Author: Kelly Edwards

Although we advise and represent many high net worth (HNW) people during their divorce, most of our clients are anxious about paying their legal costs, especially if the matter goes to the Family Court. HNW people are often wealthy in assets but short on liquid cash.

The perceived cost of litigation costs often results in people choosing to forgo legal advice and represent themselves in Court. This is a mistake as if your spouse has instructed an experienced divorce lawyer you will be at a significant disadvantage. Furthermore, it is extremely difficult for someone not trained and experienced in family law to successfully navigate the legal system and instruct expert witnesses etc.

There are several options available to cover your legal costs whilst your financial settlement is being agreed upon.

Self-funding

This is where you use your own capital to pay for your legal expenses. If you are in a financially stronger position than your spouse, you may choose to fund their legal costs. This will work to your advantage if it mitigates the risk of your spouse taking out a commercial loan at a high-interest rate, therefore reducing the capital available to be divided in the financial settlement. However, this should not be an open-ended commitment and your spouse should be encouraged to have a backup plan in case you have to withdraw your financial support.

Family and friends

If you receive financial help from a family member or a friend, make sure you ask your Family Law Solicitor how long they believe your divorce case will take to settle. Also, agree that notice will be provided if funding has to cease to ensure you do not continue to run up legal costs without any ability to pay them.

If the money from family and/or friends is in the form of a loan, it is always best to have a legal agreement drawn up. For example, you could agree that you will pay the money (plus any agreed interest) loaned for legal costs back once you receive the funds from your share of the financial settlement. The other reason for documenting the loan is so it can be presented in the Family Court as a debt that needs to be repaid.

Remortgaging your property

If you have enough equity in your family home, you can apply to remortgage your property. The advantage of remortgaging is the interest rate will be lower than that of a personal loan and the loan can carry on after your divorce is concluded.

Personal loan or credit cards

Personal loans are available from many financial institutions including high street banks, independent lenders, even Sainsbury’s and Tesco. Your financial circumstances and the value of the loan will determine the interest rate. You will also need to pay an administration fee.

A bank will require confidence that you will receive a substantial financial settlement. To this end, an undertaking from your Solicitor and you that the debt will be paid will be required. Other third-party lenders may require security such as a charge over your property before they lend you any money.

Sears Tooth agreements

A Sears Tooth agreement is a deed that assigns the settlement you receive from your divorce to your Solicitor who will pay themselves in full before handing over the rest of the funds.

The agreement will need to be signed and witnessed after you have received independent legal advice. Furthermore, you will need to tell the Court and your spouse that you have entered into a Sears Tooth agreement.

Sears Tooth Agreements are now very rare as they are inherently risky for Solicitors and generally not necessary given the introduction of litigation loans, as discussed below. They also require the Solicitor to cover any disbursements themselves. However, experienced divorce lawyers who know that their client will receive a high-value settlement may enter into one if it means getting their client’s case over the line.

Litigation funding (also known as a litigation loan)

Litigation funding for divorce is essentially where a commercial lender loans you the funds you need to cover your legal costs and disbursements. The loan is repaid from the financial settlement you receive when your divorce is concluded.

Because the lender needs reassurance that they will get their money back, they may secure certain assets against the loan, for example, any property you own or valuable artwork but many do not. The lender will make an assessment of your case (guided by your solicitor) as to the likely outcome and how bug a loan you might need.

Although your divorce lawyer can advise you on how to obtain a commercial loan, you must receive legal advice from an independent Solicitor before you sign the loan agreement.

Court-ordered interim financial provision

If the financially weaker party in a divorce has no income or capital to meet their legal costs, and for whatever reason they cannot obtain a litigation loan, the Court can order the financially stronger party to pay. This ensures both parties can fairly pursue their case. A separate hearing will be held to determine if an interim financial provision is suitable. The Court will consider the following:

  • Is the dependent spouse’s case reasonable and are they taking every opportunity to settle the matter early? An example of this is trying mediation to resolve any disputes rather than insisting on going straight to Court. Any history of domestic abuse within the relationship will mean it is highly unlikely that mediation will be a suitable dispute resolution alternative.
  • Have commercial lenders been approached?

Your Solicitor will advise you on the risks of an interim financial provision application and the steps that must be taken beforehand – court should always be seen as the final resort for legal fees funding.

Final words

Having the finances available to see your divorce case through to the end can result in shorter court proceedings and encourage your spouse to settle early. At Edwards Family Law, we will explore every avenue that suits your financial situation to allow you to receive our specialist, astute divorce law advice.

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 3983 1818 or email contact@edwardsfamilylaw.co.uk. All enquiries are treated in the strictest confidence.

It is well known that legal costs in divorce cases can easily escalate out of control, especially where proceedings continue over many months or even years. The recent divorce case of Xanthopoulos v Rakshina heard in the High Court is a perfect illustration of just how high these costs can be; described by Mr Justice Mostyn as “exorbitant”. Here we will take a closer look at the costs accrued in this case and what can be done to avoid such outcomes following separation.

