Akhmedova v Akhmedov & Ors. [2021] EWHC 545

When a judgement opens with the following line from Leo Tolstoy’s novel ‘Anna Karenina’: “All happy families are alike, each unhappy family is unhappy in its own way”, it is fair to assume that the particular dispute is particularly bitter. In Akhmedova v Akhmedov & Ors, Mrs Justice Knowles remarked that while the family before her had access to wealth of which most can only dream, it was one of the unhappiest families to have ever appeared in her courtroom. The judgment tells of a wife fighting to enforce a Financial Order made by a London Court and a Russian oligarch who “would rather have seen the money burnt than for the Wife to receive a penny of it.” Whilst the English family law system provided a kinder outcome for Ms Akhmedova than Tolstoy did for his heroine it was not easy or straightforward with her embarking on a five-year fight that spanned multiple jurisdictions.

The highest settlement awarded by an English Court

In 2013, Ms Akhmedova petitioned an English Court for a financial settlement. Her husband, a Russian oligarch provided a schedule of assets to the Court which totalled £1,092,334,626. In December 2016, Mr Akhmedov was ordered to pay over £450 million to his wife, an amount which represented over 41.5% of his assets. The Order also set aside transactions that had shifted assets into trusts as these allocations were found by the court to have been designed to deprive Ms Akhmedova of the resources. Shortly after, a worldwide freezing order against Mr Akhmedov was applied and he was told to pay a lump sum of £350 million and certain property to his ex-wife.

Mr Akhmedov failed to comply with the Order, thus setting the stage for a multi-jurisdictional battle aimed at piercing various corporate veils to see behind offshore intermediaries that he and his associates used to ensure his wife was never paid her settlement.

Particular focus fell on a superyacht named ‘Luna’. Officially owned by a Liechtenstein company, an English Court later determined that it was beneficially owned by Mr Akhmedov. In February 2018, Ms Akhmedova obtained a freezing injunction in the Dubai International Financial Centre against Mr Akhmedov and a related company named Straight, to stop them from disposing of or dealing with Luna.

Granting relief

Ms Akhmedova sought relief under section 423 of the Insolvency Act 1986 and/or under section 37 of the Matrimonial Causes Act 1973. Specifically, she asked the Court to set aside the transfers her husband had made

to the other Respondents and a Court Order stating that assets must be returned to her or alternatively, the other Respondents must pay her compensation to reflect the value of the assets transferred to them. After examining both forms of relief, the Court found that Mr Akhmedov, along with his son, had deliberately arranged matters to ensure Ms Akhmedova could never access any of the funds she was awarded. This was done by moving assets into trusts and corporate entities beyond the reach of the Financial Order laid down by the English Court in 2016.

Mrs Justice Knowles also admonished the parties’ son for repeatedly lying to the Court and called him his “father’s lieutenant”. She went on to say:

“I find that he is a dishonest individual who will do anything to assist his father, no doubt because he is utterly dependent on his father for financial support.”

Ms Akhmedova was granted relief with various Respondents being ordered to pay sums to the value of the assets they had received.

Whilst it might seem that this should be the end of the story, not long after this judgement it was reported that Ms Akhmedova accepted a settlement from the husband of £150m. Many would question why but after 5 years chasing the settlement around different jurisdictions the adage “a bird in the hand is worth two in the bush” comes to mind. Whilst £150m is still a huge sum of money, Ms Akhemdova also had to pay Burford Capital, her financial backers funding the litigation a hefty success fee.

Comment

This case illustrates the practical and flexible approach of the English Court system and its ability to freeze assets worldwide to ensure the enforcement of a Financial Order. The decision also shows that the English Family Courts will not hesitate in piercing corporate veils when it is clear that one party to a divorce has deliberately moved assets into offshore trusts and companies to deprive their ex-spouse of a fair financial settlement. However, it also demonstrates that despite the plethora of powers available, enforcement is still laced with difficulty when particularly obstructive individuals and jurisdictions are 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 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.

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

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

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

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

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

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

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

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

The cost of going to Court

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

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

The process of mediation

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

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

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

If both parties agree to mediation, what happens next?

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

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

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

During the session, your Mediator will:

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

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

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

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

Final words

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

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

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

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

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

What is Narcissistic Personality Disorder?

