Check out our Managing Partner, Kelly Edwards commenting for The Telegraph.

https://www.telegraph.co.uk/family/relationships/how-to-live-together-cant-afford-to-divorce/

ToLATA or Not ToLATA? That is the question; well it may be for separating unmarried couples seeking to resolve a dispute relating to their land or property.  Today, the number of couples who cohabit (i.e. live together but do not marry or enter into a civil partnership) is increasing, with around 25% more people now cohabiting than a decade ago (according to the Office for National Statistics (ONS)) Contrary to popular belief, there is no such thing as a “common law marriage”, so these cases pose a particular challenge when it comes to  dividing assets following separation,  This is where the Trusts of Land and Appointment of Trustees Act 1996 (‘ToLATA’) comes in.  In this article, we will explain the purpose of ToLATA, and why this may provide recourse when determining how property and land should be handled following the separation of an unmarried couple.

What is ToLATA?

In the event of a property or land dispute following the separation of an unmarried couple, a claim can be brought under the Trusts of Land and Appointment of Trustees Act 1996 (ToLATA) to request that the Court make a decision regarding that property. 

Under ToLATA, the Court will have the power to make a decision (as it sees fit) on:

• Who owns the property, and how this is shared
• Whether the property or land should be sold
• Who should remain in the property following separation
• Whether parents or grandparents should be able to regain their financial interest in a property.

They cannot, however, remove or appoint trustees.

Before ToLATA, its predecessor, the Law of Property Act 1925 imposed a duty to sell property owned by more than one person in the event of separation.  Section 5(1) of TLATA, in contrast, states that there is no duty to sell in such circumstances.

What is a ‘Trust of Land’?

A trust of land can arise in several ways, including:

• expressly in writing
• implied, resulting, or constructive – where the proprietor has acquired the land using funds provided by another
• as a statutory trust – imposed when two or more persons own land jointly
• as a bare trust where the trustee is a nominee for a beneficiary

As such, where a couple have been living together in a property that was purchased by one person partially using the funds of the other person, this would create an implied trust of land.  Where property is jointly owned by two people (i.e. co-owners), they are classed as both trustees and beneficiaries.  Claims brought under ToLATA can, therefore, be brought by either party as a trustee or beneficiary.

Section 14 of ToLATA states:

“(1)Any person who is a trustee of land or has an interest in property subject to a trust of land may make an application to the Court for an order under this section.

(2)On an application for an order under this section, the Court may make any such order—

(a)relating to the exercise by the trustees of any of their functions (including an order relieving them of any obligation to obtain the consent of, or to consult, any person in connection with the exercise of any of their functions), or

(b)declaring the nature or extent of a person’s interest in property subject to the trust, as the Court thinks fit.

(3)The Court may not, under this section, make any order as to the appointment or removal of trustees.

(4)The powers conferred on the Court by this section are exercisable on an application whether it is made before or after the commencement of this Act”.

How can a family law solicitor help with a ToLATA claim?

It is always advisable to seek advice from a family law Solicitor who deals with ToLATA claims, as this is a specialist area of law. They will be able to explain the best options based on your circumstances and whether making a ToLATA claim is appropriate.  Key to this is collating enough evidence that a trust of land exists and who has a beneficial interest.  A family law Solicitor will act quickly to protect the interests of their client, especially where they have no legal ownership of the property and their beneficial interest is not protected on the registered title at the Land Registry. Where necessary, an application can be made to the Land Registry to have their beneficial interest noted and place a restriction on the title of the property to prevent the registered owner from selling it.

A family law solicitor can also intervene urgently where one person has been unlawfully excluded from the property by the other party by seeking an interim injunction.

Where possible, offers will be made (a Part 36 Offer) in order to try and  reach an agreed conclusion out of court either before ToLATA proceedings are commenced or throughout the course of the proceedings. 

Before an individual or their Solicitor can bring a claim under ToLATA at court, they must follow the required pre-action protocol. This includes seeking an Alternative Dispute Resolution (ADR) (e.g. mediation, negotiation, or arbitration) outcome, as well as sending a letter before claim setting out the facts of the dispute, the law and the relief claimed..  If necessary, a claim can then be brought under section 14 of ToLATA before the High, County, or Business and Property Court, depending on which is appropriate.  Your Solicitor will also  determine whether to follow the part 7 or part 8 procedure – this depends on the extent of the dispute, whether matters of fact are disputed, and the outcome required (e.g. part 8 must be followed if the application is to sell the property in question).

Costs

As ToLATA proceedings are must follow the Civil Procedure Rules, the general rule is that the successful party is entitled to recover their costs from the losing party, although what order is made is at the court’s discretion. In deciding what order (if any) to make about costs, the Court will have regard to all the circumstances, including—

a) the conduct of all the parties;

b) whether a party has succeeded on part of its case, even if that party has not been wholly successful; and

c) any admissible offer to settle made by a party which is drawn to the Court’s attention, and which is not an offer to which costs consequences under Part 36 apply.

If a party brings a ToLATA claim which is unjustifiable, defends a claim or an issue on which they should have conceded, or neglects to make any reasonable offers they could find themselves having to pay their opponent’s legal fees in addition to their own.

It is therefore essential to take advice in respect of the merits of any claim you may bring or have to face defending from a specialist family solicitor.

Final words

Bringing a claim under ToLATA to resolve a property ownership dispute following the separation of an unmarried couple requires careful consideration of the possible outcomes, the likelihood of making a successful claim, and the costs (including the costs risk) and timescale involved.  An experienced family law Solicitor will listen to the details of your case and explain all aspects of bringing a claim before you make the decision to proceed.

