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.
For advice on any family matter, please contact Lynne Passmore, Head of Private Client Group, on 01273 744429 or email her at firstname.lastname@example.org or Mark Smith, Executive Team Leader in our Gatwick office, on 01293 605014 or email email@example.com who will be happy to discuss any matter with you.