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

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

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

A lack of empathy

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

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

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

Negotiating financial settlements with a narcissist

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

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

Arrangements for children

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

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

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

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

In summary

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

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

― Shannon L. Alder

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

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

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

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

Pensions

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

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

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

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

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

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

Tax

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

Beware of financial hardship

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

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

In summary

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

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

This year has brought more change to our lives than any of us could have ever anticipated. Previously stable industries like travel and hospitality have almost collapsed whilst other businesses have seen record levels of profit amidst increased demand for their services. If you have ongoing financial obligations to your ex and have suffered financially as a result of the pandemic then you may wonder if there is anything that you can do to alleviate the pressure in these times. If you want to discuss this with one of our lawyers, please get in touch today.

If you previously reached a clean break with your former spouse then in all likelihood there is very little that you can do to change the agreement that was reached. However, if an element of that agreement involves spousal maintenance, it is open to you to make an application to the court for this to be varied downwards to reflect the change in your financial circumstances.

This is not a step to be taken lightly and there is no guarantee that you will be successful just because your income has dropped. The court will consider all the circumstances of the case, including both parties’ financial circumstances and needs. Therefore, if your ex has also been impacted financially by the pandemic, this will be taken into account. The court’s first consideration will be for the welfare of any child who is under 18.

It is of course always best to avoid litigation if at all possible and therefore parties should try to come to an agreement directly. However, it should always be borne in mind that if an agreement cannot be reached then court proceedings may be necessary. There are a number of things that you can and should do to protect your position from the outset;

Communicate and keep a record (but keep it cordial)

Whilst direct communication can be fraught, and even impossible in some circumstances, it is important to try and start a dialogue directly if you can. This can help avoid the need to make a court application and incur the costs associated with this. However, if you are met with a wall of silence, the existence of this correspondence (and the lack of any response) evidences a willingness on your part to try to resolve matters at the earliest juncture. This may be of assistance if you are forced to issue proceedings. Judges are slowly becoming more willing to recognise parties acting in an unreasonable manner and making costs awards that reflect this.

However, if you want to show that you have been cooperative, ensure that your correspondence is polite. If you produce correspondence to the judge that is littered with petty comments and profanities, any good favour that you may have gained will likely disappear. A good rule to live by is to imagine that a judge is reading your email

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back to you in the cold light of the court room, if the thought makes you cringe, it’s probably best not to hit send.

It may be that you are able to come to a compromise and if so, you should ensure that there is a written record of this, whether that be in a letter signed by both parties or a side agreement. Get in touch today if you would like us to assist you with this.

Provide evidence

If you are the paying party and have been made redundant or suffered a pay cut then it makes sense to provide your ex-partner with the documentation in support as soon as possible. If they can see the drop in your income in black and white, the change of circumstances should be obvious. This will help to speed up the process if they chose to obtain legal advice because these are the first documents that their lawyer will request.

If things progress to court, you will be required to provide your recent payslips and P60 so there is no harm in producing this at the earliest opportunity to set out your position to contrast against your financial circumstances within the original proceedings.

Be flexible

The regulations and therefore, the associated government support, are changing frequently. Businesses will be responding to changes as and when they are implemented and so if your hours are increased or your pay is reinstated, you should be prepared for maintenance to increase in line with that.

Equally, if you are the payee, whilst you are under no obligation to agree to a reduction in your maintenance, it is much better to take a constructive approach, particularly if the difference in maintenance is likely to cost you less than the associated legal proceedings.

Get legal advice

If you are not able to progress matters by communicating directly, then it is sensible to get some initial advice on the prospects of success of a variation application. It may be that sending a letter from a solicitor forces the other party to take matters more seriously. However, instructing lawyers does not have to mean fully contested court proceedings but sometimes is the necessary catalyst to encourage sensible and constructive discussion. Get in touch today to speak to us.

Do not stop payments

Finally, it is important to note that your initial court order remains in effect until either an agreement to vary is reached, or the court makes a determination. Therefore, if you do not make payments in line with the order you will be in breach and your ex could choose to commence enforcement proceedings. You must comply with the order but if this is impossible because your income has reduced so considerably, then you should raise this issue

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with your ex at the earliest opportunity so that they do not get a surprise when they check their bank account… The court can order that you pay these arrears so it is not as simple as saying that you cannot afford payments and that is the end of the matter, you will need to be able to demonstrate this.