Edwards Family Law is a niche London-based firm specialising in high-net-worth divorce and international family law. To find out more about bringing a claim under ToLATA, please phone +44 (0)20 7129 7978 or email contact@efl.fabledlabs.co. All enquiries are treated in the strictest confidence.

The theme of the 2022 Mental Health Awareness Week during mid-May was loneliness. This condition, experienced by many of us throughout our lifetimes is seldom discussed due to the feelings of shame and stigma attached to the word ‘lonely’. And in any case, how can a person feel lonely in the age of Facebook and other social media platforms, where connection to others is a mere click away? The truth is, although a widely publicised 2018 study showed that moderate social media use (30 minutes a day, three times per week) had a positive effect on mental well-being, almost a quarter of adults in the UK report feeling occasionally lonely.

Being single in later life as well as suffering from mental health problems such as depression, are factors that can increase a person’s chances of experiencing loneliness. And with the increase in divorce among people over 60 years, the mental health implications of marital separation in adults must be acknowledged.

What are the mental health risks of divorce for adults?

When compared with the numerous studies examining the impact of divorce on children, there is little research available on how divorce affects those who are experiencing the process. One recent paper found that in cases of divorce where the parties were over 50 years:

“older adults’ depressive symptoms (GHQ) increase in the years before and upon union dissolution. After separation, depressive symptoms decrease and return to approximately previous baseline levels. Our analyses on heterogeneity in the effects of gray divorce show that post-divorce adjustment is faster for childless adults than for parents. We find no evidence that adjustment after gray divorce is slower for women than for men, or for persons who already experienced a prior union dissolution than for those who separate for the first time.”

The circumstances surrounding the divorce can greatly increase the chances of negative mental health implications. Long, drawn-out, contentious proceedings, divorcing a narcissist, disputes over finances, jurisdiction, and child arrangements – all these factors can lead to stress, anxiety, and depression. Matters can be complicated further in situations where one spouse’s pre-existing mental health condition affects divorce proceedings.

How can I look after my mental health during a divorce?

The following tips can help you stay positive and focused throughout the divorce process:

• Prioritise getting enough sleep, exercise, and healthy food. When going through a relationship breakup it is easy to overindulge in wine, ice cream, and Netflix as a way of coping. And a good old-fashioned pity party once in a while can be extremely therapeutic as long as 90% of the time you are taking care of yourself physically.
  
• Don’t cut yourself off from family and friends. Although it is common to feel others are judging you for getting divorced, in all likelihood your loved ones are worried about you and want to help. Let them take your children for an afternoon so you can have some time to yourself. And remember, you do not have to pretend everything is fine if you feel down – a problem shared is a problem halved as the old saying goes. This point is especially salient for men, who tend to rely on their spouse for emotional support and find themselves adrift when they are no longer available to talk to and share life with.
  
• Consider professional help. Divorce can ignite a raft of negative memories and emotions that need to be worked through so you can come out the other side a stronger person. A counsellor or psychologist can provide vital support and guidance before, during, and after your divorce.

Final words

Few people are prepared for the emotional distress divorce can cause. One factor that can greatly alleviate stress and worry is choosing the right divorce solicitor. Make sure you talk to a few to find one who you feel you can trust and who has an approach that suits you. A good family law solicitor will not add to your anxiety by leaving you wondering how your case is progressing, instead, you will be kept constantly informed. They will also spot signs of distress and gently refer you to a professional counsellor if they feel you need extra support. One way to choose a high-quality divorce solicitor is to look for one who is a Resolution member. They are required to follow a Code of Practice and are trained to resolve disputes in a non-confrontational manner.

If you are feeling things are becoming too much, please remember that you are not alone. You can call the Samaritans at any time of the day or night, 365 days of the year on 116 123.

Edwards Family Law is a niche London-based firm specialising in complex family law cases following the breakdown of a relationship. To find out more about divorce and financial settlements, please phone +44 (0)20 3983 1818 or email contact@efl.fabledlabs.co. All enquiries are treated in the strictest confidence.

Longstanding practices in the Family Court that restrict reporting of cases and protect litigants’ anonymity may be coming to an end, as Kate Pooler of Edwards Family Law discusses.

Mr Justice Mostyn’s Campaign for Greater Transparency

Senior judges in the Financial Remedy Court (FRC) are not in agreement as to how to strike the right balance between transparency and privacy in matters such as who can attend hearings, what documents should be provided to reporters, and retaining parties’ anonymity. Mr Justice Mostyn has made waves by unequivocally asserting in a series of judgments since late 2021 that the FRC has been getting the law wrong for decades. Mostyn J’s position is that, whilst Family Court proceedings sit in “private” (as opposed to “open” court, like the majority of court divisions), that does not in and of itself require reporting restrictions or that the parties be anonymised when the judgment is published on a public database. He has made statements such as:

• “Had a member of the press or a legal blogger attended I consider that they could have reported everything that they heard during the proceedings” (Aylward-Davies v Chesterman [2022]);
• “The correct question is not: ‘Why is it in the public interest that the parties should be named?’ but rather: ‘Why is it in the public interest that the parties should be anonymous?’” (Xanthopoulos v Rakshina [2022]); and
• “if very rich businessmen are in court fighting at vast expense with their ex-spouses over millions, then the public has the right to know who they are and what they are fighting about. The judgment should therefore name names. Redactions can be made of commercially sensitive information, but…the redactions should never obscure the way the court has decided the case” (Gallagher v Gallagher (No. 1) (Reporting Restrictions) [2022]).

“Is it fair that one party’s poor behaviour could result in the other party’s identification?”

You might notice something that the above three cases have in common: you can read the names of the parties. That is because Mostyn J did not anonymise his judgments. The vast majority of financial remedy judgments heard by judges other than Mostyn J, however, continue to be anonymised. The lead FRC judge, Mr Justice Peel, has been the most prolific publisher of judgments since November 2021 and all have been anonymised. Since parties have no control over which judge hears their case, they face a bit of a lottery as to the publication protections they might be afforded.

