Author: Charlotte Lanning

A Family Lawyer’s Guide

Q: What is a consent order?

A: A consent order is a court order that records the financial agreement you and your spouse have reached on divorce and makes it legally binding. It can deal with the family home, savings and investments, pensions, lump sum payments, maintenance and the division of belongings, and it can include a clean break that ends all financial ties between you. Even if you agree everything between yourselves, that agreement is not legally binding until a court approves it as a consent order, so in almost every divorce one is strongly advisable.

One of the most common and costly misunderstandings in divorce is the belief that, once the divorce is final, the finances are settled too. They are not. The divorce ends the marriage; the finances are a separate matter, and unless your agreement is recorded in a court order, your financial claims against each other stay open, sometimes for many years. This guide explains what a consent order is, why you need one, how long it takes, what it costs, and how the process works in England and Wales.

What Is a Consent Order?

A consent order is a court order that sets out the financial agreement reached between divorcing spouses and gives it legal force. It is called a consent order because both parties consent to its terms: you are asking the court to approve an agreement you have already reached, rather than to impose one. It can cover what happens to the family home, how savings, investments and pensions are divided, lump sum payments, ongoing maintenance, and the division of personal belongings. In most cases neither party needs to attend court, as it is dealt with on paper.

Do You Need a Consent Order?

In almost all cases, yes. By virtue of the marriage, each spouse can in principle make a financial claim against the other on divorce. Many couples resolve these claims by agreement, but an agreement reached privately, even in writing, is not legally binding unless it is converted into a court order. Until then, the claims remain open with no time limit. In Vince v Wyatt [2015] UKSC 14, a former wife successfully brought a financial claim more than twenty years after the couple had separated with no significant assets, and the Supreme Court confirmed there is no time limit on such claims after divorce. A consent order, ideally with a clean break, is the only way to close that risk off for good.

“Just because an agreement is in writing and signed does not mean the court is bound by it. If circumstances change afterwards (for example, an unexpected windfall from a business sale) those funds could be up for grabs, even if the parties have already acted on the agreement reached. Cutting corners to save on legal fees can end up costing a lot more in the long run. If you reach an agreement around the kitchen table it is imperative a lawyer looks at this and takes the necessary steps to formalise it, or it may not be worth the paper it is written on.”

What Does a Consent Order Cover?

A consent order can deal with all of the financial issues arising from a marriage, including the family home and any other property, savings, investments and other capital, pensions (including pension sharing), lump sum payments from one party to the other, spousal maintenance where appropriate, and the division of belongings. Where you both agree that neither will make any future claim against the other, the order can also include a clean break.

What Is a Clean Break Order?

A clean break order is a consent order that dismisses both parties’ financial claims against each other and ends all financial ties, now and in the future. It provides certainty and finality and prevents either party returning for more later. A clean break is often the goal, particularly for couples with straightforward finances, and it is exactly the protection the husband in Vince v Wyatt lacked.

How Long Does a Consent Order Take?

Two timescales matter. The first is reaching agreement and drafting the order, which depends on how quickly you and your spouse can agree and how complex the finances are, from a few weeks to several months. The second is the court’s approval. A consent order can be submitted once you have reached the conditional order stage of the divorce, and once lodged, court approval typically takes a few weeks to a couple of months, depending on the court’s workload. The order typically takes effect when the final order of divorce is granted. There is no fixed statutory wait for approval itself, but the divorce timetable (a minimum of around 26 weeks) sets the overall pace.

“Delay is often caused by one party who does not wish to engage (even if an agreement has been reached) and there can be many different reasons for this. A common example is where the submission of a consent order will mean a big change for one party (such as selling the family home) meaning they may not be incentivised to act quickly and so drag their heels. Unfortunately, the only way to force someone to engage is by issuing court proceedings but often, the potential costs of this will encourage people to cooperate.“

How Does the Consent Order Process Work?

The process is largely a paper exercise. Once you have reached agreement, the consent order is drafted, and both parties complete a prescribed statement of information (Form D81) giving the court a summary of your finances. A judge reviews this to check the agreement is broadly fair. The judge retains discretion and will approve the order unless it appears manifestly unfair; any queries are usually dealt with in writing. Once approved, the order is sealed and becomes binding on the final order of divorce. If a party later fails to comply, the other can apply to court to enforce it, which is protection an informal agreement can never provide.

How Much Does a Consent Order Cost?

There are two elements. The court fee for submitting a consent order is modest (currently £60, payable to HM Courts and Tribunals Service). The larger element is the cost of drafting the order and the statement of information, which is where professional advice matters. A well-drafted order does more than record the headline split: it addresses pensions correctly, closes off future claims, and sets out the practical steps and timing for implementing the agreement, all of which are commonly missed in templates. Some firms offer fixed fees for straightforward consent orders.

