Nigel Winter

Pre-Nuptial Agreements Part Three - Are pre-nuptial agreements legal?
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Pre-Nuptial Agreements Part Three – Are pre-nuptial agreements legal?

Published on
Nigel Winter
Nigel C Winter
Family Law Partner
DMH Stallard

But are they “legal”?

Thank you for getting to the third part of this blog. Having come this far, you’ve come to terms with: –

  1. Why the Pre-Nuptial Agreement may not be as cheap as you’d hoped (typical of reputation of Lawyers – but hopefully the reason behind this is justifiable)
  2. Now you’ve also grappled with the notion that a “simple” document can, on occasion, be a wholly inappropriate and unfair document. Typical – you simply wanted some good, simple news and now we’re asking the ultimate question: –
  3. Are they actually “legal”?

Well, no Lawyer expects to maintain your concentration thus far by answering “yes and no”.

Why the hell can’t a Lawyer answer a straightforward question?

It might be easier to simply advise that you do get one because if the procedure is correctly followed, the contents of the Pre-Nuptial Agreement will also be followed in the event of a later dispute.

For goodness sake, isn’t this the same as saying “yes they’re enforceable” – well, perhaps to everybody else but not Lawyers. But for the sake of absolute clarity, that’s the position.

Now let’s move on – what is this procedure you speak of?

Well, in short order, by drafting a Pre-Nuptial Agreement you’re putting the Judges out of work (kind of). You’re doing their job for them and they won’t take kindly to that, unless you do it properly. That’s how the judiciaries see it anyway. Therefore, you need to drop the same procedure and safeguard that they would adopt if the case ever came before them without a Pre-Nuptial Agreement – basically, you’d make the same or a very similar decision to the one that they would make.

I hate to generalise, but if I may so please don’t leave everything until the last minute.

Specifically, avoid the following situation: –

“Hey honey, I know you love me, and I certainly love you and it’s not all about money.”

Reply: –

“Of course it’s not.”

“And the wedding car’s outside”

Reply: –

“Great, let’s go!”

“Not so fast – just sign along the dotted line.”

Humour aside, an alarming number of people do leave this extremely sensitive conversation to the last minute. The dialogue above is not entirely unrealistic.

Whatever both parties think the other thinks, discussions about Pre-Nuptial Agreements will become increasingly sensitive the closer you get to your wedding day. It’s the happiest day of your life, your in laws are as awkward as hell, it’s costing a fortune, and the stress is mounting. This is not a great setting in which to discuss what happens if you actually split up.

I’ll spare you all the general rules about this – give it at least 6 months. There’s a “truckload” of work, disclosure and procedure to undergo and let’s be honest, you’ll only take it out on each other and/or your respective Lawyers if everything is rushed at the last minute.

Secondly, we’ll trot out the expression “full and frank disclosure” like a mantra. Not only must there be full and frank disclosure of your respective financial positions, there must be seen to have been full and frank disclosure. Thus, it must have taken place so that both parties know the extent of the compromise to which they are actually making.

Thirdly, that full and frank disclosure needs to be “exhibited” (posh word for attached) to the document that you sign. If the document comes to be tested before the Courts, the best one might predict is that “recollections” may differ as to what procedure was employed. Put it beyond doubt. Where it’s beyond doubt, the Lawyers can’t then fill the void.

The Courts also expect both parties to have independent legal advice. If the matter was before the Court, chances are that they would have that said advice. The Courts believe that you are owed this right, so that you really appreciate what you are doing and are not just overwrought by the emotion of the moment, such that your free will is sapped.

In short, it means all the idealistic thoughts about marriage, you’ve got your wits about you and if you haven’t, your Lawyer had their wits about them on your behalf.

The Lawyers will advise how the settlement in the Pre-Nuptial Agreement differs from what would happen in the event of a divorce before the Court.

Then, the Lawyers actually sign a certificate attached to the document that says I have been given independent legal advice and thus, the matter is beyond doubt.

At that stage, you have come as close as conceivable (for the purpose of an article) to ensuring that you have a good, solid Pre-Nuptial Agreement that comes as close as possible to being followed by the Courts in the event of a later dispute – which probably won’t occur because you’re both confident and happy in your relationship, bolstered by the fact that you have a Pre-Nuptial Agreement in any event.

Oh, and depending on how long you want your Pre-Nup to last for, it’s always worth putting in a review clause in the case of certain significant changes in your life’s circumstances. You’ll be glad to hear that’s not going to be the subject of a further article because if you got this far, it’s time we had a chat.

We look forward to hearing from you.

Click here for more articles by Nigel Winter

ABOUT NIGEL

Nigel C Winter is a partner in the Family Department of DMH Stallard solicitors, based in London and the South East of England. He has been practicing family law for over two decades, is a collaborative lawyer and a regular contributor to a wide variety of publications on Divorce and Family Law.

Did you know there are on-line advice videos at:- DMH Stallard

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Pre-Nuptial Agreements UK - Part Two
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Pre-Nuptial Agreements UK – Part Two

Published on
Nigel Winter
Nigel C Winter
Family Partner
DMH Stallard

In the last article on the subject, I raised a query as to whether you want your Solicitor to be a professional or a “salesman”.

The reason for this is due to a huge misunderstanding about Pre-Nuptial Agreements which are quite understandably seen as a simple document.

They may be!

And they may be not!!

Why is whenever you go and see a Solicitor with a very simple and straightforward matter, they always complicate things and, predictably, you emerge with a far greater fee quote than you believed would be forthcoming from your online research.

