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Husband left with less than 1/3 of assets after short marriage!

The Court of Appeal left solicitors with more questions than answers recently after ruling that factors such as a dual-career/income, separate finances, no children and a short marriage can be ample evidence to depart from the long standing principle of equal sharing on divorce.

The duration of Mr and Mrs Sharp’s marriage was approximately 6 years (including the initial period of cohabitation). The couple had similar incomes of roughly £100,000 per annum, however, Mrs Sharp received bonuses totalling approximately £10.5m during the course of the marriage. The couple kept their finances separate and even split their outgoings. Mr Sharp was not aware of the amount of bonus his wife received. Mr Sharp was deemed not to have contributed either in a domestic or business sense to his wife’s bonus and as a result received a settlement of £2m; just under a third of the parties’ total assets.Sharp Blog Picture

The decision in Sharp v Sharp suggests you may not have to share all assets accrued during your marriage with your spouse/civil partner. Of course such a decision perhaps leaves more questions than it answers; how long is a short marriage? Would the decision have been different if Mrs Sharp shared her bonuses?  As with all cases, the decision here is fact specific.

At Breeze and Wyles Solicitors Ltd, our expert family lawyers in Essex, Hertfordshire and North London can advise how best to protect your assets at the outset with a pre-nuptial agreement and/or post nuptial agreement. In the event you face a divorce without such an agreement, we are able to guide you through the process at every step towards a fair settlement.

If you are arranging your finances with your spouse, civil partner or ex-partner, contact the family team on 01992 558 411 for help and advice.

Divorce down as pre nuptials rise

The first working day in January is commonly known as Divorce Day, when family lawyers receive more enquiries than at any other time of the year, but they are more likely to be faced with ‘silver splitters’ than young couples these days.

The latest figures from the Office for National Statistics show that despite the recent rise in the number of marriages, the divorce rates have fallen to their lowest level for 40 years: 114,720 couples divorced in England and Wales in 2013, down almost three per cent on the previous year.  The statistics also show that marriages are more likely to survive the ‘seven year itch’ with divorce rates at the eight year mark nudging down by one per cent.

But for older people, it’s a different picture. Over 60,000 people who divorced in England and Wales in 2013 were over 50, a rise of 11 per cent.

Alongside the slow-down in divorce for younger couples, the Law Society has reported a rise in enquiries for pre-nuptial agreements, with commentators suggesting it’s being driven by parents who are investing in housing to enable their children to get on the property ladder, but wishing to protect family money against any future marriage breakdown.

Family law expert and Family Arbitrator Olive McCarthy MCIarb of Hertford based solicitors Breeze & Wyles Solicitors explained: “Older couples may have less to worry about in relation to the impact of divorce on children, but dividing finances will probably cause more concern, as they are more likely to be asset-rich and with valuable pensions.”

Recent figures from Resolution show that the majority of young people felt that it was better their parents divorced than stayed together unhappily, but they also wanted to be part of the decision-making process and have their views taken into account.

She added: “It’s a hard decision at any time of the year and at any stage of marriage, but perhaps the most important thing for any couple is to consider children first and to avoid finger pointing as they go through the process. Collaboration and mediation can help to focus on achieving an outcome through positive negotiation.  It may be necessary to set out unreasonable behaviour in the divorce petition, but when it comes to dividing up the family finances, the Courts are generally not interested in the cause of the breakdown of the marriage or a spouse's behaviour.”

The exception to this is when family law judges are obliged to take into account 'gross and obvious' conduct that 'in the opinion of the Court would be inequitable to disregard'. Recent cases that have put the spotlight on conduct include Vaughan v Vaughan in 2007, when the Court added back sums spent recklessly by the husband on gambling after the couple separated.  This was reinforced more recently, in US v SR (2014) when the High Court held that where a spouse has recklessly disposed of assets after separation they cannot claim as great a share of what remains, if there is clear evidence of so-called ‘wanton dissipation’.

This requirement was further spelt out in the 2015 case of MAP v MFP where the husband had become addicted to cocaine and despite rehabilitation, often relapsed. The wife argued that £1.5m should be added back as a result of the husband's reckless and wanton expenditure on cocaine, prostitutes, alcohol and therapy after their separation, but the judge disagreed saying that while the expenditure may have been morally culpable and irresponsible, it had not been deliberate or wanton dissipation.

