Exclusive Q&A on Divorce Law with Simon Cooper
Posted: 15th April 2016 08:52
Can you talk us through the process for divorce in your jurisdiction?
Either party to the marriage may submit a petition together with a statement in support. These petitions are now handled centrally at one of 11 regional divorce centres rather than the parties’ local county court as was the case previously.
The petitioner must show that the marriage has irretrievably broken down based on one of 5 ‘facts’ – adultery, unreasonable behaviour, desertion for 2 years, 2 years’ separation with consent to divorce or 5 years’ separation without consent.
In the event that a petition is not contested by the other party (the majority of cases), decree nisi will be issued by a legal adviser, supervised by a District Judge, based at the divorce centre. If the petition is opposed by the other party, the matter will be transferred to the parties’ local court for a contested hearing. There is little point in contesting the divorce as it is well established that conduct that led to the breakup of the marriage is not a factor in financial proceedings.
The petitioner may apply for decree absolute 6 weeks and one day after the date of decree nisi – again this is usually issued without a hearing at the regional divorce centre. If the petitioner does not apply the respondent may apply three months after the date on which the petitioner could first have applied. However in most cases the decree absolute is applied for once all financial issues have been resolved.
Can you outline and discuss the main legal complications surrounding international families?
The first issue likely to be faced by families with links to more than one country when considering divorce is jurisdiction – i.e. in which country should proceedings be commenced? This can have significant implications as the level of provision can vary significantly from one jurisdiction to another. In the UK (and the rest of the EU except Denmark) jurisdiction is governed by Brussels II. Divorce proceedings can be commenced in a member state where:
- both spouses are habitually resident there;
- both spouses were habitually resident there and one of them still lives there;
- the respondent is habitually resident there;
- in countries where one can make a joint application either spouse is habitually resident there (not applicable in England and Wales);
- the petitioner is habitually resident there and has lived there for at least a year immediately before starting the divorce application;
- the petitioner is a national of that country (or for the UK and Ireland “domiciled” there) and is habitually resident there and has lived there for at least six months immediately before starting the divorce application; or
- both spouses are a national of that country (or for the UK and Ireland have their “domicile” there).
- It will be seen that there may well be situations where there will be two competing jurisdictions – Brussels II provides that the application which is first in time will take priority over a later application in a competing jurisdiction, so it is important to weigh up which jurisdiction will be more advantageous and act quickly to secure that jurisdiction.
A further common issue for international families divorcing in England and Wales arises where one party has or is suspected of having property abroad. Where assets abroad are suspected but not disclosed, this should in the first instance be dealt with by way of questionnaires/requests for further documents as part of the court disclosure procedure. Many jurisdictions have searchable property registers which list as against the name of the owner rather than the address of the property which can be of use.
It is also important to bear in mind the difficulties of enforcing orders which relate to properties abroad. Orders against foreign property should be avoided, as they cannot be enforced against the property itself (e.g. by order for sale), only personally as against the paying party (e.g. by an order for committal). Those drafting financial remedy orders should give thought to providing alternative mechanisms for enforcement in the event of non-compliance. Parties also need to consider the tax consequences both in the UK and abroad of sale or transfer of properties abroad.
Where an order is to be made which provides for maintenance for a spouse in a foreign jurisdiction, the parties will have to have regard to the availability of reciprocal enforcement in that jurisdiction. This is dealt with in the UK by the Maintenance Orders (Reciprocal Enforcement) Act 1972 and by the Maintenance Regulation in EU cases.
Have there been any recent regulatory changes or interesting developments?
The recent move to processing all divorces in a limited number of centralised regional hearing centres (see 1 above) is intended to speed up the divorce process and free up time in the county courts. It is also aimed at reducing fraud (in one notorious recent case, 180 Italian couples were discovered to have falsely used the same address in England in order to obtain a divorce in this jurisdiction – a situation likely to be identified much faster with a centralised divorce process).
In terms of developing case law, two significant recent developments relate to the circumstances in which the court can set aside orders made on divorce previously and the circumstances in which the courts may consider granting an application for a financial relief even many years after a marriage has ended (see question 4 below).
Are there any noteworthy case studies or recent examples of new case law precedent?