The TIG Report 

TIG has just reported its findings on all issues of transparency as they relate to the FRC. Acknowledging Mostyn J’s judgments, it states “it is not for this report to set out what we consider the law to be on any particular, controversial, point. That must be a matter for the Court of Appeal. We acknowledge that there are different approaches to certain issues by different judges at High Court level and that this is far from ideal…it will be for others to decide whether the conclusions we reach should be implemented”.

The TIG report’s most critical recommendations can be summarised as follows:

Attendance at hearings

Cases should continue to be heard in private – ie, the only individuals permitted to attend are the parties, their representatives, and accredited journalists. Efforts should be made to better inform practitioners and judges on what to do if a reporter attends their hearing.

Reporting 

Reporters attending hearings currently cannot see any case documents without specific permission of the Court, meaning that the hearing is often impossible for them to follow. The report recommends that, when a reporter attends, a standard Reporting Order be made by the judge which:

• permits reporting of what the reporter witnesses, subject to anonymisation and protection against intrusive and personal identification; and
• entitles the reporter to see the parties’ position statements, together with the “ES1” (a brief case summary document) – reporters cannot publish any information that would breach the Reporting Order, even if it appears in a provided document.

Anonymity in published judgments

This is at the centre of Mostyn J’s standpoint and is arguably the most controversial issue. The report considers that “the default position should be one of anonymity”, but “there will be cases in which the presumption of anonymity will not be upheld”, which is a matter for the judge to decide on a case-by-case basis. Examples might include “situations of poor behaviour, either within the proceedings (by way of litigation conduct) or outside the proceedings in appropriate cases”, or where the public interest in identification outweighs the privacy justifications. The report also strongly encourages judges at all levels, not just High Court, to publish their judgments, to reset the imbalanced focus on “big money” cases heard by the High Court. 

The TIG report’s recommendations, if implemented, would undoubtedly provide greater clarity as to what parties to FRC proceedings can expect from a transparency and privacy perspective. The idea, however, that a party’s conduct could lead to a loss of their anonymity leaves much room for judicial discretion. What sort of behaviour outside of proceedings should this cover, what is the threshold for “poor behaviour”, and is it fair that one party’s poor behaviour could result in the other party’s identification? The question of transparency is by no means answered and we eagerly await a Court of Appeal case on the topic. In the meanwhile we will report back on the extent to which the TIG report recommendations are implemented by the Family Division.

There has been lots mentioned about children and their surnames in the press recently following an Italian court ruling in which it was confirmed that new-born Italian children should be given the surname of both parents. This decision reversed the long-standing tradition of children being given the surname of their father.

In the UK, a child acquires their name when it is registered following their birth by the child’s parent or another person with parental responsibility. A child’s name must be registered within 42 days of it being born. If the parents are married, both parents have the power and duty to register a birth. If they are not married, only the mother has the power and duty to do so. It is therefore easy to see how issues can arise during the birth registration process. Issues can also arise a number of years after the registration of a birth. For example, the parents of a child who was registered with the father’s surname, might separate and the mother thereafter wants their child to be known by her surname or the surname to be double barrelled. Equally, there are fathers who were not consulted prior to the child’s registration of birth who would like the surname to be amended to reflect their own or to be double barrelled.

To change a child’s name, you need either the consent of all persons with parental responsibility or a Specific Issue Order. Applications are made under s.8 Children Act 1989 and must address any relevant welfare concerns under s.1 of the Children Act 1989 (the welfare checklist).

The Law

The case of Re W, Re A, Re B (Change of Name) [1999] EWCA Civ 2030, [1999] 2 FLR 930 (“Re W”) is the leading case relating to the change of a child’s name. In case, the judge set out some general guidance for cases such as these:

(a) If parents are married, they both have the power and the duty to register their child’s names.

(b) If they are not married, the mother has the sole duty and power to do so.

(c) After registration of the child’s names, the grant of a residence order (now known as a ‘lives with order’) obliges any person wishing to change the surname to obtain the leave [permission] of the court or the written consent of all those who have parental responsibility.

(d) In the absence of a residence order, the person wishing to change the surname from the registered name ought to obtain the relevant written consent or the leave [permission] of the court by making an application for a specific issue order.

(e) On any application, the welfare of the child is paramount and the judge must have regard to the s 1(3) [of the Children Act 189] criteria [the welfare checklist].

(f) Among the factors to which the court should have regard is the registered surname of the child and the reasons for the registration, for instance recognition of the biological link with the child’s father. Registration is always a relevant and an important consideration but it is not in itself decisive. The weight to be given to it by the court will depend upon the other relevant factors or valid countervailing reasons which may tip the balance the other way.

(g) The relevant considerations should include factors which may arise in the future as well as the present situation.

(h) Reasons given for changing or seeking to change a child’s name based on the fact that the child’s name is or is not the same as the parent making the application do not generally carry much weight.

(i) The reasons for an earlier unilateral decision to change a child’s name may be relevant.

(j) Any changes of circumstances of the child since the original registration may be relevant.

(k) In the case of a child whose parents were married to each other, the fact of the marriage is important and I would suggest that there would have to be strong reasons to change the name from the father’s surname if the child was so registered.

(l) Where the child’s parents were not married to each other, the mother has control over registration. Consequently, on an application to change the surname of the child, the degree of commitment of the father to the child, the quality of contact, if it occurs, between father and child, the existence or absence of parental responsibility are all relevant factors to take into account.