Web site content note: 


Vaughan v Vaughan [2007] EWCA Civ 1085

US v SR [2014] EWHC 175 (Fam)

MAP v MFP [2015] EWHC 627 (Fam)

This is not legal advice; it is intended to provide information of general interest about current legal issues.

Court Error – When the sums don’t add up

It has today been announced by Her Majesty’s Court and Tribunal Service (HMCTS) that a mistake has been discovered within their online system which could potentially affect any financial settlements made between divorcing couples.

The error is contained within a form available online from HMCTS, which is used to calculate a parties’ current financial position known as ‘form E’. The form requires details of all assets and liabilities of each party to be listed and documentary evidence to be attached. The form also details each of the parties’ income, current and future expenditure together with any future capital needs.

There is a section of the form which automatically produces a total calculation by summarising the information contained earlier in the form. Reports from HMCTS today confirm the form is incorrectly calculating the total figure by failing to take into account the respective parties’ current liabilities. This clearly has the affect of a party appearing wealthier than they actually are, as their current liabilities have not been taken into account. If the parties have relied on the incorrect figures then this may have led to an unfair settlement being reached and if that is the case those cases may need to be reopened and settlements re negotiated. According to HMCTS the error has been occurring since April 2014.

It is usual for financial settlements between divorcing couples to be reached by each party exchanging full financial disclosure by way of completing a form E. It is only once each party has completed full financial disclosure and that information is exchanged that a clear judgement can be made as to the true financial position of each party. Based on that information the parties can then negotiate a settlement whether the negotiation is between the parties direct, between the parties’ solicitors, through mediation or through Court proceedings.

Due to the errors made within the HMCTS system there may be settlements which will need to be revisited and perhaps re negotiated. It is likely that if a party had legal representation, then those figures would have been double checked by the lawyer and so the likelihood of unfairness in the negotiations following an error in the form would be substantially reduced. If however the parties acted as litigants in person, i.e. with no legal representation then it is likely they would have relied on the online forms and the risk of the calculations being incorrect will be higher.

Parties are free to represent themselves and often do within divorce and financial proceedings. Whilst the divorce part of the process is often straight forward, it is highly advisable to seek legal representation in terms of the finances and this includes where the parties have minimal income or assets and wish to part on a clean break basis.

Our solicitors at Breeze and Wyles Ltd are experienced in divorce and financial matters and can offer advice on any aspect of a financial settlement including high net worth cases. One of our three family solicitors, Karen Johnson who is also a Director of the firm, is also a Family Mediator and a member of the Family Mediators Association (The FMA) an association with over 20 years’ experience of Family Mediation.

Lisa Honey is a family solicitor at Breeze and Wyles Ltd specialising in family law and deals with matters covering a range of issues including divorce and financial settlements, separation following the breakdown of a relationship, children matters and declarations of trust. Lisa is also an honorary solicitor providing advice at the Citizens Advice Bureau in Cheshunt.

‘Och Aye, the I do’

Alex Ferguson has revealed in his new book that Christiano Ronaldo will get married in Scotland if he ever gets wed.

Ronaldo’s skills on the pitch have lead to him earning huge amounts of money and it is suggested that his wish to protect his assets is what lies at the heart of his wish to tie the knot north of the border.

However, before Ronaldo decides to elope to Gretna Green we would suggest that he gets some legal advice first.

The law in Scotland on divorce is very different to the law in England. One reported difference is that the Scottish courts will only consider matrimonial property. That is property acquired by either or both parties during the marriage and before separation. The outcome being that assets held prior to the marriage or acquired after separation are not taken into account.

In England the courts retain more discretion in dealing with financial issues. Here the court must look at all the circumstances of the case including the needs of any minor child. The factors include the parties needs, incomes, earning capacities, resources, length of the marriage, standard of living, conduct and contributions along with consideration of any benefit which either party will lose as a result of the divorce.

Where assets have been acquired either prior to the marriage or post separation, the treatment of these will very much depend on the other circumstances of the case. For example, contributions and the source of the funds are more important in a long marriage than a short one.

