Many people believe that unmarried couples who live together (known as cohabitees) enjoy the same legal rights and protections as those that are married, but they are mistaken.

There is no such thing as a ‘common law’ marriage under English law and despite cohabitation being the fastest growing family type in England and Wales, if the relationship breaks down, cohabitees have to rely on complex property and trust law principles. Unmarried couples also have no automatic right to inherit under the rules of intestacy.

Last month, the Women’s and Equalities Committee (WEC) published a report on the rights of cohabitees. WEC made clear that the current law did not reflect the reality of the many diverse types of family structures in 21st century Britain and identified the need for urgent reform.

What were the main findings of the WEC Rights of Cohabitee’s Report?

The WEC received 380 written submissions from the general public, legal academics, legal practitioners, and campaign groups. The report’s key findings include:

A 2019 British Social Attitudes Survey showed almost half (46%) of the total England and Wales population wrongly assumed cohabitants living together form a ‘common law marriage’. This false belief leaves many cohabitees in shock when they discover how little legal protection is provided to unmarried couples who live together.

Unmarried couples have no automatic right to ownership of each other’s property if their relationship breaks down. Because they are forced to rely on property, trust, and contract law, the outcomes of court decisions are uncertain and case specific. Generous outright capital provisions that can occur in financial settlements upon divorce are not readily available to cohabiting couples. There are also very specific costs consequences in such cases.

As the general law prioritises financial contributions over domestic contributions, most witnesses called by the WEC argued that the financially weaker partner in a cohabiting relationship often ends up with nothing following a relationship breakdown.

Current law does not allow for caring and non-financial contributions to be considered by the court, prohibiting judges from crafting more effective remedies.

Although there is the option of creating a cohabitation agreement, this can be “emotionally and practically difficult”. Dr Charlotte Bendall, Lecturer in Law at Birmingham Law School, provided evidence

showing that when couples were seeking to make decisions as to finances there was “little to suggest that people are acting on the basis of a knowledge of the law, or even that they are aware of what the law is”.

Did the WEC provide any recommendations?

Suggestions for improving the law to protect unmarried couples who live together include:

The law must recognise the “social reality of modern families” and provide legal protection whether couples choose to marry, enter into a civil partnership, or live together. However, marriage should still be

recognised as holding important social and religious status in England and Wales. Therefore, the Law Commission’s 2007 proposals for an opt-out cohabitation scheme provides a sensible approach to reforming cohabitation law.

There needs to be a public information campaign aimed at educating people on the fact that ‘common law marriage’ does not exist. The public needs clarification on the legal distinctions between marriage,

civil partnership, and cohabitation, and the risks of wedding ceremonies that do not meet legal formalities.

The Law Commission’s 2011 recommendations concerning intestacy and family provision claims for cohabiting partners should be immediately implemented.

At present, financial settlement solutions such as spousal maintenance, pension sharing or off-setting, and the requirement for the court to consider all the factors under section 25 of the Matrimonial Causes Act 1974 are not available to couples that live together, unless they have specifically made provisions in a legally binding cohabitation agreement and taken independent legal advice.

High-net-worth cohabitee relationship breakdowns often result in one partner being left financially vulnerable. If you and your partner have, or are considering separating, it is vital that you obtain legal advice from a specialist and experienced family law practitioner.

As Resolution members, we remain constantly alive to changes in family law and will keep you updated as to the uptake of the WEC’s recommendations.

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

Whilst the Supreme Court decision in Radmacher v Granatino [2010] UKSC 42 held that weight should be given to a nuptial agreement it does not follow that such agreements will always be upheld by the court.

This was illustrated by the recent case of SC v TC [2022] EWFC 67, in which His HonourJudge Hess placed no weight on a post-nuptial agreement in financial remedy proceedings. He concluded that its terms were unfair due to the husband’s vulnerability at the time of signing and that the agreement would leave him in “a predicament of real need”.

Before examining the case, it is useful to briefly state the current law around the enforceability of nuptial agreements.

What makes a nuptial agreement legally enforceable?