What happened in the case of Xanthopoulos v Rakshina?

The case of Xanthopoulos v Rakshina, heard in the High Court in April 2022, concerned a Greek-born resident of Russia, Lazaros Xanthopoulos and his wife, Alla Aleksandrovna Rakshina. Ms Aleksandrovna is described in the judgement as the 75th richest woman in Russia with assets of over £300m and as holding a senior role with a Siberian supermarket. The parties married in Moscow in 2006 and separated in 2020. A Russian court agreed to the divorce in March 2021, but a financial remedy was not finalised at this time. Mostyn was highly critical of the parties on the basis that their filings missed the deadline set, and their skeleton arguments exceeded the 350-page limit by some 1,500 pages. On this matter, Mostyn stated:

“This utter disregard for the relevant guidance, procedure, and indeed orders is totally unacceptable. I struggle to understand the mentality of litigants and their advisers who still seem to think that guidance, procedure, and orders can be blithely ignored”. He also stated that he “struggled to find the language that aptly describes the exorbitance of the litigious conduct of the parties”.

The High Court was asked to consider a range of costs by the parties. In total, costs have amounted to between £7.2 million and £8 million, including £5.4 million incurred prior to the High Court hearing. This is eye-watering by any measure. Summing up his concerns about these costs, Mostyn stated:

Figures like this are hard to accept even in a conflict between the uber-rich…to run up in domestic litigation costs of between £7 million and £8 million is beyond nihilistic. The only word I can think of to describe it is apocalyptic”.

Strong words indeed.

Explaining how the system could be improved to avoid such high legal costs in family law disputes, he recommended that statutory measures be put in place to limit the scale and rate of costs. Alternatively, he suggested that the Family Procedure Rule Committee need to find a solution to the problem.

Echoes of the past?

This case may remind some of the fictional inheritance case of Jarndyce v Jarndyce in Charles Dickens’ Bleak House. The plot of this imagined case concerned a vast inheritance and legal proceedings that went on for so long that by the end, the entire estate had been swallowed up in legal costs, hence rendering any final decision moot. Explaining just how futile the proceedings were in the first chapter of Bleak House, Dickens writes, “Jarndyce and Jarndyce drones on. This scarecrow of a suit has, over the course of time, become so complicated that no man alive knows what it means. The parties to it understand it least; but it has been observed that no two Chancery lawyers can talk about it for five minutes without coming to a total disagreement as to all the premises”.

The story of Jarndyce v Jarndyce was itself inspired by historical examples of legal cases in which legal proceedings have gone on for decades, such as in the case of Sir George Downing in the late 1700s, which lasted for more than 40 years.

Admittedly, the more recent High Court case of Xanthopoulos v Rakshina did not lead to costs which exhausted the marital assets; it is nevertheless a reminder of just how far family disputes can extend if not kept in check.

How can divorce costs be kept under control?

The single most effective way to keep divorce-related costs under control while achieving a mutual and amicable outcome when it comes to financial and other agreements following divorce is to use Alternative Dispute Resolution (ADR). ADR includes a range of non-confrontational methods of reaching an agreement even on highly complex matters, such as mediation, negotiation, and arbitration.

Family law Solicitors who are members of the organisation Resolution have the skills and training to resolve matters such as child and divorce disputes outside of the court system. Resolution was founded over 40 years ago and is made up of family Solicitors who advocate a non-confrontational approach to family law issues, providing a better outcome for families and their children.

Outcomes are often much better than traditional court-based litigation as parties are encouraged to work together to find a mutual agreement. This results in improved compliance with any outcome reached (i.e. a long term willingness to abide by what is agreed between the parties) and helps to preserve relationships for the benefit of any children involved in the proceedings.

Furthermore, in most cases where mediation, arbitration, or negotiation are used to reach a financial resolution following divorce, costs are typically much lower than traditional court litigation.

Final words

As Mostyn makes clear in his remarks in the case of Xanthopoulos v Rakshina, legal costs for divorce proceedings need to be capped or controlled in some way to prevent endless litigation, wrangling, and the excessive use of court time. As such, the courts do not offer the optimal route for such disagreements, even where settlements can reach millions of pounds. ADR methods such as those advocated by Resolution are not just for straightforward disputes of lower value; they are equally suited to highly divisive high-net-work divorce proceedings.

Edwards Family Law is a niche London-based firm specialising in complex family law cases following the breakdown of a relationship. 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 financial dispute resolution and financial orders following divorce, please phone +44 (0)20 3983 1818 or email contact@edwardsfamilylaw.co.uk. All enquiries are treated in the strictest confidence.

According to the UK’s society magazine, Tatler, cryptocurrencies have been dubbed the new ‘Cayman Islands bank account’ for high-net worth (HNW) individuals attempting to hide their assets in divorce proceedings.