The court is primarily concerned with sharing the matrimonial assets (ie those assets built up during the course of the marriage) and accordingly how funds have been utilised is likely to be relevant. Money invested in a matrimonial home in most cases is going to be considered a matrimonial asset regardless of where it originated from.

However, by far the biggest difficulty that may be faced when seeking to protect pre marital assets or assets acquired post separation is that ultimately those assets are a resource that is available to meet the parties needs. Depending on the life that the parties have become accustomed to and whether there are any children involved, those ‘needs’ could be interpreted very generously indeed.

Given the above, Ronaldo may well want to protect himself against the breakdown of any marriage. However getting married in Scotland simply isn’t enough. The reason for this is that it makes no difference at all where you get married. The financial claims that arise on divorce and the applicable law will depend upon where the divorce takes place. The test for which country has jurisdiction on divorce is predominantly based upon where the parties are usually resident. If neither Ronaldo nor his wife live in Scotland or consider themselves to be domiciled there then Scotland will not be an option for them for divorce.

The best way for Ronaldo to seek to protect his assets in the event he decides to settle down and live in England would be for him to enter into a pre nuptial settlement. Should he or any other footballer considering settling down require some effective nuptial planning to seek to protect their assets we would be happy to help.

Honesty is the Best Policy!

There has been much commotion in the media within the last 24 hours after the Supreme Court’s unanimous decision to allow the appeals of two wives who successfully appealed against their existing matrimonial financial settlements on the grounds of fraud by their soon to be ex-spouses. In their lawyer’s words “these cases were about a matter of principle and justice” and “the issues raised will have implications in many other cases”.


When most people think about justice they also think about truth and honesty and when dealing with the financial aspects of a divorce these principles are enshrined in a spouse’s duty to the court to make full and frank disclosure of their finances.


In these two appeal cases the husbands’ dishonesty in relation to their financial disclosure amounted to fraudulent misrepresentation which the Supreme Court agreed should pave the way for new proceedings to ascertain whether or not their wives have been short-changed.


The ruling has emphasised the importance of spouses being transparent about their respective financial positions all throughout proceedings and some commentators have stated there is a real prospect of ex-spouses dragging their former spouses into court to have another bite of the cherry by seeking to unravel all that was agreed. The so called ‘unravelling effect’ will have an impact on people’s ability to plan ahead financially, place extensive demands on their time and further loosen their purse strings to cover the additional legal fees to deal with the subsequent appeal proceedings and the costs of what is likely to be a forensic re-examination and renegotiation of the existing financial settlement if it is found to be predicated on fraud.


Unfortunately, much commentary in social media and the blogosphere has spiralled into a false debate focussing on the gender politics and how successful and savvy businessmen should be allowed to accumulate their fortune in isolation so when it comes to divorce payouts it is unpalatable that a wife who hasn’t been directly involved in the accumulation of that wealth should be entitled to kick up a fuss and lay claim to fair proportion of it. That is unhelpful. The real debate is whether it is acceptable for a husband or a wife to mislead their spouse as to their financial situation on the breakdown of their marriage given that the most senior judges in England and Wales have overwhelmingly agreed that such behaviour is unacceptable and will not go unchecked.


Regrettably there will always be people who seek to conceal the extent of their wealth and they may choose to run the risk of doing so but this landmark ruling confirms that we do have a judiciary that is willing to stand up for honesty so those persons looking to deceive should be under no illusion that what they are doing is not only dishonest but unlawful and the court will entertain appeals by unimpressed spouses to set aside the existing financial arrangements to enable the parties to reassess based on a proper representation of the finances.


Whoever you are you have been warned – “Oh, what a tangled web we weave...when first we practice to deceive” – Sir Walter Scott.

In the Breeze & Wyles family department we specialise in all aspects of the matrimonial breakdown and can help you through the process from start to finish.

Turning up the heat on non resident parents.