Whether you would like some initial advice, assistance with a court application or formalising an agreement to vary an existing order we can help – get in touch to set up an initial, no obligation, consultation today.

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

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

How to choose a family lawyer?

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

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

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

Why change family solicitors?

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

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

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

· a concern about overcharging or high fees;

· lack of confidence in the advice being given;

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

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

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

· a lack of trust;

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

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

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

In what circumstances can I change solicitor?

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

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

When should I change?

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

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

How long does it take?

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

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

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

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

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

Is it too late to change solicitors?

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

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

For high-net-worth (HNW) couples, the country in which a divorce petition is filed matters. One reason so many international divorce cases are heard in London is that courts in England and Wales are well-known for ordering generous settlements that benefit the financially weaker party in HNW divorces.

Filing Your Petition In England And Wales

There are several reasons why London is known as the “Divorce Capital of the World” and why many will look at “forum shopping” (i.e. to get divorced in the most advantageous country), including:

Unlike most jurisdictions, the presiding judge ultimately decides how the finances will be divided in a divorce. Although they must consider the provisions set out in section 25 of the Matrimonial Causes Act

1973, the judiciary, who generally assume that the financially weaker party must be protected, has the ultimate say in a Financial Order;

Although the starting point in a divorce financial settlement is that both spouses are granted an equal share of the matrimonial assets, a judge can (and usually does) adjust this as they think fit. For example,

lifetime spousal maintenance may be awarded if it is deemed necessary to do so. Furthermore, English law takes a wider view of what constitutes marital property compared with other jurisdictions.

In the landmark decision in White v White [2000] UKHL 54, Lord Nichols declared that achieving fairness in a financial settlement meant that “there should be no bias in favour of the money-earner and

against the home-maker and child-carer”. This means that when an English court assesses the contributions of each party to the marriage, a spouse who gave up their career to look after the home and any children is seen to have contributed as equally as the spouse who earned the income.

For many HNW couples, the first legal matter to be decided is what jurisdiction should the divorce be heard in.

Can I have my divorce proceedings dealt with in England and Wales?

To have the legal right to petition for divorce in England and Wales either you or your spouse must have sufficient connection to either country. However, this does not mean that one or both of you have to live here permanently.

If you are filing for divorce after the end of the Brexit transition period (11pm on 31 December 2020) you may be able to petition in England and Wales if:

You and your spouse are habitually resident in England and Wales.

You and your spouse were both last habitually resident in England and Wales and one of you continues to reside there.

The Respondent is habitually resident in England and Wales.

The Applicant is habitually resident in England and Wales and has resided there for at least one year immediately before the application was made.

The Applicant is domiciled and habitually resident in England and Wales and has resided there for at least six months immediately before the application was made.

You and your spouse are domiciled in England and Wales. You or your spouse is domiciled in England and Wales.

What is the difference between domicile and habitual residence?

If you are a habitual resident of a country, then your daily life happens there. It is the place where your children go to school, your work happens, your pets live, and where you spend time with your friends and participate in your hobbies.

Your place of domicile is where your permanent home is. You automatically acquire domicile in your country of birth. However, you can change your domicile if you move and set up home permanently in another country.

The 2019 case of Pierburg v Pierburg[1] examined whether or not an English court had jurisdiction to deal with the wife’s divorce petition. Both spouses were German nationals and had been married for 30 years. Mrs Pierburg had signed a Prenuptial Agreement, agreeing not to make any claims on her husband’s assets or apply for spousal maintenance. It was imperative for Mrs Pierburg that she could file for divorce in England, as a German court would be likely to uphold the terms of the Prenuptial Agreement. An English court had the power to set aside the Prenuptial Agreement (which are not strictly legally binding under English law[2]) and award her a substantial settlement if it would not be fair to uphold the pre-nuptial agreement.

Since the 2000s, the couple had lived in Switzerland. They also maintained a house in London. When she separated from her husband in 2019, Mrs Pierburg moved into the London property. After six months, she filed for divorce in England arguing that she was domiciled in the UK.