Each case will be decided on its own facts and with the welfare checklist being the court’s paramount consideration. The higher courts are increasingly supporting the idea that a child’s name should reflect both their maternal and paternal heritage – as has become law in Italy. For example, in the case Re H (Child’s Name: First Name) [2002] EWCA Civ 190, the judge said [at paragraph 13] that a child’s surname is of ‘particular significance’ because it ‘denotes the family to which the child belongs’. In the case of Re R (a Child) (Surname: Using Both Parents’) [2001] EWCA Civ 1344, the judge said, “In my judgment, parents and courts should be much more prepared to contemplate the use of both surnames in an appropriate case, because that is to recognise the importance of both parents”

In Practice

Whilst the case law seems to favour the recognition of both parents when deciding on a child’s surname, applications to change a child’s surname are considered by lawyers to be ‘roll of the dice’ type cases. Much may depend on who is hearing the case and, of course, the specific circumstances of each case. It is therefore very difficult to advise clients on the likely outcome. The expense and uncertainty is therefore inevitably off-putting to prospective applicants. To some, however, it is worth the risk.

Edwards Family Law is a niche London-based firm specialising in complex family law cases. To find out more about divorce and financial settlements, please phone +44 (0)20 3983 1818 or email contact@efl.fabledlabs.co. All enquiries are treated in the strictest confidence.

Pride marches will be held up and down the country, with those in Brighton, London, and Manchester, in particular, drawing thousands onto the street. As a divorce law solicitor, I have advised and represented many same sex couples whose relationships have broken down resulting in divorce or civil partnership dissolution. And although some clients worry that the law may be different when it comes to getting divorced or dissolving their civil partnership, recent changes in the law mean regardless of your sexual orientation, ending a marriage follows the same course.

No requirement to prove fault

On 6th April 2022, the Divorce, Dissolution and Separation Act (DDSA) 2020 came into force. Before April, the only ground for getting a divorce was that the marriage has irretrievably broken down for one of the following reasons:

• Adultery
• Unreasonable behaviour
• Desertion
• The couple had lived apart for more than two years, and both agreed to the divorce
• The couple had been separated for five years, no consent was required

Due to the legal definition of adultery being confined to an act between a man and a woman, sexual intercourse between people of the same sex was never a reason for the marriage irretrievably breaking down. Thankfully, this anomaly has now been swept away as the DDSA 2020 ushered in no-fault divorce. Under the DDSA 2020, one or both parties only need to make a statement that the relationship has irretrievably broken down – no reasons are required. There is also no longer any scope for one party to contest the divorce in order to prevent it. The court must accept the individual’s or couple’s statement that the marriage has irretrievably broken down and make a divorce order.

Divorcing in a country that does not recognise same sex marriages

One area of divorce law in which there is a slight difference between the law applying to opposite sex married couples and those of the same sex is that of jurisdiction. Although same sex marriage is now recognised in many territories, distressingly, there remain 71 countries that criminalise same sex relationships and marriage. Other nations, for example, India and Japan, do not allow couples of the same sex to marry. However, in the aforementioned countries things are progressing, for example, the Delhi High Court is currently hearing several petitions seeking to legalise same sex marriage and in March 2021, a district court in Sapporo, Japan ruled that the country’s non-recognition of same-sex marriage is unconstitutional.

To ensure same sex couples marrying in England and Wales can also divorce, the court has jurisdiction to facilitate the divorce of a same sex couple who married in the UK but are living in a country where their marriage is not recognised. This is regardless of whether or not one or more of the parties is a habitual resident or domiciled in England and Wales.

Wrapping up

Getting divorced can be a stressful time and having an experienced divorce solicitor who is a member of Resolution can make a great deal of difference, especially when it comes to the financial settlement in high-net-worth and/or international divorce cases. Our team can advise and represent you during your divorce and you can be confident that we will tenaciously work to protect your best interests.

Edwards Family Law is a niche London-based firm specialising in complex family law cases . To find out more about divorce and financial settlements, please phone +44 (0)20 3983 1818 or email contact@efl.fabledlabs.co. All enquiries are treated in the strictest confidence.

Charlotte Lanning, a specialist family lawyer and associate solicitor at Edwards Family Law, outlines the factors that determine spousal maintenance payments and offers guidance on navigating changes in the face of ever-increasing living costs.

Courts in England and Wales can make various financial orders with regard to divorce. The three primary categories that such orders concern are:

• capital (ie, to purchase a home);
• income/maintenance (ie, to meet day-to-day living costs); and
• pension-sharing (ie, to meet day-to-day living costs in retirement).

If there are sufficient resources to meet both parties’ capital and income needs, matrimonial property will be divided equally as a starting point. If an equal division will not meet both parties’ needs, there can be a departure from such equality. Further, the court may utilise non-matrimonial property (such as inheritance, or funds acquired post-separation or prior to the marriage) to meet needs, if so required.

If the parties have children, child maintenance will always be payable by the party who spends less time with the child(ren). If a party is earning GBP156,000 or less, the amount of child maintenance is calculated using the Child Maintenance Service (CMS) formula. This is based on the paying party’s gross income and the amount of overnight contact that they have with the child(ren). Judges typically extrapolate and apply the same formula for incomes of more than GBP156,000; however, specific advice should be sought in these circumstances.

When Must One Party Pay Spousal Maintenance?

However, if the financially weaker party still does not have sufficient financial provision to meet their day-to-day needs after factoring in child maintenance as forming part of a parties’ income, they may be entitled to spousal maintenance. This is subject to whether the paying party has a surplus from their income after meeting their own needs.

The various financial orders are interlinked and complementary. An order for maintenance may end when the parties’ children reach the age of majority or conclude tertiary education, thereby reducing the recipient’s income needs and perhaps allowing them to downsize and release capital to supplement their income position.

