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.

Other solutions include:

Transferring the international pension to an English pension (this would be subject to the consent of the pension provider and the laws of the country where the pension is held).

Offsetting the pension against other assets.

Applying for an order under the Matrimonial and Family Proceedings Act 1984, Part III (financial relief in England and Wales after an overseas divorce). To qualify to apply for a Part III order one of the following must apply:

Either party must be domiciled in England and Wales on the date of the application or the foreign divorce.

The applicant must be habitually resident in England and Wales throughout the period of one year ending with the date of the application for leave or the foreign divorce.

The respondent must be a resident in England and Wales on the date of application.

Transferring (part of) the English pension to an overseas pension arrangement, against which the overseas order/agreement would be enforceable or by taking advantage of the pension freedoms

created by the Taxation of Pensions Act 2014 (where possible and subject to consideration of the tax consequences).

Summing up

As illustrated above, dividing an internationally based pension in a divorce financial settlement is a complex procedure that should be managed by an experienced solicitor with experience in dealing with complex cases. Although reaching a satisfactory solution may be difficult, it is certainly not impossible. With the right advice and representation, you can ensure you do not miss out on international pension rights that can provide you with a comfortable retirement in the future.

Edwards Family Law is a niche London-based firm specialising in complex and high-net-worth divorce and international family law. To find out more about dividing international pensions upon divorce, please phone +44 (0)20 3983 1818.

The case of X v C [2022] EWFC 79 dealt with a situation one might not automatically associate with family law – the right to freedom of speech. His Honour Justice Farquhar was asked to consider whether the financial remedies ‘needs’ case before him should have reporting restrictions attached to protect the parties’ seven year old child’s European Convention on Human Rights (ECHR) Article 8 (private life and family) rights.

What are the ECHR Article 8 and 10 rights?

The ECHR in question are as follows:
Article 8 – Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his

correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Article 8 has been interpreted broadly by the courts. Article 10 – Freedom of expression

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

Neither Article 8 or Article 10 rights are absolute, meaning that unlike Article 3 for example, which prohibits torture and “inhuman or degrading treatment or punishment” the courts must conduct a balancing exercise by weighing up the claimant’s ECHR right and, to put it broadly, factors such as the public good, national security, and the independence of the judiciary (to name but a few).

Why did the court decide that the child’s Article 8 rights were greater than the parents’ Article 10 rights?

What is interesting about this case is that neither the husband nor wife were high net worth or famous, situations that most commonly involve anonymity decisions. His Honour Justice Farquhar commented that the mere fact the parties to the proceedings had a child who could be identified was not sufficient justification to anonymise a financial remedy judgment. What did warrant consideration, however, was the presence of highly contentious, ongoing Children Act 1989 proceedings in which both parties had made various allegations against one another. This fact increased the child’s Article 8 rights as they were aware of the dispute and would undoubtedly be adversely affected by any publicity surrounding the case. This risk increased the child’s Article 8 rights being compromised.

In addition to the above, there was an accepted risk that the child’s father may publish an un-anonymised judgment for inappropriate purposes. His Honour Justice Farquhar was satisfied that H had at times been dishonest and was motivated to cause W distress, which would inadvertently cause harm to the child.

What does the decision in X v C mean for parties to Financial Remedies Court proceedings?

His Honour Justice Farquhar stated that proceedings in the Family Court, including the Financial Remedies Court, should remain as open as possible. The Family Court has faced years of criticism regarding closed-door hearings and accusations of ‘secrecy’. In June 2022, The Hon. Mr Justice Mostyn controversially reiterated his opinion in Gallagher v Gallagher (No 1) (Reporting Restrictions) [2022] EWFC 52 that the standard practice of anonymising financial remedy judgments conflicts with Scott v Scott [1913] UKHL 2 and Family Procedure Rules 27.10 and 27.11, and concluded it is unlawful. Instead, an anonymisation order and reporting restrictions can only be made after a formal application has been filed in court and a careful balancing exercise has been undertaken. He confirmed that this was his final opinion on the matter, but he would “leave it to others to determine [if he is] right or wrong”.

