This office handles very many international family law cases that have a U.K. connection, working with counsel in the U.K. as appropriate, including:
— Prenuptial agreements with a U.K. connection
— Divorce cases with a U.K. connection
— International child abduction to and from the U.K.
— Child relocation and child custody cases with a U.K. connection.
Mr. Morley is a dual British-U.S. national.
He was born and educated in England (Manchester, Sheffield and London) and taught law at the University of Sheffield.
ENGLISH DIVORCE LAW IN TURMOIL
by Jeremy D. Morley
England has become a forum of choice for spouses with less assets to sue their internationally-connected wealthier spouses for divorce.
Until 2000 the English courts divided a married couple’s assets in a way that would ensure that the “reasonable needs” of the financially weaker party — usually the wife — were met. It meant that the spouse who had more assets in his name than his wife was able to keep most of them.
Everything changed in the famous case of White v. White, England’s top court, the House of Lords as it was then named, ruled that the lower appeal court, the Court of Appeal, had got it all wrong for 25 years. The House of Lords ruled that it was wrong to limit a wife leaving a long marriage to no more than was needed for her “reasonable needs.” From now on, everything was to be determined by “fairness.” The problem is that “fairness” is an elusive term.
Then a famous soccer star, Ray Parlour, was ordered to pay his wife one-third of his future earnings for at least four years, plus a large lump sum, two valuable mortgage-free houses and a large annual sum for child support.
And in Miller v. Miller, a case that caused an outcry in England, an (American) woman who earned a good salary before marrying an English multi-millionaire, received an enormous payoff for less than three years of a childless marriage in her divorce.
The surprising situation in England results from several peculiarities of the English system.
The first is that in England the “pot” of assets that is to be divided includes everything that the spouses own, including everything that they each had before they got married. This is in sharp contrast with most legal systems which say that whatever you have on the date of the marriage stays yours unless you take specific steps to give it to the marital partnership.
The second difference is that the English courts place one party’s inherited assets into the marital pot.
Third, the English courts have determined that “fairness” is the governing factor to determine the appropriate division of assets but since that concept has been created by the judiciary, rather than by legislation, it is extremely difficult to predict how any particular case will be decided.
Fourth, England is one of the few places where lifetime spousal maintenance (alimony) payments are routinely ordered by the courts in favor of the spouse with fewer assets or less earning capacity.
Fifth, England uses the concept of the “clean break” as an ideal way to resolve financial matters. It is intended to mean that one ex should not have to continuously chase the other ex for money. It’s a very nice theory, but it can be punitive to the spouse with assets.
Finally, to make matters even more unpredictable, prenuptial agreements have not been enforceable in England but will now, since Radmacher v. Granatino, be given substantial, even decisive, weight provided they are “fair.” No one quite knows what “fairness” means in practice, so these matters are to be decided on a case-by-case basis.
The House of Lords decision in the Miller/McFarlane cases failed to provide clarification. The Court made it clear in that case that “needs,” “compensation” and “sharing” are the three “strands” to be considered in applying the fairness standard, but it is unclear how those strands will work together in any particular case.
Miller/McFarlane resolved certain issues such as the relevance of conduct and special contribution but it has raised and left unclear and unresolved several critical issues such as whether equality of division should apply to all matrimonial property or only to “family assets” as opposed to “business and investment assets” and how assets generated by dual career marriages should be resolved.