Lawyers Archives - Edwards Family Law

On 18 December 2024 the Law Commission of England and Wales provided their long-awaited scoping report concerning whether the law governing financial remedies requires reform. As this is just a scoping paper, they have not yet made any firm recommendations. This article will discuss the report and financial remedies for this divorce reform.

The current law for divorce and financial proceedings is set out in the Matrimonial Causes Act 1973 (“the statute”). Since 1973 there has been case law setting out how the statute should be interpreted. However, the actual statute has not been updated in over fifty years.

Why the law might need to be reformed

Numerous concepts have developed through case law since 1973, for example the concept of needs and matrimonial/ non-matrimonial property. However, the statute does not define what these are. Therefore, arguably the statute needs to be updated in line with the current case law, mainly so that anyone getting divorced can understand how their case will be dealt with by looking at the statute.

There has been a lot of criticism about the current law as it gives the court such a wide discretion. This makes it difficult for divorcing couples to know what a court will do, as what one Judge orders may be completely different to another Judge, but these will all still fall within the bounds of discretion. This can make it difficult to negotiate as one party may be at the upper end of a court’s discretion, and the other party at the lower end. In the meantime, costs can spiral.

There have been calls for reform for a long time, to bring statute up to date with case law and also to narrow the discretion so divorcing couples have greater clarity about the outcome of their case. Furthermore, society has changed significantly in the last 50 years and so many would say that reforms are long overdue. It can also be argued that case law has helped to keep pace with changes in society and there is no need to change the law.

What the scoping report says

The scoping report concludes the current law requires reform, although they place the burden on the Government to decide what shape the reform should take. They set out four models for possible future reform:

Codification: this involves minimal change to the existing law and is the simplest model of reform. Concepts which have developed through case are codified in statute. This should make the law more accessible, as the law would be set out in one statute, rather than contained in different case law. The court would retain a wide discretion and therefore this model does little to increase certainty.

Codification-plus: this is a step-up from the codification model. The current law is codified and there could be additional reforms to deal with specific areas of law which are not yet settled (see below). The court still retains discretion but limitations on discretion may be introduced in relation to areas of reform.

Guided discretion: Introduction of a set of underpinning principles and objectives which guide the exercise of the court’s discretion. This reform would go beyond the changes to the existing law contained in the statute.

Default Regime: this would create a matrimonial property regime. This means when couples get married they will know how property will be divided on divorce. This provides a high level of certainty and reduces the courts discretion. Default regimes are common in some European countries.

Couple discussing divorce and financial settlements.

Areas of law which are not yet settled

There have been calls for reform in a number of areas of law including the following:

Nuptial agreements

The current law means nuptial agreements are not yet legally binding in England Wales. The Law Commission’s 2014 Report on Matrimonial Property, Needs and Agreements, recommended couples should be able to enter into binding nuptial agreements, albeit parties should not be able to contract out of providing for financial needs. The government has yet to take these recommendations forward.

Spousal maintenance

The current law states that a court should consider whether it would be appropriate for spousal maintenance payments to be made in order to enable the other spouse to adjust to financial independence without undue hardship. Some commentators suggest spousal maintenance should be limited to 5 years, save in cases of serious financial hardship. However, there are concerns this could leave spouses vulnerable.

Conduct

There is no statutory definition of conduct. The current case law suggests personal misconduct will only be relevant where it is “gross and obvious”. Concerns have been raised that conduct does not recognise domestic abuse as conduct sufficiently. Reform could therefore define what forms of behaviour will be considered conduct, the impact this will have on the case and procedure.

Making financial remedies orders for children aged 18 and over

Currently child maintenance paid through the Child Maintenance Service ends upon the child reaching the end of secondary education or training. The statute provides financial support for children will generally cease when they reach 18 years, although there are limited powers to make provision for a child beyond this age. Society has changed and many parents still provide support to their children beyond the age of 18. There are therefore calls to reform the law, to bring it in line with the societal norms, possibly to the age of 21.

Pensions

The Fair Shares report found 24% of divorcing individuals didn’t know their spouse had a pension. Pensions can be extremely valuable and it is important they are factored into the overall financial settlement. It is common for divorcing couples to offset against a pension, i.e. one party receives a greater share in a pension and the other party a greater share of other assets. Concerns have been raised that this results in unfairness and issues for long-term financial wellbeing.

If the government is updating the law, they may consider taking the opportunity to reform the area of laws considered above.

Conclusion

Although the scoping report recommends reform, it does not propose a method for reform and instead places the burden on the government to decide what should happen. The current system based on statute and case law gives Judges a wide discretion to reach a fair outcome. Any reforms will need to carefully ensure fairness can still be achieved, whilst also providing divorcing couples greater certainty. The government have six months to provide an interim response and a year to provide a full response. Time will tell what the government’s proposals will be!

A contentious issue for many parents is what school their child attends and it is unsurprising that upon divorce this can be one of the key issues. For parents with children at private school the issue of whether school fees should continue to be paid and, if so, by who is often a hotly contested issue, especially given the recent increase in school fees now VAT at 20% is payable from 1 January 2025.

