Category: Company Law

Brexit Divorce Dilemma For Property Owning Couples

With Brexit looming large in March property prices may see a dramatic readjustment that could go one way or the other depending on the outcome. This may not be an issue for those not planning on moving anytime soon but for couples on the edge of divorce there is now a dilemma.  

Property prices to a great extent are driven by a mixture of national sentiment, the availability of credit and seismic shocks to the economy. The financial crisis of 2008 for example brought prices tumbling across the country and many areas are still yet to recover.  

According to the Governor of the Bank of England, Mark Carney, a no deal Brexit could see prices fall by 35% in three years. Whether this actually turns out to be the case is another matter. Forecasts by the Bank of England aren’t always as accurate as the weather forecast and then there is the prospect that we get a deal, everything is forgotten and there is a boom in house prices.  

So the dilemma for divorcing couples where property biggest is their biggest asset is whether to go ahead with the process of divorce and risk selling and dividing up a property at a potential loss, or speed up the process in the hope that advantage can be taken of more favourable market conditions. 

Depending on the view of the person thinking of filing for divorce, the strategy may be to wait until all the fuss is over before proceeding.

Adoptions Fall 18%

After a long period of growth since 2011, the number of adoptions fell in the 12 months to March 2016 for the first time while the number of children in foster care continues to rise.

Statistics also show that the 2,700 babies under the age of one were placed in council care in 2015. The rise has been largely put down to government pressure on social workers which has been driven by high profile failings such as the Baby Peter neglect scandal of 2007.

The falling trend in adoptions is predicted to continue with the number of children placed for adoption also falling. This is likely to have implications for the psychological wellbeing of children according to a recent article in the Independent newspaper. Some children are said to suffer psychological attachment disorders that lead to behavioural problems in later life.

The number of children taken into care has risen 96% from 5,500 in 1995 to 10,790 in 2016. While there is pressure on social workers to avoid the failings of the past it may be that too many children are now being placed in care with no studies to back up if this is really best solution for the children involved. However, it’s a tricky balance to strike when nobody wants to see a repeat of the Baby Peter Case.

Successful appeal as lump sum of £17.3 million is reduced to £5million after ‘Barder’ event

When an event occurs shortly after a financial order on divorce that fundamentally undermines the whole basis upon which the order was made, this is classed as a ‘Barder’ event. When such events occur the parties to the order can apply to appeal the terms of the order, the name ‘Barder’ is used following the leading case of Barder v Barder.

In the recent case of WA v Executors of the Estate of HA & Others [2015] Mr Justice Moor reduced a lump sum award of £17.34 million which was awarded to the husband by a consent order, to £5 million following the ‘Barder’ event of the husband committing suicide just 22 days after the order. Mr Justice Moor described the case as having a ‘tragic history’; the couple were married in 1997. The husband was a lot older than the wife, and the wife was described as being ‘fabulously wealthy’. There were three children of the marriage and the marriage broke down in 2014. The husband took the breakdown of the marriage very badly.

A financial settlement was successfully negotiated following separation which provided for the wife to make a lump sum payment to the husband of £17.24 million in full and final satisfaction of his claims. The order provided for the lump sum to be paid in two separate tranches of £8.67 million with the first to be paid within 14 days of the order and the second to be paid within 14 days of the husband’s mother leaving the cottage she lived in on the family’s estate. The first payment was paid on time and the husband then transferred the money to his mother to enable her to rehouse herself. The second payment was never made and this was initially agreed between the parties however 22 days after the final order the husband committed suicide and his will left his entire estate to his three brothers.

The wife sought to appeal the order due to the fact the fundamental basis of the order was that the second lump sum was required by the husband to meet his needs and this was invalidated due to his death, the wife argued that the entirety of the order should be set aside and for repayment of the monies she had already paid.

Mr Justice Moor felt that the order was capable of being set aside pursuant to the existence of a ‘Barder’ event. However, he felt that if he had been sitting in court knowing that the husband was going to die the award would not have been nil, as the wife was seeking to argue as he would have to consider the parties’ needs and it could not be said that the husband had no needs. Due to the length of the marriage and the husband’s contributions the judge thought it would be reasonable for there to be an award to enable the husband to make payments out of his estate. The judge concluded that a lump sum payment of £5 million (representing a 1/3 share of the wife’s net share in the matrimonial home) would be appropriate.

Lund Bennett Law to Assist Law Students

Lund Bennett Law is to take on a new project from January next year. The firm will be assisting law students of BPP, in both Manchester and Leeds, in their pro bono scheme. BPP runs a legal advice clinic where members of the public can seek legal advice from students which is verified by a practising solicitor.

Lund Bennett Law see this as an opportunity to assist students in the transition from studying to law to practising law and at the same time making legal advice readily available to the public. We are very much looking forward to working with BPP and their students.

Family Law v Company Law

Is it fair that one party to divorce proceedings should be allowed to conceal their assets in companies in order to prevent their former spouse from receiving a share of those assets?

The Court of Appeal (in Petrodel & Others v Prest & Others [2012] EWCA Civ 1395) has recently ruled that companies belonging to an oil baron were not required to give any of their assets to his former wife, as the companies should not be considered his own property. ‘Fairness’ is an important aspect of family law and this ruling goes against that.

The starting point of the majority of disputed cases is to establish what the assets and liabilities to the marriage are. This needs to be done before the parties can effectively negotiate or battle over the division of this ‘pot’. If parties are now to be permitted to hide their assets from the other, then any division of what is left is simply not going to be a true representation of the circumstances and there is real risk that one party is going to leave the marriage significantly better off than the other, which flies in the face of family law principals.

Company law has been successfully used in a family law case to enable one party to achieve a result that does not sit comfortably with the principles on which family law is practised and on which it is based.

It is significant that the ruling was made by two to one, with a family division Judge being out ruled by two commercial Judges. Family lawyers are suggesting that following this case, the law needs to be clarified.