divorce uk marriage law

Stop me if you’ve heard this one: A lawyer gets married to a lawyer. Once they divorce, one of them gets half the assets plus £400,000 extra for no longer being a lawyer.

More seriously: There was a recent example in case law judged by Mr Justice Philip sMoor, in which a couple met at a firm. She was an in-house lawyer by the time they were engaged, and was considered to have ‘a good chance’ of eventually becoming a partner at the law firm. The husband did not wish for her to remain at the firm when they married, and she accepted this outcome.

They first met in September 1999, when he was an associate solicitor and she was a trainee. She became an associate in March 2001, and their relationship initiated by 2002, and soon after the husband was made an equity partner. She was promoted to managing associate in 2006, and moved away from the office to work at a bank as an in-house lawyer in 2007. They married in 2008.

Since then they had been married for a decade with two children.

Justice Moor stated that while it was “unusual to find significant relationship generated disadvantage that may lead to a claim for compensation,” but this was such a case in which “the wife gave up her legal career, with the support of the husband.”

He added “He was somewhat ungallant as to the wife’s abilities, telling me that he did not think she was an exceptional candidate despite her two exceptional grades in her 2006 and 2007 appraisals. He has clearly convinced himself that her frailties mean she would never have been made a partner at the firm.”

The wife agreed that “compromises had to be made” when they got married, and she agreed to “put her career to one side for the children”. She considered herself “incredibly driven” and “it was very difficult for her to leave the firm”, not wanting to give up “her financial security or the ‘badge of honour’” she noted in the evidence that the husband “did not make her give up her career” – it was all by her own volition.

I am satisfied that, by the time the decision was taken to leave, she had formulated her plan which involved both marriage and, hopefully, children. She viewed herself as the parent who would take primary responsibility for the children. The husband’s career took precedence,” Justice Moore said in the judgement.

Mr. Justice Moor noted that this should not be a case that opens the way for other relationship-generated disadvantage claims.

He said: “I have already made the point that, in many of these cases, the assets will be such that any loss is already covered by the applicant’s sharing claim. In other cases, the assets/income will be insufficient to justify such a claim in the first place. It follows that litigants should think long and hard before launching a claim for relationship-generated disadvantage and they should not take this judgment as any sort of “green light” to do so unless the circumstances are truly exceptional.”

 

The Concept of Redress in UK Law

The obvious answer to the question in the title is: No, of course not.

When during a marriage one partner must take a step back to put family ahead of ambition and earning power, this is usually reflected in the division of assets and maintenance. While one may find material success in their career, the less tangible support offered by the other partner in emotional and mental needs should not be discounted either. Would the breadwinner have gone so far if they did not have their family to allow them to set down their burdens and/or prevent burnout? Taking care of children and one’s home used to be a full-time activity and being a mother remains a career in itself worthy of respect.

The concept of redress is to give compensation or payment for a wrong that has been done. Not usually is marriage considered a ‘wrong’ done to somebody. Relationship-generated disadvantage is already often compensated for, and any additional claims are usually awarded only for sake of child maintenance or when the relationship has things involved that are more abusive or criminal in nature.

Where compensation does look similar comes from the nature of damages awarded in personal injuries – the claims cover not just hospital bills and suffering, but also wages lost and potential future earning potential in the case of permanent personal injuries.

Thus, in a way, the answer is also somewhat… yes? If you get married and get a divorce, it is inevitable of course that you have to sacrifice something. You’re supposed to both be putting something into the marriage as equal partners and not everything can be so easily given a monetary value.

In this particular instance, the woman gave up a particularly lucrative career, earning £100,000 a year before she left. Many eligible men now also fear marriage as something that will hack away half their net worth when they get divorced. However, being taken to the cleaners by a gold-digger is nothing new either. It is symptomatic of a relationship of un-equals.

For every high-flying international billionaire like say, Elon Musk, there’s also a similar sanity check Bill and Melinda Gates. Treating marriage as a potentially adversarial partnership will make it a self-fulfilling prophecy.

