in your existing solicitor or just want a second opinion, please get in touch with us today for a confidential, no obligation consultation.