The choice is of course yours – you are the client and the client is always right. But most clients do, on reflection, want the job done “properly”.

The example that I gave in the last article may be very extreme in that a simple Pre-Nuptial Agreement drafting to ensure that both parties kept what they brought into the marriage, was proven to be wholly unfair. How come? (see link to previous article)

Even when the parties enjoy good health and the extreme misfortune to which I referred did not arise, the blessing of children may.

What will be the impact if there’s a “main carer” who gives up a lucrative career. A graduate in medicine may be earning say £80,000 per year when they decide to look after both parties’ children. After 18 years, they will not be able to command a fraction of the salary that the “go to work” parent then commands, yet their contribution to the family would have been just as great if not greater. Will the receive maintenance?

What maintenance will the children receive in their own right?

Will they be privately educated?

Who will look after them in the foreseeable event of university?

Is that for undergraduate or postgraduate study?

There is a whole raft of questions that need to be answered and there is therefore a convenient link to these here – (link to questionnaire – provided by NCW).

Whatever you do, whoever you instruct, consider these questions – it may be that none of them are applicable to your situation. If that is the case, then you may be one of the lucky individuals who can legitimately have both a correctly and properly drafted tailored Pre-Nuptial Agreement for your circumstances at a reasonable cost. But we can’t pretend that these issues don’t exist.

You are the client; we owe it to you to ensure that you make an informed decision.

Click here for more articles by Nigel Winter

ABOUT NIGEL

Nigel C Winter is a partner in the Family Department of DMH Stallard solicitors, based in London and the South East of England. He has been practicing family law for over two decades, is a collaborative lawyer and a regular contributor to a wide variety of publications on Divorce and Family Law.

Did you know there are on-line advice videos at:- DMH Stallard

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Pre-Nuptial Agreements – To have or not to have?
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Pre-Nuptial Agreements – To have or not to have?

Published on
Nigel Winter
Nigel C Winter
Family Partner
DMH Stallard

Pre-Nuptial Agreements Part One

Undoubtedly, the answer to that question is to have a Pre-Nuptial Agreement.

These are straightforward documents but are never, contrary to popular belief, merely a case of presenting your fiancé with a document and expecting them to sign it, thereby concluding the matter.

The first issue to consider is perhaps the cost.

Why is it so difficult to get a straight answer from a Lawyer?

Well, in the first instance we are drawing up a document that may never be used but if it is, it is at an uncertain point in the future when circumstances are currently unforeseeable and based upon the circumstances of today. Who can say what circumstances will prevail in 5, 10, 20- or 30-years’ time?

Usually, it’s seen as a simple requirement of most clients to ensure that each party keeps what they bring into the marriage. What could be fairer than that?

And by in large, the above is relatively easy to draft.

But your Lawyer (acting as your professional advisor rather than a “salesman”) has a duty to advise you of the shortcomings of this simple proposal. For example, consider the following: –

  1. Two people with their own wealth and their own children – no further children planned.
  2. Neither wishes to make a claim on the other but just live together into their dotage.
  3. They duly enter into a briefly drafted (and comparatively cheap) Pre-Nuptial Agreement.
  4. It goes in the proverbial “top drawer” and is forgotten about.
  5. One of them becomes critically ill and the other makes considerable sacrifices to look after them for 20 years, including using their own wealth and possibly even depleting it, giving up a lucrative career in the city, etc, etc.
  6. When they pass away, the other party who has cared for them for 2 decades, finds they have neither a house nor a home. And then their adult children miraculously reappear after having left the spouse to care for 2 decades and claim what they see as “their share”.

With the above in mind, it is not surprising that there are complex clauses to accommodate such eventualities.

They are not, however, necessarily cheap because they will need to be drafted by the Solicitor, approved by their client, the other party and critically the other parties’ Solicitor.

They will also endeavour to envisage a whole host of unforeseen ramifications that flow from those unfortunate but largely realistic possibilities.

When first seeing a Lawyer and expecting to have a Pre-Nuptial Agreement drafting for say £1,000, when the foregoing possibility is pointed out, the costs dramatically increases.

This in turn leads to an understandable degree of disappointment.

Ultimately, as I said at the outset, do you want your Solicitor to be a proper professional advisor or merely a “salesman”?

If the latter, then the foregoing will not be pointed out to you. And in the majority of cases, you may be “none the wiser”. But for the conscientious Solicitor who knows that 1 in 10 of these Pre-Nuptial Agreements will come to be enforced, there is only one way of doing the job and that is properly.

Equally, thoroughness is essential. Those Solicitors that are mere “salesmen” will tell you what you want to hear. They’ll give no forethought to the fact that in so many years’ time, you may be sat on the edge of your seat in Court, nervously asking a Judge to deliberate on whether the Pre-Nuptial Agreement should be followed or not. You might cast your mind back to that “cheap” Pre-Nuptial Agreement and that charming Solicitor/salesman who told you decades beforehand exactly what you wanted to hear. Would it that you could find him or her now!

Simply being told what we want to hear is not always the best policy.

Look out for Pre-Nuptial Agreements Part Two to be published tomorrow.

Click here for more articles by Nigel Winter

ABOUT NIGEL

Nigel C Winter is a partner in the Family Department of DMH Stallard solicitors, based in London and the South East of England. He has been practicing family law for over two decades, is a collaborative lawyer and a regular contributor to a wide variety of publications on Divorce and Family Law.

Did you know there are on-line advice videos at:- DMH Stallard

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who gets what in a divorce

Who gets what in a divorce settlement?

Published on
Nigel Winter
Nigel C Winter
Partner
DMH Stallard

One gets what is necessary to meet ones needs in the vast majority of cases. It is that simple.