Undoubtedly, a higher court will indeed do just that and hopefully clarify the matter for family litigants.

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

Sportsmen and women are in a unique financial position, in that those at the top end of their respective sports can earn salaries and receive endorsements that the average person could never dream of attaining. That said, their careers are short, and on retirement their incomes usually decline dramatically, save for the select few who go on to top-level coaching or secure lucrative punditry careers.

It is sadly all too well documented that many sport stars quickly declare bankruptcy upon retirement, as their diminished incomes cannot keep pace with their notoriously high outgoings to meet the lifestyle that they have established for themselves and their families. This problem can often be made worse for those who are obliged to pay eye-watering maintenance payments to former spouses, or where Schedule 1 payments have been ordered for the benefit for their children.

“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.

If you or a family member is in immediate danger, please call 999. Further support can be found at http://www.refuge.org.uk/ or by phoning the free 24-hour National Domestic Violence Helpline on 0808 2000 247.

Domestic abuse affects people of all cultures and socio-economic statuses. Affluent victims of domestic abuse will often experience economic abuse, and coercion and control during an abusive relationship. If you have been able to escape your situation and are now divorcing your abuser, one of the foremost questions in your mind is likely to be, whether or not the abuse you have suffered will lead to a more favourable financial settlement.

What is domestic abuse?

The Domestic Abuse Act 2020 (the Act) provided a statutory definition of domestic abuse for the first time. The definition consists of two parts, the first being the relationship between the victim and their abuser, and the second defining what domestic abuse is.

Under section 1 of the Act, domestic abuse occurs if Party A and Party B are both aged 16 years or over and the behaviour is abusive. Abusive behaviour is defined as:

• physical or sexual abuse;
• violent or threatening behaviour;
• controlling or coercive behaviour;
• economic abuse; and/or
• psychological, emotional, or other abuse.

Economic abuse is also defined as any behaviour that has a substantial adverse effect on B’s ability to:

• acquire, use, or maintain money or other property; or
• obtain goods or service.

What factors will the court consider when deciding on a financial settlement order?

The Court will look to section 25 of the Matrimonial Causes Act 1973, paying consideration to the following factors when making a financial order in a divorce case:

The resources available to the parties, both in terms of capital and income, and those being extant or reasonably foreseeable;

• The financial needs of each party, considering the needs of dependent children and any disabilities;
• The duration of the marriage and the age of the parties;
• The conduct of the parties (but only in exceptional circumstances);
• The standard of living enjoyed by the parties;
• Any benefit either party will lose as a result of the divorce; and
• The contributions of each party to the marriage (both financial and non-financial).

Many clients assume that the fact one spouse was abusive means that the court will consider this under the guise of ‘conduct’ when considering the section 25 factors. However, this is not the case. Conduct will only be taken into account if the court concludes that it would be inequitable to disregard it. To illustrate how high the hurdle to overcome is, in H v H (Financial Relief: Attempted Murder as Conduct) [2005] EWHC 2911 (Fam) the court made an order to leave the husband with only a small percentage of the matrimonial assets after he had tried to murder his wife, but he received a portion of the matrimonial assets nonetheless.

Will domestic abuse be considered when assessing financial need?

If domestic abuse is taking place within a marriage or civil partnership that results in the victim being unable to earn their own income, then it is likely that the conduct could be considered when the financial need of the financially weaker party. In addition, as a way of keeping control of the situation, the abuser may not make a full and frank financial disclosure. These are persuasive factors that may result in the court looking at the effect that the domestic abuse has had on matters, such as the resources available and the financial needs of the victim.