Mr Pierburg filed for divorce in Germany, claiming his wife had never indicated she wanted to live permanently in London.

The Court agreed with Mr Pierburg, following Munro v Munro [3] where it was held that, in order to establish habitual residence, a spouse had to be “habitually resident”, and not merely “resident” in the jurisdiction for the six or 12 months required, not just habitually resident at the date of the petition and merely resident for the rest of the time. Before 2017, Mrs Pierburg had no links to the UK aside from the property. She may have visited London regularly but was not a habitual resident. Furthermore, her emotional and physical ties lay in Germany, not the UK; therefore, she was not domiciled in the latter country.

Jurisdictional disputes often arise when one spouse wishes to file for divorce in England and Wales and the other party starts litigation proceedings in another jurisdiction and it is imperative you get it right. In this situation, your Divorce Solicitor may apply for a Hemain Injunction.

What is a Hemain Injunction?

A Hemain Injunction derives from the Court of Appeal case of Hemain v Hemain[4]. It is a temporary interlocutory injunction[5] that prevents a party from pursuing litigation in another country. It is a powerful tool that can be used where one party to the divorce is delaying matters by contesting the jurisdiction of the English Court whist at the same time pursuing litigation in a

nother jurisdiction. To be granted a Hemain Injunction, you will need to prove that your spouse acted vexatiously, oppressively, or unconscionably in deliberately delaying litigation in England and Wales and advancing proceedings overseas in order to gain a forensic advantage.

Final words

HNW couples planning to divorce must consider jurisdiction if there appear to be several available. Investing in a Divorce Lawyer who has experience in international family law and HNW financial settlements will provide the best chance of securing the most advantageous jurisdiction for what you want to achieve when it comes to dividing your marital wealth.

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

Every January, the press take great pleasure in writing about Divorce Day i.e. the most popular day for divorce petitions to be filed with the court. 2020 has provided even greater fodder for publications that wish to sound the death knell for relationships and one could argue that 2020 was in fact ‘Divorce Year’. The retailer Poundland clearly seems to think so given that they are launching their first ‘divorce celebration’ range to help the newly single toast their separation.

Whilst it may be easy to joke about your partner driving you up the wall whilst you try to juggle work, home schooling and all the rest, it is not a laughing matter. Domestic violence rates have surged during lockdown and people’s mental health has been impacted significantly. Whilst this January, the column inches have been dominated by the imposition of a new national lockdown and the roll out of the vaccine, there are still a smattering of articles on this subject peppered among the various other COVID and Brexit headlines featuring on the daily doomscroll.

The vast majority of relationships will have been tested in one way or another since March and you may feel that you need to do something about this without taking the plunge or acting rashly.

There will of course be cases where there is little that can be done to save a relationship, particularly where there is a history of domestic abuse (and in these circumstances you should seek immediate advice and assistance, from the police if necessary). However, if you are looking for a way to salvage your relationship or get some reassurance then there are a number of things that you can do.

Marriage counselling and therapy

Divorce lawyers can get a bad reputation as the architects and enablers of misery (again, thanks to the press) but the vast majority of us want to help our clients in any way that we can. If that means helping to facilitate a reconciliation then that is what we will do. At Edwards Family Law our number one priority is the happiness and wellbeing of our clients. We have connections with a number of counsellors and therapists that we can refer you to. It may be that your mental health is suffering and you need a way to explore these issues privately or you may wish to attend counselling as a couple to bottom out your issues. Even if this is not successful, sometimes knowing that you have explored all of the avenues to keep your marriage afloat can be comforting if divorce turns out to be inevitable.

Initial advice

Taking legal advice does not need to lead to separation or divorce, but arming yourself with the information so that you can prepare yourself for this eventuality can be empowering, whatever way you decide to go, knowledge is power after all. Click the following links for a brief overview of divorce, financial proceedings and children proceedings or get in touch for a no obligation, initial call today.

Mediation

Mediation is becoming increasingly popular and being informed of it is an option is a prerequisite to issuing financial proceedings or children proceedings (subject to some limited exceptions). A mediator will act as a neutral third party to guide discussions between you and your spouse and it may well be that this forum helps you face the issues before you and come to a solution without needing to separate. If not, it is a cost effective and amicable way of attempting to reach a settlement. We know a number of excellent mediators that we can refer you to. Get in touch today for a free discussion about this.