Therein lies the shortest and most straightforward lawyer’s answer perhaps in legal history.

The matter becomes more technical when people differ on what constitutes “needs”.  Generally, the greater the number of children, the longer the marriage, and the greater the difference in earning capacity, then the greater the needs.

Before determining any of the foregoing, it is absolutely essential that there is – what lawyers will repeat as often as a broken record – “full and frank disclosure of your financial circumstances”.

For example, the word “equality” may mean two entirely separate things to two different people.  The question is, equality of what?  However, if there is full and frank disclosure, then before reaching a specific agreement, there would need to be an agreed schedule of assets that forms the basis of the negotiations.

All too often people reach what they sometimes sincerely believe is an agreement, only to find that one party conveniently took the view that their pension didn’t form part of the equality because “it’s mine”.   This isn’t the case.

It is essential to get those “basics” right and therefore, full and frank disclosure is an unavoidable and wholly compulsory part of the process – whether that process takes place in or out of court.

Happily, the courts have devised their own document for each individual to fill out with prescribed sections of rather searching questions.  Once these have been completed, we then have an agreed figure on which to base all future negotiations.

Equality (now that we are agreed as to what equality is) is only the starting point.  An example of a typical “classic” case for equality might be where a young couple have two similar incomes, no children and have had a relatively short marriage. But then it might only be equality of capital growth of those assets that were acquired during the marriage and not equality of everything.

However, where the marriage might have been seven plus years and/or where there are children, resulting in unequal earning capacity, then there will be a ready departure from the principle of “equality”.

Contrary to what you might read in the newspapers, there is complete logic to this.  The courts are striving to ensure that individuals “needs” are met.  They like settlements that are sensible and sustainable.  We all might like to keep the family home and worry about the bills the following month.

However, judges do not operate that way – they hate having people come back to court on appeal and indicate that they hadn’t budgeted properly.  Sustainable may be “boring” but it is enduring, and when we are effectively dividing one home into two, there is an inescapable element of budgeting to be engaged in.

In summary, if we take anything from this article, just remember the two key points “full and frank disclosure” and “needs” – at least in the vast majority of cases.

But what about those that do not fall in to the “vast majority” category.  The factors that are taken into account in all cases are known as the “Section 25 Matrimonial Causes Act factors”.  If you are one of the relatively lucky few whose needs can easily be met and have sufficient wealth to persuade the court that your “lifestyle” should be maintained to a particular standard, then that will also be a factor, if not indeed one of the overriding factors.

When considering Section 25 factors you must also have regard to the fact that judges have considerable discretion, but they will take into account your income and earning capacity, as well as all your resources, your needs, standard of living, age, any disability, contributions, and in extreme cases, conduct.

Clearly, the courts have a considerable amount of freedom to tailor any order very much to your own personal circumstances.

It is very easy to take one element of this area of law out of context, particularly when creating a headline.  However, the reality of court decisions are rather more nuanced.

Click here for more articles by Nigel Winter

ABOUT NIGEL

Nigel C Winter is a partner in the Family Department of DMH Stallard solicitors, based in London and the South East of England. He has been practicing family law for over two decades, is a collaborative lawyer and a regular contributor to a wide variety of publications on Divorce and Family Law.

Did you know? There are on-line advice videos at:-

https://www.youtube.com/watch?v=WKsjD1sqe-U

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Children of Divorce During Coronavirus Time

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Nigel Winter
Nigel C Winter
Family Partner
DMH Stallard

What impact does self isolation have upon contact between a child and an absent parent?

This question has been at the forefront of separated parents’ minds ever since the ‘lockdown’, and more so since one Government Minister sent out conflicting messages. Thankfully the message is now clear :-

Coronavirus or not – children are entitled to see the absent parent.

They are amongst the exceptions. As the Government has stated when specifically addressing the issue:-

…while children should not normally be moving between households, we recognise that this may be necessary when children who are under 18 move between separated parents.

Contact should go ahead, as before. However, as with all our conduct at this time, much is left up to the discretion of individual parents.

The coronavirus is still a factor, as the paramount consideration in determining any question relating to children will be their welfare. In considering their welfare, the courts have regard to any harm which the child is at risk of suffering.

All of this has developed so quickly and no two days are the same. Consequently the law struggles to keep up.

The President of the family Division of the High Court has stated that that whilst children could be moved between homes to facilitate contact, it did not mean that all necessarily would.

Discretion is clearly key as the President has recognised that whilst one parent may think it perfectly safe for contact to take place, the other may be genuinely worried about this.

This is particularly the case where one parent feels that moving their child would be against public health advice. In such circumstances they may exercise their parental responsibility to vary the arrangement to one they consider safe.

Alas, there is no ‘back and white’ answer because each case and each situation differs as to how it relates to a particular child’s welfare and the impact the virus has on each individual family.

The full guidance has been given by the President of the Family Division and a mercifully brief account can be found here:-

https://www.judiciary.uk/announcements/coronavirus-crisis-guidance-on-compliance-with-family-court-child-arrangement-orders/

The best advice is to be practical.

For many children, the brief elation of seeing their 6 week holiday extended to 12, has given way to concern and fear upon hearing ,’…many will lose loved ones etc’.

The last thing they need is to have that compounded by uncertainty over contact. And even if parents take little heed of this advice, they need not look to the courts for help – as of midnight on the 23rd of March guidance was issued that you should not attend a Family Court, in person.

Some hearings are going ahead by conference calls, but realistically the virus will be passed before you get into court.

