Family Law Newsletter – February 2016

A very warm welcome to the next in our series of departmental newsletters.  This month’s focus is on our Family Law department.

DeBrieF OPINION

Laura Johnson – solicitor in the Family Law department – discusses the “quickie” divorce.

You may have noticed that there have been a number of “high-profile” or celebrity divorces reported in the media recently…… Cheryl Fernandez-Versini, Gary Lineker, Jeremy Kyle and the list goes on.  No doubt there will be (or has been) a lot written in newspapers and magazines about these celebrity divorces, and anyone who has experienced a divorce or relationship breakdown can only imagine how difficult it must be to go through that in the media spotlight.

There is a trend developing however about how the media portray divorces where celebrities are involved.  The media tend to report that the parties involved have been granted a “quickie” divorce and the headlines often say that the divorce was granted in a one-off twenty second hearing.  It creates an idea that the celebrities going through a divorce get some sort of fast-track preferential treatment due to their celebrity status.  It can also mean that people who are going through a divorce approach the process with an unrealistic idea about what will happen.

It is important to understand that there are a number of different aspects to a divorce.  The first is the divorce process itself.  This is essentially a paper exercise carried out by the courts to dissolve the legal unity of marriage.  For an agreed (undefended) divorce, it usually takes four to six months to complete.  There is one court hearing that the parties do not usually need to attend, which is the Decree Nisi.  This is the halfway stage of the divorce when the court considers whether the parties are entitled to a divorce; and can take a Judge twenty seconds to deal with.  This is what the media report as the “quickie” divorce hearing but it actually happens the same way in every divorce.  However, the parties are not divorced at that time and have to wait for a period of six weeks and one day to pass before a form is lodged at the court applying for the Decree Absolute, which is the final decree dissolving the marriage.

What takes time to sort out is all of the other stuff:  the division of the assets and the arrangements for the children.  It is often not advisable to apply for the final divorce order until the financial claims have all be resolved, which means that the longer it takes to resolve the finances then the longer it will be before the parties can apply to the court for an order granting the divorce, the Decree Absolute.

In celebrity divorces, the parties might have signed a pre-nuptial agreement, they are simply so wealthy that they can afford to walk away from the marriage without really having to worry about what they are left with; or they can afford to pay extremely high legal costs to come to a business-like agreement without much involvement by the celebrity.  For these reasons, they can resolve the issues about money much quicker, which means that they can apply for the legal divorce much quicker.

It is much more difficult for ordinary couples to reach an agreement about how best to divide the assets that has comfortably met the needs for them as a couple or as a family, but it is difficult to split the proceeds of the sale of one property to ensure that both parties have enough money to each buy a new property that meets their needs.  There are a number of reasons that cause the breakdown of a relationship, and where parties are both very acrimonious, the process will take much longer.  This can result in numerous court hearings and extensive documentation.  This process can be time consuming, frustrating and emotional.

At Davis Blank Furniss, we do understand that starting the divorce process is daunting.  Due to the portrayal of divorces in the media, and constant shifts in how divorce is treated in law, there are a number of myths and misconceptions about divorce.  We will always explain the process in a clear way at the first meeting and answer any concerns that you may have.  We understand that you want a fair outcome and you want the divorce to be resolved as quickly possible.

To achieve this, we encourage sensible discussions with a view to finding practical solutions to deal with the non-legal issues that arise during divorce proceedings.  Mediation is a really useful tool for parties to sit down with their legal representatives and vent all of the issues relating to the relationship breakdown, parenting and finances in a neutral setting.  It really will take a judge twenty seconds to grant an entitlement to a divorce, but concluding the divorce will only happen after the parties have sorted out their finances and the length of time that takes depends on how the parties approach the divorce process.

For more information on Laura and her work, please visit:-

https://www.dbf-law.co.uk/our-people/laura-johnson/

DeBrieF TEAM SPOTLIGHT:  Anita Shepherd, head of the Family department.

Why did you choose to practice Family Law?

My academic background is in psychology and sociology having studied these subjects at A-Level and in my degree.  I believe this has given me a good grounding in understanding the communication and human issues I face when dealing with relationship breakdowns on a daily basis.

On a deeper and more personal level, my parents separated during my childhood and although they did their best in the circumstances, as a child it was a very worrying time.  I feel that if my parents had received support from experienced and specialist family lawyers and/or family mediators, it would have made that time far less hard for all concerned.

How long have you specialised in the area of Family Law?

Almost 17 years.  The majority of my training contract involved working in Personal Injury and Employment Law; and as a result of this I considered my future specialism to be in these areas of law.  It wasn’t until the last six months of my training contract that I was seconded to a law firm which needed assistance in their Family Law department.

Family Law was not an area I felt I had any interest in, and I was to some extent a little anxious dealing with such issues due to my parents’ separation.  It was a real turning point in my career as, after only a few weeks, I decided to radically change my future and seek out a qualified position concentrating on Family Law.

I was aware that by making such a rash decision I had set myself a challenge as I only had a few months experience in dealing with family cases; whereas other candidates had spent the majority of their training contracts dealing with this area.  Thankfully I had the courage of my convictions and although it felt like I was taking a leap of faith, I have not looked back as I am now working in an area that I am passionate about.

What is your most memorable case to date?