The lack of domestic and internationally cohesive regulations around cryptocurrencies, such as Bitcoin, and the fact they are held in ‘digital wallets’ which can prove difficult to trace back to a specific person, means that crypto can provide a cunning vehicle for concealing wealth.

Family law solicitors specialising in international and HNW financial proceedings on divorce have been swift to get to grips with the legal issues surrounding cryptoassets and divorce financial settlements.

What are cryptoassets and cryptocurrencies?

Cryptoassets are digital representations of value that you can transfer, store, or trade electronically. As well as currencies, cryptoassets include non-fungible tokens (NFTs).

Cryptocurrencies are purely digital and use a peer-to-peer system and blockchain to undertake and record transactions. Cryptographic keys are stored in ‘wallets’ which are managed by a centralised crypto exchange (CEX).

There are several different types of cryptocurrencies, however, the most widely used and well known are Bitcoin and Ethereum.

Cryptocurrencies sit outside central banks, regulatory authorities, and governments. At present, they are unregulated, although there are moves to rectify this in many parts of the world, including the UK, Europe, and the USA.

Can cryptoassets and/or currencies form part of a divorce financial settlement?

Yes, and therefore any cryptoassets held by a party to a financial settlement proceedings on divorce must include them when making a full and frank financial disclosure. Although cryptocurrencies are notoriously volatile, the courts do have methods and expertise at their disposal to undertake valuations and assess their values.

What can I do if I believe my spouse is hiding cryptoassets?

Cryptocurrency can be difficult to identify and trace because there is no centralised ownership register for cryptocurrency assets. A specialist forensic expert may therefore need to be instructed to establish where cryptoassets are being held and to determine their approximate value.

Although it is widely believed that cryptocurrencies are anonymous, they are in fact more transparent than most people realise. Currencies such as Bitcoin do not have a centralised authority to provide identifying information, however, most cryptocurrency blockchains are public, meaning anyone with the required expertise can track an entire transaction history.

If you believe your spouse is hiding cryptoassets, it is possible to apply for a freezing order to prevent them from dealing with or disposing assets, including cryptocurrency, for a period of time. Whilst the freezing order is in place, a solicitor can instruct an expert such as a forensic accountant to trace and value your spouse’s cryptoassets. Freezing orders can only be applied for in limited circumstances and there are strict costs warnings which need to be considered ahead of issuing such proceedings.

Sometimes, cryptoassets cannot be traced. In such circumstances it may be possible to persuade the court that your spouse does possess cryptocurrency by providing evidence such as crypto wallet transactions or bank statements showing dealings in cryptocurrencies.

If the suspected cryptoassets cannot be traced but there is substantial evidence to show that they exist, the court has the power and ability to attach a notional value to the cryptocurrency and account for it as a matrimonial resource to be divided between you and your spouse. After considering all the factors contained within section 25 of the Matrimonial Causes Act 1973, the court will decide how the property and assets of the marriage are to be divided, and this can include untraceable cryptoassets.

Concluding comments

Across the civil, criminal, and family courts, the judiciary has moved quickly to ensure that those adversely affected by the hiding and/or fraudulent dealings in cryptoassets receive access to justice. This is a fast-paced area of law, in which technology can rapidly outstrip legal remedy. In financial settlement cases on divorce, especially those involving significant assets and/or an international element such as obtaining a divorce in a foreign jurisdiction, securing advice from an experienced and specialist family law solicitor can make a significant difference to the outcome of your financial settlement.

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 3983 1818 or email contact@edwardsfamilylaw.co.uk. All enquiries are treated in the strictest confidence.

Research has confirmed what most of us already knew – following a divorce, women are more likely to lose out on pension-generated wealth than men, putting them at risk of low living standards in later life. For high-net-worth (HNW) couples, pensions are often located abroad and unless you have an experienced international family law Solicitor advising you, the overseas-based pension could fail to be included in the financial settlement.

Debora Price, the co-author of the Pensions and Divorce: Exploratory Analysis of Quantitative Data report and Professor of Social Gerontology at the University of Manchester commented in The Guardian:

“Divorce is a very emotional time for couples. It is especially difficult for them to think about pensions and often, the person with the larger pension – almost always the husband – does not want their pension to be shared as an asset in divorce.

“Women are often very focused on keeping their homes for themselves and the children and are often prepared to give up quite a lot to secure that.”

In this article, we explain how international pensions are dealt with in divorce financial settlement proceedings. However, before covering international pensions, below is a quick guide to how UK pensions are handled.

How pensions rights are divided in a divorce

When a couple divorce there are several options for dividing pensions:

Pension sharing

A Pension Sharing Order provides one spouse with a percentage share (referred to as a pension credit) of their ex-spouse’s pension pot. The pension credit can be assigned to an existing or new pension scheme. This option provides for a clean break concerning pensions.

Pension offsetting

One party retains their entire pension in exchange for other assets such as the family home. If the pension rights are worth less than the offsetting asset, the party receiving the pension under the financial settlement can relinquish the equivalent value of the property.

