Well, she's done it again. The self-styled 'YouTube Superstar' Tricia Walsh-Smith has published a second video on YouTube regarding her divorce. Now, I'm not particularly bothered about her and what she has to say, but I am interested in the effect, if any, of these videos upon the court proceedings, with the first hearing apparently due next Monday. Will the videos have any bearing, will they assist her case, or will they, as seems more likely, only make things worse for her? We shall see.
Meanwhile, here's the second video. Not so revealing or sensational as the first (if anything, rather rambling), but finishing with a question and the threat of more to come: "Will Tricia end up in a tent? Stay Tuned!"
Has the time for pre-nuptial agreements in this country finally arrived? The Gazette this week reports that demand for them has soared over the past year, in the wake of the Crossley case. In a survey of '100 of the UK's leading matrimonial lawyers' by accountants Grant Thornton, 77 said that they had seen a rise in the number of prenups, with similar rises in the numbers of pre-civil partnership and cohabitation agreements.
Meanwhile, in this month's Family Law, Mark Harper and Lucie Alhadeff, who represented Stuart Crossley, ask the question: are pre-nuptial agreements now binding in England, in the light of the decision in Crossley? The answer, of course, is that they are not but, as Harper and Alhadeff say: "Crossley provides a very useful mechanism where the prenup is likely to be a significant factor, such as in short, childless marriages". One party may now issue an application requiring the other party to 'show cause' why they should not be held to the terms of the prenup. The case can then follow a shortened procedure, potentially saving considerable time and costs. Note, however, that the procedure may not be appropriate where there are allegations of non-disclosure and where, unlike in Crossley, they could materially affect the likely award.
It's being called the 'YouTube divorce', and seems to be causing quite a stir on the other side of the Atlantic. British former actress and playwright Tricia Walsh-Smith has published a video on YouTube in which she complains of her treatment by her estranged husband Philip Smith, president of the Shubert Organization, the largest theatre owner on Broadway. She claims that he is trying to evict her from their New York apartment and that she will lose everything, as a result of a pre-nuptial agreement they entered into. She then goes on to give intimate details of their life, in an apparent attempt to humiliate him.
Is this the way of divorces in the future? I certainly hope not. I also have serious doubts as to whether it will benefit her when the matter goes to court, as seems inevitable. If you want to make up your own mind, here's the video:
Here's something that has already been mentioned by Judith Middleton, but I think it bears repeating. The media cacophony over the McCartney/Mills case is reaching a crescendo with the judgement due tomorrow, but just how relevant is such a case to all the 'ordinary' people who are reading the stories? Well, quite relevant, actually, according to Resolution, which issued a media briefing last Thursday setting out a number of issues that they suggest are relevant to more ‘normal’ divorces:
Sorting out a financial settlement doesn't have to involve a "high-conflict court battle" - there are alternatives, such as mediation.
The case highlights the need for enforceable pre-nuptial agreements, "allowing people to take control of their own financial future rather than relying on the current lottery of divorce court hearings".
If one party brings assets into the marriage, this can be taken into account when deciding the financial settlement, especially if those assets are considerable, but the usual position is that "unequal contribution is only relevant where it would produce an unfair result if it were not considered".
The shortness of the marriage can also be relevant but, again, only "where it would produce an unfair result if it were not considered".
Mr Justice Bennett has indicated that he intends to make part of the settlement public due to the level of media interest in the case - we will discover exactly what tomorrow - but financial proceedings are normally conducted in private, which encourages negotiation.
written by John Bolch
on Wednesday, February 20, 2008
The Telegraphtoday reports upon Miss Berkeley's appeal, which went before the Court of Appeal, including Sir Mark Potter, yesterday. I mentioned this case previously, in this post, and Linda Berkeley herself commented upon the post. Details of the case can be found in the report of her application for permission to bring a second appeal, but briefly the issue is whether or not there should be a departure from equality, in the light of the fact that the whole of the capital had been hers from before the marriage. Representing her, James Turner QC argued that: "It offends against the principles of fairness to treat the wealth in the present case as if it had all been acquired by the joint efforts during the relationship" and that: "There are very powerful reasons, indeed overwhelming reasons, to justify and require a departure from the equality principle." Judgement was reserved, and will be awaited with interest.
Meanwhile, the Telegraph also today gives advice upon how to avoid having to go to court to sort out financial settlements on divorce. Their suggestions include instructing specialist lawyers as early as possible and going to mediation. The article then goes on to briefly explain the principles upon division of assets, maintenance and pre-nuptial agreements.