Frequently Asked Questions

Protecting Your Financial Future

A consent order is the single most important step in protecting your financial position after divorce. It turns an agreement into binding protection, and a clean break closes off claims for good. Treating the divorce as the end of the financial story, without a financial order in place, is one of the most avoidable mistakes in family law.

At Edwards Family Law, our team negotiates financial settlements and drafts consent orders across the full range of circumstances. If you have any questions about a consent order or your financial settlement, we would be glad to help.

Need advice on a consent order?

To speak to a specialist family lawyer about your consent order or financial settlement, contact Edwards Family Law.

Contact us: contact@edwardsfamilylaw.co.uk

This article is for general information only and does not constitute legal advice. The law is correct as at the date of publication. Specific advice should always be taken to account for individual circumstances.

Sources

• Vince v Wyatt [2015] UKSC 14 (no time limit on financial claims after divorce)
• Matrimonial Causes Act 1973, in particular sections 23 to 25A
• GOV.UK – Apply for a financial order / consent order, and Form D81 (statement of information)
• Divorce, Dissolution and Separation Act 2020 (no-fault divorce)

A Family Lawyer’s Guide to Spousal Maintenance on Divorce

Q: What is spousal maintenance?

A: Spousal maintenance is a regular payment made by one former spouse to the other after divorce, to help meet their ongoing living costs where they cannot meet their needs from their own income. It is separate from child maintenance. There is no fixed formula: the amount and duration depend on the receiving party’s needs and the paying party’s ability to pay. The court will only order it where there is a genuine need that cannot otherwise be met, and the modern approach favours payments for a defined term, and a clean break wherever fairness allows.

Spousal maintenance is one of the most misunderstood, and most contested, aspects of a financial settlement on divorce. People often assume it is automatic, or that it lasts for life, or that it follows a set formula. None of those is true. This guide explains what spousal maintenance is, who can claim it, how the amount and duration are decided, how it can change, and how it differs from child maintenance, under the law of England and Wales.

What Is Spousal Maintenance?

Spousal maintenance (sometimes called spousal support or periodical payments) is a regular payment, usually monthly, made by one former spouse to the other after divorce. Its purpose is to help meet the recipient’s reasonable living costs where their own income is not enough to do so. It is distinct from the division of capital (the home, savings and pensions) and from child maintenance, which covers the costs of the children.

Am I Entitled to Spousal Maintenance?

There is no automatic entitlement. The court’s first duty is to consider whether a clean break is possible, so that the parties’ financial relationship ends. Spousal maintenance is ordered only where one party cannot meet their reasonable needs from their own resources and a capital settlement alone is not enough to bridge the gap. The factors the court weighs are set out in section 25 of the Matrimonial Causes Act 1973, and include the length of the marriage, the standard of living during it, each party’s income and earning capacity, their ages and health, and the needs and responsibilities of each, particularly the care of children. Longer marriages and a clear disparity in earning capacity make an award more likely.

CHARLOTTE’S EXPERIENCE: When maintenance is, and is not, appropriate

“Just because one party earns more than the other does not automatically mean there is a spousal maintenance claim – it is all about needs and if you can meet needs from your own income and resources then the court will not make an order. Parties do not have a right to share in future income after divorce. Sometimes maintenance will be appropriate for a short period in these situations, but only whilst adjustments are made to transition to financial independence.“

How Is Spousal Maintenance Calculated?

Unlike child maintenance, there is no formula or calculator for spousal maintenance. It is assessed on the basis of need: the court looks at the recipient’s reasonable income needs (in the context of the standard of living during the marriage) and the payer’s ability to meet them while meeting their own needs. The figure is therefore highly fact-specific. In practice, the parties prepare detailed budgets, and the court balances one party’s needs against the other’s capacity to pay, rather than applying any fixed percentage.

How Long Does Spousal Maintenance Last?

The modern approach strongly favours maintenance for a defined, limited term rather than indefinitely. A term order runs for a set number of years, often linked to a point when the recipient can be expected to become financially independent, such as when young children start school or full-time education. The court can also make a ‘joint lives’ order (lasting until death, remarriage or further order), but these are now far less common and reserved for cases where genuine independence is not realistically achievable, often after a long marriage. The leading guidance on the proper approach to spousal maintenance was set out by the court in SS v NS [2014] EWHC 4183 (Fam), which emphasised need, the transition to independence, and that an award should be made for no longer than is required.

Where a term is ordered, the court may or may not allow it to be extended. A term order without a bar under section 28(1A) of the Matrimonial Causes Act 1973 can be extended on application before it ends; with a section 28(1A) bar, it cannot. This distinction is one of the most important, and most overlooked, points in any maintenance order.

