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Wife fails to have financial remedies order set aside

I’m sure I’ve said it here before, but I’ll say it again: financial remedy orders are intended to be final. A party is not usually entitled to have a ‘second bite of the cherry’. Accordingly, unless there are grounds for an appeal, the order will usually bring the financial remedy proceedings to a conclusion, save for any action necessary to enforce the order. Anyone who is aggrieved at the contents of a financial remedies order will therefore find it very hard to have the order set aside, and that is especially so if they consented to the terms of the order.

That, however, is what the wife sought to do in the recent case W v H.

The relevant facts of the case (for the purpose of this post – I am simplifying matters to keep the post to a reasonable length) were as follows. The parties were married in 2008 and they have two children. They separated in about July 2013. The husband issued divorce proceedings in that month, and the wife issued her own petition in August 2013. Financial remedy proceedings ensued, agreement was reached, and a consent order was drawn up, setting out the terms of the agreement. The order was approved by the court in May 2015. It provided, amongst other things, for the wife to receive a lump sum of £1.6 million, plus maintenance. The divorce was then finalised, in July 2015.

In September 2018 the wife applied to set aside the consent order, giving four grounds for the application:

  1. That she had been subjected to undue influence by the husband;
  2. That she had been subjected to duress by the husband;
  3. That there had been fraudulent non-disclosure on the part of the husband; and
  4. That she had not received proper legal advice on the terms of the agreement.

The application was heard by District Judge Duddridge in the Central Family Court in London. He dealt with the wife’s grounds as follows.

As to point 4, he explained that bad legal advice can never be a ground for setting aside a final financial remedies order, whether made by consent or otherwise. This was because “the interest in finality of decisions outweighed the risk of injustice to a party who had received defective advice”, and also because the consent order would have been approved by the court. The wife’s complaint, however, was not that she had received bad legal advice, but rather that she received no advice about the fairness of the consent order. This was not accepted as a good ground by District Judge Duddridge: the wife was receiving advice from a solicitor at the time of the consent order, and the point about bad advice applied equally to incomplete or insufficient legal advice.

As to points I and 2, District Judge Duddridge found that the wife’s allegations (which I will not detail here) could not amount to duress. They were capable of amounting to undue influence, but did not do so, as her actions revealed that she was acting under her own agency, and were inconsistent with her case that she was compelled by any threats by the husband to agree to the terms he presented her with.

Which leaves point 3, non-disclosure by the husband. Here, District Judge Duddridge found that, before the consent order was approved, the wife was actually aware of most of the matters she claimed that the husband had failed to disclose, and that other matters were of such “doubtful materiality” that he considered that the wife would not succeed in having the consent order set aside on that basis.

There was also the issue of the wife’s delay in making her application. In relation to this, District Judge Duddridge said that he had to consider whether there was a good explanation for the delay. In particular, if the wife was subjected to undue influence or duress, her obligation to act promptly had to be measured by reference to the point in time when she became free from that undue influence or duress. He found that this was likely to be by July 2017, when she sought advice about the implementation of the consent order, but was at the latest by February 2018, almost seven months before she made her application, when she instructed new solicitors. That delay was unexplained and inordinate, and would mean that the application should be struck out, even if, contrary to District Judge Duddridge’s findings as set out above, it had any real prospect of success.

Accordingly, the application was dismissed.

The full judgment can be read here.

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Author: John Bolch

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Divorce in the public eye

News of Adele’s separation from her husband, Simon Konecki, has dominated the media over the last few days. Whilst, perhaps, given her success, this is no surprise but ti did make me pause and think, how often do any of us ever stop to think what it must be like for those involved?

The breakdown of any relationship, marriage or civil partnership, is one of the most stressful experiences any of us will ever have to endure.

How much harder it must be to live out that experience under the glare of publicity.

Figures vary as to how much Adele’s fortune might be worth, ranging from US$200million to US$180million and £145 million. There is frenetic speculation as to whether Adele will need to agree to share that equally with her husband.

In reality, we will probably never know but the case does raise a number of important and interesting issues.

The first of those is whether the divorce will take place in England and Wales or in California where the couple has lived and where they have property, even though both are British.

If a divorce were to take place in California, there may well have to be an equal division of their net assets.