It is at a time like this that the virtues of the amicable or collaborative approach can clearly be seen.

There will be no ‘winners’ if parents can not work together at this time. Worse still the biggest ‘losers’ will be the children when they have sufficient to contend with.

Click here for more articles by Nigel Winter

About Nigel Winter

Nigel is a family Partner at DMH Stallard, practising in all areas of family law, collaborative law, and contested ancillary relief proceedings (disputes concerning the division of assets on divorce).  He joined the firm when it merged with Rawlison Butler in September 2017.

Nigel’s particular expertise covers collaborative law, contested litigation (particularly the division of assets), pre-nuptial and cohabitation agreements, divorce and children disputes.

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CDCchildren of divorce during the coronavirus

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money divorce

MONEY, DIVORCE AND REALITY

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Nigel C Winter Partner in the Family Department of Rawlison Butler Solicitors
Nigel C Winter
Partner in the Family Department of Rawlison Butler Solicitors

In the third and final article in the series, rb’s Family team consider the cost of divorce and critically how to avoid that expense.  You can find article one and article two here

Every divorce lawyer knows that ultimately every client of theirs has it within their power to dramatically limit the financial impact and cost of a divorce. If you find yourself in the unfortunate position of going through a divorce – here’s how to do it.

Quite simply, don’t fall foul of the understandable temptation to be less than candid about what you are worth. The lawyers will get to the bottom of it and they will charge for the pleasure of doing so.

In the ‘real world’, beyond TV Court room dramas, the question in dispute is not always about how the assets should be split. It is frequently about what constitutes those assets.

For the vast majority of people, they can forget arguments about who made the greater contribution to the marriage or having inherited wealth. The Court will expect it all to ‘go in the pot’.

In the vast majority of cases, if both parties fully and frankly disclose their respective finances the costs of their divorces would plummet.

How so?

Whilst the Judge has a great deal of discretion, the reality is that there is a ‘starting point of a yardstick of equality’ in most divorce cases. The Courts will only depart from that said ‘yardstick’ if there is good reason to do so i.e. there are children preventing one party from working full-time.

You do not pay a lawyer by the hour simply to tell you that “it will  be 50/50”. It is ensuring that there has been full and frank disclosure that costs. Only the parties can avoid that cost by being honest at the outset. It is simply a question of whether you want to get to where you need to be for say £1,000.00 or for £10,000.00 and possibly more. Only the parties to divorce themselves can decide.

What to do?

The Courts have devised a very searching document that deals with disclosure known as ‘Form E’.

money divorce form eHowever as both parties can fill this out themselves (albeit with the help of their lawyers) they are presented with the prospect of completing this process for minimal cost. This then has to be compiled along with documentation in support which is at the respective client’s disposal and not their lawyers.

If the above is not searching enough, then each party to a divorce has the right to raise questionnaires in respect of the Form E and the disclosed documentation.

Typically either party can be compelled to explain every single transfer in their bank accounts of £500.00 or more. They are then required to confirm what this expenditure went towards and to provide documentary evidence in support.

The same applies for assets that have been disposed of and the valuation of homes, investments, cars and personal possessions etc. By the time this process is concluded, the Courts will be able to work out to the nearest £5.00 what the parties are worth.

How important is this rule about full and frank disclosure?

Frankly – vital.

Before any settlement is reached, you sign to state that you have filled out your Form E and the contents are true and wholly accurate. To knowingly make a false statement is a contempt of Court which ultimately carries the sanction of imprisonment.

Some people are prepared to run such a risk – but your lawyer would advise against it. Less dramatically, people who discovered that their former spouse has lied about their wealth will be able to re-open those settlements at any point in the future.

Thus, if you are ‘full and frank’ in your disclosure at the outset you could save yourself a considerable amount of legal cost.

If it is as simple as that why don’t more people do it?

Good question.

Perhaps they don’t read articles like this? Or because the reality is that divorce itself is an inherently sensitive and unpleasant process.

Human emotion is not meant to be rational and where a formerly loving relationship goes from being influenced by the tide of emotion to being dictated by ‘black letter law’ (literally Acts of Parliament), it may be unrealistic for people to suddenly be so regimented in their approach.

Furthermore the old-fashioned approach to divorce was framed in the language of antagonism.

Remember the Dustin Hoffman movie Kramer –v- Kramer (probably not – it was 1979), but right at the outset it was him –v- her. Or was it her –v- him? It doesn’t matter, it was the language of conflict.

Happily since then, if the Kramers were going through a divorce today they might choose Mediation or Collaborative Law and ‘work together’.

Is it really possible to ‘work together’ when you are in reality ‘against each other’? Yes – if you adopt the right process. Just remove all the language of conflict and bear in mind that in many cases it is possible to emerge as friends.

It is also vitally important where there are children and you will always be the parents of those children. Mediation and Collaborative Law are increasingly replacing the Court based process that Meryl Streep dragged Dustin Hoffmann through, in the iconic movie. It simply doesn’t have to be like that anymore.

ABOUT NIGEL

Nigel C Winter is a partner in the Family Department of Rawlison Butler Solicitors, based in the South East of England. He has been practicing family law for over two decades, is a collaborative lawyer and a regular contributor to a wide variety of publications on Divorce and Family Law.

He has been practicing family law for over 2 decades, is a Collaborative lawyer and a regular contributor to a wide variety of publications on divorce and family law.