“Life is uncertain and the variability of maintenance orders is designed to guard against that. At the same time, finality is incredibly important. Whilst many orders will not include a ‘bar’ to an extension, meaning it is theoretically possible, I have never seen a successful application to extend maintenance beyond the original term in a decade of practice.

Whilst it is no longer as common, a few decades ago the court would frequently make orders for maintenance to be paid for long periods and sometimes for the rest of someone’s life. The variation of maintenance was arguably more important to deal with those orders, and I still see historic orders from that period that need to be varied today. If maintenance could not be varied, there would be no way to factor in changes to earnings or the future capital a recipient might build up. Circumstances change in both directions, whether due to specific matters like inheritance, living with a new partner, ill health or more generally, rising inflation and economic downturn. The benefit of variation is that it cuts both ways and there is always the option to seek a variation if there has been a significant change in circumstances.“

Can Spousal Maintenance Be Changed or Ended?

Yes. Spousal maintenance is variable: either party can apply to court to increase, reduce, extend, shorten or end it if circumstances change materially, for example a change in either party’s income, the payer’s retirement, or the recipient’s new relationship. It also ends automatically on the death of either party or on the recipient’s remarriage. Cohabitation by the recipient does not automatically end maintenance, but it is a relevant change of circumstances that can justify a reduction or termination.

Can Maintenance Be Paid as a Lump Sum (Capitalisation)?

Often, yes, and it is frequently desirable. Instead of ongoing payments, the maintenance can be ‘capitalised’ into a single lump sum, calculated using an established method (commonly a Duxbury calculation), which achieves a clean break. This gives both parties certainty and independence and removes the need for continuing financial ties. Whether capitalisation is appropriate depends on whether there is enough capital available to fund it fairly.

Spousal Maintenance vs Child Maintenance

These are separate and should not be confused. Child maintenance covers the costs of the children and is usually calculated under a statutory formula administered by the Child Maintenance Service, based largely on the paying parent’s income (however this only applies for incomes of up to £156,000 per year). Spousal maintenance is for the former spouse’s own needs, has no formula, and is decided by the court or by agreement. A settlement can involve one, both or neither, depending on the circumstances.

Frequently Asked Questions (FAQs)

Getting Advice on Spousal Maintenance

Spousal maintenance is fact-sensitive and frequently contested, and the details, the amount, the term, whether it can be extended, and whether it should be capitalised, can have a major long-term effect on both parties. Clear advice early, whether you may pay or receive it, is the best way to reach a fair and durable outcome.

At Edwards Family Law, our team advises on every aspect of spousal maintenance, from negotiating fair terms to capitalisation and variation. If you would like to discuss your position, we would be glad to help.

Need advice on spousal maintenance?

To speak to a specialist family lawyer about spousal maintenance, whether you may pay or receive it, contact Edwards Family Law.

Contact Us: contact@edwardsfamilylaw.co.uk

This article is for general information only and does not constitute legal advice. The law is correct as at the date of publication. Specific advice should always be taken to account for individual circumstances.

Sources

• Matrimonial Causes Act 1973, in particular sections 23 to 25A and section 28(1A)
• SS v NS [2014] EWHC 4183 (Fam) (principles governing spousal maintenance)
• Child Maintenance Service – how child maintenance is calculated. gov.uk
• Duxbury v Duxbury [1992] Fam 62 (capitalisation of maintenance)

Charlotte Lanning, a specialist family lawyer and associate solicitor at Edwards Family Law, outlines the factors that determine spousal maintenance payments and offers guidance on navigating changes in the face of ever-increasing living costs.

Courts in England and Wales can make various financial orders with regard to divorce. The three primary categories that such orders concern are:

• capital (ie, to purchase a home);
• income/maintenance (ie, to meet day-to-day living costs); and
• pension-sharing (ie, to meet day-to-day living costs in retirement).

If there are sufficient resources to meet both parties’ capital and income needs, matrimonial property will be divided equally as a starting point. If an equal division will not meet both parties’ needs, there can be a departure from such equality. Further, the court may utilise non-matrimonial property (such as inheritance, or funds acquired post-separation or prior to the marriage) to meet needs, if so required.

If the parties have children, child maintenance will always be payable by the party who spends less time with the child(ren). If a party is earning GBP156,000 or less, the amount of child maintenance is calculated using the Child Maintenance Service (CMS) formula. This is based on the paying party’s gross income and the amount of overnight contact that they have with the child(ren). Judges typically extrapolate and apply the same formula for incomes of more than GBP156,000; however, specific advice should be sought in these circumstances.

When Must One Party Pay Spousal Maintenance?