The Radmacher decision states that the court will give weight to a nuptial agreement provided it is fair to do so, with ‘fair’ being the operative word. The Supreme Court referred to other landmark cases when deciding Radmacher, including McFarlane v McFarlane [2006] UKHL 24, in which it was established that fairness should be based on the principles of:

need compensation sharing

The Court will also apply a three-part fairness test concerning the nuptial agreement;

1. that the agreement was freely entered into (i.e. there was no undue pressure),
2. both parties understood the agreement (i.e. there was financial disclosure before the agreement was signed and both parties received or had the opportunity to receive independent legal advice), and
3. it is reasonable to hold both parties to the agreement (i.e. it is fair and the prevailing circumstances).

What were the facts in the case of SC v TC

The couple married in 1994 and had one child. The husband (H), worked in investment banking but had stopped after being diagnosed with early-onset Parkinson’s disease. From around 2003, H began to experience the early effects of his illness. He was formally diagnosed in 2011 and by 2013, the marriage was unhappy and lacked sexual intimacy. H visited a sex worker and later told the wife (W). W asked for a divorce, however, H asked for another chance to make the marriage work. W agreed on the condition H enter into a post-nuptial agreement to ensure her financial security.

Although the terms of the nuptial agreement were significantly more generous than what the court would award, H signed the contract. H’s solicitor told him the division of the financial assets was 80/20 in favour of W and recorded that he had advised H that it would be financially imprudent to agree to these terms. H stated that given his prognosis it made no sense for him to fight for assets and he, therefore, would not contest these terms of the post-nuptial agreement.

The post-nuptial agreement was signed in 2014 and divorce proceedings began in 2020. H wanted the marital assets to be divided evenly. Unsurprisingly, W argued that the post-nuptial agreement terms must be adhered to when alighting upon a financial settlement.

Why did the court not uphold the post-nuptial agreement?

Although His Honour Judge Hess concluded there had been financial disclosure, legal advice and both parties

were, when signing, mature and intelligent, he was concerned that the post-nuptial agreement disregarded any needs arising from H’s Parkinson’s diagnosis, including housing needs and home care requirements. The agreement would leave H in a position of “a predicament of real need”, with W comfortably provided for, and this would be fundamentally unfair.

His Honour Judge Hess stated:

“In summary on this area of the case, I have reached the conclusion that it would be wrong for me to place weight on the Pre-Marital Agreement. Not only was it very much to the husband’s disadvantage in financial terms, I have reached the overall conclusion that, at the time that it was signed, he was a vulnerable person (in the ways described above) and the wife rather took advantage of that vulnerable situation to gain a substantial financial advantage.”

Concluding comments

This decision highlights that even if all of the formalities required have been adhered to, fairness will always be the court’s primary consideration. The court fulfils a vital role in protecting vulnerable parties in situations of this kind and prevents a contracting out of the fundamental principles of English family law. In many cases, it is difficult or impossible to predict the situation a couple may find themselves in at the time of divorce, be that children, illness or otherwise. However, rather unusually in this matter, the husband’s future was a lot clearer given the reasons that the agreement was entered into. Therefore, when entering into a pre or post nuptial agreement, parties and their advisors must ensure that the agreement being entered into is in fact worth the paper that it is written on. A keen assessment of the likelihood that a court will deem the terms unfair is therefore essential to achieving the desired outcome.

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 and 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.

The Family Court In England and Wales has come under fire for being a “desert island” in the justice system, shrouded in secrecy and making its decisions behind closed doors. In October 2021 the then president of the Family Division, Sir Andrew Macfarlane, acknowledged that “justice taking place in private…is bound to lead to a loss of public confidence”. He called for the Family Court’s rules on transparency and reporting to be scrutinised and set up the Transparency Implementation Group (TIG).

Mr Justice Mostyn’s Campaign for Greater Transparency

Senior judges in the Financial Remedy Court (FRC) are not in agreement as to how to strike the right balance between transparency and privacy in matters such as who can attend hearings, what documents should be provided to reporters, and retaining parties’ anonymity. Mr Justice Mostyn has made waves by unequivocally asserting in a series of judgments since late 2021 that the FRC has been getting the law wrong for decades. Mostyn J’s position is that, whilst Family Court proceedings sit in “private” (as opposed to “open” court, like the majority of court divisions), that does not in and of itself require reporting restrictions or that the parties be anonymised when the judgment is published on a public database. He has made statements such as:

• “Had a member of the press or a legal blogger attended I consider that they could have reported everything that they heard during the proceedings” (Aylward-Davies v Chesterman [2022]);
• “The correct question is not: ‘Why is it in the public interest that the parties should be named?’ but rather: ‘Why is it in the public interest that the parties should be anonymous?’” (Xanthopoulos v Rakshina [2022]); and
• “if very rich businessmen are in court fighting at vast expense with their ex-spouses over millions, then the public has the right to know who they are and what they are fighting about. The judgment should therefore name names. Redactions can be made of commercially sensitive information, but…the redactions should never obscure the way the court has decided the case” (Gallagher v Gallagher (No. 1) (Reporting Restrictions) [2022]).

