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Divorce – Practical Advice and Professional Support
By Christopher J Sherliker

There has been a media frenzy in reporting recent cases involving couples and their assets.
What happens in divorce proceedings when a client produces documents obtained without permission belonging to a partner?

The Hilderbrand Rules, Hilderbrand v Hilderbrand 1992 1 FLR 244, that may have ‘tolerated’ the copying of such documents (provided they were returned to their owner without delay, with notification that they had been seen) have been ‘shaken and stirred’ by the case of Imerman v Imerman EWCA Civ 908 2010. This case showed that a party cannot just help themselves to their partner’s documents without permission .The media referred to it as the ‘cheat’s charter’, as it was seen to assist a party that wanted to hide assets. The court, however, ruled that if a wife had sufficient evidence a ‘search/Anton Pillar Order’ could be applied for. A wife cannot just take the law into her own hands.

Radmacher v Granatino 2010 UKSC 42, [2010] All ER (D) 186 (Oct) ‘raised awareness’ of the importance of prenuptial agreements to show the ‘intention’ of the parties. Although the prenup between the parties ‘may have saved the day’ for Katrin Radmacher, who was able to keep her £100 million fortune, there is no guarantee that it will be seen by the court to be ‘legally binding’ in every case.

If a prenuptial agreement is followed by a postnuptial agreement entered into shortly after marriage (after seeking independent advice) without duress, this should give further weight to the intention and agreements entered into between the parties. In the UK, prenups are not, as yet, ‘universally legally binding’. The court decides each case by looking at all the facts and taking into account the factors in section 25 of the Matrimonial Causes Act 1973. The Radmacher case may have ‘opened the door’, but it has not thrown away the key!

‘More please?’ The recent case of the £56 million lottery winner Nigel Page and his ex wife’s application for a further payment 10 years after she left him, which resulted in an out of court settlement, should encourage couples to try to achieve a ‘clean break settlement’ of their financial matters on divorce or separation instead of agreeing to make a low maintenance payment. A clean break settlement is not right for all cases, and this illustrates the need for legal advice before negotiating a final settlement.

DIY divorce? A person does not need a solicitor to either apply for a divorce or to separate, but may benefit from obtaining advice on the options available in complex matters, including division of family assets/business, pensions and children .There may be a requirement for a forensic accountant to examine documentation to ascertain that full and frank disclosure has been given to ensure the best outcome is achieved, as well as making a Land Registry application to protection a client’s interest in the matrimonial home and emergency injunctions to stop assets being dissipated or children being removed from/ to be returned to the jurisdiction of England and Wales.

Relationship breakdown brings forth a multitude of emotions and often a client can feel vulnerable, betrayed, angry and confused. There is also the fear that they will lose their children or that assets may be lost, dissipated or removed from the jurisdiction and that businesses, which have taken years to build, may be sold or destroyed. A solicitor can try to negotiate a settlement that may have the least detrimental effect on the business or assets.

The fear of the unknown causes stress. A family solicitor needs to listen to the client and in a clear, concise, sensitive and simple way be able to deliver impartial, practical and legal advice, including presenting to the client the options available to resolve disputes without going to court – mediation, collaborative law and services that are available without cost. Directing a client to other organisations and resources available to assist with either the emotional or financial situation will alleviate the burden a client feels has been placed upon them by the breakdown of their family relationship.

As a Member of Resolution Family First, I encourage clients to adopt a non-confrontational approach in order to keep the channels of communication open, and explain to the client the advantages of trying to identify and narrow the issues, progress negotiations and for matters to be resolved as amicably and speedily as possible to avoid the costs and stress of a contested court hearing. I ask the question 'Would you rather put the money in your children’s pocket or the lawyers?' I explain how a confrontational approach would hinder negotiations and cause costs to increase, as well as the benefits of being able to negotiate a settlement which can then be embodied into a consent order and sent to the court for its approval.

For me, a successful outcome is one where I see the difference my approach to a client’s case has made to the client. This is when they leave my office a confident person, reassured of the direction the case is going, understanding the legal procedures that are involved in trying to achieve the outcome and knowing what they hope to achieve at the end. They then go on to assist with negotiating a settlement that can be embodied into a consent order which receives the court’s approval, thus preventing the need for the client to attend a contested hearing in court.

The availability of parenting after parting workshops is a fantastic idea. These assist parties to set aside their differences and to genuinely work together on issues concerning their children after the parents have parted. Although they may no longer be a couple, the parties will be the child’s parents for life.

Do not suffer in silence. There is help available to alleviate the stress and pain caused by the breakdown of a relationship and to give guidance on how to separate the assets, provide a framework for ‘parenting after parting’ and obtain emergency injunctions – whether to protect a person from harm, prevent a child or asset being removed from the jurisdiction or to freeze assets.

Added: 29th November 2011

Christopher J Sherliker is a partner for Silverman Sherliker LLP who provide legal solutions across a spectrum of requirements.  Find out more about Silverman Sherliker LLP.

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