 

Relationship Disadvantage in Median Households

The case, as Justice Moor stated, should not open the floodgates to other similar claims. Most median households would not apply. This is not so much a ‘rich people exemption’ but that the potential earning power of both partners in the marriage would be close enough that it would not matter.

Only matrimonial assets can be divided as part of financial remedy proceedings. After a divorce with children, one of the spouse will be made to continue maintenance payments for their children.

It’s not only financial adversity that affects couples in divorce, but when involving children it’s not just the welfare of children that should be considered but also parental separation and adult psychological distress. The one with the children needs additional upkeep in order to raise their children, but additionally paying maintenance continues to give the other parent rights to equitably access their children and play a substantial role in their lives.

 

No Weight Given to Pre-Nuptial Agreement

Now, when one thinks of preserving one’s assets in marriage, one usually thinks of pre-nuptial agreements. Some might think that the division of assets and spousal maintenance after a divorce is biased towards the woman. They would be wrong.

It is biased against big money. Relationship-generated disadvantage can be most clearly seen with prenuptial agreements that treat marriage and time spent together as little more than a contract-based relationship.

Let’s take the example of Morgan McConnell, the great-granddaughter of the founder of Avon Products, and Anil Ipekci, whom she met when he worked as a concierge at Le Parker Meridien in New York. They first met in 2003 and began co-habiting in January of 2005. They decided to marry.

A pre-nuptial agreement was drafted by McConnel’s private lawyer and another lawyer was found in order to give Ipekci independent legal advice. It just so happened that this lawyer was the solicitor that acted for McConnel in her divorce for her first husband. He first met the lawyer on the 3rd of November 2005, and by then the marriage had already been fixed to commence on 26th of the same month of 2005.

The draft had surprising qualities, which as Mr Justice Mostyn noted:

“The husband must have been very surprised by what it contained. First and foremost, it provided that the agreement was deemed to have been made under the laws of the State of New York and that its validity and effect and construction should be determined in accordance with those laws regardless of where either party resided or was domiciled at the time of death or divorce or separation. Second, it provided that the parties wished any proceedings relating to the marriage to be determined in accordance with the laws of the State of New York and that they submitted to the exclusive jurisdiction of the courts of that State.”

Among the provisions given to Ipekci (in event of marriage lasting at least three years and with two children) was that any increase in the value of three properties in the name of the wife that were sited within Barnes, Hanwell, and New York, would be divided equally between the parties on divorce. The husband would not be entitled to claim any alimony or any other money from the wife. In the agreement the three properties were attributed with the value of $1.6 million or at present £1.24 million.

The husband was counseled that the agreement was slanted heavily in favour of the wife. Nonetheless, he signed it on 11 November 2005 and the parties were properly married 15 days later.

Now what actually happened was that the proceeds of the three properties were folded into their existing family home in Barnes, which had a net value of £1.074 million. There being no increase in value for both parties to share, under the agreement the husband would receive nothing at all.

Mr Justice Mostyn held that it would be wholly unfair to hold the husband to the agreement he signed for several reasons:

  • The contract specifically stated that the agreement would be governed by New York law. Astoundingly, the agreement was not accompanied by a certificate that it conformed with the local law it attested, and thus the agreement in New York would have “minimal weight, if any” citing a previous case in the New York Appeal Court that a document “would carry no legal force except for the minor impact of its historical voice”.
  • It would therefore be unjustifiable to attribute weight to the agreement when under the law that both parties signed it under it would not be granted any weight,
  • While it could not be said that the husband was afforded a full appreciation of the legal implications of the document, and it was not proven satisfactory that the solicitor who gave the advice was not compromised. The situation showed apparent bias.
  • The agreement didn’t serve any needs of the husband,
  • Thus Justice Mostyn attributed no weight to the pre-nuptial agreement.

Since all of the assets in the case either were or had their origin in non-matrimonial property, the claim was decided solely by reference to the principle of needs.

