Tuesday, September 06, 2016

Why Should I have a Postnuptial Agreement?

 

Why should I have a  postnuptial agreement?

 

Draw up a postnuptial agreement if your relationship is undergoing difficulties and there is a possibility of a split in the future. It is worth reviewing your financial situation and drawing up an agreement as to the division of your assets in the event of a separation.

If your relationship is blissful it is worth deciding on  a division of your net worth in the event of a separation in the future as emotions will not be involved and people are able to act far more rationally when they are not in pain or reacting in fear, anxiety or revenge
.
Is it worth the paper it is written on? What is it's currency in English law?

Let's go back to 2010 and the  Supreme Court decision in  Radmacher v Gratino

The judgement test  was -

“Did each party freely enter into an agreement, intending it to have legal effect and with a full appreciation of its implications?  If so, in the circumstances as they now are, would it be fair to hold them to their agreement?"
Lady Hale

Pre and post nuptial agreements are not legally binding but...

 

 I have moved my blog over to my new website at www.bastowssolicitors.co.uk

 

The rest of this post can be found here:

 

 Why should I have a postnuptial agreement?

Friday, August 26, 2016

Amber Heard and Johnny Depp - Round Three



So Hollywood's A list couple have settled.
Let's look back.
They married in 2014 with Amber Heard filing for divorce some 15 months later in May 2016 after allegations of domestic abuse.  What baffles is not the short life of their marriage despite it's shocking impact on the world media.  From Johnny Depp’s vast $400 million fortune he was prepared to settle with Amber for $8 million.  That equates to some £533,333.33 per month for every month they were married.  
Amber was looking for more. She did not accept this was sufficient plus she indicated that spousal support should be on the table as well and for Depp to pay her legal fees. 

They have now settled for $7 million... which Amber will donate to charity... The plot thickens...

Almost unheard of to negotiate backwards. What prompted Amber to cave so dramatically? The public fight concerning her domestic abuse allegations removed sympathy from her - she was regarded as a gold digger. She is young and gorgeous but her marketability both as a movie star and as a future spouse to other wealthy gentleman was at risk of plummeting. Maybe she was advised that she was heading into obscurity and public revilement and becoming the next Heather Mills. Maybe emotionally she could no longer cope with victim being made out to be villainess. Maybe she had a better offer on the table and was seeking out a new, far wealthier beau...
What confuses me is that Depp never opted, bearing in mind the complications that money can bring and the vast difference in their wealth, to have a prenup in place. Amber is perfectly successful having appeared in dozens of movies over the years including, Magic Mike XXL, The Danish Girl and the Rum Diary in 2009 (where she met Depp) and she also spent several years as the face of Guess. But Depp owns an island. An actual island.   Amber is probably at the start of her career whereas Johnny at 52, may be asking a lot of us to suspend our disbelief for much longer that he is the charismatic young Captain Jack Sparrow.

As the couple failed to put a prenuptial agreement in place this entitled to Amber to half the money made over the course of the relationship which looks closer to the $30 million mark. Ouch.  

Amber Heard has a lot to be grateful for. Obviously gorgeous, a youthful 30 years old and wealthy enough that she is promising to donate her alleged $7 million divorce settlement to charities including American Civil Liberties Union and Los Angeles Hospital. And the fight is over... well not quite... As reported in the BBC News 

Amber is now accusing Johnny of being a cheap skate. he has paid the $7 million direct to charities and not via her hence saving $7 million in taxes. Sounds sensible to me. Also sounds like Amber is not over this divorce as she wants Johnny to suffer a bigger financial penalty than he was hoping to get away with...
   
In England and Wales it  is widely accepted that prenups are not legally binding as such, but what they are is persuasive. What they are, is a opportunity to make a divorce quicker, cheaper and less painful.  A romance killer? No. It is no different to a will. If you die you want to make sure the people you care about are protected.  It is no different with prenups. No one wishes death or divorce to come a knocking but at least when/if it does then you are prepared.  

Monday, February 08, 2016

Madonna in Court to Force 15 Year Old Son Home






Nobody can have missed the fact that Rocco, Madonna's 15 year old son wants to stay in London and live with his father.  Who can blame him - London the coolest place on the planet for a teenager and... he did live here before.

