Anyone who has been involved in divorce proceedings knows how physically and emotionally draining they can be. They will also know how much of a relief it is once the process is over and the parties have reached settlement. Unfortunately, for some couples, they may have to relive this procedure once again.

A change in the way investment banks reward their employees is having an unthought-of affect on divorces. In the current economic climate, investment banks are paying their employee’s bonuses through deferred shares rather than cash and in some cases they are not being paid bonuses at all. Divorce lawyers are arguing that divorce settlements agreed at the height of the banking boom should now be re-examined because when the settlements were made it was assumed that future bonus payments would be cash rather than deferred shares.

In England and Wales, following a House of Lords ruling in 2000, the default provision is that both spouses are entitled to 50% of their combined wealth. This means that equal division is the starting point before the court considers the other circumstances of the couple’s case which will highlight other facts such as:

• The welfare of children
• The duration of the marriage
• Any inherited wealth
• Their reasonable needs
• Their earning capacities
• Their expectations
• Their age
• The contributions they have made
• Their behaviour
• The standard of living during the marriage and the value of any lost benefits.

The above means that divorces of the wealthier since 2000 have resulted in multimillion pound divorce settlements for the non-working spouse.

These divorce settlements do not predict hard times, but rather they assume prosperity. This means that the non working spouse receives maintenance payments from salaries and a share of bonuses each year and accordingly the spouse would have an approximate idea as to how much they could expect. It is argued that as banking bonus shares are deferred for a number of years, spouses either do not know how much they can or should expect and they will either have to be more flexible or they will have come to new arrangements, which could involve further expensive litigation and potentially more time and heartbreak. This situation is likely to only be made worse by the fact that divorce lawyers are now aware of the black hole that is the future and the fact that somehow this will have to be factored into any new settlements.

A civil partnership is formed when a couple (who are of the same sex) register as civil partners under an Order in Council. The partnership is formed at the time the document is signed. Although recently there have been developments with some religious institutions allowing same-sex couples to marry (with the provision of religious registration), it can still be difficult for same-sex couples to marry in this way.

Civil partnership effectively allows couples of the same sex to have their relationships recognised legally.

What Are the Effects of a Civil Partnership?

Civil partnership allows couples of the same sex to receive the same treatment as couples who are married on a variety of legal issues. These include: inheritance of tenancy agreements, immigration/nationality rights, duties to provide maintenance to their partners and children, employment benefits, tax and state benefits.

How Do I Register For a Civil Partnership?

The first step is to inform your local registration office that you intend to register. To find a registration office near you, use this link: http://maps.direct.gov.uk/LDGRedirect/MapAction.do?ref=grolight.

The next step involves the registration office publicising this notice for a 15 day period (which is comparable to a marriage notice).

Ending a Civil Partnership

Dissolution Petition

In the unfortunate situation whereby your relationship has broken down, you may be considering ending your civil partnership. If you have decided this is what you want to do, you will need to demonstrate to a court why your civil partnership should end. These are known as ‘supporting facts’. These include unreasonable behaviour by a partner, your partner deserting your home for more than 2 years, being separated for at least 2 years (with both partners agreeing to the dissolution) or being separated for at least 5 years (with one partner disagreeing to the dissolution).

The first step in ending your civil partnership is applying for a ‘dissolution petition’. This costs £340. A dissolution petition (also known as a D8 form) will ask you to include you and your partner’s names and address, and the date of birth and name of any children you may have. You will also need to include your civil partnership certificate. If you need the D8 form, it can be downloaded from here: http://hmctsformfinder.direct.gov.uk/courtfinder/forms/d8_e.pdf.

If you have children, then you will also need to fill out a ‘statement of arrangements for children’ (also known as a form D8A). This form can be found here: http://hmctsformfinder.direct.gov.uk/courtfinder/forms/d8a_e.pdf. For both the forms D8 and D8A, you will need to fill in 3 copies of each to send off to the court.

After you have sent off your dissolution petition, the court will send a copy to your partner. They will then have 8 days to acknowledge this (along with an ‘acknowledgement of service’ form – D510[6]). They can either agree with the dissolution, or contest it. There are only 10 courts which specifically deal with ending civil partnerships, so you would need to locate one of these to send your forms to.