Post-nuptial agreement

A pre-nuptial agreement is entered into in anticipation of a marriage and sets out the financial arrangements upon divorce in a bid to protect assets and limit future litigation. Whilst a staple in many European countries for some time, they have only started to increase in popularity in England and Wales since the seminal 2010 case of Radmacher v Granatino. In this case, the Supreme Court confirmed that pre-nuptial agreements held substantial weight if a number of criteria were met. Saying this, a number of couples who may now be facing separation will not have a pre-nuptial agreement because it was not en vogue at the time of their marriage. There is a solution to this in the form of a post-nuptial agreement. The clue is in the name, the agreement is entered into after the parties are married and again, sets out the financial arrangements in the event of divorce. This can be particularly useful if you are in the dark about the matrimonial finances but do not wish to divorce. Sometimes, getting a clear picture and a guarantee of security in the event of divorce can help to save a marriage if financial worries are putting pressure on the relationship.

The process will involve disclosure and each party receiving independent legal advice. Obviously, this will require the cooperation of both parties which will not necessarily be forthcoming if one partner wishes to keep the other out of the financial picture but it can be an effective tool in the right circumstances. Get in touch today for some initial advice or read our summary of pre-nups & post-nups here.

Financial consent orders

Many couples manage to reach an agreement regarding the division of their assets between themselves, particularly where their finances are relatively straightforward. This of course has the benefit of dealing with matters swiftly and avoids the court process and associated legal fees.

However, parties should always ensure that any agreement is recorded in a consent order and sealed by the court. Without taking this step, the agreement can be rendered meaningless and leaves the parties exposed in a number of ways.

If you think you might need a consent order, and want to discuss this, get in touch today or call 0203 983 1818.

What is a consent order?

A consent order is a document that sets out the financial arrangements agreed between parties upon divorce. Such an order will deal with the division of all of the assets and liabilities, including property, pensions and personal possessions. Where appropriate, it will set out the level and duration of any child and spousal maintenance as well as provision for other expenses such as school fees, medical insurance and life insurance.

In the event of a clean break (where all financial ties are severed), a consent order sets out the division of property and includes clauses that bring the financial relationship to an end. When it is necessary for the parties to have an ongoing financial relationship (for example, due to the need for spousal maintenance to be paid), the order sets out the mechanism for this going forward as well as the date or event upon which this financial relationship will conclude.

Why should I obtain a consent order?

There are two main issues that can arise without a sealed consent order.

Firstly, either party is open to pursue further financial claims later down the line. This was demonstrated by the Supreme Court’s 2015 decision in Vince v Wyatt:-

The parties married in 1981 and were of modest means during the course of their relationship. They had one child together and Ms Wyatt’s daughter from a previous relationship was treated as a child of the family. The parties separated in 1984 and eventually divorced in 1992. During this 8 year period, Ms Wyatt had limited financial assistance from Mr Vince. Whilst the court was unable to obtain records dating back this far, it had no reason to believe that Ms Wyatt’s claims against Mr Vince had been dismissed (as they would be within any consent order providing for a clean break). Mr Vince went on to develop a very successful green energy business during the 1990s and subsequently became a multi millionaire. Ms Wyatt brought a claim for financial relief in 2011 and after many hearings and appeals, the Supreme Court determined that her claim could proceed. Ms Wyatt was eventually awarded a lump sum of £300,000 plus a total of £325,000 towards her legal costs.

It is worth noting that in addition to these sums, Mr Vince will have borne his own legal costs as well as the the stress of five years of litigation against someone he had divorced over 20 years prior. Therefore, failing to obtain a consent order can lead to litigation many years, or even decades, after parties have divorced.

The above illustrates that even if parties are of limited means at the time of divorce or if an order is very simple and merely involves them retaining their own assets, it is still important that an order is obtained to incorporate the necessary clauses that prevent further claims from being brought.

Secondly, if one party seeks to renege on the agreement, there is little redress open to the other party by way of enforcement. For example, if a party stops paying spousal maintenance and there is no order to back up this arrangement then options are limited. Parties can effectively find themselves back to square one, needing to issue financial remedy proceedings to obtain an order setting out their respective obligations, taking both time and money.