What people can't grasp is why Madonna is fighting this through the courts. She has the benefit no doubt of the most expensive legal advice. She is highly sophisticated and knows that her son's wishes and feelings will be accorded a major determining factor. Is she just wasting her money and ruining her relationship with her son? What court is going to physically force him to return to New York if he refuses? Indeed he is old enough to have his own legal representation so he does not need to rely on his father to cross swords with his mother.

He has been ordered to return by an American court and he has not done so.  Now it is reported that Madonna is pursuing the fight through the English courts and there is a further hearing in the New York Supreme Court on 5th March.

What has gone wrong? Reading the reports it appears that Madonna is a disciplinarian and Guy is more laid back. The contrast in parenting styles being apparent even when they were together. Madonna enforces a macrobiotic diet - no phones, no TV and anything left on the floor is thrown out. By contrast - Guy is pictured bike riding with Rocco and there are reports Rocco has been seen smoking.

There is also a large section of the press decrying Madonna's parenting skills - she is a dictator and spends all her time working - her children are forced to go on tour with her and she spends no time with them. Rocco left when she confiscated his phone and because she did not spend time with him.

This story sounds familiar.  Lots of teenagers rebel - Madonna included. Lots of teenagers would leave home if they had a more comfortable alternative. I am sure lots of adults would like the alternative of running away to escape their responsibilities and to be allowed to live a less restrictive life and still have their every need taken care of.

There are all sorts of reasons why Madonna could be doing this. Maybe she needs to show Rocco she loves him enough to fight for him.. Maybe she is fearful he will sink into addictions or other self destructive behaviour with a looser leash. Maybe she just needs to be in charge and win everything. Maybe she is devastated and this is the only thing she can think of to get her son back.

What is Guy Ritchie's motive in all this? Why has he not sent Rocco back? Is he just trying to win against Madonna? Or does he believe she is too strict? That she is not there enough? That she is not supporting their son enough? Or not concerned with his happiness enough?

Children act applications are decided on what is in the best interest of the child. Parental acrimony is not in the child's interest. Long term and repeated parental conflict is emotionally damaging - children do less well at school - are less able to have fulfilling relationships and are more anxious and unhappy.  Who wants that for their child?  

This Government would like parents in this situation to mediate - negotiate the matter calmly with a neutral facilitator and to make parenting decisions jointly. Work together to come up with a joint parenting plan. 

If only the emotion could be taken out of these conflicts and both sides could learn to compromise. Easy to say - very difficult to do.


Here's what Rocco needs to remember - you only have one mum. She may not be perfect but she is your mum. Nine months is a long time when you are 15 but focus on getting a better deal from mum for now and set a deadline - if things do not improve - big changes can take place - but with everyone in accord.

Monday, January 18, 2016

Coercive or Controlling Behaviour - Now a Crime

Domestic abuse has now been extended since 29 December 2015 to include coercive or controlling behaviour.

What does that mean?

It means if your actions are adversely affected because someone else causes you emotional harm or - on at least 2 occasions - fear of violence.

Many people claim they are controlled by their partner - for example they cannot go out with their friends, they cannot be late home and they need permission before they can do virtually anything. There is a big difference between compromise in a relationship -discussing what is right for both of you - and being bullied into doing what your partner wants.

Other examples - checking up on your phone, controlling your Facebook account, telling you what to wear, stopping you from drinking, stopping you from working, limiting when you can see your family or friends, controlling your access to money, criticising you endlessly or putting you down in front of others. 

Most people know when someone is abused by their partner - the old joke of being hen pecked or worse that a man's extreme jealously shows that he loves you.

The difficulty is that when people are in an abusive relationship they often normalise the behaviour - they justify it to others and claim it is not that bad. Usually things escalate before victims realise that they have been emotionally abused for a long time.  They have just accepted being bullied in order to have an easier life and through fear of the anger if they disagree.

The key is the effect the behaviour has on the victim. Often this effect is cumulative.

Minister for Preventing Abuse and Exploitation Karen Bradley said:
"Our new coercive or controlling behaviour offence will protect victims who would otherwise be subjected to sustained patterns of abuse that can lead to total control of their lives by the perpetrator. We are sending a clear message that it is wrong to violate the trust of those closest to you and that emotional and controlling abuse will not be tolerated."

This legislation comes at a time when domestic violence referrals are already increasing. The maximum sentence is 5 years. It will be interesting to see if the police are sufficiently trained and resourced to pursue this offence.