Conditional Order

The next step involves receiving a conditional order from the court. This form basically states that the court sees no reason why the civil partnership cannot end. At least 9 days after your partner has received their dissolution petition, you will need to send the court forms D84 and D80B – E. Once these have been received by the court, the court will arrange a hearing where a judge will review all the paperwork. The judge will decide whether the civil partnership should end. If neither partner is contesting the attempt to end the civil partnership, neither of you will need to attend this hearing.

If the judge agrees to the end of your civil partnership, they will send you a ‘certificate of entitlement to a dissolution order’ (also known as a form D584A).

If for some reason the judge does not agree to end the civil partnership, the court will inform you of this decision. You will receive a ‘Notice of a refusal of a Judge’s certificate’ (D79). Most of the time the reason this has happened is because the judge feels he/she needs more information on the partnership. At this point you may need to attend a hearing in person.

Final Order

Once you have obtained a conditional order, you will still need to receive a final order before the civil partnership is legally ended. This involves completing a ‘Notice of application for conditional order to be made final’ (form D36). This costs £45. It is best to do this within 12 months of receiving the conditional order. If the court is happy with all the information it has been given, it will send a form D537, which is a final order.

Please note that you may be entitled to discounts on court fees if you are on state benefits.

Becoming a parent is a huge step in anyone’s life. You now have a young person who is totally dependent on you for the basics of life, everything from food and shelter to medical attention and even the not so basic requirements, like schooling and entertainment. In the UK, parental responsibility is actually defined in the law, within the Children Act of 1989, which states that parental responsibility lasts until the child is aged 18, until marriage if that occurs between the ages 16 and 18 or until an adoption order is made. Parental responsibility includes many things, but some of the most important are the following.

Ensuring the welfare of your child or children

While this can encompass many things, typical examples include ensuring your child or children are adequately fed and clothed, that they have a reasonably warm and safe environment in which to live and that, when old enough, they obtain an education. It can also include caring for your child when sick and vaccinating your youngster against illness, assuming it is not against your religious beliefs. In short, parents are responsible for providing an environment in which the child can grow and thrive without being exposed to an undue level of danger or injury.

Providing for current and future needs

Children typically live in the here and now, without much thought to the future. That is part of growing up and learning about who they are, so that they are prepared to make their own way in the world as they reach adulthood. Parents, then, are the ones who have to consider what that future may look like and what may be required to get the child safely there. Although the law does not spell it out, making a will should be high on any new parent’s ‘to do’ list. Without a will, should you die before they reach adulthood, your wishes do not need to be considered regarding who the child or children live with, where they go to school or any religious upbringing. One of the greatest gifts a parent can give a child is to stretch that safety net out into the future.

Keeping the child or children safe from harm

Of course, infants are totally dependent on their parents where safety and security are concerned, but even as they get older this can include holding hands while crossing the street, teaching them to be wary of strangers and having those difficult talks about alcohol, drugs and sex. Navigating peer pressure or even bullying and being an advocate for your child also fall into this category.

Making decisions about a child’s property

Not all children have property, of course, but for those who work as youngsters, perhaps as child models or actors or who are willed property, such assets need to be protected. This will often involve interaction with the courts on the child’s behalf.

Representing the child in legal or administrative proceedings

As mentioned previously, there are instances when the best way to protect a child’s interests is for one or both parents to go to court, often with the assistance of a solicitor. While this can be a stressful time for both adult and child, it is sometimes the only way to ensure that the best interests of the child are protected and enforced.

What are they ?

A prenuptial agreement is a written contract made between a couple engaged to be married, which sets out how their assets would be distributed between them should they ever get divorced.

Why have a prenuptial agreement ?

Whilst to some the thought of making such an agreement would indicate a lack of commitment to each other, for others there are legitimate reasons for wanting to put in writing their wishes of what should happen to their assets in the event of a divorce. Such reasons include:

• Under the current Court system, particularly in cases of wealthy parties, the Judge in a Financial Settlement case will start off with an assumption of a 50:50 split of all property and assets. This can be a very unfair result, particularly when one party to the marriage is considerably wealthier than the other and the marriage was of a reasonable short duration. By having a properly executed prenuptial agreement, the parties can go a long way to try and redress any such potential unfairness in any Court imposed financial settlement.