Mr Justice Mostyn said:

“The following are relevant considerations in determining the reasonable needs of the husband:

  1. i) This was a 12-year cohabitative relationship.
  2. ii) As a result of the way that the parties organised their married life the husband has made no provision for himself from his earnings either by way of savings or pension.iii) The standard of living, whilst not by any means a determinative factor, is relevant and was in this case reasonably high.
  3. iv) It is in the interests of the two children of the marriage that their father has a reasonable home in which they can stay with him comfortably and that they do not perceive him as being in some way the poor relation.
  4. v) The husband will not be making any contribution to the maintenance of the children or to their school fees – they will be supported entirely by the wife save in respect of those incidental expenses met by the husband during the time that the children spend with him.vi) In respect of the sum allowed for the husband’s housing it is not necessary for all of it to be provided to him outright. There was agreement at the Bar that it would be reasonable for half of the housing sum awarded to be charged back in favour of the wife (or her estate) on the death of the husband.”

He awarded the husband a lump sum of £1,333,500 of which £375,000 was subject to a charge-back.

The English court is not bound to make an order in the same terms as a prenuptial agreement. While it could make a good defense against financial claims, at certain necessary times the court may make orders different to them.

Pre-nuptial agreements can be reviewed, they are not set in stone. A rational marriage can decide for itself if people should be held to the terms of a historic agreement and avoid costly litigation.

Or in summary, if big money wants to play silly buggers with contract law the courts will have none of that mischief and works with what is most realistic.

 

Money and Property after a Marriage Ends

The court in the UK will general divide things in half, but that is merely the starting point. Matrimonial assets refer to money and properties that were gained during the course of the marriage, which may include

  • Family home
  • Other real estate
  • Pensions
  • Savings
  • Vehicles
  • Furniture & appliances
  • Stocks, bonds and mutual funds
  • Businesses

The court aims to divide assets in a fair and equal manner, but this doesn’t mean a mathematically equal measure. The court will seek to provide for

  1. The relative needs of each party – the spouse with the weaker economic situation may be given more as part of the settlement, such as the home, etc., unlike the spouse who can afford multiple properties.
  2. Child custody – the spouse who is responsible for primarily caring for the children would need to be awarded more to secure their welfare.
  3. Compensation for future earnings – the spouse who sacrificed their career in order to care for their family and children may be awarded more in capital in order to get back on their feet and prepare to rejoin the workforce.

Also do note that it’s not just assets that can be distributed, but also debts. Everything accrued during the marriage period may be split during the decision. This may include mortgages, credit cards, loans, and other commitments.

It is not easy to quantify the worth of being a good mother or father, but such a thing has a far greater influence than merely the number of properties or figures in the bank account. The UK courts recognize the value of the physical, emotional, and psychological support provided by the non-working party in a relationship.

wedding prenuptuals

Couples in the Generation Z, i.e., those born on and after 1996, are more likely to seek a prenuptial agreement before marrying, a YouGov survey found. Men and women of Generation Z trend towards being more comfortable with consulting with a solicitor before marriage and protecting their assets first. They are more likely to see no stigma in talking about their money and earnings, specially now that more and more women own and manage their own businesses.

There are many views on whether this realistic approach to marriage and protecting their assets robs the marriage of its romance and seems to imply less than the total trust to their partner in the love. Yet the most important question remains – does having a prenuptial agreement increase the chances of divorce or not?

Poll shows most people don’t believe so

Statistics regarding prenuptial vs non-prenuptial divorces are not available and would be weighed unevenly because those who sign pre-nuptial agreements are those who already have something to lose in a divorce, and the results would most likely bias towards rich vs poor.

According to the yougov poll results, 58% of respondents believe that having a prenuptial agreement doesn’t make a difference on the likelihood of divorce. About 44% believe that having a prenuptial agreement advising how to distribute assets is a good idea. However only 30% would, if they were getting married for the first time, would sign a prenuptial agreement.