 

Did you know? There are online advice videos at: – https://www.youtube.com/watch?v=WKsjD1sqe-U

 

 

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Helping your Child Deal with Divorce

Helping your Child Deal with Divorce

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Nigel C Winter Partner in the Family Department of Rawlison Butler Solicitors
Nigel C Winter
Partner in the Family Department of Rawlison Butler Solicitors

In the second of the series RB’s Family Department’ Nigel Winter looks at the effects of divorce/separation upon children.  You can find the first part here.

There are many terrible dilemmas that face anyone contemplating divorce or separation.

One of the most significant is the impact upon children.

One would simply not be human if you fail to consider their wishes and what was in your children’s’ best interests.

Furthermore the impact of divorce according to “research” (whether you accept it or not) is cause for concern. The incidences of failed relationships, under achievement etc. are startling.

Notwithstanding all of the above some 82% of children and adolescents polled in a recent survey have stated that they would prefer their parents to divorce rather than stay in a marriage that was unhappy.

Although parents understandably stay together “for the sake of the children” those said “children” can be alarmingly wise and they will realise sooner or later that their parents’ relationship is on poor terms.

This article is not therefore about advising people what they should do. It is simply about giving them some of the surprising facts about how our children feel and then leaving parents to go away and reflect on this.

However it appears that the case of staying together “for the children”, whilst founded on the best of intentions doesn’t necessarily serve the children’s’ interest.

Therefore, if a couple are to divorce there may be some “golden rules” in conducting that divorce with your children in mind.

It is also clear that when divorce is carried out properly children can manage very well. However there are a number of “pitfalls” that are to be avoided. Some of these take a great deal of patience but are very much in the children’s’ interest.

Step 1            –             Be respectful to the other parent.

It is a fact that children love both their parents but can’t understand why they don’t necessarily love each other anymore.

Thus, if you bring your ex’s faults to their attention, however careful the language you use, this will be unpleasant for them. Children often feel the need to defend the parent being berated and therefore feel uncomfortable “taking sides”.

Difficult as it may be, put yourself in your children’s’ position and recall how in your childhood you loved both your parents.

Step 2            –            Avoid misplaced resentment.

Research has shown that in particularly nasty divorces a resentment that their parties have towards their ex can be transferred to their children.

This is particularly so where the children have a similar personality trait to the ex i.e. one party is punctual or particularly tidy, the other less so. This is not your ex you see manifested in your child but your child: it’s part of their makeup.

Step 3            –            Avoid using children as a “pawn”.

The instinct to “wreak havoc” once a relationship is over may be understandable.  Children present every opportunity to be a vehicle for doing so.

Disagreements over contact, joint holidays, Helping your Child Deal with Divorcemeeting the new partner, and even maintenance can all be conveyed through a child.

They should not be! These are matters that should be communicated directly or through lawyers.

Furthermore ’children being children’, they can in some circumstances know how to “play one off against the other”. Some children going through divorce get two birthday parties which both parents trying to over-impress with more expensive presents etc.

At a very early age the children will move from exploiting the situation to realising how harmful it is. Parents should resort to a parenting plan and mediation over these issues.

Step 4            –            Treat special events with the respect they deserve.

Children are often desperate for their parents to see them at the school sports day, performing at plays etc. They will often want both parents to attend for these milestones.

If you still feel “raw” about a separation, remember that a child may recall that day for the rest of their lives and long after you have moved on. You may have to “fake it” but in the fullness of time they will be grateful to you for that.

Step 5                        Work together and be seen to work together.

You will always be the parents of your children. Big decisions like education and medical treatment will have to be taken together.

Furthermore, in an all too brief period of time there will be graduations, wedding ceremonies and ultimately christenings. If you and your ex can get together for these events without your children being ‘on edge’ then you will have served their best interests.

Remember you are still a family – you just happen to be one in which the parents are no longer together.

You will have to function as a family on that basis and this can be very rewarding for all concerned. Indeed Relate even assist families on the post- divorce situation. In doing so they listen to the parents and also to the children.   This will help everyone “move on” without doing so through a Court of law!

It is unlikely that a family going through divorce are where they want to be. However you can either make the best of the situation or the worse.

ABOUT NIGEL

Nigel C Winter is a partner in the Family Department of Rawlison Butler Solicitors, based in the South East of England. He has been practicing family law for over two decades, is a collaborative lawyer and a regular contributor to a wide variety of publications on Divorce and Family Law.

He has been practicing family law for over 2 decades, is a Collaborative lawyer and a regular contributor to a wide variety of publications on divorce and family law.

Did you know? There are on-line advice videos at:-

https://www.youtube.com/watch?v=WKsjD1sqe-U

 

 

 

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What are the Possible Consequences of Divorce?

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Nigel C Winter - Partner in the Family Department of Rawlison Butler solicitors
Nigel C Winter – Partner in the Family Department of Rawlison Butler solicitors

In the first of a series of articles rb’s Family Law team look at the impact of divorce upon children, a family’s finances and in this article the individuals concerned.

One of the biggest problems of a relationship breakdown is who to talk to.

Frequently the parties rely upon friends or associates who have been through a relationship breakdown and this can often be one of the most misleading sources.

Research shows that groups of friends who have couples going through relationship breakdown are often affected by this.

Furthermore single sex groups often have a particular “spin” on the consequences or in some cases what they would like others to perceive as the “benefits” of their own separation.

The reality is far more complex. It is also clear that considerable thought should be given before taking this significant step, as the impact continues far longer than people often realise.

One thing that the research does show is that stable relationships are beneficial.

Whatever the short term benefits of leaving a relationship that isn’t perceived as working, the parties tend to experience social isolation and irregular contact with their children.