How to tell if you are in an abusive relationship? Imagine your partner's reaction if you  rang and said one of the following:

you would be going out with friends and so would be late home,
you planned to go on holiday with a friend,
you had invited your parents for the weekend,
you had changed your passwords on your social media.

If you feel fear  or anxiety at the thought of any of the above then perhaps you should carefully consider whether your relationship needs changing.

Friday, January 15, 2016

Should I stay or should I go now?






The agony of indecision. Not bad enough to leave not good enough to stay. Some people contemplate the decision to leave their partner for many years. Anxiety is at it's height when you do not know what to do. Life is only half lived. You put other things on hold - holidays, work promotions, DIY, hobbies, time with friends - everything is dealt with in a half hearted manner whilst you ponder whether you should end your relationship. You don't know what to do so you do nothing - you start to drift through life and everything becomes mediocre. No joy, no contentment, no pleasure, no hope, no fun. Then perhaps you turn to distractions - an affair, alcohol, gambling, drugs, shopping, food - any addictive habit to give instant satisfaction and relief from the agony of indecision.  Then eventually the decision is made - it's either too late to leave -may as well live out our last years together in semi misery or the misery of indecision becomes so bad you decide leaving is the only way to escape. You want to make the right decision but in the end the decision is made through procrastination.

If you trawl the Internet you will find long lists of what you should consider in order to make the right decision.

Is your partner abusive? If yes - leave.

Can you afford to leave? If no - stay.

Do you love your partner? If yes stay but what if the partner you love is abusive? Leave.

Are you religious? Stay.

Have you both stopped trying? Go to counselling.  

These practical decisions are not helpful.  You know the answers but you are not sure if you are making the right decision.  The only wrong decision is no decision because of the limbo it traps you in. There is a saying - Put up or shut up.  Somehow all such sayings are based on wisdom that is inescapable.

When weighing up any decision in life remember there are three different options.

1. What you want to do
2. What you should do
3. What you must do.

If you live your life through should - you may well stay for the sake of the children. If your should is to be grateful that someone married  you in the first place - you will stay married.

If your must is to avoid disappointing your parents you will stay married. If your must is to be a good catholic you will stay married. 

Confusing  the wants, shoulds and musts is how people get stuck. What if you don't know what you want? You just think you don't know by the way - it is the shoulds and the musts that are getting in the way. 

Here is a simply way to work out exactly what you want.

Imagine you won the lottery - millions and millions  - no matter how rich you are you win more than your total net worth. What would you want to do with the money? Don't think about it - your first instinctive answer is the key - be truthful with yourself - you don't need to impress anyone.

A. Split it with your partner and go your separate ways.
B. Share it with your partner and use it to rebuild your lives together.
C. Hide it from your partner. 

Your first answer will tell you whether you want to divorce or not - and what type of divorce you can expect. Next you simply need to decide whether you are going to do what you want or live by your shoulds and musts.  By the way you can change your musts but it takes effort.

Once you make the decision - live with it. If you decide to give your life together a chance - set  a deadline for things to improve - and put your best effort into improving them. If you decide you cannot leave even though you want to then make your best effort to make the most of the situation - after all it is your life.  Live it the best you can...


Monday, November 30, 2015

Cohabitation Break Up and the Division of Property



Cohabitation law is very different from matrimonial finances. Upon divorce a husband or wife has a claim against the assets and/or income of their separating spouse and the division of the matrimonial pot is decided on the basis of what is fair taking into account the factors for consideration via statute.

With regards to cohabitation law when unmarried couples separate their assets are divided according to land law. Historically this has appeared very unfair to the weaker earning party and some people can live and share a life for many years with their partner and receive no financial settlement if they have made no financial contribution.

Where properties are held in joint names the court has been required to consider the parties intention as to division and whether that intention changed over the years. This is where matters become more complex. A starting position of 50-50 can change due to an express intention. That is the parties have written documentation confirming they wish the share to be altered or an inferred intention. It is then for the court to decide whether the parties intended to depart from equality despite there being no documentation to support this.

Each case will be decided upon its own facts.

A recent Court of Appeal case had to consider whether there was a common intention to vary the beneficial interest, whether the shares which the judge  decided - 85%/15% were wrong and whether non payment of child maintenance payments was relevant to the calculation.

On the facts of this case Mr Phillips had taken 25% of the net equity and used it for his own purposes and post separation from 2008 onwards had made no contribution towards the mortgage. The court concluded that it would only have been acceptable for him to do this if a joint intention as to a change in the beneficial share was made.