Surprisingly, in 2014 only 23% of respondents then aged 18-24 would sign, while 31% and 33% of those aged 40-59 and over 60 years expressed their willingness to sign if they were first getting married again.

Prenups might not affect divorce rates as much, but does affect going through with the marriage

According to data supplied by Hall Brown Family Law, one in four couples who inquire about prenuptial agreements don’t go through with the marriage.

“As opposed to offering a constructive way of dividing assets should their marriage not last the course, they are highlighting very real and serious differences before a wedding which can actually affect the chances of a couple staying together in the long run,” said Sam Hall, senior partner of the firm.

The agreements were serving “a valuable, practical purpose quite apart from that for which they were originally intended”, he stated. “Some of those with whom we have dealt have initially expressed great regret at what happened but later acknowledged that their break-ups were less upsetting than might have been the case had they divorced.”

The divorce rate stands at 42%. For couples in the millennial and Z generations, the marriage age is being pushed back and tend to try to accumulate wealth and security first before attempting to have marriage and children. Many of these generation are also children of divorce and are predisposed to protect their assets.

prenuptual agreements

 

Prenups may ruin the romance, but does help couples through their marriage

One of the changes in mentality that Generation Z have compared to older generations is not seeing marriage as something worth preserving at all costs, but something that should not cause suffering for both people who sacrifice pieces of themselves towards a greater union.

A prenup is not just a way for a rich person to preserve their money, but also as a way to make sure that the one spouse that remains out of the workforce is adequately compensated for neglecting their possible career and nurturing their children while their spouse advances theirs. In addition, having one is a sign of trust that they are not just being married for their money.

If divorce is so disastrous that the prospect of having it is terrifying, that can trap spouses into a loveless or abusive marriage. In the event of a divorce, one of the two will find their prospects greatly diminished entering into the job market, which would hinder taking care of their children.

Generation Z gets talk about how going all-in with the marriage shows trust and leaves no room but to fight for it, while having a prenup signals that they are entering a marriage planning on its failure. Marriages in previous generations lasted for decades because they had no easy option for walking away.

Generation Z sees that divorce is common, and it is nasty, and they want no part of that for their own lives and their children.

Preparing a prenuptial agreement to strengthen your marriage

In the coming years, the trend will be to see how often millennials divorce, who have a different view of marriage than their parents. They don’t seek marriages as much for financial, religious, or family reasons and see marriage as a means for emotional fulfilment. They respect marriage more as legal commitment with much room for compromise.

In fact, some statistics show that divorce rate have dropped by as much as 16 percent in other countries. The marriage rate may be falling, but those who do get married have a greater chance of lasting longer than marriages entered ten years ago. How could this be?

Many point to how newer generations see marriage as a sign of status rather than just something ‘you have to do’, the increase in education and financial ability of those who enter into marriage, or that more and more choose not to enter into marriage in the first place.

Family solicitors in the UK have hit upon another increasing trend for marriages that seeks prenuptial agreements. They do so not to protect their money but to protect their emotions and mutual respect. Having a prenup means also having regular review clauses, such as having marriage, lasting a number of years, preparing for unexpected events like one of them being disabled or incapacitated in severe illness. Landmarks are set and potential troubles discussed, and transparency and fairness talked out ahead of time.

Generation Z no longer functions on a strategy of reckless optimism in marriage. When both parties plan for how their marriage fails, they also must take in mind how their marriage can fail and how to plan to address them before they become problems in the first place. Solicitors advise in their agreements that before entering into a divorce they must meet a required amount of marriage counseling.

Prenup agreements are not automatically enforceable

Prenups make divorce significantly less traumatic and faster to complete. Prenup agreements can be challenged, which is another reason not to think this is an easy way to get out of a marriage but rather an incentive to work towards preserving it.

The enforcement of a prenuptial agreement is up to the court’s view of fairness. According to Supreme Court case of Radmacher v Granatino from 2010, the court should “give effect … a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement”.