With in excess of £1bn owed in unpaid child maintenance owed by non resident parents the government is understandably keen not only to assist in enabling the parents with care to recover those sums but also to be seen to be assisting parents who are of course also voters caught in a system for dealing with child maintenance which has been dogged with criticisms since its inception.
With this in mind, Parliament is currently considering changes which would mean that a parent who fails to pay their child maintenance, could find that their credit rating is severely affected. A credit rating is the information which is used by banks and other financial institutions when they are making decisions in relation to loans, mortgages and credit cards. A bad credit rating can result in an inability to obtain credit or being denied the best rates and lenders willing to provide credit only if you are willing to pay higher interest rates.
The new provisions would not result in all payment records being shared with the credit reference agencies in England, Scotland and Wales but only those whose payment history has been so bad that an application had to be made to the court to obtain an order setting out the debt. The hope is, however, that this power will encourage payment to be made in order to avoid falling afoul and suffering damage to their credit reputation.
Should you need advice in relation to maintenance or any other aspect in relation to children or finances arising on divorce or separation, please do not hesitate to call our family team on 01992 558411.

Karen Johnson is an Associate Solicitor and Family Mediator of Breeze and Wyles Solicitors Ltd. A Graduate of the University of East Anglia who then completed her Legal Practice Course at the College of Law in London, qualified as a Solicitor in 2002 working in a local High Street Firm before joining Breeze & Wyles Solicitors in 2009 and becoming an Associate with the firm in 2011. Karen is a highly skilled and experienced Family Solicitor with in excess of 10 years experience of working in Family Law. She is a Resolution Accredited Specialist in the fields of Domestic Violence and Financial Matters. Karen is additionally a Family Mediator trained by and a member of the Family Mediators Association (The FMA) an association with over 20 years experience of Family Mediation.

The New Child Maintenance Regulations – Who Really Benefits?

Child Maintenance is often one of the parent’s first concerns when parent separate. The Child Support Agency (CSA) was introduced in order to provide a mechanism for the parent with care of the children to seek a financial contribution towards the costs associated with raising children from the child’s non resident parent.
The CSA has not always been popular with either parent and has been dogged with complaints about arbitrary methods of calculating maintenance, delays in processing applications and a failure or lack of adequate options available to ensure the enforcement of any child maintenance assessment.
Over the years there have been a number of changes to the CSA and the way that is operates. This has included a change of name to Child Maintenance and Enforcement Commission (CMEC) and now to the Child Maintenance Service (CMS). There have also been changes by way of additional enforcement powers being made available and a change in the manner in which child maintenance is calculated. The most recent change is however, perhaps, the most controversial.
Child Maintenance application fees were introduced from 30 June 2014 which provide that all new applicants to the Child Maintenance Service from 30 June 2014 will now be charged a one off application fee of £20. You do not have to pay the application fee if you have experienced domestic violence. In return, the Child Maintenance Service checks the income of the absent parent with HMRC and will then provide both parties with a maintenance calculation and a schedule for payments. The parties will be given information on how to arrange the payments directly between themselves and the applicant can access the child maintenance account online in order to track payments. In addition the Child Maintenance Services will undertake an annual review and check the income of the paying parent with HMRC in order to ensure that the applicant is still getting the correct amount.
If the Child Maintenance Service continues to act as a go between for the parents, there will be additional charges and a 20% administration fee will have to be paid by the paying parent on top of the usual child maintenance amount. This means that for every £50 assessed so the non-residence parent will have to pay £60. From this sum, the government will take an administration fee of 24% with 20% being the administration fee paid by the non-resident parent and 4% reduced from the resident parent’s maintenance. Therefore, the receiving parent will only receive £48.
Any existing cases handled by the Child Support Agency will be transferred to the new Child Maintenance Service over the next few years. Existing parents already within the collect and pay systems have “a choice” or a “cooling off period” to allow them to avoid paying collection charges from 11 August 2014. If non-resident parents still choose to use the Child Maintenance Service’s “collect and pay” service or fail to settle the arrears the new fee will be added to every maintenance payment. If non-resident parents with arrears clear their arrears by 5 August 2014, they will be able to opt for a direct pay arrangement and therefore avoid having to pay administration charges. Therefore if non-resident parents do choose to use the Child Maintenance Service’s “collect and pay” service or fail to settle the arrears the new fees will be added to every maintenance payment from 11 August 2014.
Given that the CSA was designed to offer parents a simple and free process for calculating and managing payments of child maintenance as opposed to making applications through the court, at Breeze and Wyles Solicitors LTD we wonder whether this is in fact a step backwards. The Work and Pensions Minister, Steve Webb, is understood to believe that the new system will provide an incentive for parents to reach an agreement without the need for a state administered system being used. There is also argument in these times of austerity that nothing is free and parents who require assistance in this manner should contribute towards the costs. It is however, a concern that these changes will create further hostility between the parents and financial hardship as money, which arguably would be better spent for the benefit of the children, is hived off and placed in the government coiffeurs.
A further question arises; In light of the fact that parents will now being paying for a service from the Government, does this also mean that there will be improvements in the service and levels of recovery? Sadly, we suspect not.
If you are in the situation of needing to deal with a question of child maintenance and you don’t want to pay these charges then the first step is to try to reach an agreement with your ex partner. Parents are able to calculate the amount of maintenance that should be payable at . Solicitors and Mediation can help in seeking an agreement in the event that this remains difficult. In the event of an agreement our specialist solicitors can draw up a child maintenance agreement or, if you are in the process of divorce proceedings, can seek for the agreed child maintenance to be set out in a court order.
If you have any questions or want to know how this applies to you, please do not hesitate to contact us on 01992 558411 or 01992 642333 and we would be happy to book you in to see one of our solicitors for an appointment.
Samantha Murphy is an Assistant Solicitor at Breeze and Wyles Solicitors Ltd. Samantha qualified as a Solicitor in April 2012 and specialises in family and matrimonial matters, including divorce, separation, children, finances, and cohabitation disputes.
Samantha is passionate to ensure people can obtain access to justice by providing correct and practical legal advice in order that people can make informed decisions. Samantha is committed to resolving disputes in a non-confrontational manner by adopting the Resolutions Code of Practice.