The choice of jurisdiction is increasingly an issue which couples must deal with immediately after or even before they decide to separate. It is vital that they receive expert advice from lawyers who specialise in international family work.

If a divorce were to take place in this country, it does not necessarily follow that there would be an equal division.

One point that seems to have been overlooked by the media is that the Court would look at the total capital which had been built up during the marriage not just by Adele but by both parties and then decide how that should be divided.

The “starting point” might be equal division but might not be the result.

The reasons for that are various:

Firstly, English law is based on achieving a fair resolution which does not always mean equality.

Secondly, the couple married in 2016 and appear to have separated towards the end of 2018. Before they married, they had been together for 4 or 5 years.

A relationship of 7 years or so is quite substantially less than the average length of a marriage in this country which is between 11 and 12 years. That might be a reason why an equal division would not be fair.

Perhaps the most important reason why an equal division would not be fair is because of the enormous success which Adele has had, very largely through her own efforts.

She may well be able to successfully suggest that she has made such a special or “stellar” contribution building up a substantial wealth in a very short period of time through her own talent and ability that an equal division would simply not be fair.

Finally, the situation in which Adele and her husband now find themselves could quite easily have been avoided if they had entered into a prenuptial agreement. Such an agreement could have been drafted so it was binding no matter where the couple lived during the marriage and no matter where they might choose to get divorced.

It would set out clearly what they each wished to happen in the event of a separation and divorce.

Prenuptial agreements have a growing status under English law, although judges are not automatically bound to enforce them. They do carry an enormous amount of weight. Apart from setting out what the couple would like to happen regarding their finances and the arrangements for any children they may have.

Graham Coy, London Chancery Lane, graham.coy@stowefamilylaw.co.uk

 

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Author: Graham Coy

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Planning Your Own Funeral

A coffin borne by pallbearers

Having the last laugh first

When my mother returned from a vacation to Florida with her sister several years ago, I called to ask how it went. “Oh, we had the best time!” she said. “We spent most of the trip planning our funerals. It was hilarious!” Well, that wasn’t quite what I was expecting to hear. On previous vacations my mom has gone on cruises, and even tried parasailing, and I thought I had a pretty good idea of what activities she considered fun. Funeral planning was a bit of a surprise. It’s not that she’s ill or expecting to die soon. But, as she put it, “If you want something done right, you have to do it yourself.”

I’ve seen some of those late-night commercials trying to sell funeral insurance, with the idea being that you can save your grieving loved ones the considerable expense associated with funerals and burial. But that wasn’t what my mother had in mind at all. (In fact, she made a point of saying that since she’d relieved the family of the burden of funeral planning, the least we could do is pay for it!) Rather, she’d gone to some local funeral parlors and asked them for pre-planning forms she could fill out, detailing her background and family contact information, and specifying her wishes for things like burial versus cremation, type of casket, a minister to preside over the ceremony, and so on.

Survivor: The Afterlife

What made this all so funny? For starters, these forms—which, mind you, are intended to be filled out by the person on whose behalf the services will be performed—often begin by asking you to list your survivors. That whole idea gave Mom and Aunt Ruth the giggles—how would they know, now, who will survive them? But even though you may have to leave a few sections blank, planning your own funeral gives you the chance to approach the details of how your death will be observed with a rare mixture of detachment and subjectivity. In other words, while you’re alive and healthy, you can have fun with the activity in a way that your bereaved loved ones, under the stress of the moment, never could.

Most pre-planning forms ask for basic things like whether you’d prefer a religious, secular, or military funeral. But you can get as detailed as you’d like. List the music you want to have played or sung. What kinds of flowers you want, if any. Scripture passages, poems, or other readings you’d like to have presented. Names of potential pallbearers. And even details about what clothes or jewelry you’ll be wearing while lying in that casket, whether you’ll have your glasses on, and what items should be added or removed before the casket goes in the ground. (My dad always joked that he wanted to be buried with a plate of spare ribs. I’m sorry to say the family didn’t oblige. On the other hand, my mom, whose first name is Grace, has insisted in writing that the song “Amazing Grace” not be sung at her funeral under any circumstances. I feel pretty certain that wish will be honored.)