• Certain people can have inherited family wealth which has remained in the family for generations and they wish for this to be perpetuated. No member of the family wants to see such inheritance sold and divided simply to satisfy a Court imposed financial order. It can be either inheritance which they have already received, or inheritance which they have reasonable anticipation of receiving. By having a prenuptial agreement it can be possible to ring fence those assets to a degree with an expectation that such assets will be kept out of any eventual settlement on divorce.

• The parties may have assets or property in other Countries which they wish not to be taken into account in any financial settlement. The Court will look at any assets wherever they are situated. The only way to redress this is by entering into a prenuptial agreement stating your wishes and expectations to exclude such assets from any settlement.

• Each party may have dependent relatives or children from previous marriages of whom they want to protect their interests in the relevant party’s assets. Having such intentions set out in a prenuptial agreement will provide some ability to protect those children or dependents in any divorce settlement.

As everyone’s circumstances are different, any prenuptial agreement would need to be customised and drafted to the parties’ particular needs.

Are they legal and enforceable ?

It is a common misconception that in the UK prenuptial agreements are not legal or enforceable. The reality that these are two separate points and each needs to be dealt with in turn:

Legality of a Prenuptial Agreement

Prenuptial Agreements are legal agreements between the two parties. Such an agreement would need to be properly drafted, just like any other legal contract. In addition there are several legal pitfalls specific to prenuptial agreements which could invalidate its legality. These include:

 a)            Lack of independent legal advice – If it can be shown that one of the parties to the agreement did not get proper independent legal advice before signing the agreement, then it is likely that the agreement will not be considered legally binding. This will especially be the case where that person has been prejudiced under the agreement. Normally the Court will insist that each party has been independently represented by a solicitor with experience of advising on and drawing up prenuptial agreements.

b)            Lack of disclosure – If it can be shown that one of the parties had failed to disclose the extent of their financial assets at the time of entering into the prenuptial agreement, then it allows for the validity of such an agreement to be challenged. The best way of avoiding this problem is to identify the assets in a schedule attached to the agreement.

c)            Duress – If either party has undue pressure placed on them, then it is likely the Court will consider the agreement to be invalid.

Enforceability of a Prenuptial Agreement

Unlike the common belief, prenuptial agreements are enforceable, provided that they are properly entered into and there is no reason preventing the Court from agreeing to the provisions set out in it.

The way the Court system works in the UK in relation to financial settlements is that the Court will take into account specific criteria as set out in s.25 of the Matrimonial Causes Act (MCA) 1973. The purpose of this is that it looks to achieve what it sees as a just and fair result in the financial settlement. This power allows the Court full discretion to divide the assets as they see fit. Any prenuptial agreement can be ignored by the Courts should they see it as resulting in a manifestly unfair and unjust result.

Whilst this would seem to negate the power and purpose of any prenuptial agreement, the Courts have been increasingly disposed to adopt provisions of prenuptial agreements and they will enforce it where they believe that it is equitable to do so.

In a more recent change the Courts now seem willing to allow the result that would have been imposed by following the s.25 principles to be modified considerably by the provisions stated in the parties’ prenuptial agreement. This is as long as the requirements for a prenuptial agreement have been complied with and that giving effect to the provisions of the agreement does not unfairly prejudice the parties or any child of the marriage, or in any other way create an unfair result.

This change was seen in the recent case of Radmacher –v- Granatino [2009] where the Court of Appeal enforced the provisions of a prenuptial agreement and the three Judges in the case forcefully expressed the view that the parties should be free to make such agreements. This case subsequently went to the Supreme Court where they upheld the Court of Appeal’s decision.

However, it should be noted that in this case what the husband was expected to receive under the provisions still amounted to millions of pounds and so in these circumstances it is relatively easy to adhere to the agreement’s provisions whilst providing for reasonable needs as required under s.25 MCA 1973. More often than not there is not as much capital to be split between the parties and it is yet to be made clear how the Courts will act in such situations and whether they will enforce a prenuptial agreement in its entirety in such a case. It is more likely that whilst great weight will be placed on the fact that there is such an agreement, its effect will be simply to move any ‘reasonable award’ considered the Court to the lower end of the scale, rather than to have the Court simply enforcing the agreement itself.

