Category: Court of Appeal

Legal advice: The right steps to take when a relationship ends

More often than not, the breakdown of a marriage or long-term relationship is a traumatic experience. Not only is there emotional distress, but there may well also be serious anxieties around finances and the custody of children.

Following the good legal advice of a reputable family solicitor like Lund Bennett and understanding your rights could, however, go some way towards easing the process.

At what stage during a relationship breakdown should you take legal advice? 

Normally the earlier the better. If you are thinking about leaving your partner or your partner has left you, it is best to get advice from a solicitor specialising in family law as soon as possible to see what your options are.

Why is it so vital to take steps sooner rather than later?

Once the relationship has broken down the family assets need to be divided up. By doing this early on you can ensure there is a fair distribution. It will also help you to move on with your new life once everything has been decided.

How is custody of children determined?

The primary concern is always the best interest of the child – this will always be first and foremost in any arrangement. Depending on the child’s age, however, his or her wishes may well also be taken in to account.

Do entitlements differ depending on whether or not you are actually married?

Yes. Unfortunately, if you are not married you won’t have the same rights as a married couple. In this situation it is therefore even more important to seek legal advice early on in a breakdown.

Court of Appeal judgment determines 50/50 division of matrimonial assets is unfair in short marriage.

The recent case of Sharp v Sharp shows a departure from the longstanding principle that in financial proceedings the starting point is that capital built up during the course of a marriage should be split down the middle, regardless of the length of the marriage – also known as the ‘sharing principle’. Mrs Sharp has been successful in her appeal against a court order which awarded £2.725million (which represented exactly 50% of the total matrimonial assets) to her husband. The award to Mr Sharp has now been reduced to £2million.

The couple in this case were both in their 40s, married for four years and had no children. Mrs Sharp discovered that her husband was having an affair in September 2013 and petitioned for Divorce in December 2013. When they met, they were both earning around £100,000 per annum however Mrs Sharp’s career then took off due to a significant increase in the energy market and she received bonuses totalling £10.5million over 5 years. Throughout their time together the couple maintained largely separate finances and there was no ‘intermingling’ of their money during the marriage.

The Court of Appeal considered all the facts of the case and decided that the Mr Sharp should receive 50% of the value of the parties’ two properties (circa £1.3million) and an additional award of £700,000 to reflect the combination of the following three factors:

  1. The standard of living during the marriage;
  2. The need for a modest capital fund in order to live in the property that he is to retain;
  3. Some share in the assets held unilaterally by Mrs Sharp.

The Court of Appeal went on to state that:

‘if…the equal sharing principle of 50/50 allocation is now applied by the courts and practitioners, in cases which are not pre-determined by ‘needs’, to all relevant assets in every marriage, without exception, from the moment the couple leave the church or the Register Office, this would seem to be a very significant and wholly unjustified development’.

This judgment confirms that the Court will not automatically apply the equal sharing principle to every case. The decision opens up the Court’s discretion particularly if there are no children and both parties are in full time employment and kept their financial affairs separate throughout the marriage.

Despite this judgment there are still many questions which remain unanswered, such as: ‘how long does a marriage have to be to be defined as ‘short’?’ and ‘when does my partner become entitled to share in the wealth I have generated?’. In light of Mrs Sharp’s recent success it is likely that the Courts will see an increase in arguments about the length of a marriage and period of cohabitation. In order to avoid uncertainty, the best advice remains to have a pre-nuptial agreement in place which clearly sets out your intentions in the event of separation.

If you are concerned about the division of assets upon separation or other issues relating to divorce please contact a member of our team for more advice today on 0161 927 3118.

Court of Appeal sets aside remedy orders in divorce case after ‘procedurally unfair’ mistakes

In the case of Iqbal v Iqbal, following the final hearing in March 2015, His Honour Judge Brasse had ordered the husband to pay his former wife a lump sum of £3.22m within five weeks arrears of periodical payments of £530,000 and future periodical payments of £10,000 per month in advance by standing order.

Sir Ernest Ryder, senior president of tribunals, said that the key issues at the interim and final hearings were whether the husband was able to make payments. The husband sought to challenge the outcome of the final hearing on the basis of the extent of direct evidence available and the inferences drawn. The husband’s attendance was excused at an interim hearing in 2010 however the wife attended at this hearing and made submissions based on evidence which did not contain a statement of truth and made submissions about the husband about which he had no advance notice. Ryder said as a consequence of this the final hearing was ‘procedurally unfair’ and the order made following it should be set aside.

Ryder said that:

‘No real attempt at active case management by reference to the Family Procedure Rules and Practice Directions was attempted’
He then went on to say:

‘It is hardly surprising, therefore, that good practice was not a feature of the management of this case’.

Ryder said that the judge in the final hearing made no reference to the husband’s documents during the hearing and the wife filed her statement only eight days before the final hearing and failed to serve the statement on the husband ahead of the final hearing. Ryder was surprised that there was an absence of any analysis of the parties’ needs and the husband’s ability to make payments in the initial judgment, especially given the importance of ascertaining the wife’s needs in the context of pre-marital assets.

All financial remedy orders made were set aside by the Court of Appeal and Ryder has also directed that the application for an order be re-heard by a specialist family judge at the Central Family Court.

If you would like to discuss any of the issues raised in this article please contact one of our specialist family lawyers on 0161 927 3118.