Sharland v Sharland  UKSC 60 was a case in which the parties had reached a settlement – after hearing the husband’s evidence at trial – whereby the wife would receive 30% of the net sale proceeds of the husband’s company. She later discovered that the company was being prepared for an initial public offering at a far higher valuation than had been disclosed by the husband in his evidence. The wife sought to set aside the consent order on the basis of the husband’s non-disclosure, and a trial judge found that the husband’s evidence had been dishonest. The Supreme Court allowed the wife’s appeal, directing that the consent order would not be sealed.
The court noted the following:
- it is better for all parties to resolve financial matters between them by way of agreement rather than in court
- an agreement between the parties cannot oust the power of the court to make orders and is not a contract enforceable in law
- the court will make an order in the terms agreed unless it has reason to believe that there are circumstances into which it ought to enquire
- the parties have an ongoing duty to make full and frank disclosure of all relevant information – to one another and to the court
In Wyatt v Vince  UKSC 14, the parties had married in 1981 and separated in 1984. They had a son together, and treated the wife’s daughter from a previous relationship as a child of the family. Both parties lived in straitened financial circumstances for many years, until the husband’s green energy business took off in the late 1990s. The husband went on to become a multi-millionaire, while the wife remained in very modest financial circumstances.
It appeared – although the court file had since been lost – that no order was made regarding financial provision at the time when the parties divorced in 1992.
The wife then applied in 2011 for a lump sum payment and for interim payments in respect of her legal costs. The husband sought to strike out her application as being an abuse of process or having no reasonable grounds. The Supreme Court held that the application was not an abuse of process, noting that an application should not be viewed as an abuse of process simply because it has no reasonable prospect of success. The court also held that an application for financial provision would have ‘no reasonable grounds’ where it is not legally recognisable – for example, because the applicant has remarried or there has already been a final determination.
The fact that the wife’s claim has not been struck out does not necessarily mean that her substantive claim will succeed. The court stressed that she faces ‘formidable difficulties’ in establishing a claim for financial provision, including the short duration of the marriage and the delay. However, the court did note that the wife’s contributions by way of raising the family’s children – including for the years after separation – should be taken into account and may justify a modest financial order being made.
This case will therefore be of interest to any parties in a similar position, and should serve as a reminder to all divorce lawyers of the importance of ensuring that financial claims are not left unresolved on divorce, lest they be revived many years later.
Has the recent rise in cohabitation altered the divorce law landscape?
It would be difficult to say that recent increases in cohabitation have caused significant changes, but there are some implications which can be seen.
Typically, a settled period of cohabitation will trigger similar consequences to re-marriage – it is commonplace to provide in financial orders that 6 months’ cohabitation will trigger a sale of the former matrimonial home where it is to be occupied by one of the parties pending a deferred sale at a later date. Cohabitation does not automatically terminate the recipient spouse’s maintenance, but the case law provides that where there is cohabitation is a new relationship of ‘stability and permanence’, the court will either refuse to order maintenance or reduce it to nil on an application for variation - Grey v Grey (2009) EWCA Civ 1424.
It is worth noting that in calculating the length of a marriage (which has a bearing on the extent to which the parties’ assets should be divided equally on divorce), periods of cohabitation prior to marriage are included, reflecting the widespread practice of premarital cohabitation.
It is also significant to note that unmarried cohabitants have no recourse to financial remedies arising out of their relationship. On separation they will have to rely on their existing property rights, although they may be able to establish a beneficial interest in a former family home by way of a constructive or resulting trust (i.e. through a common intention to be inferred from the parties’ conduct or through financial contributions to a property which is not registered in their name).
The Law Commission recommended in 2007 that the government should implement a scheme of financial relief for cohabiting couples who have had a child together or who have lived together for a minimum period, subject to the ability to opt out by written agreement. The Government has announced that it will not be acting on this recommendation and it is unlikely that we will see development in this area any time soon.
Following the recent ‘Silver Splitters’ boom, can you outline any unique challenges this creates for divorce lawyers?
One issue which increasingly creates difficulties in respect of older divorcing couples relates to pensions – an area in which the court’s approach has not always been clear, particularly when it comes to offsetting.
With younger couples it can be fairly straightforward to offset a pension held by one party with a lump sum to be paid to the other, with little disadvantage to the paying party, as he can continue to build up the pension by making further contributions. Where a pension is in payment however, it is no more than an income stream (see Martin-Dye v Martin-Dye  EWCA Civ 681) and cannot be increased through future contributions.
Particular difficulties can arise where there is an age gap between the parties. See for example SJ v RA  EWHC 4050, where the Wife was refused a pension sharing order providing equality of income because she was much younger than the Husband and this would have resulted in her receiving a much larger share of the overall value of the pension fund.
