Divorce Law 2016 - Virtual Round Table

virtual Round Table Divorce Law 2016

ROUND TABLE: DIVOrCE LAW 2016

MEET THE

EXPERTS

Simon Cooper - Cooper Law T: +44 (0) 20 8492 3942 E: simon@cooperlaw.co.uk W: www.cooperlaw.co.uk imon qualified in 1984 and had several years’ experience with central London firms before he established his own firm in 1996. Simon has wide experience in the field of Conveyancing and property matters, Wills and estates, Employment issues, and in recent years he has specialized in Divorce, separation and Family law, and is a member of ‘Resolution – First for Family Law’. which is the main organisation of Family lawyers in the UK. He is a qualified and trained Family law mediator in which capacity he can help separating couples resolve their differences without the expense and trauma of going to court.

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Simon’s philosophy is that the client always comes first, and every client should be treated as an individual whose needs are personal, and their issues should be treated with empathy and professionally.

Simon has 3 grown up sons. His interests out of work are in distance running and professional speaking and communication. Simon believes the skills he has learned from professional speaking are invaluable in communicating with clients other lawyers and in Court.

Daniela Jezova - JUDr. Daniela Jezova, LL.M., PhD. advokatka T: +421 915 750 804 E: jezova@lawyer.com

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aniela is a partner and is managing a law office which deals with International and European law, family law, corporate law, civil law, alcohol law, media law, litigations and arbitrations and other fields of

law.

Daniela has 12 years of legal experience. She focuses on international law cases.

Daniela lectures at Comenius University law faculty in Bratislava the International and European law, at John Marshall Law School, Chicago, she published a lot of professional articles about European and International law and two monographs.

Daniela speaks Slovak, Czech, English and German. She is a member of Slovak and Czech bar association.

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Louise Barretto - Fisher Meredith T: +44 (0) 20 7091 2869 E: louise.barretto@fishermeredith.co.uk W: www.fishermeredith.co.uk ouise is a solicitor specialising in all aspects of family law, with a particular emphasis on complex financial matters and those with an international element. She is dual qualified in England and in South Africa. Although she now practises solely in England, she deals with many cases with a South African connection. She has been called on to assist as an expert witness on English divorce law in the High Court of South Africa.

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Areas of specialism: Divorce and separation Financial aspects on divorce and separation Pre and post nuptial agreements.

Cohabitation and separation agreements Collaborative Law Mediation The family team which she jointly heads is ranked in London in both Chambers and Partners and Legal 500.

Citywealth have included Louise as a “prominent figure” in their leading lawyers category and she has recently been nominated as a “Power Woman” by Citywealth.

Corporate Livewire has awarded Louise the “lawyer of the Year” for Family Law - Surrey, UK and she has also been rated by Super Lawyers.

Louise is a member of Resolution and the Family Law Accreditation Scheme.

Louise regularly updates her blog at www.louisebarretto.co.uk.

Louise has been recommended in the 2015 edition of The Legal 500.

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ROUND TABLE: DIVOrCE LAW 2016

MEET THE

EXPERTS

Alan Kaufman - Howard Kennedy T: +44 (0)20 3755 5538 E: alan.kaufman@howardkennedy.com W: www.howardkennedy.com lan is a consultant and collaborative lawyer and mediator in the family team. He specialises in heavy weight family law disputes and has had many years of experience acting in multi-million pound matrimonial settlements. Alan acts for wealthy business people, particularly in the property industry and high profile media, entertainment and sports personalities, or their spouses.

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Alan is a trained mediator having been taught his mediation skills by the New York Mediation Group and is also a trained Collaborative Lawyer. He is also a strong believer in round table settlement meetings at which he excels.

In a past life, Alan has had extensive commercial litigation experience (including shareholders and partnership disputes, copyright and property related litigation) and hence is able to bring his commercial acumen to matrimonial financial settlement negotiations.

In 2005, Alan was elected a Fellow of the prestigious International Academy of Family Lawyers and in 2008 was admitted as a member of the high profile group of collaborative lawyers known as the Central London Collaborative Forum, which is comprised of London’s leading divorce lawyers.

Alan feels honoured to again be designated a Super Lawyer in the specialist Family Law area and also to be recognised as one of the top 100 Super Lawyers in London covering all disciplines.

The super lawyers nominations are produced yearly by Thompson Reuters on the basis of wholly independent peer review and assessment.

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Rita Ku - Withers Worldwide T: +852 3711 1670 E: rita.ku@withersworldwide.com W: www.withersworldwide.com ita has experience in a wide spectrum of areas of family law, and represents husbands and wives in disputes concerning divorce, children and ancillary relief. She deals with complex international financial and multi-jurisdictional cases particularly in the PRC and her case of YJ v ML has attracted international legal attention as it concerns juridical arguments concerning the PRC and Hong Kong, leading to expeditious legislation in Hong Kong to answer the issues raised in her case.

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Rita has particular expertise in cases involving issues on trusts in the family law context in the Cayman Islands and BVI. Her clients generally have substantial assets with complicated company structures often involving listed companies in different jurisdictions.