Take for example a situation where one spouse runs a successful business and the other focuses on looking after the home and children. Under the principle set out in the landmark case of White v White [2000] UKHL 54 “There should be no bias in favour of the money-earner and against the home-maker and the child-carer”. So the fact that one spouse earned the money and the other ran the home and family will not automatically result in the breadwinner receiving a greater share of the matrimonial capital. Developing on this, if the spouse who was the victim of domestic abuse can show that they were prevented from working outside the home and/or having their own money, or that their self-confidence has been so eroded that it will take time for them to re-enter the workforce, the court may award them a greater share of the assets based on lack of resources and real need. This is especially true if the victim is caring for young children.

Wrapping up

To summarise, although conduct more generally will not normally be given too much automatic weight by the court when gauging the section 25 factors against the facts of the case and the making of a final financial orders, the impact that domestic abuse (including economic abuse) has had on the victim’s economic needs and resources may be considered as a factor alongside the section 25 factors as a material part of the case which could influence its outcome in some cases. It all depends on the circumstances of each individual case. What is important is that victims of domestic abuse leave the relationship and find safety. With expert legal advice and support from other services, you can move on to a positive future.

Further help and support are available from the below organisations.

National Centre for Domestic Violence (NCDV) – 0800 970 20 70

Refuge – 0808 2000 247 (24 hours)

Women’s Aid 0808 200 0247 (24 hours)

ManKind – 01823 334 244

Galop LGBT Domestic Abuse Helpline – 0800 999 5428

Edwards Family Law is a niche London-based firm specialising in high-net-worth divorce, separation, and international family law matters. 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.

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.

The recent Family Court case of Randhawa v Randhawa raised the interesting question of what would happen if one party to a marriage filed for divorce and eventually received a decree absolute without the knowledge of their married partner. This also raises serious questions about the fallibility of the divorce system to fraudulent acts, how courts decide whether to set aside a decree absolute where it was gained on a false pretext, and what happens where a final decree is set aside if the guilty party has remarried.

Background to the case of Randhawa v Randhawa

Mr and Mrs Randhawa married in 1978, aged nineteen and sixteen years old, respectively. They went on to have four children, one of whom, Manpreet, died in 2003. Over several years, Mr and Mrs Randhawa invested in residential and commercial properties and, in the words of the judgement, “amassed a small fortune”.

The couple divorced in 2010 after being granted a final decree by Slough County Court. The divorce was granted on the basis that the marriage had irretrievably broken down due to Mrs Randhawa’s unreasonable behaviour. Mr Randhawa went on to remarry and have a child with his new wife.

Mrs Randhawa subsequently submitted a court application to have the final decree set aside for the following reasons:

• She did not receive any notice of the divorce
• The acknowledgement of service document, which told the court she did not wish to defend the divorce, was not signed by her, and
• The signature used for this purpose was a forgery.

In response to the application, Mr Randhawa denied the allegations, asserting that the divorce was genuine and Mrs Randhawa knew about the proceedings and actively engaged in them.

The parties also disagreed on the date of the separation. Mr Randhawa said this happened when he left the family home in October 2009, and there had been discussion of divorce prior to this. Mrs Randhawa denies having knowledge of this and did not know of the divorce until she petitioned for judicial separation in December 2019.

The Judge in the case, therefore, had to decide on the following questions:

a. What was Mrs Randhawa’s knowledge of the divorce Petition dated 22nd January 2010?

b. Did Mrs Randhawa sign the acknowledgement of service that was signed on 11th February 2010? If not,

c. Was the signature forged by Mr Randhawa or on his behalf?

d. Depending on the answers to the above questions, should the decree absolute stand or be dismissed?

The Judge relied on the basic legal principle that the person seeking to rely on a disputed fact must prove that fact.

Forensic Document Examiner confirmed the signatures were forged

Evidence was provided by nine witnesses, including a Forensic Document Examiner. The Forensic Document Examiner confirmed that there was “very strong evidence to support the proposition that the questioned signature was not written by [Mrs Randhawa] but that it is a simulation (freehand copy) of her genuine signature style, by another individual”. Falsified signatures were also used to secure a mortgage in the name of Mrs Randhawa and other property related matters. Despite this, the Judge made it clear that the evidence of the expert was not the determining factor and that this had to be considered “in the context of the wider evidential canvas”.

