Consideration of issues pre marriage and post divorce
Two relationships have recently hit the headlines, the outcome
of one is possible cause for concern for divorced husbands and
their responsibility to their former wives, the second may
ultimately provide some clarity for partners thinking of
marrying.
At the beginning of April the press were keen to report the
decision of the Court in the case of Vaughan. The case involved a
successful, but retired Queens Counsel and an application on appeal
by his former wife in relation to her ongoing entitlement to
maintenance. They had divorced in the early 1980s.
Mrs Vaughan had the benefit of a Maintenance Order which required
Mr Vaughan to pay maintenance to her for the rest of her life. She
never remarried. Mr Vaughan, however, had remarried in 1985, and at
the time of Mrs Vaughan's appeal had recently retired.
Upon his retirement Mr Vaughan sought to bring to an end his
ongoing responsibility to provide an income to his former wife, but
Mrs Vaughan appealed successfully securing confirmation from the
Court that the husband's obligation should continue. However,
the Court in this particular instance chose to capitalise the
amount of money due to paid by Mr Vaughan, thereby providing Mrs
Vaughan with a lump sum and a clean break from her husband.
The press have presented this case as a question of priority
between a first and second wife, particularly in relation to
pension provision and the case has been reported as though it
provides a new opportunity for divorced wives to make claims
against the former husbands.
This is not the case as the Court have only upheld the right of the
first wife who had the benefit of a joint lives maintenance order
to make a claim for ongoing maintenance to be capitalised. In doing
so they have exercised their broad discretion and the case simply
upholds the existing law.
The case does, however, brings to the forefront of our minds the
position on joint lives orders, and any divorced party whether the
beneficiary or subject of a joint lives maintenance order may wish
to consider a review of the provision if there has been a
fundamental change in their respective financial circumstances
since the order was made.
If you would wish to review an existing order please contact a
member of our family team who will be able to give you up to date
and expert advice.
For partners considering marriage or a civil partnership the case
of Radmacher and Grantino should bring increased clarity to the
question of the enforceability or otherwise of pre nuptial
agreements (at least pending a Law Commission Report on the issue
due in 2012) once the Supreme Court hand down their judgment on the
case in the next few weeks.
Until that time pre nuptial agreements can avoid potentially
lengthy and stressful settlement negotiations in the event of a
relationship breakdown in some cases, but only if:
" Both parties have the benefit of independent legal
advice.
" Both parties make full and frank disclosure of their
financial circumstances.
" The agreement is finalised at least 21 (and preferably 28)
days before the ceremony.
Pre Nuptial Agreements require considerable skill in their planning
and drafting so as to take account of future eventualities. The DMH
Stallard Family Team is highly experienced in drafting such
agreements and advising clients on them.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.