This article from Shmuel Portnoy of Darlingtons Solicitors, who offer specialist family law advice in London.

Money issues are often a significant factor in divorces and a rise in the number of divorces in difficult economic times should therefore be expected. However, research on the past year has suggested that many couples are holding off from divorcing as they simply can’t afford to divorce. Consequently, the rise in divorces reported this week would probably have been quite a lot higher had economics not been so bad. The figures disclosed by the Office for National statistics disclose that :-

• The annual divorce rate has risen by 5%
• In 2010 there were just under 120,000 divorces in England and Wales in 2010. In 2009 the number was just under 114,000.

Whilst the percentage of marriages ending in divorce seems to be increasing and number of divorces later in life where the marriage has survived over 15 years is on the up, the overall number of divorces, notwithstanding the increase in 2010, is on a  long term decline due to the fact less people are getting married inj the first place.

When the County Court awards Judgment of a financial nature to one party to a divorce, it can often happen that the Respondent will want to challenge such an Order. Whilst on many occasions this will be simply out of a personal conviction that the Order is unfair, there are procedures in place to allow the Respondent to appeal or set aside the Financial Order if they have valid reasons. Additionally the Applicant may wish to appeal or set aside the decision if they are dissatisfied with the amount eventually awarded to them.

 Appeal

 Whichever party makes the appeal against the Judge’s Order, it can only be made within 14 days of the Order itself. It is therefore crucial that each party seek advice on the outcome of the hearing and the Order as soon as possible so as to decide whether it is appropriate to pursue an appeal.

Any appeal will usually only review the decision itself rather than the actual facts of the case. In certain cases, where there was an inadequate finding of fact by the Judge or there had been a procedural irregularity, then the Judge can rehear the entire case.

Should a party wish to introduce new evidence to an appeal they can only do so where the Court considers it to be in the interests of justice. An example of this would be where the evidence was not available to that party at the original hearing and had they been aware of it the information would have formed an important factor in the result of the case.

If an appeal fails there is a possibility to take the matter further, to the Court of Appeal, however this is only available where the Court of Appeal considers that such a case would raise an important point of principle or practice, or there is some other compelling reason for it to be heard.

Setting Aside

Whilst this procedure is available to either party, the Courts are generally reluctant to set aside Financial Settlement Orders on Divorce for reasons of certainty.  Both parties should be able to live and plan their future lives without worrying whether their Divorce Settlement will be re-opened and change the basis of their plans.

In order to limit this from happening an application to set aside the Order can only be made on narrow grounds, including:

• Non-disclosure of material evidence – Where the duty of full and frank disclosure by each side has been breached the Order may be set aside, however not every non disclosure will have this result. The non-disclosure must have resulted in the Court granting an Order which was substantially different from that which would have been granted had the true facts been known.
• Fraud – for example where one party has deliberately misrepresented the size of their assets.
• Events occurring after the Order was made – to use any subsequent event as the basis for an application to set aside the Order, the event must invalidate the basis upon which the Court Order was made, it must occur in a relatively short period of time after the Order was made, the application to set aside must be made promptly after the event and the granting of the application must not prejudice the rights of a purchaser for value of any property in question between the parties.

Where the Order deals with assets which have a dramatic change in value shortly after the Order is made, the Courts have set out guidelines for when they would be willing to set aside the Order due to these changes.

1. Where an asset was taken into account which was valued correctly at the time of the hearing, only its value changed shortly afterwards owing to the natural process of price fluctuation, the Court will not view this as justifying an application to set aside the Order.
2. Where the wrong value was given to an asset considered at the hearing and the difference in value would have led to a different Order and the mistake was not due to the person making the application, then the Court has discretion to set aside the Order.
3. Where something unforeseen and unforeseeable happens to an asset to change its value drastically after the hearing which causes a substantial change in the balance of assets split between the parties, then the Court should set aside the Order, provided the other conditions in relation to time and property have been met.

It should be noted that this means there are only very limited circumstances where a change in value shortly after an Order is made will allow for an application for the Order to be set aside. Even a huge drop in share prices, changing the parties wealth drastically, has been seen by the Court to be ‘owing to the natural process of price fluctuation’ and therefore not a reason to set aside the Judgment.