To “Trust” or not to “Trust” – that is the question

We are often asked by clients whether, if they give money to their children either during their lifetime or by way of inheritance, those assets will be at risk if that child subsequently marries and divorces. Whilst every parent hopes that their children will be happily married, how to best protect family assets is often a cause for concern. We are equally often faced by a Husband or Wife in the midst of the breakdown of their relationship anxious to protect money that they had been gifted by their parents or had inherited.
Parents wishing to give or leave money to their children are often advised to set up Discretionary Trusts. Under a discretionary trust payments are made at the discretion of the trustees. The assets do not then form part of any person’s estate. However, does this, in fact, protect those assets on divorce?
Under a Discretionary Trust, as no one has any right to the assets or income, the assets belong to the Trust and not the person benefitting. On divorce the Family Court will, however, consider what payments have been made from the Trust and whether the husband or the wife have received income or capital as the sole beneficiary as and when he or she required it. The Court can decide to treat those assets in the Trust as belonging to that party and therefore part of the matrimonial assets available for division. If there are other beneficiaries, however, this will limit the availability of the assets in the Trust for the divorcing party.
In the everyday divorce case the assets are, if the parties are lucky, just enough to cover both parties’ needs. Therefore, where an asset has come from is not an issue. If, however, there are sufficient assets to cover each party’s needs, assets that have come from an external source such as inheritance and which have not been intermingled with the assets acquired during the marriage can be ring-fenced. If assets and income coming from a Trust have been used to support the couple’s lifestyle then, based on recent case law, they can be included as a matrimonial asset.
A Trust, therefore, cannot provide complete protection on divorce and many factors will be taken into account such as the circumstances in which the Trust was created. The best way to protect any asset acquired either prior to marriage or during marriage from inheritance or gift is to have a Pre-Nuptial/Pre-Marital Agreement prior to your marriage or Post-Nuptial/Post-Marital Agreement during your marriage. It may sound unromantic to suggest such an agreement but it will save a lot of heartbreak and legal fees if a couple, when they love each other, agree what should or should not form part of their assets and which, should the marriage breakdown, be divided in the event of separation or divorce. We are regularly asked to draft Pre-Nuptial Agreements and Post-Nuptial Agreement as well as the equivalent for unmarried couples – Cohabitation Deeds and Declarations of Trust.
Olive McCarthy is Director of the Family Department based at our Hertford Office. She is an Accredited Resolution Specialist, Collaborative Family Lawyer and one of only a few Family Law Arbitrators in the UK.