Another difficulty arises out of the increasing tendency for adult children to remain at home or be financially supported by older parents. Unlike with minor children, whose needs are the court’s first priority, the court is not obliged to give precedence to the needs of adult children who may live with or rely on one or other of the parties.
It is also often the case that a priority of older couples is to preserve assets for their children to inherit – and in some cases these will be children from previous marriages. Again, this is not a matter to which the court is required to give priority.
Is gender inequality and discrimination still a pervasive issue in modern day divorce proceedings?
The leading case law (White v White; Miller v Miller/McFarlane v McFarlane) makes it clear that it is not permissible to discriminate on the basis of gender – the contributions of the ‘breadwinner’ and the ‘home-maker’ are to be valued equally, and in all cases the starting point (and cross-check at the end) should be equal division of the matrimonial assets unless good reason can be shown to depart from equal division.
There is a perception that England and Wales is a jurisdiction which makes particularly generous provision for wives in comparison to other jurisdictions, and there is often a sense that there may be indirect discrimination where, by virtue of the fact that primary care of the children tends to be awarded to the mother, wives often end up with a larger share of the family assets. On the other hand, wives who have contributed through home-making but have not had children may receive a much less favourable outcome. Whether this is reflective of a gender bias/fixed ideas as to gender roles on the part of the judiciary or simply reflective of the way many couples in fact organise their lives prior to separation is a more open question.
How can you help a client protect their finances during divorce or dissolution?
Divorce lawyers need to be aware of the provisions under section 37 Matrimonial Causes Act 1973, which empower the court to prevent a disposition of assets which is about to be made – or set aside a disposition which has been made within the last 3 years – which would have the intention of defeating the Applicant’s claim for financial provision. In these circumstances the Respondent is required to disprove the presumption that such a disposition was (or will be) made with the intention of defeating the Applicant’s claim. A disposition can include selling, mortgaging or giving away property.
It is also possible to obtain a freezing injunction under the High Court’s inherent jurisdiction – which can be a worldwide freezing injunction – where it is feared that the Respondent may be about to dispose of assets.
What measures are available to clients to protect their finances before or during marriage?
While historically pre-nuptial agreements have held little sway in English law, the picture is now rather different following the decision of the Supreme Court in Radmacher v Granatino, which ruled that courts should give effect to a pre-nuptial agreement that is freely entered into by each party with a full appreciation of its implications, unless in the circumstances prevailing it would not be fair to hold the parties to their agreement.
Parties are strongly advised to have taken independent legal advice and provided disclosure of their assets prior to such an agreement. While there is no cast-iron guarantee that these agreements will be upheld – it is important to note that they are subject to review for ‘fairness’ in the circumstances prevailing at the time they come to be implemented, the court will be slow to overturn an agreement that was freely made with full understanding of the consequences.
Radmacher equally applies to post-nuptial agreements.
As noted at question 6 above, these agreements may be particularly relevant for older couples in second or subsequent marriages where they wish to preserve assets for children of the previous marriage.
How often do divorce cases use social media and to what extent can it undermine divorce proceedings?
Many people nowadays are not aware of the extent to which information they share on social media can be passed on and viewed by third parties. This can sometimes provide parties and their lawyers with valuable information and avenues of questioning – for example, a wife who posts photographs of an engagement ring from a new partner while claiming to the court she does not intend to remarry, or a husband’s photographs of extravagant holidays abroad when he is claiming to have limited resources and income!
Simon qualified in 1984 and had several years’ experience with central London firms before he established his own firm in 1996. Simon has wide experience in the field of Conveyancing and property matters, Wills and estates, Employment issues, and in recent years he has specialized in Divorce, separation and Family law, and is a member of ‘Resolution – First for Family Law’. which is the main organisation of Family lawyers in the UK. He is a qualified and trained Family law mediator in which capacity he can help separating couples resolve their differences without the expense and trauma of going to court.
Simon’s philosophy is that the client always comes first, and every client should be treated as an individual whose needs are personal, and their issues should be treated with empathy and professionally.
Simon has 3 grown up sons. His interests out of work are in distance running and professional speaking and communication. Simon believes the skills he has learned from professional speaking are invaluable in communicating with clients other lawyers and in Court.
Simon can be contacted on 020 8445 1012 or by email at firstname.lastname@example.org