Last year, I represented a client who had been divorced from her husband for 17 years but no financial settlement had been sanctioned by the divorce courts at the time of the divorce or after.  Despite the 17 year delay, my client made an application for a financial remedy order in circumstances where her former husband’s wealth had evolved in a family business that she had been intrinsically involved in setting up and running with her former husband, during the marriage and after their divorce.

The former husband’s solicitor applied to have the application struck out on the basis that the delay was too long and that she should be debarred from pursuing her application.  There was already a case proceeding through the Appeal Courts whereby an ex-wife was making a similar application, 20 plus years after a divorce, and the court granted the ex-wife permission to proceed (Wyatt v Vince [2015] UKSC 14).  Our case was subsequently delayed to await the outcome of this case, but once the decision was given, it gave us the green light to proceed with our application.  The application was strenuously fought by my client’s ex-husband and as there were no other decided cases of this nature, it was a worry as to whether my client would actually succeed.

The case proceeded to final hearing last September and after a five day hearing, my client was successful in recovering a six figure financial settlement from her former husband.  After a few years of dealing with the case, it was a pleasure to see the relief on my client’s face to finally have a positive outcome and closure for her and her very supportive family.

For more information on Anita and her work, please visit:

https://www.dbf-law.co.uk/our-people/anita-shepherd/

DeBrieF OPINION/CASE LAW DEVELOPMENTS

Non-disclosure in Divorce Cases: Anita Shepherd – head of the Family Law department – discusses Alison Sharland and Varsha Gohil’s Victory at the Supreme Court (Sharland v Sharland [2015] UKSC 60, Gohil v Gohil [2015] UKSC 61).

It was clearly a victory for justice to hear the Supreme Court’s decision in the high profile cases of Sharland and Gohill which have had much press coverage.

As a family lawyer, I always strive for fairness and justice for my clients so I am delighted with the decision.  I hope it sends a strong and clear message to all divorcing spouses that you need to provide full and frank financial disclosure.

Such landmark decisions lead to the need for procedures to be clarified.  In this instance where a spouse or civil partner alleges that the other has failed to make full and frank disclosure of their assets.  To date, the onus has been on one spouse or civil partner to suspect the other spouse or civil partner of non-disclosure in order to embark on a costly investigation which they can rarely afford.

In the case of Sharland, the wife sought an equal division of the assets after a long marriage during which they had three children.  After reaching a settlement with her husband (recorded in a consent order approved by the divorce courts), which the wife believed afforded her an equal share of the assets of the marriage, she discovered that her husband had misled both her and the court of the true value of his shareholding in his IT company.  The majority of which, he retained as part of the settlement.

The wife applied to the court to overturn the settlement but was not successful – despite both the High Court and Court of Appeal finding that the husband had indeed misled her and the court.  The court ruled that the wife should be held to the agreement.  She sought permission to appeal to the Supreme Court and – upon permission being granted – the case was listed for consideration with the case of Gohil.

In the case of Gohil, the wife reached a settlement (recorded in a consent order approved by the divorce courts) with her husband in 2004.  The circumstances were that the husband claimed that he had a modest income and assets despite the wife’s belief that the assets of the marriage should have been substantial.  The husband was in a position of control and held the purse strings of the marriage.  This resulted in the wife settling for £270,000 along with child maintenance and a modest maintenance allowance for herself.

It later transpired that the husband was enjoying a standard of living which far exceeded the level he had disclosed within the divorce proceedings.  In 2006, the wife began a lengthy legal battle to set aside the original settlement agreement (consent order) which was halted whilst the husband was arrested, charged and convicted of a number of money laundering offences.  This unravelled the deceit in the divorce proceedings.

Finally in 2012, the wife was successful in having the original settlement set aside, which the husband subsequently appealed.  After a long road for Mrs Gohil, the Supreme Court has now overruled the Court of Appeal, restoring the original High Court decision that was in her favour.

The decisions in these two cases will have implications for the future.  One hopes they will significantly improve the procedure for spouses and practitioners to deal with situations like these, whatever the financial means of the spouses are.  These two ladies thankfully had the financial capability to fight for justice, but this is not always the case.  So anything that the court and court process can do to level the playing field for spouses from all sections of society, then the fairer the process will be.

To summarise these two cases have now redefined the law in cases of non-disclosure in that:-

•           If the court finds a party has intentionally failed to disclose assets, it will be presumed that full and frank disclosure would have led to a different financial order being made unless the non-discloser proves otherwise (shifting of the burden of proof).

•           If the court finds a party has accidentally or negligently failed to disclose assets, it is for the complainant to persuade the court it would have made a different financial order.

•           In disputed cases, the issue of whether there has been non-disclosure requires a trial of the facts and the judgement can still stand even if the trial judge relies on inadmissible evidence.

Changes to the procedure to set aside financial orders will need to be made by way of amendments to the Family Procedure Rules, so we will now need to wait and see what the amendments consist of.

I do hope that any changes that come about as a result of these decisions help to assist everyone in society who may find themselves to be the victim of such unfairness and not just those spouses who can afford to fund litigation.

My team and I would be happy to assist, or advise, should you wish to review your divorce settlement where you may have well-founded concerns that there was non-disclosure on the part of your spouse or civil partner.

For more information about Anita and her work, please visit:-

https://www.dbf-law.co.uk/our-people/anita-shepherd/

Contact Us

If you have any queries or require any further information, please do not hesitate to contact our team of specialist solicitors on 0161 832 3304.

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