However, if the financially weaker party still does not have sufficient financial provision to meet their day-to-day needs after factoring in child maintenance as forming part of a parties’ income, they may be entitled to spousal maintenance. This is subject to whether the paying party has a surplus from their income after meeting their own needs.

The various financial orders are interlinked and complementary. An order for maintenance may end when the parties’ children reach the age of majority or conclude tertiary education, thereby reducing the recipient’s income needs and perhaps allowing them to downsize and release capital to supplement their income position.

“Spousal maintenance is always variable, which allows the court to revisit the order if either party faces a significant change in their financial circumstances.”

Similarly, as parties approach retirement, any maintenance provision is likely be for a limited period and ceases at the point when any pensions can be drawn down.

All parties are expected to maximise their earning capacity, even if they have been out of the work for a long time. The court will be realistic about what a party can earn based on their qualifications, previous income, and childcare responsibilities. Therefore, a court will only order one party to pay spousal maintenance to the other if:

• there is insufficient capital; or
• one party is incapable of earning enough to meet their income needs.

Spousal maintenance is always variable, which allows the court to revisit the order made if either of the parties faces a significant change in their financial circumstances, including – but not limited to – redundancies or, indeed, promotions. This prevents parties from being “trapped” by an order that they cannot afford but, equally, dissuades them from misrepresenting their income position (ie, downplaying their earning potential).

What Impact Does Inflation Have on Spousal Maintenance Payments?

A common feature of these orders is that they are often index-linked. This ensures that the payments keep up with the pace of inflation. The following three indexation rates commonly used.

• Consumer Price Index (CPI) measures the average change from month to month in the prices of goods and services purchased by most households in the UK.
• Retail Price Index (RPI) measures the average change in prices of goods and services purchased by most households in the UK – however, crucially, it also includes mortgage interest, council tax and other housing costs not included within the CPI.
• RPI All Items Excl Mortgage Interest (RPIX) is the same as RPI, apart from mortgage interest payments – therefore, it is closer to CPI (albeit still slightly different).

The most appropriate indexation rate to apply will depend on what the receiving party primarily requires the maintenance for. If the receiving party has a mortgage, it is essential that the spousal maintenance is RPI-linked to insure against any drastic changes to repayments (such as the ones seen in 2022). If a party owns a property outright, CPI or RPIX are likely to be more appropriate. Child maintenance will typically be CPI-linked because it relates to general costs, as opposed to mortgage interest payments.

“Salaries have not increased in line with inflation, and the huge wave of strikes faced by the UK in 2023 is testament to that.”

Where there is a lengthy term of maintenance, the inflationary uplift can be significant. There were huge upward variations in maintenance during the last few months of 2022. A monthly payment of GBP6,000 ordered in 2012 will now be more than GBP8,000. In previous years, the annual increase would have been a few hundred pounds per calendar month at most. Over the past year (2022), this sum has jumped up by almost GBP1,000 per calendar month – and, arguably, rightly so.

The court will typically order that any spousal maintenance award is index-linked. There is relatively little scope for negotiation on this point, and the recent spike in living costs demonstrates why it is so essential to factor this into any agreement.

How Can Spousal Maintenance Survive the Cost of Living Crisis? 

Nonetheless, it is commonly accepted that salaries have not increased in line with inflation, and the huge wave of strikes faced by the UK as the country enters 2023 is testament to that. Although the court’s starting point is to apply an increase in line with the order, there may be an oncoming wave of applications to vary quantum of maintenance downwards if the paying party simply cannot afford the uplift in line with inflation (or any uplift at all).

The best way to compromise this issue and avoid a costly court application for enforcement or variation of the order is to suggest an uplift that is perhaps a middle ground and affordable for the paying party in the longer term. Evidence should be provided to demonstrate why the payer cannot afford the uplift pursuant to the order – for example, confirmation of any increase to their income (by way of a letter from their employer or accountant), along with a budget setting out the paying party’s monthly costs.

The outcome of these applications is likely to be uncertain and it is always best to seek early legal advice to try and reach an agreement where at all possible. The costs of pursuing such an application can easily outweigh any financial gain, and there is no guarantee that either party will be successful – nor that they will be awarded the costs of their application if sought.

Whilst the Supreme Court decision in Radmacher v Granatino [2010] UKSC 42 held that weight should be given to a nuptial agreement it does not follow that such agreements will always be upheld by the court.

This was illustrated by the recent case of SC v TC [2022] EWFC 67, in which His HonourJudge Hess placed no weight on a post-nuptial agreement in financial remedy proceedings. He concluded that its terms were unfair due to the husband’s vulnerability at the time of signing and that the agreement would leave him in “a predicament of real need”.

Before examining the case, it is useful to briefly state the current law around the enforceability of nuptial agreements.