Lastly, I wasn't intending to comment again upon the McCartney/Mills divorce (unless there was a major development), but this report on the BBC amused me. It describes the futile attempts by reporters at the High Court last week to to find something newsworthy to report upon. So short of information were they that they were "reduced to analysing facial expressions, clothes and, at one point, a banana in the desperate search for something to say about a court case they are not allowed to report". Why a banana? Well, apparently one morning it was noticed that the only thing being carried into the court that wasn't a legal document was a banana, and it was suggested that this meant that the McCartneys had decided to work through the lunch break, which could mean a settlement was in the offing. "We soon realised we'd reached new levels of insanity", says the BBC correspondent. Indeed.
written by John Bolch
on Wednesday, February 13, 2008
Robert Verkaik, legal editor of The Independentwrites today about pre-nuptial agreements, with particular reference to the Crossley case. I have of course already written about Crossley, here and here. Verkaik suggests that "the thousands of couples who pledge their troth on St Valentine's Day may find it would pay to spend a little time proposing the idea of a pre-nuptial agreement too". He points out that whilst pre-nups are not legally binding, the Court of Appeal in Crossley "showed that if both parties had given their free consent to the terms of a contract, then the court would try to honour it". One thing that I was not aware of is that "Mrs Crossley is understood to have now abandoned her claim against her husband, leaving the contract intact", although it seemed that she had little choice.
Thanks to that old romantic Charon QC for the link to this article. I shall be posting my own thoughts on the subject of romance tomorrow.
***
Update:The Times has confirmed that Mrs Crossley has abandoned her claim, calling her decision "a boost to the status of prenuptial agreements" (thanks to Current Awareness for the link). On the other hand, the Financial Times feels that the decision leaves uncertainty as to how pre-nups will be enforced, as the court will not be adjudicating the issue.
Read More...
1. Charman v Charman This one needs no introduction. The size of Mrs Charman's award was what caught the headlines, but it must be remembered that she only received 36.6% of the assets, primarily due to Mr Charman's "special contribution".
2. Stack v Dowden Another one that should by now be well known to all family lawyers, although only a couple of weeks ago a client of mine was forced to go to a final hearing due to her opponent's adviser's lack of understanding of what Stack v Dowden decided. The case collapsed and my client's opponent was forced to concede, in humiliating fashion.
3. Hill v Haines Or Haines v Hill & Another. A recent Court of Appeal decision that came as a great relief to all family lawyers. See this post.
5. Ella v Ella I'm not sure that this one would make my top five. Mrs Ella failed in her appeal against an order that stayed ancillary relief proceedings in England, to allow them to continue in Israel as required by a pre-nuptial agreement, despite the parties having been largely resident in the UK during their marriage. Lord Justice Thorpe rejected the appeal, partly on the grounds that the pre-nuptial agreement was "undoubtedly a contract which in the Israeli jurisdiction is of considerable effect", irrespective of its relevance to an ancillary relief award in this jurisdiction.
written by John Bolch
on Thursday, December 20, 2007
If ever there is to be a paradigm case in which the court will look to the pre-nuptial agreement as not simply one of the peripheral factors of the case, but as a factor of magnetic importance, it seems to me that this is just such a case.
So said Lord Justice Thorpe in the Court of Appeal yesterday, in the case of Crossley v Crossley. The case concerned the appeal by Mrs Crossley against a decision to short-circuit normal court procedures, which Mr Crossley had argued was appropriate because the marriage was short and childless, both parties had independent wealth and a prenuptial agreement had been signed. In upholding that decision, the Court of Appeal appears to have sent out a clear signal that in such cases the prenuptial agreement is likely to be the paramount factor, and there will be little opportunity to argue other issues.
Lord Justice Thorpe apparently also called for legislation to clarify the status of prenuptial agreements, although it bothers me that this decision may have already elevated their status beyond what current legislation provides. Is it not for Parliament rather than the courts to decide such fundamental issues? Of course, the situation is not helped when Parliament seems quite incapable of dealing with such potentially controversial moral matters as reform of the divorce system, leaving the courts to keep up with the ever-changing Zeitgeist.
As a smoker now banished outside like some naughty child, I have recently become acutely aware of the 'nanny state' in which we now live. I've now caught up with some of my missed reading from last week when I was on holiday, and was interested to read the Comment column in the Gazette, which suggests that such treatment of mature adults extends to divorce settlements.
In the column Damian Baron, head of family law at Napthens in Preston, refers to the recent Charman decision and berates the fact that the law will not enforce pre-nuptial agreements, with the result that wealthy individuals are discouraged from getting married. He says: "Should the law not now allow intelligent human beings with quality legal advice to agree the regulation of financial provision in the event of a break-up?"
Unfortunately for my fee income, I do not have any clients with the sort of wealth of Mr Charman, but I have seen a similar scenario of the courts saying "we know best", even where the parties are quite happy to sort things out their own way. The scenario to which I refer relates to consent orders, where the parties have agreed a financial/property settlement on divorce, but need the order to be made, to ensure the settlement is final. However, the court will only make the order if it considers that its terms are broadly reasonable in the circumstances, with the result that some orders are refused, even where both parties are in full agreement and fully understand their positions, having taken independent legal advice. The parties are then left in a limbo, with no 'closure' to the matter. Surely, if the judge makes it quite clear that he/she considers the settlement to be unfair, and the parties still give their written consent having taken (or had the opportunity to take) independent legal advice, then they should be treated as mature adults and be allowed to proceed as they wish?