Pension attachment (formally known as pension earmarking)

In this scenario, the Court will make a Pension Attachment Order. This will provide for a portion of one party’s pension to be set aside for their ex-spouse. The ex-spouse will receive their percentage when the pension starts being paid out.

This option comes with the risk that if the pension holder dies before the pension pays out, the receiving spouse may never receive their percentage of the pension fund.

Applying UK pension sharing options to pension rights-based abroad

In Goyal v Goyal [2016] EWFC 50 (Fam), The Hon. Mr Justice Mostyn adopted the approach that pension sharing under section 24B of the Matrimonial Causes Act 1973 is not available for foreign pensions unless there is compelling evidence that a pension sharing order would be implemented in the overseas jurisdiction. Therefore, if international pension rights make up a considerable portion of the financial assets in a divorce, the jurisdiction where the divorce and financial remedy proceedings are heard will be crucially important.

Pension attachment orders, either lump sum or periodical, are sometimes enforceable in foreign jurisdictions. However, they are rarely used as a solution when dividing foreign pensions due to significant limitations, such as the Court not being able to direct the pension holder to retire at a set time, and the uncertainty surrounding pension attachment orders because they can be varied by the Court.

The financial remedies when sharing internationally based pension rights

The first thing your international divorce solicitor will do is seek legal advice in the jurisdiction the pension rights are located. They will ascertain whether the pension provider would consent to implement a pension sharing or pension attachment order made by an English Court. If the answer is negative, the option of whether an equivalent local order could be made and enforced will be explored.

Other solutions include:

Transferring the international pension to an English pension (this would be subject to the consent of the pension provider and the laws of the country where the pension is held).

Offsetting the pension against other assets.

Applying for an order under the Matrimonial and Family Proceedings Act 1984, Part III (financial relief in England and Wales after an overseas divorce). To qualify to apply for a Part III order one of the following must apply:

Either party must be domiciled in England and Wales on the date of the application or the foreign divorce.

The applicant must be habitually resident in England and Wales throughout the period of one year ending with the date of the application for leave or the foreign divorce.

The respondent must be a resident in England and Wales on the date of application.

Transferring (part of) the English pension to an overseas pension arrangement, against which the overseas order/agreement would be enforceable or by taking advantage of the pension freedoms

created by the Taxation of Pensions Act 2014 (where possible and subject to consideration of the tax consequences).

Summing up

As illustrated above, dividing an internationally based pension in a divorce financial settlement is a complex procedure that should be managed by an experienced solicitor with experience in dealing with complex cases. Although reaching a satisfactory solution may be difficult, it is certainly not impossible. With the right advice and representation, you can ensure you do not miss out on international pension rights that can provide you with a comfortable retirement in the future.

Edwards Family Law is a niche London-based firm specialising in complex and high-net-worth divorce and international family law. To find out more about dividing international pensions upon divorce, please phone +44 (0)20 3983 1818.

Whilst researching this article we searched extensively through various academic databases for articles discussing the effect perimenopause and menopause has on women who are in the process of divorce. The fact that we found almost nothing on the subject illustrates how little attention has been paid to the potential psychological impact of the two most stressful events a woman can experience occurring at the same time. it is only very recently i.e. this year, that people are starting to talk about it and the effect it can have.

In complex divorce cases where there may be hidden assets, jurisdictional disputes, and multiple mediation sessions and court hearings, both parties have to remain emotionally robust to ensure they can negotiate for what they need to move forward to an independent future. Menopause, however, leaves many women feeling the antithesis of strong, more often words such as exhausted, befuddled, emotional, and confused are used by peri/menopausal women to describe their physical and mental state.

Divorce and peri/menopause are predominantly middle-aged life events. The average age for UK women going through a divorce is 44.5 years. Peri/Menopause usually occurs between the ages of 45-55 years and is accompanied by a variety of symptoms including:

  • hot flushes – short, sudden feelings of heat, usually in the face, neck, and chest night sweats – hot flushes that occur at night
  • difficulty sleeping – this may make you feel tired and irritable during the day
  • a reduced sex drive (libido)
  • problems with memory and concentration
  • vaginal dryness and pain, itching or discomfort during sex headaches
  • mood changes, such as low mood or anxiety
  • palpitations – heartbeats that suddenly become more noticeable joint stiffness, aches, and pains
  • reduced muscle mass
  • recurrent urinary tract infections (UTIs)

Dealing with a divorce whilst battling one or more of the above symptoms is incredibly demanding and may lead to stress-related symptoms, including:

  • feeling overwhelmed
  • racing thoughts or difficulty concentrating irritability
  • feeling constantly worried, anxious, or scared loss of confidence
  • insomnia and exhaustion
  • increased or decreased appetite
  • increased alcohol consumption

Coping with peri/menopause and divorce at the same time comes with enormous emotional, physical, and mental pressures and that is without considering other mid-life challenges such as career demands, teenagers, and ageing parents.