What makes a nuptial agreement legally enforceable?

The Radmacher decision states that the court will give weight to a nuptial agreement provided it is fair to do so, with ‘fair’ being the operative word. The Supreme Court referred to other landmark cases when deciding Radmacher, including McFarlane v McFarlane [2006] UKHL 24, in which it was established that fairness should be based on the principles of:

need compensation sharing

The Court will also apply a three-part fairness test concerning the nuptial agreement;

1. that the agreement was freely entered into (i.e. there was no undue pressure),
   
2. both parties understood the agreement (i.e. there was financial disclosure before the agreement was signed and both parties received or had the opportunity to receive independent legal advice), and
   
3. it is reasonable to hold both parties to the agreement (i.e. it is fair and the prevailing circumstances).

What were the facts in the case of SC v TC

The couple married in 1994 and had one child. The husband (H), worked in investment banking but had stopped after being diagnosed with early-onset Parkinson’s disease. From around 2003, H began to experience the early effects of his illness. He was formally diagnosed in 2011 and by 2013, the marriage was unhappy and lacked sexual intimacy. H visited a sex worker and later told the wife (W). W asked for a divorce, however, H asked for another chance to make the marriage work. W agreed on the condition H enter into a post-nuptial agreement to ensure her financial security.

Although the terms of the nuptial agreement were significantly more generous than what the court would award, H signed the contract. H’s solicitor told him the division of the financial assets was 80/20 in favour of W and recorded that he had advised H that it would be financially imprudent to agree to these terms. H stated that given his prognosis it made no sense for him to fight for assets and he, therefore, would not contest these terms of the post-nuptial agreement.

The post-nuptial agreement was signed in 2014 and divorce proceedings began in 2020. H wanted the marital assets to be divided evenly. Unsurprisingly, W argued that the post-nuptial agreement terms must be adhered to when alighting upon a financial settlement.

Why did the court not uphold the post-nuptial agreement?

Although His Honour Judge Hess concluded there had been financial disclosure, legal advice and both parties

were, when signing, mature and intelligent, he was concerned that the post-nuptial agreement disregarded any needs arising from H’s Parkinson’s diagnosis, including housing needs and home care requirements. The agreement would leave H in a position of “a predicament of real need”, with W comfortably provided for, and this would be fundamentally unfair.

His Honour Judge Hess stated:

“In summary on this area of the case, I have reached the conclusion that it would be wrong for me to place weight on the Pre-Marital Agreement. Not only was it very much to the husband’s disadvantage in financial terms, I have reached the overall conclusion that, at the time that it was signed, he was a vulnerable person (in the ways described above) and the wife rather took advantage of that vulnerable situation to gain a substantial financial advantage.”

Concluding comments

This decision highlights that even if all of the formalities required have been adhered to, fairness will always be the court’s primary consideration. The court fulfils a vital role in protecting vulnerable parties in situations of this kind and prevents a contracting out of the fundamental principles of English family law. In many cases, it is difficult or impossible to predict the situation a couple may find themselves in at the time of divorce, be that children, illness or otherwise. However, rather unusually in this matter, the husband’s future was a lot clearer given the reasons that the agreement was entered into. Therefore, when entering into a pre or post nuptial agreement, parties and their advisors must ensure that the agreement being entered into is in fact worth the paper that it is written on. A keen assessment of the likelihood that a court will deem the terms unfair is therefore essential to achieving the desired outcome.

Edwards Family Law is a niche London-based firm specialising in high-net-worth divorce and international family law. To find out more about pre and post-nuptial agreements, please phone +44 (0)20 3 983 1818 or email contact@edwardsfamilylaw.co.uk. All enquiries are treated in the strictest confidence.

The recent Family Court case of Randhawa v Randhawa raised the interesting question of what would happen if one party to a marriage filed for divorce and eventually received a decree absolute without the knowledge of their married partner. This also raises serious questions about the fallibility of the divorce system to fraudulent acts, how courts decide whether to set aside a decree absolute where it was gained on a false pretext, and what happens where a final decree is set aside if the guilty party has remarried.

Background to the case of Randhawa v Randhawa

Mr and Mrs Randhawa married in 1978, aged nineteen and sixteen years old, respectively. They went on to have four children, one of whom, Manpreet, died in 2003. Over several years, Mr and Mrs Randhawa invested in residential and commercial properties and, in the words of the judgement, “amassed a small fortune”.

The couple divorced in 2010 after being granted a final decree by Slough County Court. The divorce was granted on the basis that the marriage had irretrievably broken down due to Mrs Randhawa’s unreasonable behaviour. Mr Randhawa went on to remarry and have a child with his new wife.