Often parents primary concern is ensuring stability for their child during the separation, and remaining at the same school is advantageous. The difficulty is you are trying to create two households now and the financial pressure on the family often increases.

What did the budget say?

Rachel Reeves confirmed in the budget on 30 October 2024 “the government will introduce 20% VAT on education and boarding services provided for a charge by private schools from 1 January 2025.” As a result, school fees will be even more expensive and disputes regarding the affordability of them likely to be on the rise.

"VAT on Private School Fees: Key Considerations for Divorcing Parents"
As divorcing parents navigate financial decisions, understanding the implications of VAT on private school fees is critical. This article explores how these costs may impact co-parenting arrangements, financial settlements, and children's education plans, offering practical guidance for families during challenging transitions.

How should I approach the payment of private school fees with my ex

If possible, it is always preferable for separated couples to agree a financial settlement themselves, either through negotiation (directly or with the assistance of solicitors) and/or mediation. This can be quicker and cheaper than going to court. If your child (or children) are old enough, you may wish to consider child-inclusive mediation. This would provide the children with the opportunity to attend mediation to express their own views on their schooling, and how any changes, either to fee- or nonfee-paying education, might affect them. Whilst their comments and views would not be binding on the parents following those discussions, it can be a powerful indicator to parents as to their children’s wishes and feelings in the context of the matter as a whole, which can sometimes crack the case one way or another.

If you are unable to reach an agreement you may wish to explore other out of court options, such as arbitration. Failing this the court has the power to make orders in respect of school fees.

Can school fees be considered in a divorce financial settlement?

Continuity in schooling is important for children, especially if they are in key exam years, and a court is likely to accept that. However, they are considered in the realm of the overall financial landscape and if they cannot be afforded the court may not grant a school fees order.

The courts will consider all the factors under section 25 of the Matrimonial Causes Act 1973 when deciding the outcome in a financial remedy application. This includes the resource available to both parties (including capital and income) and the needs of each party, including any dependent children. Each case will considered on its own facts and whether or not private school fees can be considered a “need” will be considered in the realm of all the circumstances of your case. If there are sufficient financial resources available the court will consider how your child is currently or was expected to be educated in making a decision.

A school fees order can be made as part of the wider financial settlement. A school fees order should cover who pays the school fees, how they will be paid (from capital or income) and how long they should be paid. You should also consider “extras” to school fees including uniform, activities etc. and who should be responsible for paying these.

For parents who already have a final financial order that includes payment of school fees, the imposition of VAT on private school fees could lead to them no longer being affordable. Time will tell if disputes over payment of private school fees will end up before the court, both in circumstances where parents are trying to reach an agreement on divorce now and also where a final order has already been made.

If you require advice on paying school fees following a divorce, please do not hesitate to contact us.

Divorce can be a turbulent and highly emotive process for anyone, and it is especially so when dealing with a partner who exhibits narcissistic patterns of behaviour. The term “narcissist” is commonly used in society but what does it really mean. 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 (HNW) and international divorces 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 UK 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, meaning reaching an agreement outside of Court extremely difficult, if not impossible.

To stay strong and sane, you need to instruct an experienced, tough 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.

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

NPD will usually cause problems in everyday life, such as relationships and work. Identifying narcissistic traits isn’t always straightforward and for some it is only when they leave a relationship with a narcissist, they realise their ex had these traits. The impact NPD has had on them then truly comes to light.

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, navigating a relationship with a narcissist can be extremely challenging and this is only heightened when legal issues are involved, such as divorce and child arrangements. Characteristics a narcissist may exhibit during legal issues are:

The need to have total power and control;
Unwilling to compromise;
Always trying to “win”;
Minimising their previous behaviour;
Delaying or obfuscating the process; and
Lack of empathy.

Negotiating financial settlements

It can be extremely difficult to negotiate the terms of a financial settlement with someone with NPD. Many lack empathy and are unable to put themselves in someone else’s shoes and consider their needs. Furthermore, many narcissists use the divorce process to try and manipulate and control the situation. 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 nearly impossible if one party is a narcissist.

It can often be extremely frustrating trying to reach an agreement with a narcissist and 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. A narcissist will often try and use financial tactics to leverage control, for example hiding assets, providing inadequate financial disclosure or attempting to prolong the matter. Rather than jeopardise your right to a fair financial settlement, it is possible to put in place safeguards to protect you, such as having all communications regarding your divorce go through your solicitor. A solicitor 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 and narcissistic parents can be emotionally distant, self-centred, neglectful and in some cases even abusive. Although narcissists are primarily 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, and may make false accusations to bolster their narrative, such as alleging parental alienation.

Co-parenting with a narcissist can be extremely difficult and it is important to put in place safeguards to protect both you and your children. This can include putting in place firm boundaries and communicating only through written means, for example through an app where tone of correspondence can be monitored.

At Edwards Family Law we are 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.

If you recognise these patterns please contact us so we can guide you through the process and protect you through this extremely difficult period of your life.
“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