Lay-Away Plan

Although it has always been possible to state your own funeral preferences, either in a will or elsewhere, the trend of doing more involved funeral planning for oneself seems to be picking up steam. The topic is covered in various books and websites, and of course most funeral directors can supply you with brochures, forms, and other information about their particular services. But for some people, merely planning out a memorial service is not enough. Among the other things you can now arrange are the following:

  • Rebuild Atlantis. I am absolutely not making this up. You can have your ashes encased in concrete and used as one of the building blocks of an artificial reef being constructed off the coast of Miami. The Neptune Memorial Reef was designed as an underwater garden that looks like some artist’s idea of Atlantis, and you can spend eternity there if you want.

  • Go into space. It’s not just for celebrity zillionaires and starship engineers. You, too, can have a small portion of your ashes sent into space by Celestis Memorial Spaceflights. Prices start at just $2,495 for a brief trip into zero gravity and back; $4,995 for a lengthy stay in orbit; or $12,500 to have your ashes sent to the moon—or even into deep space on a spacecraft powered by a solar sail.

  • Cut glass. If you’d like to keep your eternal remains close to home, you can have your ashes compressed into an artificial diamond by a company called LifeGem. That’s right: you can wear Grandma around your neck. Prices start at $2,490 and go up to $24,999. Only slightly less creepy: the same company can make gems from a lock of someone’s hair—dead or alive.

One step my mother has not yet taken—but plans to—is writing her own obituary. She wants to make sure it hits all the most interesting and important highlights. Unfortunately, you can’t control everything that will happen after your death. Maybe it’ll rain the day you’re buried; maybe the cat will knock over your urn of ashes; maybe your eulogy will have irritating grammatical errors. These things happen. You may not get the very last laugh, but you can at least make the Reaper a bit less grim.

A final tip, if I may. Even the most thorough will or funeral plan may omit details about what should happen to your digital assets when you die—all your photos, email, social media accounts, files, backups, and so on. I deal with all of the above in my book Take Control of Your Digital Legacy, and as a reader of Interesting Thing of the Day you can get it for 30% off. Enjoy!

Note: This is an updated version of an article that originally appeared on Interesting Thing of the Day on August 13, 2007.

Image credit: Pixabay


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Author: Joe Kissell

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Easy Shepherd’s Pie Recipe — Gluten Free, Paleo and Allergy Friendly

Lately, I really am loving easy recipes that end up with a complete dinner in one, and shepherd’s pie is one of my favorites. Yes, some shepherd’s pie recipes are complex and complicated with many different ingredients and steps, but I find my version to be quite easy, and it ends up delicious, and my entire family loves it. It ends up quite a lot on my dinner table, and in fact, I am making


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Author: Penniless Parenting

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The Career Paths That Will Never Be Unneeded

I often think about what types of careers my children will get into one day. If you’re trying to increase your income, you might think to retrain in another career. But how do you make sure that what you’re learning isn’t going to go obsolete? Here’s a post from a reader about suggestions for careers that are likely to stick around, at least for quite a while.

There are quite a few careers in


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Author: Penniless Parenting

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In re Clark

(United States Fifth Circuit) – Held that a Chapter 7 bankruptcy debtor’s ex-wives were not entitled to notice of his bankruptcy proceeding to assert claims for child support arrears, under the circumstances here. Affirmed the lower court rulings.


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How to keep divorce out of court (Part one)

Most couples seeking a divorce do not set out with a desire to go to court. In fact, a key concern that we for many of my clients is the desire to avoid protracted and expensive court proceedings, giving them a speedy end to their divorce.

And there are lots of different approaches to choose from so we asked Sarah Snow, Partner at our London Victoria office to join us on the blog to look at the different options to keeping your divorce out of court.

In the first part of the article, she looks at mediation and collaborative law.

The term divorce immediately conjures up the image of embattled ex-spouses engaged in hostile and aggressive court proceedings, which take many months and cost thousands of pounds. It doesn’t always have to be this way and below I explore the various Alternative (or Appropriate) Dispute Resolution (ADR) options which divorcing couples would be wise to consider.

First off, it is important to stress that parties will largely only engage in court proceedings if they are unable to resolve financial matters at an early stage in the process and by agreement. Unless contested, it is quite common for parties to never step foot inside the courtroom, instead, securing their divorce via a post based or online process.