Mrs Randhawa subsequently submitted a court application to have the final decree set aside for the following reasons:

• She did not receive any notice of the divorce

• The acknowledgement of service document, which told the court she did not wish to defend the divorce, was not signed by her, and

• The signature used for this purpose was a forgery.

In response to the application, Mr Randhawa denied the allegations, asserting that the divorce was genuine and Mrs Randhawa knew about the proceedings and actively engaged in them.

The parties also disagreed on the date of the separation. Mr Randhawa said this happened when he left the family home in October 2009, and there had been discussion of divorce prior to this. Mrs Randhawa denies having knowledge of this and did not know of the divorce until she petitioned for judicial separation in December 2019.

The Judge in the case, therefore, had to decide on the following questions:

a. What was Mrs Randhawa’s knowledge of the divorce Petition dated 22nd January 2010?

b. Did Mrs Randhawa sign the acknowledgement of service that was signed on 11th February 2010? If not,

c. Was the signature forged by Mr Randhawa or on his behalf?

d. Depending on the answers to the above questions, should the decree absolute stand or be dismissed?

The Judge relied on the basic legal principle that the person seeking to rely on a disputed fact must prove that fact.

Forensic Document Examiner confirmed the signatures were forged

Evidence was provided by nine witnesses, including a Forensic Document Examiner. The Forensic Document Examiner confirmed that there was “very strong evidence to support the proposition that the questioned signature was not written by [Mrs Randhawa] but that it is a simulation (freehand copy) of her genuine signature style, by another individual”. Falsified signatures were also used to secure a mortgage in the name of Mrs Randhawa and other property-related matters. Despite this, the Judge made it clear that the evidence of the expert was not the determining factor and that this had to be considered “in the context of the wider evidential canvas”.

What did the Judge conclude?

Having heard evidence from nine witnesses over a period of eight days, Judge Moradifar agreed that both parties had a difficult relationship and were devastated by the loss of their son. He stated that Mr Randhawa was “highly evasive and his evidence devoid of any detail” during his testimony when it appeared that the answers he provided might damage his case. The Judge also stated of Mr Randhawa, “I have no doubt that he is a man who would take any necessary steps to achieve his ends and where such steps fall foul of the law or morality, he seeks to deny his conduct unless faced with no other option but to admit the same. In the latter instance, he will seek to divert attention onto others, blame others or become altogether evasive”.

On the key matter of whether Mrs Randhawa signed the Acknowledgement of Service form and hence was given proper notice of her divorce, the Judge reached the following final conclusions:

a. Mrs Randhawa had no notice of the divorce proceedings that were initiated by a Petition for divorce by Mr Randhawa on 22nd January 2010.

b. Mrs Randhawa’s purported signature on the Acknowledgement of Service form dated 11th February 2010 was a forgery.

c. The signature was forged by or on behalf of Mr Randhawa

Judge Moradifar set aside the final decree granted on 22nd January 2010.

Final words

The case of Randhawa v Randhawa highlights that any attempt to circumvent the divorce process will be looked on extremely unfavourably in the family courts. The legal implications of taking such a course of action can be extremely complex, especially if the party who used fraud to apply for divorce then goes on to remarry and have children. Where a decree absolute is set aside, the parties effectively remain married and, therefore, any claimed remarriage effectively becomes void. This may then lead to a more serious criminal charge of bigamy. Aside from the criminal charge, this also leaves questions about ownership of marital assets and the joint ownership of any property in the actual and purported marriages.

Edwards Family Law is a niche London-based firm specialising in high-net-worth divorce, international family law, and children’s law. We are members of Resolution, an organisation of Family Law Solicitors that abide by a Code of Practice that promotes a non-confrontational approach to family law practice.

To find out more about divorce proceedings, please phone +44 (0)20 7129 7978 or email contact@edwardsfamilylaw.co.uk. All enquiries are treated in the strictest confidence.

London has long been established as the preeminent centre of the world for divorcing high-net-worth couples, in large part because law courts here are known to award sizeable settlements to the financially less well-off party. This reputation was cemented in 2000 in the case of White v White, involving Martin and Pamela White, who had three children together and divorced after 30 years of marriage. During the case which reached the House of Lords, it was concluded that the couple’s £4.5m net worth should be split 57% to Mr White and 43% to Mrs White. Crucially, Lord Nicholls of Birkenhead made it clear that in such cases, “There should be no bias in favour of the money-earner and against the home-maker and the child-carer”. The judgement went on to say, “As a general guide, equality should be departed from only if, and to the extent that, there is good reason for doing so”. Many high profile separations have now passed through London’s divorce courts, including that of Paul McCartney and Heather

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Mills (Ms Mills received a settlement of £24.3m) in 2008, and Bernie Ecclestone and ex-wife Slavica (Slavica Ecclestone receives £60m per year from her ex-husband) in 2009. Most recently, Her Royal Highness Haya Bint Al-Hussain received the largest ever settlement in British legal history of £554m from the Ruler of Dubai, His Royal Highness Sheikh Mohammed bin Rashid al-Maktoum, reconfirming London’s status as the divorce capital of the world.