The appeal was dismissed on all 3 grounds and it was held:
I consider that, in principle, it should be open to a court to take account of financial contributions to the maintenance of children (or lack of them) as part of the financial history of the parties save in circumstances where it is clear that to do so would result in double liability. 
 — Barnes v Phillips [2015] EWCA Civ 1056, [41]    

This is more a move towards fairness which is the bedrock of judicial discretion in matrimonial finances. 

The case of Stack v Dowden gives judges a wide discretion in taking into account any factors when assessing the “whole course of dealing in relation to the property”. Child maintenance and non payment there of has now fallen within that net. 

This is a welcome move but makes it more difficult to predict the outcome of cases.




Friday, November 20, 2015

Divorce without pain in celebrity land





The fashion in celebrity land appears to be a quiet divorce and continuation of family life . After the media storm of the McCartney break up who even remembers Madonna's divorce? That headline grabbing media magnet managed to get divorced and quietly move on.  How clever is she? I submit that she is unique in this regard.

The uncoupling fashioned by Gwyneth Paltrow et al offers a new landscape where couples spend time together post divorce in what appears happy families doing what families who are still legally and emotionally intact do. This all reminds me of Stepford Wives. Let's pretend we are having fun for the sake of the children, our reputation or to exhibit our exemplary emotional control, self sacrifice and lack of pain and our superiority.

Here's the thing - if you wanted to have Sunday brunch together as a family you would not be divorced. The relief of divorce is not having to spend time together - isn't that after all the point of divorce?

These celebrities are copying what most people do who don't want to get divorced but can't stand the sight of each other - live out their lives in misery still forced to present a united front to the outside. The reason lots of people give for not going through with divorce is financial - they can't afford it. What the fashionable celebrity set are expounding is financial independence via divorce, discreet sexual freedom via divorce but family gatherings a la unhappy marriages.

Is this a good thing?  In my experience couples who spend time together as a family afterwards usually do so because one party cannot move on. It's not about love or kindness it is about control and fear. It does not produce happy memories for the children or even happy children - it is dysfunctional and causes anger and rejection by the children.


Let's look at Halle Berry - what a stormy ride she has had with Olivier Martinez - they are now divorcing as reported in the Telegraph above - they state that they are moving forward with love and respect for each other. Has the passion run out then? It will be interesting to see if they are able to follow Gwyneth in her conscious uncoupling. Here's Gwyneth's explanation:

“What that really means is that even though you hate me and you never want to see me again, we are going to brunch because it’s Sunday and that’s what we do.”

Make your choice but remember - you only have one life and spending Sundays, Christmas and other special times with your ex who you may hate, loath, dislike be repelled by or simply find boring and offensive is endorsed by celebrities.

Tuesday, November 17, 2015

English Courts to Rule on International Spousal Maintenance Claim

English Court to rule on International Spousal Maintenance Claim

It is important to ensure that the financial aspect of your divorce is complete especially if you are a rich international businessman or woman.

In the above case the parties divorced in Slovenia in 2011 and the husband has since remarried. However, the wife moved to London in 2008 and has managed to have her spousal maintenance claim transferred from Slovenia to England where it is assumed the courts will be more generous to her claim.   

As The Telegraph reports:

Last year family judge Mr Justice Moylan gave Mrs Ramadani the go-ahead to claim spousal maintenance in an English divorce court

But Mr Ramadani challenged the decision, saying it was unfair for her to have “a second bite of the maintenance cherry” in the English courts which he said were known for their generosity to dependants.

Today, Lord Justice McFarlane said Mr Ramadani had "fallen a long way short" in his quest to stop his ex claiming a share of his millions. 

She had withdrawn her maintenance claim in Slovenia and was free to move the fight to England, he ruled. 

With the globalization of people's lives and many couples owning assets in mroe than one country forum hunting is an important consideration.  England has a reputaiton for being the most generous to the weaker party and has no limit on the term upon which spousal maintnenace can be set. There are still whole of life orders being made. Some jurisdictions limit this to 3 years. The court has a duty to consider a clean break in very case but will not order one if it will cause undue hardship and there is wide judicial discretion in this regard. Each Judge makes an order based on what he considers fair.

So the lesson for the rest of us is the same as anything else in life - tie up loose ends. How many other things are waiting to be completed - your will? Transfer of your gas and electricity account? 