Financial matters can also be resolved voluntarily between parties and an agreement drawn up and put before the court in the form of a Financial Remedy Consent Order, again without either party having to attend a hearing. The problem arises when parties are unable to reach an agreement and therefore one makes an application for a Financial Remedy Order, thus starts the long and stressful divorce process. How then do you avoid such an application?

The basis of avoiding court comes from a joint intention from both parties to adopt an amicable approach and be willing to engage in constructive, productive dialogue recognising that reasonable compromises will have to be made on both sides.

With the intention in place, an approach of ADR is a very viable alternative. But what does the term mean?

In its simplest terms, ADR is a way of resolving disputes without going to court.  There are many different methods and approaches that can be adopted when looking to resolve financial matters and achieve an amicable settlement. These include the following:

Mediation

Mediation is a structured and interactive process where a neutral third-party assists divorcing parties in resolving the conflict. The trained mediator will use specialist communication and negotiation techniques to encourage parties to actively participate in the process and look at a variety of settlement options.  The mediator will initially meet with each party individually to gain an understanding of what they are seeking to achieve. They will then be asked to prepare financial disclosure before meeting again on a joint basis.

Once the full financial picture has been ascertained then parties can discuss fair and reasonable settlement options. All negotiations and discussions take place on a Without Prejudice basis, which means if matters do not settle and an application to the court is made, the court will not be made aware of the proposals made. This means that parties can freely make proposals without the risk of their “bottom line” being exposed to the court later.

If engaged in productively and with a genuine desire to resolve matters, mediation can be hugely successful and beneficial for parties. Particularly divorcing couples who have children and need to maintain an amicable co-parenting relationship moving forward.

It is important to be aware however that whilst mediators may also be legally trained family lawyers, they are not able to provide legal advice. Therefore, I would recommend that both parties should instruct a solicitor to work with them alongside the process and provide ongoing advice as to the suitability or fairness of the proposals being made in mediation.

Collaborative

Collaborative law is a process founded in America in 1990 and launched in the UK in 2003 and involves divorcing couples working with their solicitor and if required, an independent financial advisor, accountant, child specialist and family consultant to reach a voluntary settlement with the aim of avoiding the uncertain outcome of court.  The key goal is to achieve a settlement that best meets the specific needs of both parties and their children in a safe space without the underlying threat of going to court.

When dealing with the financial issues and trying to reach a settlement, both parties engage in four-way meetings with both of their lawyers present to first obtain a full picture of the matrimonial finances and thereafter engage in negotiations. The aim is to ensure that everyone is vested in the process with the clear aim of resolving matters without involving the courts.

If an agreement is made, both parties sign an agreement committing to the collaborative process and resolving matters without going to court. The solicitors you instruct in the collaborative process will not be able to attend court on your behalf if, for any reason, the process breaks down and an application to the court must be made.

Parties must be completely prepared to engage in the process and be committed to it.  It is essential that parties are transparent and if there is a reason to suspect that one party is being secretive with financial matters there is no power to compel disclosure. However, many couples simply want to get matters sorted out, are willing to co-operate with each other and hope to find solutions in a constructive manner. The collaborative process enables couples to consider the other party’s point of view and share ideas in an open way that will encourage creative and mutually acceptable solutions to be found   Often just listening to what the other party has to say can help cut through any suspicions about motives or agendas.

Like mediation, being willing to meet and discuss matters face to face is not an easy option. It can be difficult and emotions can run high, but if you are able to resolve matters by agreement, with the support of trained collaborative lawyers it is far more likely to be longer lasting and lead to a better future relationship, essential if you have children, than one where the Court or an arbitrator has imposed the outcome on you.

Get in touch

We have a number of mediators and lawyers who are experienced at advising clients going through the mediation process and also a number of qualified collaborative lawyers. For more advice on how to keep your divorce out of court you can contact our Client Care Team here or at the number below.

In how to keep divorce out of court – Part two Sarah will look at arbitration and negotiation.