Background to the divorce of Princess Haya from Sheikh Mohammad

The details of the divorce of Princess Haya from Sheikh Mohammad are notable not just because of the sheer scale of the settlement but also the background of the case. Princess Haya Bint Al-Hussain is the daughter of Jordan’s former King Hussein and married Sheikh Mohammed Bin Rashid Al-Maktoumon on 10th April 2004, becoming the youngest of six wives. The settlement followed a long-running custody battle, in which Princess Haya fled Dubai in 2009 to London along with her children, citing serious concerns for their safety. Her concern related to a High Court judgement in 2019 in which it was ruled that Sheikh Mohammed bin Rashid al Maktoum had previously abducted his other daughters, Sheikha Latifa Mohammed al-Maktoum and Sheikha Shamsa al- Maktoum, and held them against their will in Dubai. As a result and following several threats, Princess Haya had a real concern that her daughters would be abducted and returned to Dubai against their will. This was further reinforced after it was discovered that Sheikh Mohammed had ordered the hacking of the mobile phones of Princess Haya, her bodyguards and her legal team using spyware developed in Israel called Pegasus.

What did the Family Court rule in the divorce of Princess Haya from Sheikh Mohammad?

On 19th November 2021, in the Royal Courts of Justice Family Court, Mr Justice Moor ruled on the divorce case of Princess Haya from Sheikh Mohammad, specifically in relation to three applications;

1) a settlement for two children of the marriage, Jalila and Zayed, 2) financial provision following an overseas divorce and 3) declarations as to the ownership of various horses, jewellery, and other artefacts. Justice Moor made the following award in favour of Princess Haya and her two daughters, Jalila and Zayed:

Security – a lumpsum payment of £251,500,000 (£210m + £41.5m); Education – £3,040,000;
Maintenance and other costs – £5,600,000 to be paid each year for each child.

As such, this is believed to be the highest ever divorce settlement awarded in an English Court. The amounts awarded cover a range of costs, including education, holidays, visas, living costs, refurbishments, employee wages, IT costs, a vehicle fleet manager, VAT and other taxes, utility bills and insurance costs, wear and tear, horses and horse equipment, vets, nanny’s, tutors, and nurses. A sizeable portion of this award relates to security costs, given the extreme level of threat posed to Princess Haya and her daughters. Citing Princess Haya’s Head of Security, Justice Moor explained, “He [the Head of Security] considered that, although the threat level to HRH changes daily, it remains of a significant magnitude at all times. He exhibited his security assessment. He assessed the current threat level as “severe”. In other words, an attack is highly likely at some point, given the proven history of abduction. If there is a vulnerability in HRH’s security, the threat level rises to “critical”, which means an attack is highly likely in the near future.

In addition to the main threat from HH, there; plus the ever-present risk of kidnap and ransom”.

Final words

While it is true that the scale of the divorce settlement, in this case, is the highest of its kind in London, the background and circumstances of those receiving the awards are by no means normal. As Justice Moor stated, Princess Haya and her daughters will continue to face a “clear and present” risk to their safety for some time, and hence there is a need to fund effective security. Nevertheless, this case undoubtedly reaffirms London’s place as the capital of the world for divorcing high-net-worth couples.

Edwards Family Law is a niche London-based firm specialising in high-net-worth divorce and international family law. To find out more about divorce and financial settlements, please phone +44 (0)20 7129 7978 or email contact@edwardsfamilylaw.co.uk.
All enquiries are treated in the strictest confidence.

In all divorces, but especially in high-net-worth (HNW) divorces, the financial settlement is one of the most contested issues. The greater the income and assets, the higher the stakes.

Understanding how the Court reaches a financial settlement will give you the knowledge you need to build a robust case in your favour. Even if the matter does not go to Court and an agreement is reached through negotiation and/or mediation, the below principles will still apply.

Section 25 of the Matrimonial Causes Act (MCA) 1973 lists factors that the Court must consider when making provisions for a financial settlement in a divorce. However, the Court has full discretion on the weight given to each factor. The first consideration of the Court is to any minor children of the relationship; however, this is not the courts only consideration.

The Court will first look at what resources are available to the parties and then decide how to distribute them. Equality and fairness are the two principles that will guide the Court in any decisions concerning the distribution of wealth and assets.

What are the section 25 factors which the Court must consider?

The Court will consider the following section 25 factors when making a financial order in a divorce case:

• The resources available to the parties, both capital and income and extant or reasonably foreseeable.