“Is it fair that one party’s poor behaviour could result in the other party’s identification?”

You might notice something that the above three cases have in common: you can read the names of the parties. That is because Mostyn J did not anonymise his judgments. The vast majority of financial remedy judgments heard by judges other than Mostyn J, however, continue to be anonymised. The lead FRC judge, Mr Justice Peel, has been the most prolific publisher of judgments since November 2021 and all have been anonymised. Since parties have no control over which judge hears their case, they face a bit of a lottery as to the publication protections they might be afforded.

The TIG Report 

TIG has just reported its findings on all issues of transparency as they relate to the FRC. Acknowledging Mostyn J’s judgments, it states “it is not for this report to set out what we consider the law to be on any particular, controversial, point. That must be a matter for the Court of Appeal. We acknowledge that there are different approaches to certain issues by different judges at High Court level and that this is far from ideal…it will be for others to decide whether the conclusions we reach should be implemented”.

The TIG report’s most critical recommendations can be summarised as follows:

Attendance at hearings

Cases should continue to be heard in private – ie, the only individuals permitted to attend are the parties, their representatives, and accredited journalists. Efforts should be made to better inform practitioners and judges on what to do if a reporter attends their hearing.

Reporting 

Reporters attending hearings currently cannot see any case documents without specific permission of the Court, meaning that the hearing is often impossible for them to follow. The report recommends that, when a reporter attends, a standard Reporting Order be made by the judge which:

• permits reporting of what the reporter witnesses, subject to anonymisation and protection against intrusive and personal identification; and
• entitles the reporter to see the parties’ position statements, together with the “ES1” (a brief case summary document) – reporters cannot publish any information that would breach the Reporting Order, even if it appears in a provided document.

Anonymity in published judgments

This is at the centre of Mostyn J’s standpoint and is arguably the most controversial issue. The report considers that “the default position should be one of anonymity”, but “there will be cases in which the presumption of anonymity will not be upheld”, which is a matter for the judge to decide on a case-by-case basis. Examples might include “situations of poor behaviour, either within the proceedings (by way of litigation conduct) or outside the proceedings in appropriate cases”, or where the public interest in identification outweighs the privacy justifications. The report also strongly encourages judges at all levels, not just High Court, to publish their judgments, to reset the imbalanced focus on “big money” cases heard by the High Court. 

The TIG report’s recommendations, if implemented, would undoubtedly provide greater clarity as to what parties to FRC proceedings can expect from a transparency and privacy perspective. The idea, however, that a party’s conduct could lead to a loss of their anonymity leaves much room for judicial discretion. What sort of behaviour outside of proceedings should this cover, what is the threshold for “poor behaviour”, and is it fair that one party’s poor behaviour could result in the other party’s identification? The question of transparency is by no means answered and we eagerly await a Court of Appeal case on the topic. In the meanwhile we will report back on the extent to which the TIG report recommendations are implemented by the Family Division.

In a social climate which sees fewer and fewer couples deciding to get married, or enter into civil partnerships, the subsequent separation of cohabiting parties is causing increasing difficulty in circumstances where they are simply not afforded the same financial rights on separation as divorcing couples or in the dissolution of partnerships.

Despite considerable pressure from family law solicitors, barristers, and judges, and family law groups such as Resolution, there is still reluctance amongst politicians to change the law in England and Wales so that it recognises the legal rights of cohabiting couples.

For unmarried parents who require financial provision to provide for their children following the end of a relationship with a high net worth (HNW) person, there is some light at the end of the tunnel.

Alongside an application for child maintenance to the Child Maintenance Service (CMS), an application for financial provision for the benefit of the child(ren) of the family can be made under Schedule 1 to the Children Act 1989.