When looking to set aside a Judgment it can be done in one of two ways; either by applying for permission to appeal out of time to the relevant appeal court, or to apply for the Order to be set aside at the Court which heard the original case. In most cases either procedure can be used, however it would seem that where the applicant is basing his grounds on non-disclosure or fraud, the appropriate method would be to apply to set aside the Judgement, whereas if they were using supervening events as their basis, then leave to appeal out of time is to be preferred.

The ground for divorce is the fact that the marriage has “irretrievably broken down”. In order to petition for a divorce you must then rely on one of 5 factors:

• 2 years separation

• 5 years separation

• unreasonable behaviour

• adultery

• desertion

Both 2 years separation and adultery require consent/ admittance. The other factors however do not.

Should you not know the whereabouts of your spouse or he/she is simply refusing to co-operate then all is not lost, you can still petition for a divorce. Once the petition has been issued at Court you then have the following options:

1. Apply to the Court by way of an affidavit requesting that the Petition be deemed served. It would be necessary for you to swear an affidavit stating what evidence you have that the Petition was served. It can be served by the Court, who will simply post it to her/him or you can request to receive the papers yourself and you can hire a process server to personally hand the papers to your husband/wife. The process server will then provide you with an affidavit of proof of service.If the Court has sent the papers and you know s/he lives at the address to which they have been sent, and you have spoken to or heard from her/him and s/he mentioned that s/he has received them but just doesn’t want to respond the you can draft an affidavit setting out those details. Should it be that s/he is no longer at that address and you are unaware of her/his location, then this application will be of no benefit. It should be noted that such an application currently attracts a Court fee of £45.
2. Apply to the Court for directions. This is usually done in cases where the other party has disappeared and you have tried to locate them. You would need to swear an affidavit stating what means you have used to try and locate her/him and what the results of that search were. Should the Court be happy that you have undertaken all reasonable means to try and locate her/him and have failed, then they may dispense with service and allow your Petition to proceed anyway. This application also currently attracts a Court fee of £45.
3. Alternatively, you could apply to Court for substituted service, via email for example, if you know that s/he responds to this form of communication. This again attracts a £45 Court fee.

Once you have an order from the Court for either Deemed Service, an Order Dispensing with Service or an Order for Substituted Service then you can apply for your Decree Nisi exhibiting that Order and your divorce can continue down the usual route.

Alicia C Cenizo

The writer is a Solicitor, Partner and head of  Family law at Darlingtons Solicitors, and a member of Resolution.

It appears that middle income couples who decide to divorce are having to agree to postpone financial resolution as part of their divorce due to the recession. This also ties in with the overall reduction in the number of divorces as couples put off divorcing due to financial conditions.

Clean breaks have been quite common where there are either no children or children have reached adulthood but threats to job security and the significantly increased difficulty of obtaining new mortgages (not only for the individuals after divorce but also because many adult children also cannot obtain mortgages and therefore stay in the marital home) are the primary reasons why clean breaks are becoming less common.

Instead of a clean break, in the more challenging current conditions, Mesher orders are on the increase.

With these orders, the sale is postponed, but such order cause some of the same difficulties with mortgages because the older the parties are when the matrimonial home is sold or transferred to one of the parties, the harder it is for the other party to obtain a mortgage to either pay for a buy out or buy a new property. There can also be Capital Gains Tax ramifications.

A recent survey from an unusual source suggests that divorce numbers are down simply because people can’t afford to divorce, so find alternative ways to cope. In a survey from the website Illicit encounters, a large number (some 31,000) of it’s members provided the following information :-

• 38% state that the stress of selling their home is preventing them divorcing
• 42% say they aren’t getting divorced as it’s too expensive.

Average legal fees for divorce are in the region of £13,000.00.

The reality of the situation is, that having worked upon matrimonial cases for many years, issues concerning the parties should be a matter between the parties themselves and not for public consumption.  The argument goes by the Press, that if a celebrity has used the Press to promote their career, that in turn it would appear that they have sold their soul to the Press to dissect every part of their private lives as a matter of inalienable right.  Accordingly the Press are entitled to comment on their clothing, their expenditure, where they choose to live, how they choose to bring up their children, but more particularly how they conduct their personal lives even though it is private to them.  I take the view that the persons’ private life is their own and simply because they choose to put their head above the parapet in that, their record, film or career is promoted by the media, does not as of right give the Press an entitlement to have every single personal detail thrust into the forefront of media attention.