• The financial needs of each party, considering the needs of dependent children and any disabilities.

• The duration of the marriage and the age of the parties.

• The conduct of the parties (but only in exceptional circumstances).

• The standard of living enjoyed by the parties.

• Any benefit either party will lose as a result of the divorce.

• The contributions of each party to the marriage (both financial and non-financial).

How have the Courts interpreted the section 25 provisions?

The House of Lords in Miller v Miller; McFarlane v McFarlane [2006] UKHL 24 identified three principles that justified the making of financial orders:

• Needs
• Sharing
• Compensation

Of the three principles, only needs features in section 25 of the MCA 1973. The other section 25 factors (as listed above) must always be considered by the Court when deciding on a financial settlement.

The ultimate objective of the three principles is to achieve a fair outcome.

Needs

No statute sets out the meaning of needs and case law gives it a wide definition. It refers to the income and asset (for example property, vehicles etc) requirements of the parties. In 2014, the Law Commission published a report, Matrimonial Property, Needs and Agreements. The report highlighted that a lack of statutory definition of ‘needs’ in a financial settlement context led to a lack of transparency and regional differences in settlements awarded. To rectify this, the Family Justice Council published a Guidance on Financial Needs on Divorce and Sorting out Finances on Divorce. These include examples of different types of need and highlights key principles about the duration of any financial provision and the transition towards financial independence (the latter is something that the Courts have placed particular emphasis on in recent years).

Sharing

In the landmark case of White v White, Lord Nicholls laid the groundwork for London becoming the ‘divorce capital of the world ’ when he stated:

“…there is one principle of universal application which can be stated with confidence. In seeking to achieve a fair outcome, there is no place for discrimination between husband and wife and their respective roles. Typically, a husband and wife share the activities of earning money, running their home and caring for their children. Traditionally, the husband earned the money, and the wife looked after the home and the children. This traditional division of labour is no longer the order of the day. Frequently both parents work. Sometimes it is the wife who is the money-earner, and the husband runs the home and cares for the children during the day. But whatever the division of labour chosen by the husband and wife, or forced upon them by circumstances, fairness requires that this should not prejudice or advantage either party when considering paragraph (f) [of section 25(2)], relating to the parties’ contributions … If, in their different spheres, each contributed equally to the family, then in principle it matters not which of them earned the money and built up the assets. There should be no bias in favour of the money-earner and against the home-maker and the child-carer.”

The sharing principle was then set out:

“A practical consideration follows from this. Sometimes, having carried out the statutory exercise, the judge’s conclusion involves a more or less equal division of the available assets. More often, this is not so. More often, having looked at all the circumstances, the judge’s decision means that one party will receive a bigger share than the other. Before reaching a firm conclusion and making an order along these lines, a judge would always be well advised to check his tentative views against the yardstick of equality of division. As a general guide, equality should be departed from only if, and to the extent that, there is good reason for doing so [Emphasis added].”

Although there is no defined good ‘reason’ for departing from equality, the most common situation is where one party has stepped back from their career and therefore has limited earning potential when compared with the spouse who continued to work. If the children of the marriage are to predominantly live with the financially weaker spouse, then it is likely that a fair settlement will require him or her to be awarded a greater share of the matrimonial assets.

Compensation

In cases where there is a “almost near certainty” that one spouse gave up a lucrative vocation that would have otherwise seen them enjoy an income similar to the party who continued with their career, compensation may be needed to achieve fairness.

Compensation awards are exceptional and will only occur in cases where:

• There are sufficient assets to fund the claim once a sharing award has been made and needs met.

• The claiming spouse has provided evidence of a lucrative career and that high levels of remuneration were likely.

• Documentary evidence supports the arguments made about the Claimant’s abilities and future career prospects.

Final words

The Courts have made clear that in matters concerning financial orders, the legislation must be paramount over case law. The Court of Appeal and House of Lords decisions relate to the process of reasoning when applying the section 25 factors to reach a fair settlement.

Lord Justice Thorpe made this clear in Lawrence v Gallagher [2012] EWCA Civ 394, 2012 WL 1015830 when he stated:

“Since the decision of the House of Lords in White v White the specialist judges have developed new approaches often expressed in newly minted phrases. I have myself contributed to this process to a limited degree. All this erudition is designed to guide the search for the fair outcome or to safeguard against the unfair outcome. But we must never forget the legislated check list which is designed to achieve the same ends. [Emphasis added]”

Edwards Family Law is a niche London-based firm specialising in high-net-worth divorce and international family law. To find out more about financial orders, please phone +44 (0)20 3 983 1818 or email contact@edwardsfamilylaw.co.uk. All enquiries are treated in the strictest confidence.