“Spousal maintenance is always variable, which allows the court to revisit the order if either party faces a significant change in their financial circumstances.”

Similarly, as parties approach retirement, any maintenance provision is likely be for a limited period and ceases at the point when any pensions can be drawn down.

All parties are expected to maximise their earning capacity, even if they have been out of the work for a long time. The court will be realistic about what a party can earn based on their qualifications, previous income, and childcare responsibilities. Therefore, a court will only order one party to pay spousal maintenance to the other if:

• there is insufficient capital; or
• one party is incapable of earning enough to meet their income needs.

Spousal maintenance is always variable, which allows the court to revisit the order made if either of the parties faces a significant change in their financial circumstances, including – but not limited to – redundancies or, indeed, promotions. This prevents parties from being “trapped” by an order that they cannot afford but, equally, dissuades them from misrepresenting their income position (ie, downplaying their earning potential).

What Impact Does Inflation Have on Spousal Maintenance Payments?

A common feature of these orders is that they are often index-linked. This ensures that the payments keep up with the pace of inflation. The following three indexation rates commonly used.

• Consumer Price Index (CPI) measures the average change from month to month in the prices of goods and services purchased by most households in the UK.
• Retail Price Index (RPI) measures the average change in prices of goods and services purchased by most households in the UK – however, crucially, it also includes mortgage interest, council tax and other housing costs not included within the CPI.
• RPI All Items Excl Mortgage Interest (RPIX) is the same as RPI, apart from mortgage interest payments – therefore, it is closer to CPI (albeit still slightly different).

The most appropriate indexation rate to apply will depend on what the receiving party primarily requires the maintenance for. If the receiving party has a mortgage, it is essential that the spousal maintenance is RPI-linked to insure against any drastic changes to repayments (such as the ones seen in 2022). If a party owns a property outright, CPI or RPIX are likely to be more appropriate. Child maintenance will typically be CPI-linked because it relates to general costs, as opposed to mortgage interest payments.

“Salaries have not increased in line with inflation, and the huge wave of strikes faced by the UK in 2023 is testament to that.”

Where there is a lengthy term of maintenance, the inflationary uplift can be significant. There were huge upward variations in maintenance during the last few months of 2022. A monthly payment of GBP6,000 ordered in 2012 will now be more than GBP8,000. In previous years, the annual increase would have been a few hundred pounds per calendar month at most. Over the past year (2022), this sum has jumped up by almost GBP1,000 per calendar month – and, arguably, rightly so.

The court will typically order that any spousal maintenance award is index-linked. There is relatively little scope for negotiation on this point, and the recent spike in living costs demonstrates why it is so essential to factor this into any agreement.

How Can Spousal Maintenance Survive the Cost of Living Crisis? 

Nonetheless, it is commonly accepted that salaries have not increased in line with inflation, and the huge wave of strikes faced by the UK as the country enters 2023 is testament to that. Although the court’s starting point is to apply an increase in line with the order, there may be an oncoming wave of applications to vary quantum of maintenance downwards if the paying party simply cannot afford the uplift in line with inflation (or any uplift at all).

The best way to compromise this issue and avoid a costly court application for enforcement or variation of the order is to suggest an uplift that is perhaps a middle ground and affordable for the paying party in the longer term. Evidence should be provided to demonstrate why the payer cannot afford the uplift pursuant to the order – for example, confirmation of any increase to their income (by way of a letter from their employer or accountant), along with a budget setting out the paying party’s monthly costs.

The outcome of these applications is likely to be uncertain and it is always best to seek early legal advice to try and reach an agreement where at all possible. The costs of pursuing such an application can easily outweigh any financial gain, and there is no guarantee that either party will be successful – nor that they will be awarded the costs of their application if sought.

It is well known that legal costs in divorce cases can easily escalate out of control, especially where proceedings continue over many months or even years. The recent divorce case of Xanthopoulos v Rakshina heard in the High Court is a perfect illustration of just how high these costs can be; described by Mr Justice Mostyn as “exorbitant”. Here we will take a closer look at the costs accrued in this case and what can be done to avoid such outcomes following separation.

What happened in the case of Xanthopoulos v Rakshina?

The case of Xanthopoulos v Rakshina, heard in the High Court in April 2022, concerned a Greek-born resident of Russia, Lazaros Xanthopoulos and his wife, Alla Aleksandrovna Rakshina. Ms Aleksandrovna is described in the judgement as the 75th richest woman in Russia with assets of over £300m and as holding a senior role with a Siberian supermarket. The parties married in Moscow in 2006 and separated in 2020. A Russian court agreed to the divorce in March 2021, but a financial remedy was not finalised at this time. Mostyn was highly critical of the parties on the basis that their filings missed the deadline set, and their skeleton arguments exceeded the 350-page limit by some 1,500 pages. On this matter, Mostyn stated:

“This utter disregard for the relevant guidance, procedure, and indeed orders is totally unacceptable. I struggle to understand the mentality of litigants and their advisers who still seem to think that guidance, procedure, and orders can be blithely ignored”. He also stated that he “struggled to find the language that aptly describes the exorbitance of the litigious conduct of the parties”.

The High Court was asked to consider a range of costs by the parties. In total, costs have amounted to between £7.2 million and £8 million, including £5.4 million incurred prior to the High Court hearing. This is eye-watering by any measure. Summing up his concerns about these costs, Mostyn stated:

“Figures like this are hard to accept even in a conflict between the uber-rich…to run up in domestic litigation costs of between £7 million and £8 million is beyond nihilistic. The only word I can think of to describe it is apocalyptic”.

Strong words indeed.

Explaining how the system could be improved to avoid such high legal costs in family law disputes, he recommended that statutory measures be put in place to limit the scale and rate of costs. Alternatively, he suggested that the Family Procedure Rule Committee need to find a solution to the problem.

