A National & Cross Border Perspective

Graeme Fraser, Partner, Hunters Incorporating May, May & Merrimans, London

27th November 2015

The UK Experience – Lessons to be learned

• Founded in 1715, based in Lincoln’s Inn since 1745

• Specialist legal advice over a range of services: • Private Client• Family• Charity• Dispute Resolution • Business Services• Property• Landed Estates• Heritage Property• Employment

Introduction to Hunters incorporating May, May & Merrimans

• Divorce & Relationship Breakdown• Disputes Concerning Children• Financial Orders • International Family Matters• Variation of Existing Financial Orders • Surrogacy & Adoption • Pre-nuptial & Cohabitation Agreements • The Unmarried Family • Mediation & Collaborative Law • Foreign Finance

Family department – Areas of work

• Written agreements used by separating couples contemplating divorce and usually cover:

• confirmation of their agreement to live apart• obligations for spousal and child maintenance• distribution of assets• arrangements for the children of the family

• Not fully binding on the court….• but if fundamentally fair and properly prepared…• they may have a persuasive or even decisive influence

Separation Agreements In England and Wales

• Convenient for formalising asset transfers and property sales before end of tax year during first year of separation

• Useful when difficulties in achieving a clean break divorce such as removal of one party from joint mortgage obligations

• This is more relevant since banking crisis of 2008

• Disadvantages include non-availability of clean break• Pension sharing remedies are unavailable until divorce• Immediate divorce on fault based grounds often preferred

• Likely to be favoured in future as a means of preserving the personal autonomy of the couple

Separation Agreements In England and Wales

• Used by individuals with significant wealth who wish to ring-fence their assets and avoid litigation costs…

• and by spouses previously married who wish to secure their finances for their existing children…

• and by entrepreneurs who don’t want to put their business at risk of interference in the event of divorce

•Prenuptial agreements are not binding on the court but are likely to be upheld:

• if fair to both spouses• each spouse has had the opportunity to take

independent legal advice• each party has provided full and frank disclosure

Pre-nuptial Agreements In England and Wales

• Radmacher v Granatino 20th October 2010 (Supreme Court): “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 their agreement”

• Law Commission report 27th February 2014 Matrimonial Property Needs and Agreements recommends legislative reform to make nuptial agreements binding if in a prescribed form and adhere to safeguards

•Disputed marital agreements are likely in the future to be settled through family law arbitration

Pre-nuptial Agreements In England and Wales

• 17% of all families are unmarried cohabiting opposite couples but there is little legal protection if they separate and no immediate prospect of change in the law

• Property disputes are currently resolved using property and trusts based law often resulting in costly litigation

• Cohabitation agreements clarify intentions as to property ownership and are increasingly used when parents provide their children with funds for a purchase deposit

• They record the rights and responsibilities of a couple living together in relation to their familial home, and their financial arrangements during and at the end of their cohabitation

Cohabitation Agreements In England and Wales

•Liberalism favours family law reform of financial remedies on divorce and cohabitation law but court disputes are often costly and access to justice has been undermined by reductions to public funding

•Conservatism means that resources are likely to focus more on supporting families rather than assisting when the relationship breaks down

•Dispute resolution processes including mediation and collaborative law are increasingly used and often achieve greater client satisfaction

•Family law agreements are likely to be encouraged as a means of removing the need for court intervention and to empower a couple to achieve personal autonomy

Lessons to be learned

•The historical and fluid movement of populations between Ireland and the UK means that many couples have a choice whether to settle their family disputes in Dublin or London

• London is increasingly used for international divorce dispute resolution and enforcement of marital agreements

•London has regularly been described as the “divorce capital of the world” for wives since the turn of the millennium but…

• recently an expectation has developed that wives will make financial contributions to reduce or end their financial dependency on husbands

•The EU referendum scheduled for 2017 means there is likely to be uncertainty regarding European family law for several years

Cross border perspective

Thank you

Graeme Fraser, Partner, Hunters incorporating May, May & Merrimans, London

T: 020 412 0050 E: gsf@hunters-solicitors.co.uk W: www.hunters-solicitors.co.uk