As such, it is best to get matters finalised at the earliest opportunity to avoid, or at least limit, the possibility of future litigation.

How do I obtain a consent order?

Once an agreement is reached, this will need to be drawn up into an order by a specialist family law solicitor. It is highly recommended that both parties obtain independent legal advice on the content of the order. Once signed by both parties and their legal advisors, the order can be submitted to the court, along with a short disclosure statement in form D81. This includes details of both parties assets, liabilities and income, but does not require documentary evidence in support as would be the case within financial remedy proceedings.

Once submitted to the court, a judge will consider this snapshot of the parties’ financial position alongside the agreement reached, and assuming that they deem it to be fair, the order will be sealed. However, there is no guarantee that the court will deem an agreement fair simply because both parties consent to it. Above all, the agreement must meet the needs of the parties, with priority given to the needs of any minor children of the family. This reinforces the importance of obtaining legal advice on the order before it is submitted to the court as a solicitor will be able to advise whether the agreement is within the parameters of what a judge will consider to be fair.

If you think you might need a consent order, and want to discuss this, get in touch today.

No turning back…

Once a consent order has been sealed it is final and will become legally binding and enforceable upon the grant of decree absolute (see below). The importance of a properly drafted consent order coupled with independent legal advice therefore cannot be overstated. Parties need to be comfortable with what they are signing and satisfied that they can comply with any ongoing obligations. The benefit of this finality is that it ensures that neither spouse can renege on the agreement reached but naturally, this cuts both ways.

It is worth noting that provision for spousal maintenance always remains variable (by way of court application if changes cannot be agreed) and thus, either party can seek to vary maintenance, upwards or downwards, if there has been a change of circumstances (for example, a drop in the paying party’s income).

The 2018 Supreme Court case of Mills v Mills does however demonstrate that such an application cannot be used as a tool to reopen capital claims under the guise of a need for higher spousal maintenance.

The parties had divorced in 2002 and reached a financial agreement by consent. The wife received a £230,000 lump sum which would enable her to purchase a mortgage free property, thereby providing her with a home for life. The husband also agreed to pay annual maintenance of £13,200 per annum. The wife in fact utilised a mortgage to buy a more expensive property and over the course of the following 7 years sold and purchased a series of different properties. With each purchase the amount which she borrowed increased. In addition, she did not appear to reinvest the entirety of the sale proceeds from one property into the next. She sold her final property and moved into rented accommodation in 2009. Her capital continued to deplete over time, so much so that by April 2015 she had no capital and debts of £42,000. Due to the need to pay rent from income alone, the wife found herself with a shortfall between her income and outgoings. As such, she applied to vary her maintenance upwards, requesting that the husband discharge her monthly rental costs. The husband cross applied to vary the maintenance downwards. The first instance decision was that the maintenance should stay at the level as per the original the order. This was overturned by the Court of Appeal, however, the husband subsequently appealed to the Supreme Court who reinstated the initial decision. This was on the basis that the original order made provision for the wife’s housing need and therefore the husband should not have to make further provision for this.

Parties should take heed of the lessons from Mills v Mills when entering into a consent order, namely that once capital provision has been agreed and set out in a consent order there is very little scope for altering this via any means. As such, parties should think carefully before reaching an agreement and consider whether it is something that they are willing and able to stick to long into the future and factor this into their financial decisions going forward.

Practical considerations – divorce

A consent order cannot be submitted to the court until a divorce petition has been issued and the decree nisi has been granted. Therefore, it is important to get this separate process underway as soon as possible so that the consent order can be sealed at the earliest opportunity.

It is advisable to refrain from applying for decree absolute (the final stage of the divorce that legally dissolves the marriage) until the financial consent order has been sealed by a judge. This prevents a lacuna arising which would see parties no longer married but without financial arrangements in place. This is particularly important if one of the parties passes away before the consent order has been sealed. As set out above, the decree absolute is the final stage of the process as this means that the consent order is legally binding.

If you have any questions regarding the issues discussed in this post, it is essential you get specialist legal advice. Book your appointment with us today