Echoes of the past?

This case may remind some of the fictional inheritance case of Jarndyce v Jarndyce in Charles Dickens’ Bleak House. The plot of this imagined case concerned a vast inheritance and legal proceedings that went on for so long that by the end, the entire estate had been swallowed up in legal costs, hence rendering any final decision moot. Explaining just how futile the proceedings were in the first chapter of Bleak House, Dickens writes, “Jarndyce and Jarndyce drones on. This scarecrow of a suit has, over the course of time, become so complicated that no man alive knows what it means. The parties to it understand it least; but it has been observed that no two Chancery lawyers can talk about it for five minutes without coming to a total disagreement as to all the premises”.

The story of Jarndyce v Jarndyce was itself inspired by historical examples of legal cases in which legal proceedings have gone on for decades, such as in the case of Sir George Downing in the late 1700s, which lasted for more than 40 years.

Admittedly, the more recent High Court case of Xanthopoulos v Rakshina did not lead to costs which exhausted the marital assets; it is nevertheless a reminder of just how far family disputes can extend if not kept in check.

How can divorce costs be kept under control?

The single most effective way to keep divorce-related costs under control while achieving a mutual and amicable outcome when it comes to financial and other agreements following divorce is to use Alternative Dispute Resolution (ADR). ADR includes a range of non-confrontational methods of reaching an agreement even on highly complex matters, such as mediation, negotiation, and arbitration.

Family law Solicitors who are members of the organisation Resolution have the skills and training to resolve matters such as child and divorce disputes outside of the court system. Resolution was founded over 40 years ago and is made up of family Solicitors who advocate a non-confrontational approach to family law issues, providing a better outcome for families and their children.

Outcomes are often much better than traditional court-based litigation as parties are encouraged to work together to find a mutual agreement. This results in improved compliance with any outcome reached (i.e. a long term willingness to abide by what is agreed between the parties) and helps to preserve relationships for the benefit of any children involved in the proceedings.

Furthermore, in most cases where mediation, arbitration, or negotiation are used to reach a financial resolution following divorce, costs are typically much lower than traditional court litigation.

Final words

As Mostyn makes clear in his remarks in the case of Xanthopoulos v Rakshina, legal costs for divorce proceedings need to be capped or controlled in some way to prevent endless litigation, wrangling, and the excessive use of court time. As such, the courts do not offer the optimal route for such disagreements, even where settlements can reach millions of pounds. ADR methods such as those advocated by Resolution are not just for straightforward disputes of lower value; they are equally suited to highly divisive high-net-work divorce proceedings.

Edwards Family Law is a niche London-based firm specialising in complex family law cases following the breakdown of a relationship. We are members of Resolution, an organisation of Family Law Solicitors that abide by a Code of Practice that promotes a non-confrontational approach to family law practice.

To find out more about financial dispute resolution and financial orders following divorce, please phone +44 (0)20 3983 1818 or email contact@efl.fabledlabs.co. All enquiries are treated in the strictest confidence.

The meaning of “real need”, as interpreted by English courts in post-Radmacher divorce cases, is analysed by Joanna Blakelock and Kate Pooler, a partner and an associate solicitor at Edwards Family Law.

The Supreme Court case of Radmacher v Granatino [2010] 2 FLR 1900 still leads the pack for the validity of nuptial agreements. Upon divorce, the starting point is that all marital assets are shared equally, otherwise known as the “sharing principle”. Generally, the aim of a nuptial agreement is to “contract out” of the sharing principle and restrict financial claims on divorce to “needs-based” claims only.  

Suffice to say, the English court is not bound to uphold nuptial agreements as a “contract”. However, Radmacher established the presumption that the terms of a pre-nup will be upheld and approved by a court. It therefore falls to the party who does not want to be bound by the agreement to argue why its terms should not be followed.

So, what is “real need”?

Radmacher decided that if a nuptial agreement left a former spouse in a “predicament of real need” then it would probably be unfair to hold the parties to that agreement. “Real need” was interpreted at a very low level in Radmacher and only required that a spouse was not left “destitute”.

Since Radmacher there has been relatively little guidance from the courts about the meaning of the phrase “predicament of real need” and where there has been guidance, judges have taken a range of views in this discretionary area.

One view: Fairness will not equate to near destitution…

In the 2016 case of WW v HW (Prenuptial agreement: Needs: Conduct), the couple’s pre-nup stated that neither party would have any claim to the other’s pre-marital, gifted or inherited property on divorce. Their relationship lasted 12 years and they had two children. The only joint asset was the former marital home which was worth GBP4.5 million, to which the wife had contributed 86% of the purchase price. The wife had inherited assets of circa GBP27 million.

“Radmacher requires the court to consider the pre-nup’s fairness in all the circumstances of the case at the time of the divorce.”

The judge made clear that the husband’s claim was limited to needs (on account of the pre-nup) but was concerned the husband would be left in a “predicament of real need” if the terms of the agreement were upheld.

The judge questioned whether the husband’s needs should be interpreted as “the minimum amount that is required to keep him from destitution” and whilst he judged that the presence of the pre-nup itself reduced the parameters of a needs award, this was not to the point of only saving the husband from destitution. He awarded him a housing fund of GBP1.7 million on a lifetime basis (with 45% of this sum reverting to the wife in 2027); a capitalised income fund of GBP215,000; and child maintenance payments of GBP18,000 per child, per annum.

Normal “reasonableness” considerations are still relevant

In the 2018 case of KA and MA (Prenuptial Agreement – Needs), the wife advanced a needs-based claim for GBP6 million (the pre-nup would have resulted in an award of only GBP1.6 million). In total, the judge awarded her GBP 2.95 million.