Although a separation may be seen as the panacea to all of the relationships problems, after the initial parting, loneliness and unhappiness can often follow. In the “sober light of morning” parties often indicate that they remain deeply attached to their partners even when the legal ties have been broken.

Notwithstanding the above, some people are better able to handle separation and divorce than others.

Those that emerge happier are those who come from high conflict or even violent relationships. Furthermore those that embrace the significant changes in their lives and work on maintaining old friendships or establishing new ones fair much better.

Although parties going through divorce may indicate that they are happier, that may be because of other factors such as their financial position.

That financial position will dictate the lifestyle that they have hereafter and research has found that people with greater personal resources, including a higher income or higher level of education cope so much better.

This makes sense when one considers that two parties to a marriage/relationship are shouldering the burden of family life together and upon breakdown those responsibilities can be doubled.

Furthermore modest resources which are divided between two people often leave lower income families with insufficient to meet even their most basic needs.

It therefore appears that divorce, like marriage or relationships does depend upon each individual family and their own particular circumstances.

However, when people receive informal advice they often don’t factor in the subtle differences in situations between the person giving the advice and the person receiving it. In blunt terms, a lady who has a choice of homes to live in after divorce is going to find life so much easier than one who is only entitled to 50% of the proceeds of sale from a “two up two down”.

Therefore, there is a very real danger that in a social setting an individual contemplating separation will receive all the wrong advice.

Despite what anyone tells you, when you separate you do not go back to leading the carefree easy life of a twenty-one year old! It is not an endless party because everyone else has moved on and social isolation often follows.

Day to day to activities of home, work and childcare are more difficult to carry out alone. Support networks change, sometimes because it is perceived that you will be requiring more from the network than you can possibly contribute yourself.

Furthermore divorced individuals often find they have less in common with their married friends and some have reported that they are even a threat to the stability of their married friends’ relationships.

In relationships where there are children there have been great changes in recent years. For example the proportion of single fathers raising their own children has tripled in a generation.

Whilst mothers were able to manage a work/life balance in a relationship they find it difficult after separation to be successful at home and work without even considering the prospect of a social life.

One fact that is startling and unforeseen is the degree of dependency upon ex-partners or ex-spouses. Many concede privately that they remain emotionally dependent upon the other even when a divorce or separation is concluded.

Research is showing that whilst a Court can divide up property and other responsibilities such as child care, it cannot decree an emotional clean break.

Few of these factors are easy to convey in a social setting. However it is better that they are properly considered before making a final decision, rather than having to reflect upon the consequences in solitude.

About Nigel

Nigel C Winter is a partner in the Family Department of Rawlison Butler Solicitors, based in the South East of England. He has been practicing family law for over two decades, is a collaborative lawyer and a regular contributor to a wide variety of publications on Divorce and Family Law.

He has been practicing family law for over 2 decades, is a Collaborative lawyer and a regular contributor to a wide variety of publications on divorce and family law.

 

Did you know? There are online videos at:-

https://www.youtube.com/watch?v=WKsjD1sqe-U

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the collaborative divorce process
/

Divorce Law to be Replaced – How the Collaborative Divorce Process is Taking Over

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Nigel C Winter - Partner in the Family Department of Rawlison Butler solicitors
Nigel C Winter – Partner in the Family Department of Rawlison Butler Solicitors

There is one thing we can be sure of – if something is happening in California, it will be happening everywhere else within 20 years’ time. And in America we have seen a dramatic increase in the use of Collaborative Law which is now increasing in the UK.

Are the days of the old fashioned acrimonious divorce numbered?

When parties are going through a sensitive transition like a divorce they will often want to go to lawyers who are trained in avoiding conflict and getting them both where they want to be.

And whilst the newspapers are full of celebrities in high profile divorces, there are many more who are to great lengths to stay out of the papers – trust me; Anonymity is the new celebrity!

The Collaborative Divorce Process

In many ways the Collaborative approach to family separation is tailor-made to the requirements of the modern world. It seeks to preserve family life albeit one in which the parents are no longer married.

Co-operating after separation is essential to serving the best interests of the children. Furthermore the model seeks to minimise conflict and offers total privacy. That degree of privacy is not available in the conventional Court-based divorce as many sensitive celebrities have found out to their cost.

Small wonder increasing numbers are opting for the Collaborative approach and, like it or not such people to seem to ‘set the trend’.

How Does it Work in Practice?

Both parties take advice from collaboratively trained lawyers. There would then be a four way meeting between both lawyers and both parties.

The first difference that anybody looking in would notice, is that everyone is on first name terms.

It’s a small thing but it is a vast difference to cross examining someone under oath. The dynamic is completely different and everybody has the confidence to talk freely safe in the knowledge that they are not prejudicing their position.

The lawyers have a vested interest in ensuring that this process doesn’t breakdown as there is an agreement if it does that they would have to stop acting and the parties would seek legal advice elsewhere to take the matter on to Court.

the collaborative divorce process
The Collaborative Divorce Process – a four way meeting between both lawyers and both parties.

Contrary to popular belief, lawyers do not have a vested interest in taking cases to Court, but as that is a perception it is promptly rectified by this very rigid rule.

Are there any disadvantages? Frankly it is hard to see any.

If there is an overbearing spouse or partner then it is well within the realms of possibility that they will seek to use the Collaborative process as a means of getting what they want.

However, each individual case should be ‘screened’ at the outset to make sure that there is the requisite degree of trust, honesty and devotion to fairness.

This will not cover all cases and there is perhaps an inevitable tension between a lawyer’s desire to serve the parties within the Collaborative process and their unyielding professional duty to ensure that their client receives the best advice concerning an appropriate settlement. Where the two conflict, the latter must prevail.

