Thursday, 27 February 2014

Law Commission and Pre-Nups

Resolution today welcomed the report by the Law Commission, Matrimonial Property, Needs and Agreements: The Future of Financial Orders on Divorce and Dissolution, which makes two key recommendations.

The first is that ‘qualifying nuptial agreements’ (in particular, the agreements commonly referred to as pre-nups) become enforceable contracts.

The second recommendation is that guidance be produced on the meaning of ‘financial needs,’ so that it is clearer to anyone going through divorce and separation what the financial outcome is likely to be.

Resolution welcomed the recommendation to introduce legislation for ‘qualifying nuptial agreements,’ which would make pre-nups (and post-nups, which are becoming more widely used) legally binding – providing they meet specified requirements.

Resolution has been calling for this change in the law for a number of years.  With second marriages on the rise, people marrying later in life, and many couples entering marriage with money and property already to their name, demand for pre-nups has been on the rise.

Resolution doesn’t expect this measure to lead to every engaged couple in the country seeking a pre-nup, but for those couples who want to have one in place, it will make their legal situation much clearer and reduce uncertainty upon separation.

It’s also important to note that the court will still have the ability to review agreements in so far as they deal with people’s financial needs.

Individuals’ financial needs – in particular those of any children – are still the overriding consideration, and couples will not be able to make binding agreements which allow them to avoid future consideration of financial needs.

There is, therefore, a risk that we could end up with a two-tier arrangement, where one type of agreement is legally binding, and others still open to challenge – couples need to be aware of this, and that’s why the recommendation that people are required to seek legal advice is so important.
Resolution welcomed the Law Commission’s recommendation that the Family Justice Council should produce guidance to give people a better understanding of what is currently meant by ‘financial needs.’  It would, said Resolution, take some of the uncertainty out of financial outcomes following a divorce, which can often be a major cause of stress and anxiety during the process.

 Splitting up can be one of the most traumatic events anyone can go through in their lives. Resolution welcomes any measure that provides greater clarity and helps people have realistic expectations of what their finances might look like after separation, as well as greater confidence in any arrangements they make.

It is absolutely right that, when looking at financial needs, parents’ responsibilities to their children are the first consideration. This is one of the overarching principles in Resolution’s Code of Practice that members abide by.

Guidance on needs should encourage consistency, dispel myths and manage expectations. This will help anyone going through separation, even if they don’t have access to legal advice and support, or are trying to reach agreements on their own, during a very traumatic time.

Whilst welcoming the Law Commission’s recommendations, Resolution emphasised that wider reforms of the law surrounding separation and divorce were needed in order to support separating couples.

The last major reform to divorce law was in 1973, and Resolution believes more changes are needed to make the law relevant to modern day. For example, Resolution wants to see the removal of the need to assign blame if a marriage breaks down, which can often ramp up the conflict and cause unnecessary emotional distress.

Resolution would also like to see more wholesale reform of the law about financial provision on divorce, to provide clearer guidance about likely outcomes. It’s important that anyone going through a divorce has some degree of certainty about how long it will be before they achieve financial independence and have some degree of closure.

Monday, 24 February 2014


Recently I visited an exhibition of modern art. Is digital photography responsible for the obscure interpretation of still life in paintings? Now that cameras on our mobile phones coupled with photo-editing apps can help fumbling thumbs reproduce reality, painting has become a medium solely to demonstrate raw beauty and emotion.

To understand the meaning of some of these colourful works it is almost compulsory to browse with a gallery guide in hand. If you actually want to experience the impact you could do what many of the couples I followed round were doing: ignoring the guide and working out for themselves the effect and impact of some of the larger pieces. Trouble is that art can be a very personal encounter that isn't always made for sharing.

Net result (or maybe it was just the effect of a miserable, wet Saturday) was disagreement. Raised voices followed together with a hasty exit on my part to avoid embarrassment and the compulsion to hand out business cards, or, as in my last post, to usher the offending pairs to the tearoom.