The judge said that Radmacher requires the court to consider the pre-nup’s fairness in all the circumstances of the case at the time of the divorce, which included the wife’s contributions to the marriage, the standard of living the family enjoyed, and which the husband (and the children whilst with him) would continue to enjoy. The judge was very careful to avoid too great a discrepancy between the children’s standard of living with each parent. These are the kind of “needs” considerations that would be taken into account in a divorce in the absence of a pre-nup. The judge awarded the wife a capitalised income fund for life at a rate of GBP100,000 a year (albeit with a 25% step down when the parties’ child reached the age of 21 or completed tertiary education). It is noted that she would have ordered GBP150,000 a year had the pre-nup not existed, demonstrating the role of a pre-nup in constraining a “needs based” claim.    

Another view: a nuptial agreement should not markedly reduce a normal “needs” assessment… 

In the more recent 2019 case of Ipekçi v McConnell another judge took another view. The couple had a pre-nup which, if upheld, would not have left the financially weaker party (the husband) “destitute” on divorce, but would have meant that his financial situation would be seriously strained.

The wife was an heiress with beneficial interests in trusts in the United States worth around USD65 million. The judge went beyond Radmacher, stating that he did not think that a valid pre-nup should result in a needs assessment that is “markedly less than needs assessed in ordinary circumstances. If you have reasonable needs which you cannot meet from your own resources, then you are in a predicament.” In any event, the judge deemed that the pre-nup fell short of compliance with the Radmacher principles and decided not to hold the couple to its terms. The husband was awarded a lump sum of GBP1,333,500.

The law is still uncertain; protect yourself

There remains uncertainty and inconsistency in the exercise of judicial discretion when it comes to the interpretation of Radmacher.

Nonetheless, if the effect of the proposed terms is designed to satisfy the financially weaker party’s housing and income needs, taking account of a reasonable standard of living, then the terms are likely to be considered “fair” and will be upheld by the court. Put another way, if the pre-nup inadequately provides for the financially weaker party, the agreement is unlikely to be worth the paper that it is written on and could lead to costly litigation, which undoes precisely the certainty that is initially sought. It is important to get the balance right.

Nuptial agreements certainly have a place in today’s family law climate, serving an important function of certainty and security for both parties. It is crucial to take early legal advice on the personal circumstances of individual cases. Enough time should be left for sufficient disclosure to be produced and shared, for adequate advice to be provided to the financially weaker party, and for negotiations to take place.

One of the most contentious issues in high net worth (HNW) divorce cases is the continuing payment of school fees. Often this is because when a couple divorces, the income of both parties reduces, making it much more difficult to cover private school fees. In the recent case of de Renner v Galbraith-Marten [2022] EWFC 118, The Hon. Mr Justice Mostyn ruled that a King’s Council did not have to pay for his daughter to attend private school. The father’s other two children attended state school, as he himself had done as a child, and the court accepted that the father could not afford private school fees for all three children. Furthermore, the father had never intended for any of his children to be educated privately.

The Hon. Mr Justice Mostyn concluded:

“The mother has emphasised to me repeatedly that the father was deprived of parental responsibility in Australia (but not here) and that accordingly, in her opinion, hers is the only parental voice that should be heard on the question of education. The father should have no say or other input, according to her, other than to pay. In my judgment to force him to do so would be a gross injustice which I am not prepared to contemplate.”

The issue of who pays for private school fees following a divorce is a serious one when considering the welfare of the child. For example, if they are already in a private school, being removed and enrolled in a state school adds to the instability already generated by the divorce itself. On the other hand, the older and more settled the child is at their private school, the greater the scope for potential harm.

Is private schooling a ‘need’ in terms of a divorce financial settlement?

As we have previously mentioned, the court must consider all the factors under section 25 of the Matrimonial Causes Act 1973 when deciding the outcome in a financial remedy application in the event of a divorce or dissolution. These factors are:

The resources available to the parties, both capital and income, being both extant or reasonably foreseeable;

• The financial needs of each party, considering the needs of dependent children and any disabilities;

• The duration of the marriage and the age of the parties;

• The conduct of the parties (but only in exceptional circumstances);

• The standard of living enjoyed by the parties;

Any benefit either party will lose as a result of the divorce, and the contributions of each party to the marriage (both financial and non-financial).

Although, in an ideal world, it would preferable to be able to say more categorically whether or not private schooling is viewed by the court as a ‘need’, it is simply not possible to do so. This is because the court will look at all the facts relating to the matter, for example, the financial situation of both parties now and in the future, both in terms of income and capital, the intentions of both parents regarding private education and the age of the child (or children) and how settled they are at their existing school.

How can I ensure that my ex-spouse pays all or part of the private school fees?

If possible, it is always preferable for couples to work out a financial settlement following divorce between themselves. This can be done through negotiation between themselves or with the assistance of solicitors, and can be assisted alongside by the process of mediation. This can be much quicker and cheaper than going to court. Another great advantage of keeping the matter between the parties and out of court is that alternative dispute resolution methods are confidential, thereby safeguarding your child’s privacy.

If your child (or children) are old enough, you may wish to consider child-inclusive mediation. This would provide the children with the opportunity to attend mediation to express their own views on their schooling, and how any

changes, either to fee- or nonfee-paying education, might affect them. Whilst their comments and views would not be binding on the parents following those discussions, it can be a powerful indicator to parents as to their children’s wishes and feelings in the context of the matter as a whole, which can sometimes crack the case one way or another.

As members of Resolution, we are committed to helping HNW couples resolve their family law disputes in a respectful, non-confrontational manner. Mediation and other alternative dispute resolution methods provide a way to communicate effectively on important matters, such as your child’s education, and reach an agreement that is beneficial for the entire family in the midst of what is often a very difficult period in the family’s life.