A further boost is given to the Collaborative process by virtue of the fact that the Courts now emphasise the importance of alternative dispute resolution ie avoiding Court.

Indeed it is a pre-requisite in the vast majority of cases that the parties attend Mediation before they can actually issue proceedings.

The shortcoming with Mediation is that the lawyers are not present and therefore their advice still has to be sought afterwards in any event.

However they are present throughout during any Collaborative meeting and ‘on tap’ to advise both parties. One might therefore speculate that had the Collaborative process been more widely available when Parliament enacted this law, that they would have included Collaborative law as an alternative to Mediation.

The Collaborative approach is not limited to divorce either. Both Cohabitation and Pre-Nuptial Agreements can be discussed and drawn up adopting the same process.

With the divorce rate falling and cohabitation an alternative family model, the continued increase in Collaborative Law as a preferred option is set to increase.

Will it replace divorce law? Perhaps not completely but there is every reason to believe that it will in due course be the first choice for dispute resolution over and above the Court.

And about time too.

Nigel C Winter is a partner in the Family Department of Rawlison Butler Solicitors, based in the South East of England. He has been practicing family law for over two decades, is a collaborative lawyer and a regular contributor to a wide variety of publications on Divorce and Family Law.

He has been practicing family law for over 2 decades, is a Collaborative lawyer and a regular contributor to a wide variety of publications on divorce and family law.

 Disclaimer – This document is provided for information purposes only and does not constitute legal advice.

 

 

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The Bishop, The Banker and the Divorce
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The Bishop, The Banker and the Divorce

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Nigel C Winter - Partner in the Family Department of Rawlison Butler solicitors
Nigel C Winter – Partner in the Family Department of Rawlison Butler solicitors

You couldn’t make it up, it is an often used prefix to a spellbinding yarn – The Bishop, The Banker and the Divorce.

This applies to some of the many divorce cases that have been in the headlines over the last 12 months.

Many of those centre around the dramatic consequences for those going through a divorce and who fail to give the Courts ‘full and frank disclosure’ (key words) of their financial positions.

The reluctance to give such disclosure is perhaps in keeping with the human instinct for self-preservation.

However there isn’t a single individual going through a divorce in the country today, who shouldn’t have received very stern advice that such disclosure is absolutely essential and a case can’t even come close to a conclusion until such disclosure has been complied with.

Hide and seek

Even so there will always be those who try to hide assets and there will always be those who spend ‘24/7’ ‘hunting down’ such undisclosed assets. Much of what a divorce lawyer does boils down to this endeavour. The conduct of a few of the individuals who appear to have gone to great lengths to hide assets comes as no surprise.

But a Bishop?

That a man of the cloth has been criticised for failing to disclose ‘hundreds of thousands of pounds in off-shore accounts’ probably indicates that the temptation and ultimately the practice may affect anyone.

In this case in which His Reverence cannot be identified for legal reasons, the Judge’s remark that his disclosure had been ‘lamentable and not frank’ is likely to cause the bushy eyebrow of his Archbishop to rise in indication of the gravest concerns.

The Most Reverend Bishop was living in £825,000.00 home in South West London, which had initially been ordered to be transferred to his estranged wife……’plus some properties he owned abroad’.

The Role of the Judge

So the temptation to avoid full and frank disclosure appears to know few boundaries. What lawyers can struggle with, where some clients are concerned, is respectfully but firmly ensuring their clients understand that such disclosure is central to their case.

The Judge who hears their case may have heard hundreds of excuses before and knows what temptation they are presented with.

The Banker and the Divorce
And Judges are not scared to use the ultimate sanction of imprisonment.

In many cases they will have acted for spouses trying to discover assets and know exactly what questions to raise and what orders to make.

Their mood upon being presented with a previously high earning spouse who asserts that on the eve of their divorce their wealth duly plummeted, may range from mild amusement to extreme irritation. The former often stimulated by the lack of originality being employed.

And Judges are not scared to use the ultimate sanction of imprisonment.

There will always be people who try, and not surprisingly there is no data for those who ‘get away with it’. Judges are not fools and one course of conduct tends to be accompanied by another and before long a picture emerges that is not necessarily in keeping with that which the lawyer is endeavouring to portray. Then the client is in dangerous territory.

It is surprising how many people actually fail to understand that the Judges word (subject to appeal) is final.

One can pass through this process blaming everybody but oneself but ultimately the responsibility for disclosure is that of the party to the divorce. As the Judge in this case commented ‘adverse inferences were drawn that his disclosure was found to be lamentable and not frank’.

Adverse Inferences

‘Adverse inferences’? In the absence of disclosure, an individual is deemed to be possessed of a given asset and a more generous order will be made to the opponent in respect of these immovable assets that have been disclosed (i.e. property). And even if a party to a divorce avoids adverse inferences at the first hearing, that isn’t the end of the matter.

Any order made on the basis of false facts or inadequate disclosure can be subject to an appeal at any time in the future and thus uncertainty hangs over the deceitful like the ‘Sword of Damocles’. We know not what is the Bishop’s fate, but he would have been wise to have fully and frankly disclosed his assets at the outset.

Probably.

About Nigel

Nigel C Winter is a partner in the Family Department of Rawlison Butler solicitors, based in the South East of England. He has been practicing family law for over two decades, is a collaborative lawyer and a regular contributor to a wide variety of publications on Divorce and Family Law.

website: www.rawlisonbutler.com

He has been practicing family law for over 2 decades, is a Collaborative lawyer and a regular contributor to a wide variety of publications on divorce and family law.