Prenuptial Agreements should also be sure that it was not entered in duress, that both parties had adequate disclosure and required legal advice. The court may also modify the agreement with regards to the contribution to non-economic aspects of family life and for the benefit of their children. Solicitors advise that a prenup is not a predictive contract. There is no guarantee that one spouse will remain the main financial contributor in the future.

But if prenuptial agreements in the UK are not legally binding, then why enter one in the first place?

Prenuptial agreements might not expressly have the force of law, but they do have great weight to the court. For many in Generation Z a prenup is not meant to get the court to protect their money but about respecting their individual autonomy.

It may seem like a prenup might not be “a very British thing”, as some may say, but it looks like that’s changing.

same sex marriage - lovely lesbians kissing on a beach

Unexpectedly, same-sex marriage might force Northern Ireland to have a government again

England, Wales and Scotland all legalized same-sex unions in 2014. The Republic of Ireland voted in a referendum to legalize it in 2015. Northern Ireland remains one of the few territories within the EU zone that still bans same-sex marriages. Northern Ireland however possesses its own parliament, and their own independent judiciary and court system, though the highest court of appeal remains the UK Supreme Court. Northern Ireland also has its own unique issues, such as the fact that it doesn’t quite have a government right now.

The British Parliament decided to slide past the collapsed Northern Irish Assembly to force the government of Northern Ireland to legalize both abortion and same-sex marriages. Landslide votes in the House of Commons do not yet automatically change the law in Northern Ireland. However, since the Assembly in Stormont, East Belfast remains defunct since its collapse in 2017, if this assembly doesn’t resume its duties by the deadline of October 21, the amendments will stand and come to force.

MPs from the Democratic Unionist Party (DUP) voted against and argued that the parliament in London was drastically overreaching their grasp and such matters should remain to be resolved by Stormont. And they will. If the DUP and Sinn Fein could come back to terms in the assembly and restore the government.

2 gay men in sea water

Unexpectedly, many different-sex couples want to have the right to have Civil Partnerships over Marriage too

Prior to the legalization of same-sex marriage in the UK, there was Civil Partnership Act 2004 that allowed them to enter into civil partnerships rather than marriages. Over time the rights assigned to civil partnerships have been much the same as marriage. Unexpectedly, it was raised that the Civil Partnerships Act 2004 might be against the EU Convention on Human Rights for being discriminatory.

The Civil Partnerships, Marriage and Deaths (Registration etc.) Act 2019 will formalize options allowed to heterosexual couples who wish to enter into a civil partnership rather than marriage. Why would they prefer this form of civil union? Here are some reasons:

  1. Marriage carries with it the historical and religious ‘baggage’ that the couple may feel uncomfortable with endorsing.
  2. Marriage is a rite that involves inviting family and friends and hosting a celebration afterwards, some may feel this is too expensive or an invasion of their privacy.
  3. Cohabiting couples are surprised to learn that they don’t actually have as many protections equivalent to marriage as they had assumed.
  4. This will allow transition from or into marriage if one of the couple undergoes a sex change operation.
  5. Legitimacy for children born at a time parents were not formally married.
  6. The recognition of overseas relationships.
  7. Etc.

Voiding a civil partnership is similar to divorcing, often served by the same form and assisted by the same divorce solicitors. There are some peculiarities to civil partnerships however, such as adultery by itself not a valid ground for dissolution, and of course that it may be voided by entering into marriage.

Expectedly, No Fault Divorce will make divorce easier and less costly

The current system of divorce is adversarial, which induce unnecessary stress on the family. Regulations state that one party must be at fault, or that living with them is intolerable. Couples must live apart for at least two years before they may separate fully. Also, one party may deny the divorce – but if they live apart for five years only then will consent no longer be required.

The consultation paper Reducing Family Conflict: Reform of the Legal Requirements for Divorce also stated how the current law aggravates family conflict.

  • A. The question of fault forces couples to take up hostile positions

The need to cite evidence means digging up whatever allegations necessary to prove fault, which may aggravate and humiliate the respondent that the marriage itself becomes irreparable. The defense process increases acrimony, instead of a solution to family justice.