Once an agreement is reached, our family law solicitors can present it to the court and have what you have agreed made legally binding in the form of a Consent Order.

If you require advice on paying school fees following a divorce, please do not hesitate to contact us.

Edwards Family Law is a niche London-based firm specialising in high-net-worth divorce, separation, and international family law matters. To find out more about divorce and financial settlements, please telephone +44 (0)20 3 983 1818 or email contact@efl.fabledlabs.co. All enquiries are treated in the strictest confidence.

In a social climate which sees fewer and fewer couples deciding to get married, or enter into civil partnerships, the subsequent separation of cohabiting parties is causing increasing difficulty in circumstances where they are simply not afforded the same financial rights on separation as divorcing couples or in the dissolution of partnerships.

Despite considerable pressure from family law solicitors, barristers, and judges, and family law groups such as Resolution, there is still reluctance amongst politicians to change the law in England and Wales so that it recognises the legal rights of cohabiting couples.

For unmarried parents who require financial provision to provide for their children following the end of a relationship with a high net worth (HNW) person, there is some light at the end of the tunnel.

Alongside an application for child maintenance to the Child Maintenance Service (CMS), an application for financial provision for the benefit of the child(ren) of the family can be made under Schedule 1 to the Children Act 1989.

What does Schedule 1 to the Children Act 1989 say?

Schedule 1 provides the Court with limited powers to make financial provision available for the benefit of the child(ren) of a relationship, where the parents were not married and have subsequently separated.

Needless to say, Schedule 1 also comes into play in circumstances where a child has been born to a mother, even after a very brief or fleeting relationship with the father.

It is possible to apply for the following orders:

• Periodical monthly maintenance payments for yourself on the child’s behalf (or to an adult child directly, where applicable);

• Secured periodical payments for yourself on the child’s behalf (or to an adult child directly, where applicable);

• Lump sum for yourself on the child’s behalf (or to an adult child directly, if applicable);

• Settlement of property for the benefit of the child, reverting to the paying party at the end of a specified term; and/or

• A transfer of property outright to you on the child’s behalf (often held on trust for them) (or to an adult child directly), but this is only likely to happen in very specific and limited circumstances.

Who can make an application under Schedule 1 of the Children Act 1989?

The Court can make a periodic payment order in respect of:

• Topping up the CMS maximum assessment amount, if the non-resident parent’s income is greater than £156,000 gross per annum. The Court will need to be satisfied that the circumstances of the case make it fair and reasonable for a top up order to be made;
• A regular payment for school fees or vocational training; and/or
• Meeting any reasonably foreseeable recurring expenses associated with the child’s disability (if they have one).

When would a Schedule 1 lump sum order be made?

Lump sum orders can be made by the court for the purposes of enabling liabilities and expenses already incurred in connection with the child to be met. These can even include the costs of their birth in some circumstances, or costs more generally which have been incurred in maintaining the child, even where those expenses were incurred prior to the application (as long as the application is made without unreasonable delay).

Specific future expenses and foreseeable liabilities can also be claimed. Whilst the court’s discretion is wide, the welfare of the child is paramount. Provision might be made, for example, for furniture for a new home purchased for the benefit of the child, a car to transport the child, or indeed a sum to be invested for future school fees. Lump sums are not, however, designed to be maintenance ‘by the back door’ for the resident parent.

How does the Court decide whether an order should be made?

The welfare of the child is a paramount consideration of the court in deciding these cases, and the standard of living enjoyed by both of the parties to the proceedings will also be considered. If, for example, the non-resident paying party is very wealthy and enjoys a luxurious standard of living, incredible accommodation, designer clothes and numerous international holidays each year, the court is likely to want to see the child’s standard of living when they are with the resident parent to be comparable, and will look at their suggested ‘reasonable needs’ in light of this.

The Court will also consider very similar factors to those listed under section 25 of the Matrimonial Causes Act 1973, namely:

• The child’s financial requirements;
• Any physical or mental disabilities relating to the child;
• The current and future income, earning capacity, and financial needs and obligations of the parents;
• How long the child is expected to be in education or vocational training;
• The income, earning capacity, and property of the child; and
• The way the child was being or is expected to be educated.

How long do Schedule 1 orders last?

Unless the child is attending further education or vocational training, or has a disability, periodic payments will usually end when the child turns 18 years. If the paying party dies during the term of payment, the direct payments will of course stop, but whilst an existing order is in place, and if the child remains a dependent of the paying party, an application can be made under the Inheritance Act 1975 for a claim against the deceased’s estate.

If property has been settled or transferred, it will normally be returned to the financially stronger party once the child turns 18 or finishes their secondary education, but will sometimes only revert once the youngest child finishes their tertiary education. If special circumstances apply, such as an adult child with a continuing disability, the term might be even longer still.

Where does this leave us?

Applications for orders under Schedule 1 of the Children Act 1989 are normally extraordinarily complex and require the advice and representation of a family law solicitor experienced in HNW separation.

At a high level, these types of cases tend to involve people in the public eye where privacy is also a significant issue to weigh and manage. It is vital to instruct a law firm that understands the need for strict confidentiality and can manage media enquiries. Edwards Family Law can also support you through private processes of dispute resolution, outside of the more public court proceedings, with processes such as mediation, Early Neutral Evaluation, private FDR hearings, and Arbitration.

To discuss any points mentioned in this article, please contact our office.

Edwards Family Law is a niche London-based firm specialising in high-net-worth divorce and international family law. To find out more about Schedule 1 application, please phone +44 (0)20 3983 1818 or email contact@efl.fabledlabs.co. All enquiries are treated in the strictest confidence.