THERE HAVE BEEN 3 IMPORTANT DEVELOPMENTS IN FAMILY LAW OF WHICH YOU AND YOUR CLIENTS SHOULD BE AWARE.
1 OPENING UP TO THE PRESS
The Justice Minister, Jack Straw, has now introduced the long awaited opening up of the Family Courts to the press. This came into effect on 27 April 2009. This is truly ground breaking as the press will have access to all levels of Family Courts including those cases which had previously been heard "in private" or "in camera". This covers all financial cases as well as disputes involving children.
However, it should be noted that only representatives of the media who hold a UK press card, and not the public at large, will be entitled to attend. Furthermore, any Judge hearing a case has the ability to restrict the press access particularly if the Judge rules that it is not in the interests of any child involved in the proceedings, somebody's safety is at risk or justice will otherwise be impeded or prejudiced.
A Judge also has the power to restrict reporting where appropriate, while names and specific details of cases cannot be reported in any cases. The press can only report on the process and procedures and must keep to generalised comment. Some commentators believe only high profile or celebrity cases will be of interest to the press; others have said that some disaffected husband or wife may try to use the press intrusion card as a "blackmail" weapon to obtain a better settlement. What is certain is that family lawyers and other professional advisers must advise clients at the outset of any family law case that their case and personal life details might be the subject of press reporting or comment. This is a further factor for the family law client to consider in deciding what action he or she wants to take and the process he or she wants to follow.
We are all waiting to see how this will pan out in practice.
2 RE-OPENING SETTLEMENTS OR ORDERS BECAUSE THE FINANCIAL MARKETS HAVE COLLAPSED
As has been widely reported in the press recently, the Court of Appeal, in the case of Myerson, rejected the husband's argument to try and put the clock back and revise a Consent Order. This had previously been made when his wealth (on paper) was very substantially greater than it is now as a result of the collapse in the value of his company's shares. Mrs Myerson was allowed to retain her part of the capital award already received of approximately £7m even though on today's valuations and figures, her husband argued that he would end up with a minus figure for his proportion of th e assets and the wife would have over 100% of the value of the assets!
However, he was allowed to continue with his application to try and vary the remaining instalments of the financial settlement. That is always one of the risks when a clean break settlement is not immediately available and part of the settlement involves capital payments by instalments.
This case has prevented what was thought to be the opening of flood gates to numerous applications by former spouses wanting to undo settlements as a result of the worldwide downturn in the financial markets. The message from the Court of Appeal to payers who suffer substantial diminution in their assets post the settlement due to market fluctuations is quite simply that this is hard luck!
The husband has stated that he is applying for permission to appeal to the House of Lords but our feeling is that this is unlikely to be successful.
3 THE ARRIVAL OF THE POST NUP
Again the press has widely reported the case of MacLeod v. MacLeod (a decision of our Privy Council). Unfortunately, the highest Court in the land did not take the opportunity of reforming the law on Pre Nuptial Agreements, stating that only Parliament can do that. So the basic UK law on Pre Nups remains unchanged meaning they are not automatically valid as binding contracts, although they are likely to be taken into account substantially if certain pre conditions are met. These include considerations such as both parties having independent advice, full mutual financial disclosure, and no manifest injustice in the agreement.
However, the Court held that a Pre Nup is different from a Post Nup, the latter being held to be a valid binding contract, though again subject to similar pre-conditions. The Court ruled that there is an essential difference when parties who are already married decide to make an agreement about what is going to happen if there is a divorce, compared to doing so when they are not yet married and all sorts of other pressures may be being brought to bear on them.
We have been long-standing supporters of the Pre Nup provided it is properly executed with independent advice to both parties. There are circumstances when a Pre Nup is a very good idea indeed because it has the potential to avoid th e uncertainty, acrimony and substantial legal expense that a contested divorce c an entail. Because of the MacLeod ruling, we are now equally supportive of Post Nups and are recommending in most cases where parties enter into a Pre Nup that they include a provision to enter into a Post Nup as well. This should be undertaken within a reasonable time after the marriage, and should reflect the same terms as had been agreed in the Pre Nup.
Following the MacLeod ruling, the status of Pre Nuptial Contracts in the UK will soon be further tested in the landmark appeal of Radmacher v Granatino. This couple's eight year marriage broke down shortly after Mr Granatino, a French national, swapped a lucrative career as an investment banker for a life in academia .
Ms Radmacher, a multimillionaire German heiress is seeking to enforce a Pre Nuptial Agreement which was executed under German law four months before their marriage in London in 1998. This stated that the parties would not make financial claims against the other if they split up.
During the couple's divorce proceedings in July 2008, High Court Judge, Baron J ruled that it would be "manifestly unfair" to hold Mr Granatino to the arrangement, given their respective financial strength, and ordered that Ms Radmacher make a lump sump payment of £5.6 million. However, in granting Ms Radmacher leave to appeal in October 2008, Lord Justice Wilson asserted that she had a "reasonable prospect of success". If Ms Radmacher does succeed in challenging the award, we should receive further clarification of when Pre Nuptial Contracts, widely recognised in Europe and obtained there by many foreign couples who subsequently relocate to London, are legally enforceable in England.
We look forward to the conclusion of this case in the coming months and will of course advise you all on the implications of the outcome.
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