Regrettably, it is a fact of life, that probably the best part of 75% of all married men are having affairs in this country as we speak.  Some get caught, some don’t, some lead completely double lives, some have casual relationships.  But it is entirely their own choice.  Furthermore, if we were to assume as has been suggested recently that by having an affair a man is incapable of carrying out his job, this means that three quarters of the entire British Isles would come to a shuddering halt on a daily basis.  Furthermore, France, Italy, Spain etc would be at an absolute standstill.

When a woman discovers that her husband has committed adultery or vice a versa, often they can agonise in front of me as to whether or not they wish their marriage to end.  Trust issues clearly arise, some people depending on their background and self esteem can overcome this and stay with their partner and some can’t.  This decision is a personal one and must be taken by the couple themselves.  The media, do not simply want to have a right of freedom of expression to comment that someone has had an affair, they go much further than this and that is my objection and concern.  The media are not content simply to report the issue but do then for the post part go on to turn the matter into a witch hunt.  Accordingly, they will hound and hound the couple encouraging the wife that her husband has had affair to abandon him, and will criticise her if she chooses to consider remaining with the spouse if it is their view that the marriage should end.  This is surely an extension of freedom of Press into “trial by media”.

One only has to look at the case of Wayne and Coleen Rooney to see that that is exactly what occurred.  The argument ran from the media that there was a public interest in reporting these matters and that the sponsors were concerned that this wholesome family imagine had been dented.  Who are they kidding?  Wayne Rooney was given sponsorship as are so many footballers) not because he had a squeaky clean family imagine, but because he was good at football and by his popularity would boost sales.  Tiger Woods, was given sponsorship because he was brilliant and continues to be brilliant at golf.  It was the media who interlaid the image of the family man, it was the media who have interlaid the imagine of Ryan Giggs as a family man. The reality is that many sports personalities are ambitious, focused and can be very naughty.  It is the media who build up, and the media who feel they have a right to crush.

A similar scenario arose in the case of Cheryl and Ashley Cole.  The media again felt that there had to be trial by newspaper, tv and radio.  The media felt that Cheryl should not remain with Ashley and if Cheryl had been given the space and understanding and not been caught in such media frenzy, it may well have been the case that she would not have divorced Ashley in the way and manner that she did.  The fact is that celebrities are people like anyone else.  Their egos may be fragile, or huge, but they are susceptible to distress and hardship in the same way as anyone else except that they have the added pressure of having to experience all of those emotions in the public glare.

If a celebrity wishes to protect their children from being bullied at school from the fact that one of their parents had extra marital relationship then why should the media take priority over the need to protect that child’s interest.  The fact that their father or mother may have been entirely stupid, flawed or misguided, is a matter for the couple, and it should not be a matter for the Press to decide.  Why should the Press be the arbiters of what is best for the child, what is best for the couple, when the decision contains within it an element of self interest, which is to sell newspapers by using sensational comments.

The media are whipping the public up yet again into a frenzy over the super injunction on the basis that the public should know and why should facts about adultery or other matters be hidden from public consumption.   However, whilst I don’t believe that the public should ever be misled, nevertheless, there is a deeper and wider issue that is being overlooked in the frenzy to deal with the public’s right to know.

I do not believe that all super injunctions are correct or have been obtained for the right reasons but I do believe that this idiotic media frenzy surrounding celebrities personal lives, has now spiralled out of control and with the advent of social networking websites expressing every thought of the day, the issue becomes ever more complicated.   Because celebrities are choosing to share their inner most thoughts and issues with the public, when do you then draw the line on the right to know?

It is my personal and passionate view that the individual has a right to reveal such information as they wish and that by so doing they do not forfeit entirely their right not to reveal items that they do not wish to be made public.

There surely must be a sensible public enquiry into this issue once and for all since to totally deny media freedom of expression would be wrong, yet to allow them to continue on unabated is also too intrusive and fundamentally wrong.

The above views are courtesy of Vanessa Lloyd Platt, a very prominent divorce solicitor in London.