"Last year more than two-thirds of lawyers saw an increase in demand for pre-nuptial agreements, said business advisers Grant Thornton's." So reported BBC News yesterday. However, a word of warning to any wealthy spouse-to-be: pre-nuptial agreements are not (yet) legally binding in this country. As Mark Harper, solicitor for John Charman, put it: "Any client who comes to me wanting a prenup who is concerned about protecting their assets, the advice I give has to be they shouldn't get married."
written by John Bolch
on Thursday, October 26, 2006
The BBC's Money Programme tomorrow is entitled "The Real Cost of Divorce". I don't yet know whether I'll be able to watch it, but there is a short preview article here. Two things from the article are striking:
Firstly, celebrity lawyer Raymond Tooth is quoted as saying: "A rich man in my view should not marry a poor woman. If he does, then he must have a pre-nuptial agreement". Fair enough, advise a client to enter into a pre-nuptial, but did he really say a rich man should not marry a poor woman? Is he really so materialistic that he considers that wealth, or lack of it, should determine whether two parties marry? I find such a concept as abhorrent as the nonsense that someone from one religious or ethnic background should not marry anyone from a different background.
The second point is the claim in the article that "the average cost of ending a marriage through the British courts is about £13,000 per divorce". Where did this figure come from? I assume the programme will shed some light on this, but it surely cannot take into account the vast majority of divorces that are undefended and where all ancillary matters are resolved by agreement. For the majority of family lawyers who do not represent the rich and famous costs anywhere near this figure are a comparative rarity. Unfortunately, seeing such a figure quoted by as reputable an organisation as the BBC will strike fear into the hearts of many who are contemplating divorce, and add to the general public's loathing of the profession.
written by John Bolch
on Monday, September 18, 2006
Mentioned in this month's Family Law, local (to me) firm ASB Law have carried out a nationwide internet survey asking the public what it thinks of divorce. The survey had some 2,466 respondents split evenly between the sexes, drawn from all age groups and asset categories, and representing all domestic circumstances (married, single, divorced, separated, living/not living with partner).
The findings of the survey are interesting. Some 80% of all respondents thought that assets should be split 50-50 or that settlements should recognise the contribution of a stay-at-home parent, although 33% also thought that short marriages should result in small payouts. A huge 90% thought that poor conduct should either definitely be taken into consideration or possibly, depending on the circumstances (suggesting that current law is out of touch with most people's views) and 25% considered pre-nuptial agreements to be a waste of time because they are currently not enforceable in UK divorce proceedings. On the value of marriage 67% of all respondents agreed with the statement that ‘marriage reinforces your commitment’, although only 30% of those aged between 16-24 said they believed in the value of marriage. More worryingly, when asked which of 10 well-known figures would they want to be their divorce lawyer, the clear winner, with more than a quarter of the vote, was Sir Alan Sugar! As ASB say, when it comes to choosing a divorce lawyer "it appears that the UK public (both sexes and all ages) favours overwhelmingly the rottweiler/Grand Inquisitor approach". So much for the principles of Resolution and the Family Law Protocol...
Full results of the survey can be found on the ASB Law website, here.
I have just come across an article at icNewcastle that discusses the complexities and cost of sorting out financial settlements on divorce. The main theme of the article is that many of these problems can often be avoided if the parties had entered into a pre-nuptial agreement. Such agreements are becoming a little more common in this country. However, as the article points out, they are not legally binding, although the courts certainly are now giving them more weight.
In November 2004 the Law Reform Committee at Resolution recommended that the law be amended to make pre-nuptial agreements legally binding "unless to do so will cause significant injustice to either party or to any minor child of the family". For further details see here. Such a reform would certainly clarify the law, and may reduce the number of disputed cases. I believe the law in this area will be reformed at some point, but just when is not clear.
Whether there will be a significant increase in the number of couples entering into pre-nuptial agreements, even after reform of the law, is another matter. After all, it's not very romantic to respond to a marriage proposal by saying: "Yes, of course I will marry you darling, provided you sign this first..."
written by John Bolch
on Friday, February 03, 2006
Under the headline "Breaking up is hard to do: Divorce - the harsh truth" The Independent Online today reviews recent high-profile divorce cases and concludes that divorce is a costly business that will set a couple back more than they spent to get married. The article summarises the history of divorce law in this country and states that now not only do more people get divorced here than anywhere else in Europe but it could soon be the case that wives receive more generous settlements here than anywhere else. Of course, this once again only applies to the 'fabulously wealthy' - for those of lower means divorce is far less lucrative.
Importantly, the article speculates upon the effect of the cost of divorce upon the institution of marriage and suggests that more husbands may try to protect their assets by entering into pre-nuptial contracts, or even by deciding not to get married at all. I agree - after all, there is no longer any tax incentive to marry. Of course, if you are already married then you may have to resort to Neil Sedaka's words again: "I beg of you, don't say goodbye - can't we give our love another try?"
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