Due to the limited studies on how peri/menopause and divorce affect women mean it is impossible to draw any inferences on the subject. Common sense, however, tells us that should these two major life events happen simultaneously, some women will find it exceptionally difficult to argue for what they need in terms of a financial settlement.

If you are going through a divorce during peri/menopause, below are some ideas on how to take care of your physical and mental health during this challenging time.

Find a Divorce Solicitor who you trust and get on with. Divorce, especially one that involves international elements can take months or even years to conclude. You need a Solicitor on your side who you can be

confident will listen to your objectives and provide practical, emotion-free advice on how best to get what you want. It is also advisable to instruct a Solicitor who belongs to Resolution as its Code of Practice encourages members to resolve disputes in a non-confrontational way, thereby reducing stressful conflicts.

Take care of your health. Middle age is one of the busiest times in a woman’s life and it can be exceptionally difficult to find time to eat well, exercise, spend time with friends, and get enough sleep. The studies on stress, however, all show that self-care is essential for mitigating symptoms.

Seek additional support from a Counsellor or other mental health professional if the situation becomes overwhelming.

Wrapping up

It is imperative not to underestimate the effects of going through a divorce at the same time as peri/menopause. If you are struggling with your mental health, reach out to your Divorce Solicitor who can assist you with finding the support you need to move through this challenging life situation.

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

One question we are routinely asked by our clients is whether nuptial agreements, either pre or post, carry any weight in Court. After all, after going to the effort of entering into an agreement to protect pre-marital assets, if this held no legal weight, what would be the point?

Take the recent high profile divorce case of Kirsty Bertarelli from Italian-born Swiss businessman Ernesto Bertarelli. As Tatler points out, “The former husband and wife were listed together at 14th place in this year’s Sunday Times Rich List, with a combined estimated fortune of £9.2 billion…” Whilst there is speculation as to the exact amount, it is believed that Ms Bertarelli received a divorce settlement of around £350m, in addition to a property on the shores of Lake Geneva worth £52m, and she retains ownership of an £8m ski chalet in the Swiss resort of Gstaad. This would make Ms Bertarelli the richest “British born divorcee in legal history.” In this case, the couple are believed to have entered into a pre-nuptial agreement when they married in 2000, and it is reported that they wanted to avoid a lengthy and drawn-out legal battle. The existence of the ‘pre-nup’ may have allowed the couple to focus on reaching such an agreement out of court. So just how legally enforceable are nuptial agreements in England and Wales?

Are nuptial agreements legally enforceable?

Contrary to what many people believe, nuptial agreements are not legally enforceable, and the Court has the final say when it comes to deciding how assets should be divided in an application for financial remedy following divorce. The Court will, however, take nuptial agreements into consideration by giving them appropriate weight.

The Court is required to take into account a range of factors when deciding on a financial order in accordance with the Matrimonial Causes Act 1973 (MCA 1973), Section 25; these include:

  • the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future
  • the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;
  • the standard of living enjoyed by the family before the breakdown of the marriage;
  • the age of each party to the marriage and the duration of the marriage;
  • any physical or mental disability of either of the parties to the marriage;
  • the contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family
  • the conduct of each of the parties.

Based on these factors, the nuptial agreement may be given a lesser or greater weight by the Court.

Nuptial agreements – a matter of fairness

It is important to understand that there is a difference between saying that a nuptial agreement is legally enforceable versus saying that a nuptial agreement carries weight when deciding a financial settlement. The principle that weight should be given to a nuptial agreement was established in the landmark case of Radmacher v Granatino [2010] UKSC 42. In Radmacher, the Supreme Court came to the conclusion that weight should be given by Courts to a nuptial agreement when exercising their discretion under section 25 of the MCA 1973; the judge stated, “The Court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to the agreement”.

All of this means that a nuptial agreement should be given due weight by the Court where it is fair to do so. The word ‘fair’ is key here. The supreme Court referred to other landmark cases, including McFarlane v McFarlane [2006] UKHL 24, in which it was established that fairness should be based on the principles of:

  • need – i.e. it is fair to take into account the needs of both parties to a divorce;
  • compensation – this means that if one person is left financially stronger once both parties’ needs are met, the Court may award some compensation to the other person, and;
  • sharing – i.e. each party to a divorce is entitled to an equal share of their joint assets unless there is a good reason otherwise (i.e. if some assets were acquired before getting married).

The Court will apply a three-part fairness test when faced with a case in which there is a nuptial agreement:

1) That the agreement was freely entered into;

2) Both parties have a full appreciation of the implications of the agreement; and

3) it is fair to hold both parties to the agreement in the context of the circumstances prevailing.

In practical terms it is widely considered that a pre-nuptial agreement should be signed at least 28 days prior to the marriage, and indeed not less than 21 days prior.

