Divorce goes virtual, but complex cases will keep their day in court

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A new online service to apply for a divorce has been announced. The Ministry of Justice confirmed plans for the nationwide scheme for online divorce applications follows a successful pilot earlier this year and is confident that the system will cut the stress involved in the process. However, family law professionals say it is only likely to benefit those with simple finances who are pursuing the DIY route.  

Rejections of paper applications, due to forms not having been completed correctly or being submitted with documents missing, average around 40%. This is in stark contrast to a mere 0.6% rejection rate of online submissions made during the pilot.   

The move is one of the latest initiatives in a £1bn modernisation programme which will also see a reduction in the numbers employed in the courts. Although professionals welcome any potential simplification to the process, they warn that the increasing complexity of finances, particularly in second marriages, is likely to keep many couples in court pursuing a fair share of assets when the marriage ends.

A ‘fair’ share may not be the ‘equal share’ that is generally expected, particularly after a long marriage. Recent cases highlight the attitude of the Courts in achieving a fair outcome, with the current focus on needs and marking a move away from long term maintenance orders.

In KA v MA, a pre-nuptial agreement was a condition for the marriage, as the husband wanted to protect his accumulated assets to ensure they would pass to the sons of his first marriage.  The agreement was made, but when the marriage failed the second wife asked the court to set it aside, saying she had been pressured to sign it in those terms. The court refused, saying it had been entered into willingly. However, by applying the test established in Radmacher v Granatino instead, they decided the pre-nuptial agreement did not properly meet her needs.  This resulted in her being awarded a significantly higher contribution from her ex-husband, but one that left his main wealth intact to pass on to his sons.  

The Radmacher case was a landmark judgement by the Supreme Court, giving weight to pre-nuptial agreements.  While such agreements are not automatically legally binding in England and Wales, the judgement set out that:  'the court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications, unless in the circumstances prevailing it would not be fair to hold the parties to their agreement.

Another recent judgement from the Court of Appeal has undermined the so-called ‘meal ticket for life’ of a joint lives maintenance order. Experts say this is no longer something that divorcing spouses can be sure of securing from the English courts. 

Waggott v Waggott involved the ex-wife of a very successful businessman, whose attempt to secure an increase in her annual maintenance payment backfired. She had been awarded a settlement of £9.76m which included £175,000 per year in maintenance for the rest of her life. On appeal, she asked for an increased share of the husband’s bonuses and a variation of the maintenance order to give her an extra £23,000 per annum. Her former husband cross-appealed, and the Court of Appeal agreed with him, ordering a three-year non-extendable term instead. 

These two cases follow hard on the heels of the Court of Appeal ruling in Hart v Hart in 2017. In this case, a wife was awarded £3.5m from total resources of just under £9.4m and greater weight was given to the pre-marriage wealth of the husband.  This was despite a 23-year marriage, where an expectation would be for an equal distribution of assets, and instead the wife’s settlement was based on a calculation of needs.

These high-profile cases will have implications for other divorcing couples, regardless of the figures involved.

However, even with the most amicable of divorces, it is to be expected that each side will wish to secure the best outcome in terms of asset sharing. Any uncertainty about how their individual situation will be judged means they are likely to be taking advice and having their day in court, rather than simply following the ‘DIY’ online route.

Nowadays, the assets and the family structures of divorcing couples tend to be more complicated.  Many enter into further marriages and may have children from previous relationships whom they wish to protect.  Equally, they may have built a business or accumulated an asset base which they want to hold on to if the marriage fails.  This is reason enough to consider a pre-nuptial agreement, setting out what each person has brought into the relationship, as the courts will take that into account in understanding what was intended.