In the case of Hart v Hart, His Honour Judge Wildblood QC awarded Karen Hart just £3.5m out of the total assets amounting to just under £9.4m in a financial remedy order made in June 2015. This unusual ruling wasn’t as a result of a ‘short, sharp’ marriage as documented previously, as the couple’s marriage spanned 23 years.
Karen Hart’s solicitor said the settlement 'should have been based on an equal sharing of the assets they created between them during this time', and the recent ruling 'leaves the law in a state of flux. It allows a trial judge to find that even where it is not properly evidenced, the financial contribution of one spouse outweighs the family and domestic contribution of the other. This can lead to a result that is unfair and discriminatory, as it has done in this case. More such results are likely to follow, with the potential to set the law back more than 20 years'.
Regardless of whether this latest ruling will indeed set a precedent for financial remedy cases moving forward, it will no doubt make couples who are looking to wed in the near future think about their financial assets, and how best to allocate them should the worst occur by drafting up a prenuptial agreement.
Mrs Owens originally petitioned for divorce against her husband of 37 years on the basis of his unreasonable behaviour. Under the law in England and Wales, a petition on this basis is one of only two ways separating couples can commence divorce proceedings immediately. Mr Owens defended the proceedings which in itself is somewhat unusual.
Multiple court hearings have since followed and the court have found, to date, that the examples of unreasonable behaviour Mrs Owens included within her divorce petition are not enough to satisfy the threshold, trapping her in what she calls “a loveless marriage”. The Court of Appeal found that "Parliament has decreed that it is not a ground for divorce that you find yourself in a wretchedly unhappy marriage, though some people may say it should be."
There is current debate surrounding whether there should be legislation to allow separating couples to divorce immediately on a ‘no fault basis’. The idea is that this would enable couples to engage in the divorce process on a more amicable, less confrontational basis and would hopefully avoid the type of litigation Mr & Mrs Owens have had to endure.
The case demonstrates that it is vital to seek legal advice at the outset of separation to ensure that unnecessary, costly and stressful litigation can be avoided.
Mr and Mrs Sharp were married for four years. They had no children together and both worked full-time earning approximately £100,000 per year each. Mrs Sharp, however, did receive significant bonuses amounting to over £10 million during the marriage. Throughout the course of their marriage, the couple kept their finances separate, although they did purchase property together and shared in the costs of acquiring and refurbishing those properties.
Upon Mrs Sharp finding out Mr Sharp was having an affair in 2013, she issued divorce proceedings and the financial elements of those proceedings were initially determined by the court in November 2015. The Judge decided that Mr Sharp was entitled to exactly half of the matrimonial pot, which amounted to £2.75 million. This decision was very much in line with the long-established sharing principle upon divorce. Mrs Sharp appealed that decision and argued that the equal sharing of the matrimonial assets, which were mostly built up by her, was unfair.
The Court of Appeal have recently found in Mrs Sharp’s favour and decreased the award to Mr Sharp to £2million, which is less than 50% of the matrimonial pot. This decision is a significant departure from the long-established principle of splitting the matrimonial assets down the middle upon divorce, despite the length of the marriage.
Lord Justice McFarlane, one of the three Appeal Court Judges, found that in this case there was no impediment to depart from the established principle of equal division and he concluded that in a short, dual career marriage in which the couple had kept their finances separate, it was indeed justified.
This decision creates further uncertainty in the law and conflicts with the general principle of an equal split upon divorce. This case concentrates on the fairness of the outcome in the circumstances of this couple’s situation and clearly reflects the position that the courts will not apply an automatic split down the middle in every case and that the couple’s circumstances must be considered in each and every case.
The experiment was initially piloted at a divorce centre in Southampton, and its launch is expected to save family solicitors weeks of delays in future cases. In a letter published this week, family division president Sir James Munby and HM Courts & Tribunals Service deputy chief executive Kevin Sadler said that the pilot had accomplished its purpose of introducing a more streamlined process to divorce proceedings, reducing the delays experienced by court users as files are transferred between courts by up to two weeks.
Presently, if a contested financial application is made by one or both parties, the whole proceedings are transferred to a local court. The pilot in question administratively unlinks financial proceedings from divorce so that the main divorce proceedings remain in the specialist centre, whilst staff and judiciary at the local hearing centres worked separately on the contested financial proceedings. Other matters such as consent applications remained at the divorce centres.
A separate financial remedy file is then created at the local hearing centre, holding the same case number as the divorce proceedings. Many family solicitors are hailing this new approach as more effective and speedy than before.
Family law group Resolution also welcomed the news; they stated “Any steps that reduce delay and make the administration of family proceedings more efficient must be encouraged. This is just one example of how quite simple changes can make a difference in practice”.