What did the Judge conclude?

Having heard evidence from nine witnesses over a period of eight days, Judge Moradifar agreed that both parties had a difficult relationship and were devastated by the loss of their son. He stated that Mr Randhawa was “highly evasive and his evidence devoid of any detail” during his testimony when it appeared that the answers he provided might damage his case. The Judge also stated of Mr Randhawa, “I have no doubt that he is a man who would take any necessary steps to achieve his ends and where such steps fall foul of the law or morality, he seeks to deny his conduct unless faced with no other option but to admit the same. In the latter instance, he will seek to divert attention onto others, blame others or become altogether evasive”.

On the key matter of whether Mrs Randhawa signed the Acknowledgement of Service form and hence was given proper notice of her divorce, the Judge reached the following final conclusions:

a. Mrs Randhawa had no notice of the divorce proceedings that were initiated by a Petition for divorce by Mr Randhawa on 22nd January 2010.

b. Mrs Randhawa’s purported signature on the Acknowledgement of Service form dated 11th February 2010 was a forgery.

c. The signature was forged by or on behalf of Mr Randhawa

Judge Moradifar set aside the final decree granted on 22nd January 2010.

Final words

The case of Randhawa v Randhawa highlights that any attempt to circumvent the divorce process will be looked on extremely unfavourably in the family courts. The legal implications of taking such a course of action can be extremely complex, especially if the party who used fraud to apply for divorce then goes on to remarry and have children. Where a decree absolute is set aside, the parties effectively remain married and, therefore, any claimed remarriage effectively becomes void. This may then lead to a more serious criminal charge of bigamy. Aside from the criminal charge, this also leaves questions about ownership of marital assets and the joint ownership of any property in the actual and purported marriages.

Edwards Family Law is a niche London-based firm specialising in high-net-worth divorce, international family law, and children’s law. We are members of Resolution, an organisation of Family Law Solicitors that abide by a Code of Practice that promotes a non-confrontational approach to family law practice.

To find out more about divorce proceedings, please phone +44 (0)20 7129 7978 or email contact@edwardsfamilylaw.co.uk. All enquiries are treated in the strictest confidence.

London has long been established as the preeminent centre of the world for divorcing high-net-worth couples, in large part because law courts here are known to award sizeable settlements to the financially less well-off party. This reputation was cemented in 2000 in the case of White v White, involving Martin and Pamela White, who had three children together and divorced after 30 years of marriage. During the case which reached the House of Lords, it was concluded that the couple’s £4.5m net worth should be split 57% to Mr White and 43% to Mrs White. Crucially, Lord Nicholls of Birkenhead made it clear that in such cases, “There should be no bias in favour of the money-earner and against the home-maker and the child-carer”. The judgement went on to say, “As a general guide, equality should be departed from only if, and to the extent that, there is good reason for doing so”. Many high profile separations have now passed through London’s divorce courts, including that of Paul McCartney and Heather

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Mills (Ms Mills received a settlement of £24.3m) in 2008, and Bernie Ecclestone and ex-wife Slavica (Slavica Ecclestone receives £60m per year from her ex-husband) in 2009. Most recently, Her Royal Highness Haya Bint Al-Hussain received the largest ever settlement in British legal history of £554m from the Ruler of Dubai, His Royal Highness Sheikh Mohammed bin Rashid al-Maktoum, reconfirming London’s status as the divorce capital of the world.

