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Stevens & Bolton
For those contemplating a separation or divorce, the idea of navigating the inevitable complexities that follow can be a daunting one. In addition to understanding the core legal principles, Family law is an area that constantly evolves. Judges react to changes in societal ideas and professionals working alongside separating or divorcing couples are constantly looking at new ways to support the clients, couples, and families they support. It is therefore important to stay up to speed with current trends, and to try where possible to predict the future direction of travel.
Cohabiting couples
Whilst it is not a new issue, the legal status (or lack thereof) of couples who are separating without having married remains a ‘hot topic’ in the Family law community. Despite significant noise, and pressure on policy makers (most notably by the organisation Resolution, and its members), there is no sign of change any time soon. It is important for those in that situation to take specialist advice on their options. Where any legal change is still some way off, those in, or entering into, cohabiting relationships should consider other routes of protection, for example Declarations of Trust or Cohabitation Agreements.
No-fault divorce
The consensus within the Family law community is that the introduction of the ‘no-fault’ divorce system has been a positive one. Any historic concerns that the no-fault system would result in a greater number of couples divorcing have proven unfounded as the recent statistics from His Majesty’s Court Service have shown.
Although able to avoid the ‘blame game’, there remains a clear bias towards divorce applications being issued on a sole basis (74% of all applications over the quarter most recently reported). The alternative is an application on a joint basis.
This bias could be because one person will often wish to divorce the other and take control of the process. It may also be because of the additional administrative burden that comes with a joint application, with those complexities heightened where the other applicant is acting in person. Another reason may be that given the access provided by the online divorce portal people are managing the divorce process themselves without solicitor involvement, perhaps even before taking any advice at all.
Regardless of the reasons, and the split of sole versus joint applications, the key is to ensure that the process can be managed with the least possible amount of animosity, particularly where children and finances are involved.
Resolving financial matters alongside divorce
The recent statistics also support a fact long understood by Family lawyers, and one that is of grave concern. Less than half of couples making an application for divorce then apply to the court for an order finalising their financial claims. It could be said that in some cases there may not be any money to be divided, so is an application necessary?
In short – yes. A couples’ financial claims remain ‘live’ even after they are legally divorced unless a Court order has dismissed them. In its simplest form this is by way of a ‘clean break’ order, dismissing all claims each spouse has against the other. This then ensures that no future claims can be bought. Looking ahead it may be that before granting a conditional or final order in the divorce process, the court asks the parties to confirm that they understand this fact and are either taking steps also to resolve their financial claims formally or have chosen not to do so.
Protecting assets acquired before marriage
Whilst it will be relevant for a smaller number of divorcing couples, those with pre-acquired assets that were bought into the marriage should take note of the long running case of Standish and Standish [2024] EWCA Civ 567. This is due before the Supreme Court this Spring with Judgement anticipated in the latter part of the year.
This case centres around the transfer of assets acquired pre-marriage into the name of a spouse for tax reasons, intended then to be placed in Trust. Those transfers into Trust did not take place and the subsequent argument on divorce was that those assets had become matrimonial by virtue of the transfer.
The key issue here is whether the transfer of the assets did in fact make them a matrimonial asset, despite the fact that they were clearly acquired pre-marriage and their transfer to the spouse was for a reason other than to ‘share’ them as part of the marriage. The same arguments could apply for assets that someone may inherit while married. For those where this is a possible issue, communication at the time of inheritance/transfer will be of key importance.
Pre- and post-nuptial agreements
Another protection method, and one that is increasingly common, is a pre- or post-nuptial agreement. Whilst the Family Court retains discretion in respect of nuptial agreements advisors can now give clients more certainty than ever that where properly executed (ideally in line with the Law Commission recommendations on Qualifying Nuptial Agreements), the terms should provide the intended protections.
Looking ahead, the recent case law confirms that Judges wish to avoid an overly paternalistic and interventionalist mentality. Where couples enter into nuptial agreements, and barring any vitiating factors, they should expect to be held to their terms.
Non-court dispute resolution (NCDR)
In cases where any element of negotiation is necessary NCDR should be the first consideration, particularly for higher net-worth couples. There remains a significant backlog in the family courts and recent changes in law have increased the likelihood of cases being openly reported. These factors make NCDR an evermore attractive proposition.
This area has developed at a rate of knots, and there is now an almost limitless range of options available, providing the ability to build a bespoke ‘package’, supported where necessary by third party experts such as financial advisors or therapists.
The rise in NCDR has been driven by the legal changes which, subject to some exceptions, require all divorcing couples to attempt it before issuing a court application. It has also been driven by the lived experience of clients, and their Lawyers, in navigating a Court system which is underfunded and overstretched. Whilst there will always be the need for a specialist Family Court, and the commitment of Judges working daily to assist couples and families cannot be questioned, the NCDR processes are time and cost effective and some of the country’s top Family law specialists are tailoring their practices to such processes.
The benefits of NCDR have been recognised and promoted within the Courts as shown by the proactive case management of Mr Nicholas Allen KC in NA v LA [2024] EWFC 113. The court will more frequently push cases back into an NCDR model where appropriate, and the number of cases using NCDR will continue to climb.
Horizon scanning
The Family law landscape is constantly changing, but keeping an eye on the key developments will allow those considering a separation or divorce to highlight any obviously important changes. This may be a preventative measure (for example a pre-nuptial agreement), or a pre-emptive measure (such as ensuring a settlement before a reported case is published), but for most it will be more important to keep abreast of the breadth of options available to assist in navigating the complexities of divorce and separation without unnecessary costs and distress.
About Sean Hilton
Sean Hilton, of Stevens & Bolton LLP assists clients on a broad spectrum of matters ranging from complex high-value financial proceedings following divorce, to disputes in relation to children. For instance, Sean advises unmarried families on the consequences of a relationship breakdown and is instructed on pre and post nuptial agreements, often with an international element. Sean is considered as a “Rising Star” by the Legal 500 Directory and in the Thompson Reuters Super Lawyers List, and has recently been shortlisted for Family Lawyer of the Year – Senior/Managing Associate in the CityWealth Future Leader Awards.
Sean’s Stevens & Bolton profile and contact details are available here, and he can be found on LinkedIn here.