We handle many cases that involve English law, often collaborating with solicitors and barristers in England and actually throughout the U.K., and feel that we are able to provide some pretty useful assistance. British expats rove the world fearlessly in search of foreign adventure and riches, and the U.K. lures visitors from all over the globe who make friends with Brits. The result is all manner and kind of liaisons dangereuses.

Mr. Morley is well equipped for advising in these cases. He was educated in England (Manchester, Sheffield and London), taught law as a lecturer at the University of Sheffield, then went off on his own international adventures, returned to live in Manchester and London for a couple of years in the mid-90s and having actually gone through his own divorce case in both London and New York. In fact, it was the horror of that experience that led to Jeremy's decision to master international family law from a truly global perspective, so as to be able to provide others with the kind of advice that he wished he had had when he went through his own divorce.

The English courts are now required to treat marriage as a true and equal personal partnership, even if one spouse takes care of business while the other spouse takes care of the home.

In their efforts to secure what is known as a "clean break' between the parties, the English courts have rendered some decisions that are extremely surprising to an outside observer. Coupled with the fact that the English courts do not fully recognize prenuptial agreements, the result is that it is often far better for a party with assets to bring the divorce action almost anywhere but England and for the party without assets to do whatever can be done to bring the case in England.

Right now, English divorce law is fascinating. It is changing so fast that no one really seems to be able to get a complete hold of it. Unfortunately, it is also a lawyer's bonanza, because the courts are reserving for themselves the power to do justice to the parties while giving very little guidance as to how they will actually render their decisions. I always tell a client to "Beware of a lawyer who tells you that you have an interesting case" because complexity creates massive legal expense. Right now, every case involving significant assets in England is extremely "interesting."

 You have been warned!

Enforceable Prenuptial Agreements: Their Time Has Come

 "Jeremy D Morley, Attorney-at-Law, International Family Law Office, New York, USA.

The author says that the failure of English courts to enforce prenuptial agreements is an anachronistic peculiarity of English law that demonstrates a stubborn refusal to adapt the law to new conditions.

The recent judgments of the House of Lords in Miller v Miller; McFarlane v McFarlane [2006] UKHL 24, [2006] 1 FLR 1186 point to the urgent need for the courts to set aside the preposterous contention that it is 'substantially uncontestable' that substantial harm to the public would arise if prenuptial agreements were enforceable.

The current law results from the ruling in 1929 in Hyman v Hyman [1929] AC 601 that binding prenuptial agreements contravened public policy. However, society has changed dramatically since 1929.

When Hyman was decided, people had little expectation of getting divorced and divorce was generally regarded as sinful. People with assets did not require contractual protection should a divorce occur because the law did not provide for capital transfer upon divorce. The status of marriage itself provided all of the necessary terms of the relationship between spouses.

See September [2006] Fam Law for the English law article. The full version of the article containing comparative international references has now been published in Issue 4 of 2006 International Family Law." See Enforceable Pre-nuptial Agreements: the World View.

English divorce law: Divorced from reality

Domicile in English Law

English divorce law in turmoil

by Jeremy D. Morley

England is now 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, 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 a case that has caused an outcry in England, an (American) woman who earned a good salary before marrying an English multi-millionaire, received a payoff of £5m for less than three years of a childless marriage in her divorce last year. The House of Lords will hear that case, Miller v. Miller, on January 30^th.

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 allow fault to govern the fairness issue. This allows each party to assert that the other party was the “wrongdoer” who should be financially punished for breaking up the marriage.

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 well nigh impossible to put into practice.

Finally, to make matters even more unpredictable, prenuptial agreements are not legally binding in England, so that it is difficult or even impossible for a wealthy person to provide himself with predictable protection if he is considering marriage.

Unfortunately, the House of Lords in the recent Miller/ McFarlane cases has failed to provide clarification. the Court has made it clear that the standard is "fairness" and that "needs", "compensation" and "sharing" are the three "strands" to be considered in applying the concept, but it is unclear how those strands will work together in any particular case.

Miller/McFarlane has 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.

English divorce law: Divorced from reality

By Jeremy D. Morley

February 13, 2006

Today’s (London) Times contains an opinion article from the paper’s former editor, William Rees-Mogg, attacking the English divorce system. The article, entitled “Divorced from the realities,” reflects a rising tide of anger in England that the English divorce laws, as they have been changed drastically but badly by the English judiciary in the past five years, have become an international laughing-stock.

As it now stands, the English divorce law contains no real guidance to divorcing people who have assets as to how their affairs will be handled in the event of a divorce and it refuses to allow the parties to make plans for their future since England still does not recognize prenuptial agreements.

The English “system” makes matters even worse by throwing everything into the pot of marital assets that the courts have power to carve up, including everything that a spouse brought into the marriage and everything that he or she has inherited. And then, to really add insult to injury, the courts seem to be opening the door to allow each party to use the other’s purported misconduct as a significant factor for the court to consider in determining the asset division.

Accordingly, as things now stand, if you are representing spouses in a case involving substantial assets, you (a) can provide the client with no realistic idea of what to expect as the outcome of the case, (b) must advise you client to dig up all possible dirt about the other client, because you must expect that the other side will do the same thing concerning your own client, and (c) must investigate intensely whether, in an international case, an English award will be enforceable in other jurisdictions, or whether it will be rejected overseas on the grounds that the current English divorce law is in derogation of the fundamental public policies prevailing in other jurisdictions.

The present situation is the results of judges having exercised the power to change the law on a case-by-case basis in order to reform an antiquated system but not having the power to create rules that make sense universally. The common law development of legal principles has worked well over the centuries to create useful bodies of law, but it cannot work well in the short term if
judges change prior law overnight and then wait for other cases to make their way through the courts that will eventually lead to a sensible group of tested rules.

Let us hope that the House of Lords provides some further clarification and reform in the two cases that are now pending before it. More significantly, this is a matter that cries out for legislative reform.