Background to the divorce of Princess Haya from Sheikh Mohammad

The details of the divorce of Princess Haya from Sheikh Mohammad are notable not just because of the sheer scale of the settlement but also the background of the case. Princess Haya Bint Al-Hussain is the daughter of Jordan’s former King Hussein and married Sheikh Mohammed Bin Rashid Al-Maktoumon on 10th April 2004, becoming the youngest of six wives. The settlement followed a long-running custody battle, in which Princess Haya fled Dubai in 2009 to London along with her children, citing serious concerns for their safety. Her concern related to a High Court judgement in 2019 in which it was ruled that Sheikh Mohammed bin Rashid al Maktoum had previously abducted his other daughters, Sheikha Latifa Mohammed al-Maktoum and Sheikha Shamsa al- Maktoum, and held them against their will in Dubai. As a result and following several threats, Princess Haya had a real concern that her daughters would be abducted and returned to Dubai against their will. This was further reinforced after it was discovered that Sheikh Mohammed had ordered the hacking of the mobile phones of Princess Haya, her bodyguards and her legal team using spyware developed in Israel called Pegasus.

What did the Family Court rule in the divorce of Princess Haya from Sheikh Mohammad?

On 19th November 2021, in the Royal Courts of Justice Family Court, Mr Justice Moor ruled on the divorce case of Princess Haya from Sheikh Mohammad, specifically in relation to three applications; 1) a settlement for two children of the marriage, Jalila and Zayed, 2) financial provision following an overseas divorce and 3) declarations as to the ownership of various horses, jewellery, and other artefacts. Justice Moor made the following award in favour of Princess Haya and her two daughters, Jalila and Zayed:

Security – a lumpsum payment of £251,500,000 (£210m + £41.5m); Education – £3,040,000;
Maintenance and other costs – £5,600,000 to be paid each year for each child.

As such, this is believed to be the highest ever divorce settlement awarded in an English Court. The amounts awarded cover a range of costs, including education, holidays, visas, living costs, refurbishments, employee wages, IT costs, a vehicle fleet manager, VAT and other taxes, utility bills and insurance costs, wear and tear, horses and horse equipment, vets, nanny’s, tutors, and nurses. A sizeable portion of this award relates to security costs, given the extreme level of threat posed to Princess Haya and her daughters. Citing Princess Haya’s Head of Security, Justice Moor explained, “He [the Head of Security] considered that, although the threat level to HRH changes daily, it remains of a significant magnitude at all times. He exhibited his security assessment. He assessed the current threat level as “severe”. In other words, an attack is highly likely at some point, given the proven history of abduction. If there is a vulnerability in HRH’s security, the threat level rises to “critical”, which means an attack is highly likely in the near future.

In addition to the main threat from HH, there; plus the ever-present risk of kidnap and ransom”.

Final words

While it is true that the scale of the divorce settlement, in this case, is the highest of its kind in London, the background and circumstances of those receiving the awards are by no means normal. As Justice Moor stated, Princess Haya and her daughters will continue to face a “clear and present” risk to their safety for some time, and hence there is a need to fund effective security. Nevertheless, this case undoubtedly reaffirms London’s place as the capital of the world for divorcing high-net-worth couples.

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 7129 7978 or email contact@edwardsfamilylaw.co.uk.
All enquiries are treated in the strictest confidence.

Arbitration offers significant advantages, and some downsides, in comparison to the England and Wales court system in family law matters, as Isobel Rarok of Edwards Family Law explains.

Many are aware of the significant presence of arbitration in the corporate and commercial spheres but may not appreciate that this form of alternative dispute resolution (ADR) is also available within the family law setting. Since 2012, arbitration has offered an alternative to court proceedings in financial remedy cases and, since 2016, has also been available in relation to child arrangements and relocation matters.

“Arbitration differs from other forms of ADR, which are designed to guide but not bind parties.”

Arbitration has increased in popularity due to the ongoing backlog faced by the court system; statistics released by the Law Society in December 2022 (covering the period from July to September 2022) show that the family courts continue to face significant delays and issues with judicial capacity. According to these statistics, all types of cases (save for consent order applications) are taking longer to dispose of than during the same period in 2021. These delays often lead to additional legal costs for both parties and can add to animosity. While many parties endeavour to resolve their cases voluntarily, this is not always possible, and many assume that there is no alternative to court proceedings. Could arbitration be the answer?