 Disclaimer – This document is provided for information purposes only and does not constitute legal advice.

 

 

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The Judge

THE JUDGE, THE JOB AND THE CONTROVERSY

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Family Department of Rawlison Butler solicitors
Nigel C Winter – Partner in the Family Department of Rawlison Butler solicitors

In reading the headlines over the last couple of weeks, one would have thought that it is now settled law that every divorced Mum would be compelled to go out and “get a job”.

This follows the high profile divorce of Mrs W, the estranged wife of a Racehorse Surgeon and the selectively reported comments of the Judge in this case.

As ever, it pays to “let the dust settle” and consider what really happened.

Nigel Winter, Partner in Rawlinson Butler’s Family Team considers the real impact of the decision and why getting advice early should be high on the list for anyone contemplating divorce.

As every marriage is different, so is each divorce and the facts are critical in each case.

Mrs W (51) had been married to her husband Mr W(59) for 11 years and they had 2 children aged 10 and 16, the elder being at Boarding School.

The proceeds of sale of their £1.3million house were duly split and Mrs W was receiving £75,000 per year maintenance.

Mr W was concerned about his capacity to pay ongoing maintenance upon retirement. He therefore sought to have that maintenance significantly reduced.

The £75,000.00 per annum maintenance was for the 2 children and £33,200 of that was spousal maintenance for Mrs W herself. In addition to this Mr W was also paying the school fees.

Last year a Court ordered that the personal payments to Mrs W should taper off over a period of 5 years before ceasing upon Mr W’s retirement. It was this decision that Mrs W was seeking to appeal.

That appeal was unsuccessful and the comments of the Judge on hearing the case have been seised upon in isolation. But it is essential to remember that each case is judged on its own facts.

Critically, the media reports haven’t stated the overall wealth of the parties, merely that they had a £1.3million house.

Furthermore under Section 25 of The Matrimonial Causes Act the standard of living is a factor to be taken into account. It is a reality that people who are wealthy have a completely different expectation of life, which the Courts recognise. Using the house as a guide, they appear to be comfortable but not rich. However that may not be the case and provide an explanation as to why Mrs Ws solicitors pressed on with the appeal.

Mrs W will therefore be expected to go out to work.

The reasons for this are that her eldest daughter is at private school and her youngest daughter is aged 10 and therefore far less dependent on Mum than a toddler.

Thus, as with the passage of time, the relevance of given factors such as contributions to the family, shifts on a sliding scale. It is therefore no great hardship for a 10 year old to have their Mum and main carer working part-time. Furthermore it will enable that Mum to gain full-time employment at a later date.

The Judge
Get a Job

The law has therefore altered very slightly in cases on these facts.

But a completely different result may have been achieved if the children had been younger, the paying husband wasn’t approaching retirement, the wife had got an order for more capital and less income and significantly she had actually made applications for work or even accepted the principle that she had to work, even if she wasn’t able to find any.

In this case Mrs W was actually criticised for being “evasive” about her job prospects. In that regard she did not help herself.

The case is therefore very specific to its own facts. It will have an impact on high net worth families who have ongoing maintenance claims.

But it is a long established principle that financial independence should be achieved at the earliest opportunity and so parties have always been encouraged to achieve this, often by way of a larger capital sum (if available) in lieu of maintenance. However, there is now an overall trend towards limitations on the duration of maintenance and this case is one small part of that movement.

The process remains unchanged and it has been settled for a number of years that the starting point is that there should be a “yardstick of equality”.

Contributions made by the homemaker and breadwinner are of equal value. The Courts will endeavour to split equally the assets accumulated during the marriage.

In high net worth cases, inherited assets received before the marriage, may not be included. Having performed this exercise, the next stage is to decide if this is sufficient to meet the parties’ needs. In the event that the joint assets are insufficient to meets the needs of the family, then maintenance has a role to play. This is always subject to variation as circumstances change.

This decision doesn’t alter the basic reality that bringing up children, harms ones career unfairly or otherwise. Thus one party’s career will prosper whilst the main carer’s time is applied to the demanding role of being a stay at home parent.

The reality remains that even when the papers are full of reports that the Judge allegedly barked “get a job” at the wife, she will not be able to get as good a job as had she been able to draw upon 10 years of career progression rather than motherhood.

In the event that that second career doesn’t meet the needs then she will have to look elsewhere for those said needs to be met. And that is usually from the matrimonial assets. In short, a different route to the same outcome.

What this case DOES NOT rule, contrary to the impression that has been left in some of the media is that:-

  • All Mums must go out and get a job per se
  • Being a Mum is unworthy
  • This is a blanket rule and hereafter cases will stop being judged on their own facts

True, stay at home Mums, with children of minimal dependency, will be expected to find work if they can. There were very few cases in which the standard of living was so high and the parties’ expectations such that, they could expect maintenance forever, without having to work. When this actually occurred they usually ended up in the newspapers.

For the vast majority of couples contemplating a divorce the most important thing is to get the right and sensible advice at an early stage, free from the influence of an eye catching headline.

About Nigel Winter

Nigel C Winter is a partner in the Family Department of Rawlison Butler solicitors, based in the South East of England. He has been practicing family law for over two decades, is a collaborative lawyer and a regular contributor to a wide variety of publications on Divorce and Family Law.

website: www.rawlisonbutler.com

He has been practicing family law for over 2 decades, is a Collaborative lawyer and a regular contributor to a wide variety of publications on divorce and family law.

 Disclaimer – This document is provided for information purposes only and does not constitute legal advice.

 

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