The court will consider each agreement and case on the basis of its own context and facts so specialist family law advice is always required whether you are considering entering into a nuptial agreement, or have one and are looking to divorce.

International cases

Different jurisdictions have varying attitudes towards nuptial agreements, but in many cases where there is a nuptial agreement, there will be an international element. Regardless of whether the nuptial agreement was prepared and signed in England and Wales or in another jurisdiction, if the divorce is being heard in England and Wales, the court will apply English law to its assessment of the agreement.

The court will carry out the three stage assessment detailed above when considering the foreign nuptial agreement, in line with the other factors it must consider pursuant to the Matrimonial Causes Act. Where the nuptial agreement was prepared and signed in a jurisdiction in which nuptial agreements are enforceable, this can be good evidence that the parties intended to be bound by it.

Final words

When it comes to nuptial agreements, whether drawn up before or after marriage, as long as they are freely entered into in a fair and transparent manner by both parties who understand the full implications of the decisions made, case law requires that Courts give them appropriate weight. In addition, the existence of a nuptial agreement can help focus the parties’ minds during a divorce and can be a good starting point for negotiations to ensure an amicable and timely financial settlement is reached for the good of both parties and any children involved.

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 or 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.

Most of the high-net-worth (HNW) clients advised and represented by us are relieved when the Court finally grants a divorce-related Financial Order and they can finally put the legal aspects of their divorce behind them. However, although a clean break is highly desirable, the Court can vary Financial Orders sometime in the future if certain circumstances arise.

The Coronavirus pandemic has resulted in requests for the Court to vary Financial Orders relating to nominal periodic payments. For example, in the recent case of AJC v PJP [2021] EWFC B25, the Applicant was an airline pilot who lost her job due to the ramifications of the pandemic. She asked the Court to temporarily convert a previously granted Nominal Periodical Payments Order into a Substantive Maintenance Order until the airline industry started employing people again. However, the Applicant’s former husband argued that he too had suffered financially because of the Covid-19 pandemic.

In rejecting the application, the Court held that varying a nominal order upwards is different to varying a substantive periodical payment where the payee receiving maintenance of a prescribed amount understands that it may decrease if their income increases and may increase if the payer earns more and they can demonstrate need. It was held to be unreasonable to convert the Order as the Applicant had been financially self-sufficient at the time it was made, eight years had passed, and the parties’ youngest child was now 14 years old. Furthermore, the change in circumstance resulted from the economic impact of a pandemic affecting billions, not from a disadvantage generated by the relationship between the parties.

AJC v PJP illustrates that the Courts will not vary a Financial Order without good cause. However, in certain circumstances, changes are justified. But before we examine how a Financial Order can be varied, let’s briefly recap what they are.

What is a Financial Order?

There are several types of Financial Orders provided by the Court to ensure the financial settlement you have agreed in negotiation and/or mediation (a Consent Order) or a decision by the Court is wrapped up in a legally binding directive.

Common Financial Orders include: Clean Break Orders

Pension Sharing Orders Property Adjustment Orders Maintenance Orders
Lump Sum Orders

Can I appeal a Financial Order?

If you believe the Judge has made a mistake in applying the law to your case, you can apply for permission to appeal the Financial Order issued by the Court. When considering whether to grant permission to appeal, the Court will consider:

a)  Whether your appeal has a realistic chance of success, and

b)  Is there a convincing reason for the appeal to go ahead?

The Court has several remedies it can grant if your appeal is successful, including:

Affirming the Order.
Setting aside the Financial Oder.
Varying the Order.
Directing the lower Court to consider a specific aspect of the Order again.

What Financial Orders can be varied by the Court?

Under certain circumstances (see below) an application can be made to vary a Financial Order related to the following:

Maintenance pending suit.
Periodical payments and secured periodical payments. Lump sums by instalments.
Provision for children.
Deferred lump sums.

Settlement orders.
Sale of property.
Pension sharing orders (before the decree absolute is granted).

What type of Financial Order cannot be varied?

The Court cannot vary the following type of Financial Orders:

An order for a lump sum or sums under section 23 of the Matrimonial Causes Act 1973, not payable by instalments.

Property adjustment orders (except if they relate to the sale of the property concerned). A pension sharing order after the decree absolute has been granted.

How do I apply to vary or appeal a Financial Order?

The first step to take in applying to vary a Financial Order is to speak to an experienced Family Law Solicitor. They will examine your situation and establish if your existing Order can be varied.

There are several situations in which the Courts will consent to vary a Financial Order, including where one party to the Order:

Exerted undue influence over the other.
Misrepresented their financial situation or committed fraud to achieve the Order they wanted. Misrepresented other facts required to ensure the Order was just and fair.

Financial Orders can also be varied if it is shown that an event has occurred which obliterates the fundamental elements of the original agreement. This is known as a “Barder” event. The Courts have not ruled out the impact of the Coronavirus pandemic as sufficient grounds to qualify as a “Barder” event that could trigger an application to vary a Financial Order however generally these applications are limited in scope and things such as house prices falling or shares in a company being worth more or less is not going to be sufficient to vary an order.