What is Arbitration?

 Arbitration is a form of ADR and takes place outside of court proceedings. Parties enter into an agreement to appoint an arbitrator, by whose determination (known as the “award”) they agree to be bound. The arbitrator will take the role of the “judge”, hearing and then determining the application. The arbitrator’s determination is equivalent to a final judgment and will be binding upon the parties. The arbitration award is then drafted into an order, which is sent to the court in the usual way to be approved and sealed by the court.

It is important to understand that arbitration differs from other forms of ADR, such as mediation and private financial dispute resolution hearings that are designed to guide parties, but not bind them.

The court will not vary the terms of the arbitrator’s determination when it makes the formal order, which means that the process effectively replaces court proceedings. The court retains a residual power to overturn or vary the arbitrator’s award if it is not deemed to accord with the relevant statutes, but given that family law is inherently discretionary, such a situation will be rare; only occurring in exceptional circumstances.

“Agreeing to arbitration can be very useful if one party is concerned about details of their financial and personal affairs ending up in the public domain.”

Further, following the case of Haley v Haley ([2020] EWCA Civ 1369), it is now possible to appeal an arbitral award. Again, this is likely to be the exception, rather than the rule.

Notwithstanding the above, arbitration is one of the most effective means to promote certainty and a swift resolution in family proceedings.

Advantages

Timing

One of the main advantages of proceeding by way of arbitration is timing. There are a number of arbitrators in England and Wales who are qualified and recognised to hear family law disputes. The arbitrators have control over their own workload and so typically do not have the significant backlogs faced by publicly funded courts and judges. Due to the number of practitioners qualified to arbitrate matters, there will almost always be someone available to take on the case, even at short notice.

Further, the arbitrator is privately funded, by the parties, which enables them to dedicate more time to considering the issues, the documentation and evidence placed before them, than a publicly funded court judge could. This can be particularly valuable to the parties if the case has additional complexities, such as international or offshore wealth structures. The costs of the arbitrator can be met by one or both of the parties, but the avoidance of the lengthy delays often faced in the public courts system means that the benefits often outweigh the costs of arbitration.

Flexibility/control

Parties also have additional control over the process. The parties will agree on which arbitrator to select, and can opt for an experienced family law practitioner, in many cases with expertise in the issues specific to their case. This is something that cannot be guaranteed in the court process, where parties have no influence or control over which judge will hear their case.

There can also be fewer procedural requirements. The parties and their solicitors can, in conjunction with the arbitrator, elect what directions they consider necessary to resolve the dispute, allowing them to build a more tailored approach. Timeframes can be led by the parties, subject to the arbitrator’s availability.

Confidentiality

The arbitration process, including the documents and evidence produced, remains confidential to the parties and their advisors. The same is not always true of family law cases; increasingly so as, while family law cases are heard in private, the family court “Transparency Pilot” launched in January 2023.

This Pilot has given rise to a presumption that accredited journalists and legal bloggers are permitted to attend family court hearings, report on what they see and hear, and are allowed access to certain documentation (see further details here). Whilst anyone reporting on a case must ensure children cannot be identified, more cases are likely to be reported and details made public, as a result of this new approach.

The guarantee of confidentiality within the arbitration process makes it an attractive alternative to court proceedings in many cases. This can also help to promote full transparency from parties to facilitate candid negotiations. Agreeing to arbitration can also be a good form of leverage if one party is particularly concerned about details of their financial and personal affairs ending up in the public domain.

Any appeal of an arbitration award would take place openly and removes this confidential protection, but as set out above, most awards will be made by experts in their field after significant consideration, so appeals are infrequent.

And the Downsides?

Parties should be aware that there are limitations to what arbitration can achieve, certain orders cannot be made by an arbitrator, such as third-party disclosure orders or certain interim orders, such as injunctions.

It is always best to seek specialist legal advice to ascertain whether a case is suitable for arbitration and what the options are more generally in relation to all the ADR processes potentially available.

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.