Saturday, 22 February 2014


There were reports in the press this week that a couple had reached consensus after Mrs Justice Pauffley in the High Court urged them to sit round a table and have a cup of tea together. That ten years of dispute and litigation can end in such a manner is tribute to the power of the British cuppa as well as the persuasive powers of the Judge.

Food and drink is, of course, no stranger to the resolution of family matters. Indeed collaborative law is based around the concept of husband, wife and their lawyers sitting around a table with a pot of tea and biscuits in the middle. Sometimes there can even be fruit, cake and sandwiches too. Never ever underestimate the comfort value of sustenance or indeed its ability to be used as a distraction when needed. Don’t be misled though; the resolution of family disputes is no picnic.

Preparation, commitment and hard work by all concerned are required along with a willingness to compromise and work together to find solutions. When the issues are resolved, there is of course, nothing better than another cup of tea.

Monday, 17 February 2014


The Roman Catholic Church and divorce don’t really go hand in hand. However, last year Pope Francis set a date in October for a summit on family issues and this week he meets with his cardinals to prepare for that summit. Questionnaires handed out in parishes around the world show that there is a growing divergence between the Church’s teachings and the way believers live their lives. It seems that the Pope is keen to assist divorcees who have remarried and as a consequence are currently denied the opportunity to take Communion, because in the eyes of the Church they are committing adultery.
Theorists suggest that the answer may lie in the Church granting more annulments (although a civil divorce would still be necessary if the marriage is to be ended legally). Unfortunately and rather unsurprisingly the Church is unable to process the existing backlog of applications.
Well the wheels in the Vatican may turn slowly but for those who maintain that we are still living in the Dark Ages, it is worth pointing out that England itself has moved on from the days of Henry VIII when the failure of Rome to grant an annulment resulted in: 
divorce and beheading, excommunication, the foundation of a new Church, destruction of the monasteries, confiscation of Church lands and the burning of martyrs at the stake.

Wednesday, 12 February 2014


Yesterday a woman was jailed for 8 weeks for saving her brother from the trials and tribulations of divorce. At least that’s how some sectors of the media portrayed it. Guilty of harassment and a dislike of her proposed sister in law, she telephoned the Register Office posing as the bride to be and cancelled the wedding!

Just think if every potential bridegroom had a sister like that, there may be no need for divorce lawyers.

Tuesday, 11 February 2014


Across the Atlantic the US Federal Government has been investing in the promotion of healthy marriages. Back in the mid-nineties it was felt that the continual erosion of marriage was having devastating social and economic consequences for the country and individuals, with negative effects for both children and adults. As a result a Healthy Marriage Initiative was launched over 12 years ago with specific pilot projects aimed at education and support and following on from welfare legislation reform aimed at encouraging marriage and discouraging the birth of children outside of marriage.

Now, a report from the Bowling Green State University (I love the name), suggests that the funds spent (over $600 million) have had little impact; the number of marriages has continued to fall and the divorce rate has remained stable.

So where does the Federal Government go now? If it finds the answer, then no doubt other countries around the globe would like to share it too.

Monday, 10 February 2014


A word of warning for all couples considering a romantic weekend in the shadow of Edinburgh Castle.
At the end of January the Sheriff’s Court in Scotland found in favour of an embittered ex. After an 18 month relationship with his former office worker, a company director took her on a romantic break to Edinburgh to try to save their relationship. It seems no expense was spared when he paid for them to stay at the five star Sheraton hotel and lavished her with gifts, specifically a Louis Vuitton bag and Louboutin shoes at a cost of just over £1,000 from Harvey Nichols.
The trip failed to save their relationship and subsequently he sued successfully for repayment for the items. Unfortunately the lady in question was unable to prove that they were gifts.
If you have ever wondered what the purpose of letterhead in hotel rooms is, this case came up with an inspiring answer. The lady had signed a piece of Sheraton letterhead confirming that she would repay her boyfriend for the cost of the shoes and bag.
Perhaps if they had stayed in a Bed and Breakfast, whilst the surroundings may not have been so luxurious, the lack of notepaper may have helped her to retain the items without cost.