Prenups in the Press

This week has seen a resurgence of media interest in pre-nuptial agreements. It has been reported that Oprah Winfrey is to marry her partner of 25 years, Stedman Graham. She is allegedly offering a pre-nuptial agreement which includes a $100,000,000 financial settlement in the event of divorce.

Elsewhere in the US, it is reported that the Nebraska Supreme Court has rendered unenforceable a pre-nuptial agreement thrust upon the bride five days before the wedding with the threat "sign this, or the wedding is off!" No disclosure of the groom's $2,000,000 fortune had been disclosed, as required by state law.

Unlike certain US states, the terms of pre-nuptial agreements which are considered as part of an English divorce settlement are not automatically upheld. The general principle in this country is that the courts will only give effect to a nuptial settlement provided that it is freely entered into by each person with a full appreciation of the implications, unless the outcome would be unfair - something with which the Nebraska Supreme Court appears to agree.

Provided certain safeguards can be met, an English pre-nuptial agreement will be compelling and carry decisive weight.

For more advice on pre-nuptial agreements or divorce settlements in England, follow our family law blog or follow us on Twitter @Divorce-experts.

Seal Seeks Shared Custody

After Heidi Klum filed for divorce last week, Seal has reportedly today filed his own court papers seeking joint physical custody of the couple’s four children.  It appears Heidi Klum agrees there should be joint legal custody but she is asking that she have primary physical custody.  Seal’s application would mean that the children would divide their time between their parent’s homes.  How common are shared custody agreements and what exactly does it mean?

The term “custody” is an American phrase.  English courts talk about the concepts of “residence” and “contact”.  Traditionally, if there is a dispute between parents, a residence order would be made to one party and the other would receive a contact order.  Although these orders continue to be made in a lot of cases, shared residence is becoming more and more common in England.

Shared residence means that a child will live with both of their parents but it does not necessarily mean that a child will split their time equally between them.  Shared residence reflects the reality of a lot of modern post-separation families where the children have a good relationship with both parents and spend time with each of them.  It is important to remember though that if there is an agreement about arrangements for the children, there may not be a need to involve the courts or for any orders to be made – if in doubt, seek advice from a family law solicitor.

For more advice on separation follow our family law blog or follow us on Twitter @Divorce_experts.

The Arbitration Alternative

The Financial Times has reported on an arbitration scheme that is attracting interest from super-rich couples. The scheme allows the divorcing couple to argue over their financial settlement in private rather than in the full glare of the media.

Arbitration is another alternative to court proceedings. It is a process where an independent third party considers the arguments of the divorcing couple and makes a decision that resolves the dispute. The arbitrator is independent. In most cases the arbitrator's decision is legally binding on both sides. Any decision can be enforced in court if necessary.

As is the case with mediation and collaborative law, the divorcing couple must be willing to enter into the process. Arbitration takes place in private. Only the couple are present with the arbitrator. 

Arbitration has a number of advantages. It is intended to be less expensive, less formal, faster and more flexible than court, so the rules of evidence are not as strict. The divorcing couple can usually have a say in how they want the hearing to be conducted. 

However, arbitration is not suitable for everyone and specialist advice should be sought as to what is going to be the best method of reaching a resolution of financial matters.

For more advice on divorce follow our family law blog or follow us on Twitter@Divorce_experts.

When Divorcing Couples Go To War!

It is not always the obvious items such as houses and pensions that couples argue over when they divorce. Sometimes seemingly trivial items can become the focus of their dispute. Fiona Wood, a partner specialising in family law at Pannone, is quoted today in an article in the Manchester Evening News about these disputes.

http://menmedia.co.uk/manchestereveningnews/news/business/professionals/s/1490399_when-divorcing-couples-go-to-war

For more advice on divorce follow our family law blog or follow us on Twitter@Divorce_experts.

No Second Bites At The Cherry On Divorce

The New York Times has reported this week that New York's highest court has refused to allow a husband to make a second financial claim against his ex-wife because a large percentage  of the assets he kept as part of their divorce settlement dropped significantly in value, as they were invested in the Bernard Madoff Ponzi Scheme. The husband and wife agreed to divide their $13.5 million equally, when they divorced in 2006. The husband kept most of the $5.4 million invested in the Ponzi Scheme, which later became worthless. The court did not think it was appropriate to reopen the matter once a financial order had been made within the divorce proceedings.

The English courts have the same approach to this matter. Once a financial order has been made within divorce proceedings it is very diffiicult to convince a Judge to reopen the issue. The current recession has led to several cases where former spouses have tried to reopen their financial settlement because assets have suddenly dropped significantly in value. In 2009 the Court of Appeal rejected Mr Myerson's request to reopen his financial settlement on the basis that the majority of the assets he retained in the divorce settlement were shares in a company which fell in value from £2.99 to £0.27 per share.

For more advice on divorce follow our family law blog or follow us on Twitter@Divorce_experts.

Rise in International child flee cases

A Report out this week by Lord Justice Thorpe, chief of the Office of the Head of International Family Justice (a body set up to try and ensure that courts in Britain and abroad work together where necessary), has confirmed the significant rise in child abduction cases in England and Wales.

This is where a parent flees with their child to a different country, without the other’s permission.

In 2007 there were 27 children caught up in such cases. This figure increased to 180 in 2011; and is set to rise even further to 240 this year.

Reasons for the increase in such international disputes are thought to be immigration; the increasing ease of travel; and the rising number of families where at least one parent has links to another country.  65 per cent of children born in London in 2010 have one foreign parent.  This creates ‘the potential for significant future growth’ in these cases as described by Lord Justice Thorpe.

The introduction of child passports by the previous Labour government was hoped to stop parents taking children abroad in defiance of court orders or the other parent.  However, these statistics suggest that this aim has not been realised.

It is understood that the rising number of these cases mostly involve eastern European countries. The report mentions that in Europe most cases involve children taken to or from Germany and Poland.

We understand the distress and anxiety of losing your child and will take immediate action to track them down through the appropriate legal channels.  For more information and advice from a child abduction specialist call us on 0800 840 4929. We are available to take your call 24 hours a day, seven days a week.  Also, follow our family law blog or follow us on Twitter @Divorce_experts.

CSA forced to pay up for mistake

The Herald recently reported that the Child Support Agency (CSA) has paid the legal fees of a father which were incurred by him in disputing repeated demands by the CSA, where those demands were subsequently found to be mistaken.

The CSA claimed that Henry Roy owed £8,000. They pursued Mr Roy twice through the courts before it was found that his liability was limited to just £1,000.

The CSA has admitted that the case was mishandled and will pay £1,700 towards Mr Roy’s costs.

Whilst the reimbursement of his legal fees undoubtedly goes some way towards redressing Mr Roy’s experience, it does not address the misery and stress suffered by Mr Roy during a time when he says that he was made to feel like a criminal.

This is a very unusual outcome and should not be taken as the norm. It does, however, highlight the difficulties experienced by individuals when the CSA gets it wrong.  

I am frequently contacted by individuals who claim that the CSA has made an error in its assessment but pursues the individual regardless. Mr Roy was fortunate to take good legal advice but often this can be disproportionate to the sums in question (public funding (“legal aid”) is not available and individuals must therefore pay privately).

Read more advice on our family law blog or follow us on Twitter @Divorce_experts.