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Author: Sarah Snow

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Boy ordered to leave mother after she alienated him against father

We have all seen cases in which one parent seeks to alienate the child against the other parent. In such cases there are a range of options open to the court to deal with the issue, but perhaps the most serious, where the child lives with the ‘alienating’ parent, is to order the transfer of the primary care of the child to the other parent. This was what happened in the recent High Court case MFS (Appeal: Transfer of Primary Care), which related to a mother’s appeal against such an order, made by His Honour Judge North, in September last year.

The interesting part of this case is, I think, not so much the appeal, as the original decision. I shall therefore concentrate on that.

The case concerned a boy, ‘MFS’, who was born in 2010. Unless I’ve missed it, the judgment doesn’t say when his parents separated, but it was clearly not long after he was born. MFS remained with his mother, but as long ago as 2012 there were court proceedings regarding his contact with his father.

The central feature of the case was the mother’s negative attitude towards the father, and how she transmitted that to the child. Independent evidence for this came primarily from a clinical psychologist, whose findings included the following:

  1. That the father did not suffer from mental health problems, as the mother had suggested.
  2. That the mother had persistently portrayed the father negatively, as violent, as mentally unwell, and denigrated him as the father. MFS identified with these negative and hateful feelings expressed by the mother.
  3. That the mother had alienated the father as a result of her collusion with her son against the father. This constituted emotional abuse.
  4. That the mother persistently saw her own distress in others: she saw psychiatric problems in the child and his father, while considering that she herself functioned well, and had no psychological problems.
  5. Lastly, the clinical psychologist was concerned that the mother was preoccupied with the need to set the father aside, driven by her anxiety that she might lose the child, or that the child might prefer his father over her.

These findings (and others) were accepted by Judge North, who concluded that the mother’s behaviour was causing MFS significant emotional harm. He considered the possibility of ‘threatening’ the mother with a change of residence to the father, but felt that that would not alter the mother’s behaviour. Accordingly, he made an order that MFS should immediately move to live with his father.

The mother appealed, arguing (using the words of Mr Justice Williams, who heard the appeal) that the clinical psychologist’s report was so seriously inaccurate/unreliable/biased that it could not properly be relied upon by the judge, and that in all the circumstances the decision of the court immediately to remove the child from his single primary carer was disproportionate and wrong. Mr Justice Williams did not accept either argument: the report was not open to criticism, and the overwhelming weight of the evidence supported a change of primary carer. The change of primary carer was plainly the decision that was in this child’s best interests, and it was plainly a proportionate rather than a disproportionate order on the evidence. Mr Justice Williams concluded:

“Having conducted what I consider to have been a very detailed review of the evidence before HHJ North and his judgment with the benefit of powerful written and oral advocacy in support of the parties’ cases I have reached the clear conclusion that the appeal is without merit. Whilst it was only possible to reach this clear view after that detailed consideration it is clear that neither of the grounds of appeal had any realistic prospect of success when road tested against the evidence that the judge had available to him.”

Accordingly, the appeal was dismissed.

You can read the full judgment here. Warning: with respect to Mr Justice Williams, the transcript of the judgment appears to have some errors in it, which can make it a little hard to follow in places.

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Author: John Bolch

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A boost for arbitration

Arbitration has been available for a number of years to resolve disagreements over arrangements for children when a marriage breaks down and also disputes with regard to finances.

It offers many advantages over the Court system (including speed, cost and flexibility) which is becoming slower and slower and as a result, more expensive.

Arbitration in family law cases received a significant boost in a decision by Mr Justice Moor in the High Court very recently.

The Judge was concerned with an application as to what questions should be put to an expert accountant, but the main point is that he was clearly frustrated by the valuable time of High Court Judges being wasted and endorsed arbitration as a much better way of resolving issues such as the those he had to consider.

Arbitration has been available as a means of dispute resolution for financial issues since 2012 and in relation to children since 2016.

As the largest specialist family law firm in the country, Stowe Family Law is proud to have two family arbitrators:

Graham Coy, London Chancery Lane, graham.coy@stowefamilylaw.co.uk, 020 7421 3300

Gareth Curtis, central Manchester, gareth.curtis@stowefamilylaw.co.uk, 0161 359 5534

Family Arbitration is run under The Institute of Family Law Arbitrators and their website provides some very useful guides to the procedure in relation to financial issues and the procedure in relation to problems concerning children.

Graham Coy

23 April 2019

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Author: Graham Coy