Many people of course avoid finalising the matrimonial finances on divorce because of the potential cost. they consider that a gamble against a future claim is one worth taking. For some this pays off  but when it goes wrong the costs tend to be far worse. plus, as has been made clear recently by the Supreme Court - there is no long stop date in family law - unlike other areas of law which are governed by the statute of limitations - so a claim could arise 30 years hence... or even longer...

Tuesday, November 10, 2015

Fraud and the Supreme Court's Decision in Sharland



 
The case of Sharland v Sharland in the Supreme Court confirms that fraud will not be tolerated in the Family Courts and the previous Consent Order was set aside with an order for a re hearing of the wife's claim.
 What does this mean for the rest of us?

If you are found to have committed fraud - for example, deliberately not disclosed assets, undervalued them, lied about your employment - or as in the Sharland case not revealed that you were planning on selling your company shares 100s of millions - then you will have to go through the whole procedure again - or if possible only the steps necessary to  deal  with the issue of fraud. You will also probably be responsible for your ex's legal costs in getting the matter re listed. However, there is no guarantee even if you win an appeal that you will get all of your costs so this is a risk for both sides.

The lower courts in Sharland had not allowed the appeal on the basis that the substantial non disclosure would not have resulted in a different order and therefore it was a waste of time to re hear the matter as the court would arrive at a similar conclusion.

The Supreme Court disagreed and held that the husband's non disclosure was material and the judge would have made a different order if he had known about it. The Court of Appeal had made their decision on the evidence before them but the key is what would the evidence have been before the trial judge so the Courts should not have removed the possibility of a fair hearing from Mrs Sharland.

It will be interesting to see what happens - company could have been floated for £600 million but husband said it was worth £47 million - but they did not go ahead - the valuation of his shares will no doubt be the focus of the re trial but how much is hope value - what if he never sells? The wife already had 30% of his shares awarded to her. What I don't understand from her perspective is if she was prepared to settle for 30% of £47 million why is 30% of £600 million not enough?

So, setting aside the difficulties of uncovering the fraud in the first place what should the everyday lawyer and client take from this? If you are seeking justice and Mrs Sharland is quoted as saying it was a matter of principle not money then the court is available to give you a fair trial. However, most people do not have £10 million to back up their principle. If you uncover fraud - clearly you need legal advice as to whether it is worth going back to court. Each case is judged upon its own facts and each case has a different judge whose interpretation of fair differs from each other.

Monday, November 09, 2015

What Happens After Decree Absolute?






The divorce process in England and Wales is made of the seven stages. It is fault-based and the majority of petitions are based upon what is known as "behaviour". Once you have jumped through all of the necessary administrative hoops you are granted Decree Absolute. 

What is the impact of finally being divorced?

Whether it is the cause for celebration or commiseration there are important legal aspects:

 1. You can no longer inherit from your former spouse's estate. It is therefore important to update your will. If you are left anything in your ex-spouse's will and they subsequently die it will be treated as if you pre-deceased them and therefore any property left to you will be cancelled. If you have left anything to your ex-spouse the same applies and the risk of leaving the whole estate to your ex-spouse means that you would die intestate.

2.You will lose any entitlement to your ex spouse's pension. It is important to assess whether you need to make a claim for pension sharing or pension attachment order prior to applying for Decree Absolute.

£. If the property you are residing in is the sole name of your ex spouse you will need to vacate the property as you will lose your matrimonial home rights upon Decree Absolute. It is therefore important to resolve the matrimonial finances and ensure a Consent Order is drawn up outlining how the assets are to be divided upon divorce.

It is important that any agreement reached is made into a Court Order to ensure the agreement is binding and to limit any future potential claims. If agreement cannot be reached the Court can order a division of the assets and income based upon their decision as to what is fair. The court has a wide remit and is governed by judicial discretion.

Even after Decree Absolute the court's powers in relation to matrimonial finances continue. If you do not have a Court Order your ex spouse can return to Court decades later provided they have not remarried and make a claim on your assets. 

This has happened in the Wyatt v Vince case - the wife made a claim over 20 years after divorce - the husband was very wealthy and the wife was in poor financial circumstances.  The Supreme Court have allowed her case to proceed. This highlights how important it is to apply for a clean break even if you have few assets.

So it is important to get advice and consider your long term best interests - even if you wantt to bury your head and pretend it is not happening to you. It is so much better to make an informed decision than to receive a shock later...