In summary

Applications to vary existing Financial Orders can be made for all sorts of reasons, including ending ongoing spousal maintenance payments to achieve a clean break to a change in financial circumstances due to Covid-19. Our Solicitors specialise in dealing with HNW divorce and financial settlements. We act for both sides, having successfully applied for and defended many cases involving the variation of Financial Orders.

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 3983 1818 or email contact@edwardsfamilylaw.co.uk. All enquiries are treated in the strictest confidence.

It is often assumed that mediation is too ‘soft’ an approach for working out a financial settlement in high-net- worth (HNW) divorce and is primarily a mechanism for establishing arrangements for children. However, such an assumption can deny couples the opportunity to take control of the financial settlement process and reach an agreement in a calm, non-confrontational manner.

There are several advantages of mediation in HNW divorce, including:

Confidentiality – the British tabloids are famous for their love of scandal and will viciously latch on to HNW divorce cases that end up in Court. Mediation is a completely confidential process, allowing you to

work through your divorce without the stress of publicity (which can become cruel) and details of your marriage becoming media fodder that could one day be read by your children.

Win-win solutions – unlike formal litigation, mediation is not a win-lose process. The Mediator, who will be experienced in family law matters, will work with you and your spouse to help you reach a fair agreement and allows you both to move on to positive futures.

Mediation is voluntary – no one can force you to attend mediation, unlike Court where one party can issue proceedings. This alone provides a platform where communication is based on mutual co-operation and respect, providing a robust foundation for a positive outcome.

Choosing mediation does not mean you will lack legal support. Your Divorce Solicitor will advise and represent you throughout the mediation process, ensuring your interests are protected.

However, because the mediation process is designed to be used by people who may not have legal representation, it is free from the legalese and procedures found in Court, allowing you greater control over how things are run.

The cost of going to Court

Even people with significant assets and plenty of money to fund ongoing divorce litigation may baulk at the true cost of going to Court. Legal bills of hundreds of thousands of pounds are easy to achieve. But the cost of litigation is not just financial. Going to Court is stressful and can be time consuming. Furthermore, as it is by nature adversarial, it does little in the way of helping parties learn to put aside their differences and communicate compassionately, something that will be essential going forward if children are involved.

Mediation on the other hand is a great deal cheaper than going to Court. It is also quicker and deliberately designed to make parties feel safe and confident in expressing their needs and opinions. And if matters cannot be resolved by mediation, the option to file Court proceedings remains available.

The process of mediation

A MIAM is the first stage in the mediation process whereby a trained mediator explains the process and the benefits to each party. Not all cases are suitable for mediation, including those in which one party is bankrupt, there is evidence of domestic violence, there are child protection concerns, both have already attended a MIAM in the last four months, or there is a significant risk of harm or hardship. It is also important to understand that mediation is not mandatory, but the attendance of the MIAM is (except in the situations listed above) if you wish to apply for a Family Court Order.

You can choose to attend a MIAM on your own, or with the other party. During the first session, the Mediator will gather information to determine if mediation is a suitable way to resolve your dispute.

If, after the MIAM, you decide mediation is not the right process for you, or the Mediator deems it to be inappropriate, then you will be given a form that proves to the Court you have considered mediation.

If both parties agree to mediation, what happens next?

If both parties and the mediator agree mediation is appropriate, then you will be informed of the next steps. Mediation is a purely voluntary process in which two people can seek to resolve a dispute with the assistance of a trained mediator. It is highly effective in situations in which both parties are open to resolving the dispute at hand, and for any financial matters, there must full financial disclosure.

Mediation is also useful where there has been a previous arrangement, which needs to be updated (perhaps as children get older).

The discussion can be undertaken face to face, but it is possible to use separate rooms; this is sometimes referred to as ‘shuttled mediation’.

During the session, your Mediator will:

Listen to both parties to determine what needs to be worked through
Ensure that both people are heard equally – this is important to ensure a fair process and outcome Offer any guidance or information relevant to the discussion
Advise you if it will be necessary to seek input from other services or specialists

Work towards an agreement which is fair to both parties, always considering the needs of any children involved

It might be necessary during the process to consult with a Solicitor to validate the legality of what is being agreed or discussed – your Mediator will advise how this can be done.

It is important to understand any agreement during mediation is not legally binding, but it can be made legal by drawing up a consent order (drafted by your Solicitor), which must be approved by a Judge. This is essential. To find out more read our blog post on consent orders here.

Final words

Mediation is truly effective as a method of resolving HNW divorce disputes. Many people who initially believe it will not be effective for their situation change their perspective during the MIAM process, realising that it is highly preferable to the cost and stress of going through the Court process. For the long-term benefit of all involved, especially for children, it is important to consider the merits of a non-confrontational method of resolving family disputes. Of course, there will always be contexts in which the Courts must be involved, and it might be that mediation achieves only a partial agreement, leaving a final point to be decided by a Judge – but as they say, you will not know until you try.