Alison Green - Mackrell Turner Garrett T: +44 (0) 207 240 0521 E: alison.green@mackrell.com W: www.mackrell.com lison joined Mackrell Turner Garrett in 1989 and qualified as a solicitor in 1991, becoming a partner in the firm in 2010.

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Her expertise covers matrimonial work, including divorce and the associated financial and children issues; pre and post-nuptial agreements; co-habitation disputes; civil partnership agreements and the breakdown of civil partnerships.

Examples of the types of cases she has worked on include questions of the validity of marriage; injunctions to prevent ongoing domestic violence; removal of children from the jurisdiction; and division of assets on divorce for high net worth individuals.

Her clients in the UK and overseas include high net worth individuals, foreign nationals, Premier League footballers and members of royal families.

Alison is a member of Resolution, the organization of family lawyers committed to a constructive and non-confrontational approach to family disputes.

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Divorce Law 2016 In our Divorce Law Roundtable 2016 we spoke with six experts from around the world to discuss the latest regulatory changes and interesting developments in their jurisdiction.

Highlighted topics include: the impact of cohabitation on divorce law, details on an important new surrogacy case and the reasons as to why one expert believes social media is the “new marriage minefield”. Featured countries are: England & Wales, Slovakia and Hong Kong.

1. Can you talk us through the process for divorce in your jurisdiction?

Cooper: Either party to the marriage may submit a petition together with a statement in support. These petitions are now handled centrally at one of 11 regional divorce centres rather than the parties’ local county court as was the case previously.

The petitioner must show that the marriage has irretrievably broken down based on one of five ‘facts’: (i) adultery, (ii) unreasonable behaviour, (iii) desertion for two years, (iv) two years’ separation with consent to divorce or (v) five years’ separation without consent.

In the event that a petition is not contested by the other party (the majority of cases), decree nisi will be issued by a legal adviser, supervised by a District Judge, based at the divorce centre.

If the petition is opposed by the other party, the matter will be transferred to the parties’ local court for a contested hearing. There is little point in contesting the divorce as it is well established that conduct that led to the breakup of the marriage is not a factor in financial 6

proceedings.

The petitioner may apply for decree absolute six weeks and one day after the date of decree nisi – again this is usually issued without a hearing at the regional divorce centre. If the petitioner does not apply the respondent may apply three months after the date on which the petitioner could first have applied. However in most cases the decree absolute is applied for once all financial issues have been resolved.

Barretto: Divorce in England and Wales is a paper process, unless the divorce itself is defended, which is uncommon.

The Petitioner is the person who starts the process and issues the divorce petition and the Respondent is the person who receives the petition. There is only one ground available for divorce in this country, and that is that the marriage has broken down irretrievably. The first stage of the divorce process is when the judge considers the papers, and if in order, decree nisi will be pronounced. On the expiry of six weeks after decree nisi the petitioner is able to apply for the decree absolute, which brings the marriage to an end.

Kaufman: In England and Wales we still do not have “no fault divorce” despite demands for the same from various family law experts and Judges including Sir James Munby, the President of the Family Division. There still has to be the party known as the Petitioner making the claim for the divorce and the receiving party is known as the Respondent.

In our system divorce can only be granted on the basis that there has been irretrievable breakdown of marriage which has to be due to one of five proven grounds: (i) adultery, (ii) unreasonable behaviour, (iii) two years desertion by the respondent, (iv) two years factual separation with the consent of both parties or (v) five years factual separation whether the Respondent consents or not.

As long as the divorce is not defended and is by agreement, it is a matter of going through a number of processes and filling in of Court forms. After the filing of the Petition, the Respondent must file an Acknowledgment of Service within seven days indicating whether he or she is defending or not. Assuming it is not

being defended, the Petitioner then applies for the first stage of divorce known as the decree nisi by simply filling in a form and signing a Statement confirming the contents of the Petition are true.

The decree nisi is pronounced by the Court several weeks later and six weeks after that the Petitioner can apply for decree absolute which is the final document bringing the marriage to an end.

If there are ongoing financial claims or proceedings not yet resolved, the normal course is for the Petitioner not to apply for decree absolute until there has been a final financial settlement or Court determination.

The divorce proceedings are self-contained and separate from the Financial Remedy Proceedings and any proceedings relating to children although of course they are all interconnected.

Jezova: The court is the only authority that can divorce the marriage in Slovakia. An application for divorce can be motioned by one spouse or by both spouses (divorce by agreement) and filed to the relevant Slovak court. In case the application is filed by one spouse the court delivers the application to other 7

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party for the written answer within 60 days. Accordingly the court sets the date of a court hearing. At the court hearing the parties can be represented by attorneys at law. In case any minor children are born from the marriage, the court has to decide about the parental rights and obligations of minor children after the divorce of marriage. It is important to mention that we do not deal with the division of assets in the divorce process, but after the couple is already divorced.

Green: Parties cannot divorce within the first year of marriage. There is one ground for divorce, which is the irretrievable breakdown of the marriage.