What does Schedule 1 to the Children Act 1989 say?

Schedule 1 provides the Court with limited powers to make financial provision available for the benefit of the child(ren) of a relationship, where the parents were not married and have subsequently separated.

Needless to say, Schedule 1 also comes into play in circumstances where a child has been born to a mother, even after a very brief or fleeting relationship with the father.

It is possible to apply for the following orders:

• Periodical monthly maintenance payments for yourself on the child’s behalf (or to an adult child directly, where applicable);
• Secured periodical payments for yourself on the child’s behalf (or to an adult child directly, where applicable);
• Lump sum for yourself on the child’s behalf (or to an adult child directly, if applicable);
• Settlement of property for the benefit of the child, reverting to the paying party at the end of a specified term; and/or
• A transfer of property outright to you on the child’s behalf (often held on trust for them) (or to an adult child directly), but this is only likely to happen in very specific and limited circumstances.

Who can make an application under Schedule 1 of the Children Act 1989?

The Court can make a periodic payment order in respect of:

• Topping up the CMS maximum assessment amount, if the non-resident parent’s income is greater than £156,000 gross per annum. The Court will need to be satisfied that the circumstances of the case make it fair and reasonable for a top up order to be made;
• A regular payment for school fees or vocational training; and/or
• Meeting any reasonably foreseeable recurring expenses associated with the child’s disability (if they have one).

When would a Schedule 1 lump sum order be made?

Lump sum orders can be made by the court for the purposes of enabling liabilities and expenses already incurred in connection with the child to be met. These can even include the costs of their birth in some circumstances, or costs more generally which have been incurred in maintaining the child, even where those expenses were incurred prior to the application (as long as the application is made without unreasonable delay).

Specific future expenses and foreseeable liabilities can also be claimed. Whilst the court’s discretion is wide, the welfare of the child is paramount. Provision might be made, for example, for furniture for a new home purchased for the benefit of the child, a car to transport the child, or indeed a sum to be invested for future school fees. Lump sums are not, however, designed to be maintenance ‘by the back door’ for the resident parent.

How does the Court decide whether an order should be made?

The welfare of the child is a paramount consideration of the court in deciding these cases, and the standard of living enjoyed by both of the parties to the proceedings will also be considered. If, for example, the non-resident paying party is very wealthy and enjoys a luxurious standard of living, incredible accommodation, designer clothes and numerous international holidays each year, the court is likely to want to see the child’s standard of living when they are with the resident parent to be comparable, and will look at their suggested ‘reasonable needs’ in light of this.

The Court will also consider very similar factors to those listed under section 25 of the Matrimonial Causes Act 1973, namely:

• The child’s financial requirements;
• Any physical or mental disabilities relating to the child;
• The current and future income, earning capacity, and financial needs and obligations of the parents;
• How long the child is expected to be in education or vocational training;
• The income, earning capacity, and property of the child; and
• The way the child was being or is expected to be educated.

How long do Schedule 1 orders last?

Unless the child is attending further education or vocational training, or has a disability, periodic payments will usually end when the child turns 18 years. If the paying party dies during the term of payment, the direct payments will of course stop, but whilst an existing order is in place, and if the child remains a dependent of the paying party, an application can be made under the Inheritance Act 1975 for a claim against the deceased’s estate.

If property has been settled or transferred, it will normally be returned to the financially stronger party once the child turns 18 or finishes their secondary education, but will sometimes only revert once the youngest child finishes their tertiary education. If special circumstances apply, such as an adult child with a continuing disability, the term might be even longer still.

Where does this leave us?

Applications for orders under Schedule 1 of the Children Act 1989 are normally extraordinarily complex and require the advice and representation of a family law solicitor experienced in HNW separation.

At a high level, these types of cases tend to involve people in the public eye where privacy is also a significant issue to weigh and manage. It is vital to instruct a law firm that understands the need for strict confidentiality and can manage media enquiries. Edwards Family Law can also support you through private processes of dispute resolution, outside of the more public court proceedings, with processes such as mediation, Early Neutral Evaluation, private FDR hearings, and Arbitration.

To discuss any points mentioned in this article, 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 Schedule 1 application, please phone +44 (0)20 3983 1818 or email contact@edwardsfamilylaw.co.uk. All enquiries are treated in the strictest confidence.

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.