Director Olive McCarthy qualifies as a Family Law Arbitrator

The Chartered Insitute of Arbitrators has awarded Olive McCarthy, a Director and Head of Private of Client with Breeze & Wyles Solicitors LLP, the certificate in Family Arbitration.
IFLA, a recently formed not for profit organisation, has been founded with involvement from the Chartered Institute of Arbitrators (CIArb), the Family Law Bar Association, and the family lawyers' group Resolution, in association with the Centre for Child and Family Law Reform. IFLA will govern and promote the scheme for family law arbitration in England and Wales, providing a new form of dispute resolution within family law.
A panel of experienced family lawyers have been trained as family arbitrators under the scheme and to date, the bespoke training course, which has been developed together with and delivered by CIArb, has attracted the retired judiciary and highly experienced specialist practitioners from across the country.
Arbitration under the scheme will be conducted under the family arbitration rules which have been developed by IFLA. This means disputing couples can agree to appoint their own arbitrator, or have the IFLA select one for them from its register of approved arbitrators.
The scheme covers: financial disputes arising from divorce; claims on inheritance from a child, spouse, etc; financial claims made in England and Wales after a divorce abroad; claims for child maintenance between unmarried parents; disputes about ownership of a property between cohabiting couples and civil partnership financial claims. Disputes will be resolved exclusively by applying the laws of this country, in the same way as the Family Courts.
IFLA developed the arbitration scheme to enable parties to resolve financial disputes more quickly, cheaply and in a more flexible and less formal setting than a court room. It is also expected to save court resources and reduce pressure on the already stretched family courts.
Parties and their advisers will be able to find further details of the scheme and how to start a family arbitration at

Hopes pinned on change in law for unmarried couples who break up

Hopes are being pinned on the Government bowing to pressure to change the law to give greater rights to unmarried couples who break up, after the Supreme Court has added its voice to calls for reform.

The call for change came as judges ruled in the case of Gow v Grant where one partner claimed compensation for financial losses when the relationship ended, which ended up in the Supreme Court after a battle through the Scottish courts.
She had agreed to move in with her partner provided they became engaged. He then encouraged her to sell her flat. When they later split up, she claimed for the losses she had suffered and won a ruling of £39,500 in compensation from her former partner, which was mainly made up of the amount by which the flat’s value would have gone up if she had not sold it. The case went through the Scottish Courts on appeal, before being referred to the Supreme Court, who decided in her favour.
The decision of the Supreme Court gives the seal of approval to section 28 of the Family Law (Scotland) Act 2006, which allows the Scottish Courts to order capital payments to be made where one partner has made disproportionate contributions to the household, where this has left them out of pocket, or the other has reaped a bonus. It’s not intended to give the same rights as married couples, but was designed to give the courts power to correct financial imbalances between couples who might have made ‘contributions or sacrifices without counting the cost or bargaining for a return.’
Co-habiting couples in Scotland have had the benefit of section 28 for some years now, and, although the courts have been cautious in interpreting it, this case should lead the way to more widespread claims.
But the rest of the UK lags behind and although the Law Commission has called for reform, the Government has delayed implementation. Now, the reform has the backing of the highest court in the land and hopes are being pinned on the change.
Lord Hope, giving the judgment of the Supreme Court, said: ‘The main lesson from this case, as also from the Law Commission research so far, is that a remedy such as this is both practicable and fair. It does not impose upon unmarried couples the responsibilities of marriage but redresses the gains and losses flowing from their relationship. As the researchers comment, ‘The Act has undoubtedly achieved a lot for Scottish cohabitants and their children’. English and Welsh cohabitants and their children deserve no less.”
Said Olive McCarthy, family lawyer with Breeze & Wyles Solicitors LLP: “As English law now stands, a cohabiting partner has no right to a pay-out on breakdown of the relationship unless they can show that they have some sort of ownership right in property owned by the other partner. For example they would have to show that they contributed towards the purchase price or mortgage payments. This can put the weaker member of a couple at a disadvantage.
“With the full backing of the judiciary from this case, it’s likely we’ll see a speedier change in the law.”


Web site content note:
This is not legal advice; it is intended to provide information of general interest about current legal issues.

Gow v Grant [2012] UKSC 29

Family Law (Scotland) Act 2006

Cohabitation: The Financial Consequences of Relationship Breakdown (Law Com no.307) ( Law Commission report)