The Law in England currently states that if you have sex with another person outside of your marriage or civil partnership, and that other person is of the same sex as you, it's not considered adultery - even if you're in a same-sex marriage or civil partnership.
This causes both same-sex couples and heterosexual couples some difficulties when citing the reason for the breakdown of their marriage/civil partnership for the purpose of divorce or dissolution where one person has had an affair with someone of the same sex.
In order to divorce or dissolve your civil partnership, you have to support the ground for divorce/dissolution, which is the irretrievable breakdown of your marriage/civil partnership, with one of 5 facts:
When identifying the relevant fact causing the breakdown of the relationship one would assume that if your spouse/partner had cheated on you with another person you were entitled to rely on their affair to obtain your divorce/dissolution. Well, not if that affair was with a person of the same sex as them.
Most people would think that this wouldn’t be of concern to a heterosexual married couple but it has proven to be problematic. For example, a married man would not be able to rely on his wife’s adultery to divorce her if she had been having an affair with another woman. And on the flip side, a woman would not be able to reply on her husband’s adultery if he had been having an affair with another man. There have been situations across the country whereby the spouse who has been cheated on and left feeling terrible cannot even rely on the relevant fact to initiate his/her divorce proceedings.
The couple in the case have not been named but the full judgment can be reviewed AAZ v BBZ  EWHC 3234 (Fam). They married in 1993 and had two sons. The wife was 17 years younger than the husband and was described to be a housewife and a hands-on mother during their marriage. The husband was a businessman with significant wealth. The husband sold shares for US $1.375 billion during their marriage and at the point of divorce, the wife estimated their marital wealth to be over £1 billion.
The Judge accepted that the total wealth of the family was wholly matrimonial and that it should, therefore, be shared between the husband and wife.
The husband, in this case, seems to have not done himself any favours by failing to attend at court for the various hearings. The husband did, however, rather fittingly given the wealth involved, appear at the final hearing by video-link from his yacht in the Caribbean.
London is well known for being the divorce capital of the world and women from all over the world seek to issue their divorce proceedings in London if they have sufficient links to the country to secure jurisdiction. The reason for this is that the courts in London tend to take a more sympathetic attitude toward housewives or stay at home mothers.
The law provides for a starting point, in line with the sharing principle, in long marriages of a 50/50 split of the matrimonial assets regardless of who earns the most. The court will also give consideration to the standard of living the family has enjoyed throughout the marriage when determining a financial award. This means for a stay at home wife, who has been married to a wealthy businessman for a long while, is likely to receive an award very close to 50% of the entire matrimonial wealth.
Almost every client who is involved in family proceedings has a presence on social media, whether it be via Facebook, Twitter, Instagram or LinkedIn. Most have their ex-partner or soon to be ex-spouse as a ‘friend’ or ‘follower’ on the various platforms, and many more have a number of their ex-spouse’s friends as ‘friends’ or ‘followers’.
Often clients believe the best way forward is to remove an ex-partner or spouse as a ‘friend’. This in itself can prove to be a hostile step and may jeopardise a conciliatory route forward. Even if they do they will still be connected to friends of friends and information will disseminate back to the interested party.
However, if parties remain linked via social media it can prove insightful in a number of respects. For instance, Facebook profiles may show status and this may be useful if cohabitation or new relationships are in issue. Health and lifestyle can often be a key factor and often Facebook can paint a very clear but potentially unrealistic picture that will be then relied upon within proceedings. Employment status is also a key factor; LinkedIn will show employment history which again may not match the CVs produced within proceedings.
Whether the evidence gained from social media can be used within court needs to be carefully considered, but it can prove invaluable, particularly if it can be shown the date of when key information was obtained. It does, however, have to be looked at in context and comments in particular need looked at in light of the overall conversation.
The best advice offered to clients when asked is that, unless they are happy for a Judge to consider it, don’t post it. That appears to be the safest rule for all concerned.
Following the Court of Appeal judgment in Owens v Owens, in which a wife’s appeal from a refusal to grant a decree nisi of divorce was dismissed, the research highlights the requirement for change of divorce law in England and Wales.
The project, Finding Fault, is led by Professor Liz Trinder of Exeter University and is funded by the Nuffield Foundation. The aim of the research is to understand how the current law on the ground for divorce and civil partnership dissolution operates in practice, whilst also exploring whether and how the law might be reformed. The research looks at three central questions:
The interim report concludes:
'In reality, we already have divorce by consent or ‘on demand’, but masked by an often painful, and sometimes destructive, legal ritual with no obvious benefits for the parties or the state. There is no evidence so far from this study that the current law does anything to protect marriage. The divorce process is currently being digitised. This is a timely opportunity for law reform so that divorce is based solely on irretrievable breakdown after notification by one or both spouses.'