Once the petition has been filed – because of the need to prove fault and the provisions that require lengthy separation before a non-acrimonious dissolution is granted – this strictly works against agreement and reconciliation that could have saved the marriage.

  • B. The law doesn’t actually address the reasons why the marriage breaks down

The divorce petition is concerned only with the fact that the marriage has broken down, not why. The reasons given in the petition may not even be true, but simply the easiest and fastest option for both concerned. Adultery, separation, and other acts that may be grounds for divorce could be simply symptomatic of a desire to dissolve the matrimony.

  • C. The law is open to manipulation

The current law was remarked to be ‘procedurally unfair’, with only 2.28% of all petitions are actually contested in court. Due to the need to provide evidence, even if respondents may agree to the divorce, they may feel it is necessary to disagree vehemently with the allegations in particular used to support the petition.

In practice, many family lawyers and judges feel that the defense is costly, unhelpful, and ultimately futile and imposes unnecessary burden on the courts. Furthermore, outcomes usually reflect the relative bargaining capacity of both parties, and can be misused by vindictive spouses to make the divorce unnecessarily difficult. Divorce terms can be financially abusive even after escaping an emotionally abusive marriage.

Divorce petitions can be considered not a legal issue in itself but a means to construct a narrative that would secure a legal divorce. Those involved, even when they both agree, are highly incentivized to manufacture ‘facts’ to support their petition.

  • D. The current law does not support the emotional needs of children

Research has shown that although children are inevitably affected when their parents separate, it is a far greater cause for social and behavioural problems to see the hostility between them. Where children have been encouraged to take sides, their relationship with both parents are instead impacted severely as from the conflict of loyalties and a child’s keen awareness of hypocrisy.

Furthermore, due to the artificial requirements of consensual separation as grounds for divorce, many are forced by financial reasons to live ‘separately’ as two households under one roof. This creates an artificial atmosphere that is confusion and harmful to children.

Proposed changes to reform the divorce process are concerned with three main outcomes.

  • That the decision to divorce is a measured one, that gives spouses all opportunity to change course.
  • That they are not put to legal requirements and hardship that do not serve their or the state’s interests.
  • To avoid ongoing conflict and poor outcomes for children.

Couple in London, UK

Unexpectedly, the UK actually sees the lowest level of divorce rates in 45 years

According to the Office of National Statistics, in 2017, there were 101,699 divorces down from 106,959 of 2016. This is the lowest since 1973. Divorces peaked in 1993 with 165,018; 1985 with 160, 300; and first in 1972 with 119, 025. However what is missing is that 1972 was also the record highest in marriages with 426, 241 marriages that year. There were much less divorce rates prior to the Divorce Reform Act of 1969, effective 1971, for obvious reasons.

All this shows is the ongoing decline in couples choosing to get married, which means overall there are fewer couples to divorce,” spoke Frank Young, head of family policy at the Centre for Social Justice, explaining that the drop in divorce rates was no reason to celebrate. “Marriage is increasingly a middle-class perk with 87 per cent of higher earners getting married compared to only 24 per cent of lower earners.

Since the 1970s, marriage rates have been decreasing while the divorce rates have more or less managed to remain stable. Waxing nostalgic about 33% of divorces happens when there are 426, 249 marriages to merely 119,025 divorces. In recent years over 45% of marriages end in divorce because since the 1990s, marriages dropped hard below the 300,000 per year rate while divorces hovered around the 160,000 per year rate. 2015 was the best of recent years at 42%, with 239, 020 marriages compared to 101,055 divorces.

It is hoped that by making marriage easier, and making it less painful to separate, this might encourage more marriages that promote stability in the family; wherein there are two partners facing the same challenges and giving support to their children.

Women should not need marriage for financial security and social status and, increasingly, they don’t. Often, marriage makes women poorer, because it creates dependents,” Tanya Gold wrote for The Observer.