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 and the benefits of mediation (and whether it is appropriate in your case) please phone +44 (0)20 3983 1818 or email contact@edwardsfamilylaw.co.uk. All enquiries are treated in the strictest confidence.

There is a saying that all psychopaths are narcissists but not all narcissists are psychopaths. For anyone who has been in a relationship with a narcissist and is attempting to divorce them, this fact may seem a small mercy. Unfortunately, many successful people have significant narcissistic traits, therefore, we often deal with spouses in high-net-worth and international divorce who are trying to escape a narcissist.

The term narcissist is used a great deal these days. However, someone with Narcissistic Personality Disorder (NPD) is very different from a person who enjoys posting selfies. Often charming and personable in public (including the courtroom), someone with NPD can be controlling, superficial, manipulative, and downright dangerous. Although the English family law system is geared towards encouraging couples to work out financial settlements and arrangements for children between themselves or through mediation rather than going to Court, a narcissist will thrive on dragging out proceedings as long as possible. Furthermore, someone with NPD is unlikely to ever admit they did anything wrong and will blame you for the relationship breaking down. This can often lead someone to question their sanity and start to believe they are wrong – this is known as “gaslighting”.

To stay strong and sane, you need to instruct an experienced, tough Divorce Solicitor who will refuse to engage with your spouse’s gameplaying and will tenaciously fight to ensure you and your children’s best interests are protected, especially concerning the financial settlement.

What is Narcissistic Personality Disorder?

NPD is a recognised mental illness. According to the Diagnostic and Statistical Manual of Mental Disorders (DSM), a guidebook used by mental health professionals, people with NPD have five or more of the below traits:

A grandiose sense of self-importance
Preoccupation with fantasies of unlimited success, power, brilliance, beauty, or ideal love

A belief that one is special and can only be understood by or associate with special people or institutions A need for excessive admiration
A sense of entitlement (to special treatment)
Exploitation of others

A lack of empathy

Envy of others or the belief that one is the object of envy Arrogant, haughty behaviour, or attitudes

Like all mental health issues, narcissism is a spectrum. People such as Bill Gates, Kayne West, Donald Trump, and Mariah Carey have all been accused of displaying narcissistic traits which may make them difficult to be married to. However, this does not necessarily mean they have full-blown NPD.

Regardless, the more narcissistic characteristics a person has, the more difficult it will be to divorce them.

Negotiating financial settlements with a narcissist

It is extremely difficult to negotiate the terms of a financial settlement with someone with NPD. Because they lack empathy, they can’t consider the needs of you and any children as they are fixated on their desires. Although Family Law Solicitors, especially those who are members of Resolution, try to help couples settle without going to Court, such an aim is often impossible if one spouse is a narcissist.

Because someone with NPD or significant narcissistic traits will never admit they are in the wrong, you may think it is simply easier to let them have what they want in terms of the financial settlement so you and your children can get out of the situation and find some peace. Rather than jeopardise your right to a fair financial settlement, in so far as possible, have all communications regarding your divorce go through your Solicitor. A Divorce Lawyer experienced in HNW divorce will undoubtedly have come across narcissists many times and will have the emotional detachment and the strategies to sort out the financial settlement efficiently and effectively, regardless of any game-playing by your spouse.

Arrangements for children

Studies show that growing up with a narcissistic parent is incredibly damaging for a child. One group of scholars have stated:

“Narcissistic parents cause attachment injuries to their children through the frequent abdication of their parental role. Such parents view their children as a natural extension of themselves. Thus, the child’s shortcomings are met with greater intensity, as they are perceived by the parent as their own failure. In an attempt of self-protection and to recover their sense of self-worth, parents distance themselves from the children, leaving them confused and emotionally abandoned. At the same time, parents may psychologically merge with their children, whereby, the children are narcissistic extensions of their parents; their children’s achievements and successes are presented as their own.”

Although a narcissist is focused on themselves, they may not hesitate to fight for your children to primarily reside with them in order to exert control or hurt you. Any attempt by you to protect your children from the narcissistic parent is likely to result in accusations of parental alienation.

An experienced Family Solicitor will be well versed in such tactics and will, if required, organise for expert witness reports setting out the impact of the narcissistic parent’s behaviour on your children, especially if it tips over into abuse in terms of coercive and controlling behaviour.

In summary

Divorcing a narcissist is difficult for everyone involved. More than ever, it is vital that you instruct a Solicitor who is not only experienced in HNW divorce but also in managing cases where one spouse exhibits narcissistic traits.

“You will never get the truth out of a Narcissist. The closest you will ever come is a story that either makes them the victim or the hero, but never the villain.”

― Shannon L. Alder

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 3983 1818 or email contact@edwardsfamilylaw.co.uk. All enquiries are treated in the strictest confidence.