The party applying is the Petitioner and must rely on one of five facts to proceed namely adult. The Petitioner lodges a Divorce Petition at Court and will try and agree the contents with the Respondent beforehand, if possible. The Respondent must complete the Acknowledgement of Service form once served with the papers and return it to the Court. Thereafter, the Petitioner applies for a decree nisi and the Petitioner can then apply for a decree absolute six weeks and one day from the date of the decree nisi, to dissolve the marriage.

Ku: In Hong Kong a couple cannot divorce if they have been married for less than one year. After that either party 8

can present a petition to the court and serve it on the other party, or there can be a joint application where both parties agree to divorce. The grounds for such a joint application must be that both agree that they have been separated for a year and that both consent to a divorce.

If the divorce goes ahead with a petition by one party (the ‘Petitioner’) he or she must prove one of the five facts of divorce to establish that the marriage has broken down irretrievably. These five facts are: (i) adultery, (ii) unreasonable behaviour, (iii) separation for one year by consent, (iv) separation for two years without consent and (v) desertion.

The other party (the ‘Respondent’) is served with the petition and has to reply to the court as to whether or not he is going to defend it within eight days.

Once the court accepts that the marriage has broken down, the Petitioner can apply for a decree nisi which is the first stage of the divorce process. At the same time the parties will be trying to sort out the problems which may arise in respect of their children and finances.

If there are issues over the children, the court will fix a date for the Children’s

Appointment to make any orders which may be necessary, such as social welfare reports or other evidence. Similarly, with the finances the court will fix a first appointment to deal with financial issues. Both of these hearings are designed to narrow the issues and prepare for the next stage in both, the Children’s Dispute Resolution hearing and the Financial Dispute Resolution hearing.

If there is no settlement at these hearings, the matter will proceed to full trial with witnesses on both sides. Normally matters concerning the children will be dealt with first.

Once the children and finances have been resolved, the Petitioner will normally apply for decree absolute, which is the final stage of the divorce process.

2. Can you outline and discuss the main legal complications surrounding international families?

Cooper: The first issue likely to be faced by families with links to more than one country when considering divorce is jurisdiction (i.e. in which country should proceedings be commenced?). This can have significant implications as the level of provision can vary significantly from one jurisdiction to another. In the UK (and the rest of the EU except Denmark) jurisdiction is governed by

Brussels II. Divorce proceedings can be commenced in a member state where: a) both spouses are habitually resident there; b) both spouses were habitually resident there and one of them still lives there; c) the respondent is habitually resident there; d) in countries where one can make a joint application either spouse is habitually resident there (not applicable in England and Wales); e) the petitioner is habitually resident there and has lived there for at least a year immediately before starting the divorce application; f) the petitioner is a national of that country (or for the UK and Ireland “domiciled” there) and is habitually resident there and has lived there for at least six months immediately before starting the divorce application; or g) both spouses are a national of that country (or for the UK and Ireland have their “domicile” there).

There may be situations where there will be two competing jurisdictions – Brussels II provides that the application which is first in time will take priority over a later application in a competing jurisdiction, so it is important to weigh up which jurisdiction will be more advantageous and act quickly to secure 9

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that jurisdiction.

A further common issue for international families divorcing in England and Wales arises where one party has or is suspected of having property abroad.

Where assets abroad are suspected but not disclosed, this should in the first instance be dealt with by way of questionnaires/requests for further documents as part of the court disclosure procedure. Many jurisdictions have searchable property registers which list as against the name of the owner rather than the address of the property which can be of use.

It is also important to bear in mind the difficulties of enforcing orders which relate to properties abroad. Orders against foreign property should be avoided, as they cannot be enforced against the property itself (e.g. by order for sale), only personally as against the paying party (e.g. by an order for committal).

Those drafting financial remedy orders should give thought to providing alternative mechanisms for enforcement in the event of non-compliance. Parties also need to consider the tax consequences both in the UK and abroad of sale or transfer of properties abroad.

Where an order is to be made which provides for maintenance for a spouse 10

in a foreign jurisdiction, the parties will have to have regard to the availability of reciprocal enforcement in that jurisdiction. This is dealt with in the UK by the Maintenance Orders (Reciprocal Enforcement) Act 1972 and by the Maintenance Regulation in EU cases.

Jezova: International divorce processes can be more challenging. We can differ between EU divorces and other non-EU divorces. The first issue we need to solve is the jurisdiction of Slovakian courts.

In international EU divorces we also use the EU law. When minor children come from the marriage and spouses are living in different countries we need to set a proper influence of both parents during the time after the divorce.

The child has the right for both parents, no matter in which country they live.

The child has to experience the culture and natural environment of both parents considering the needs of the child.

Green: Jurisdictional considerations relating to divorce and marital finances i.e. which is the best country/forum for the client to use in order to maximise claims and achieve fairness. One jurisdiction’s laws may only allow limited capital claims. Orders made in one country may not be recognised or enforceable in another. The operation of tax in different jurisdictions will also

certainly feature when dealing with disposition of properties and specialist advice on that may be necessary.

Significant children issues which often arise include possible permanent relocation to another country and contact with the other parent. How this is managed and facilitated in each country varies. Mirror orders would be necessary to ensure both countries can enforce the arrangements.

Ku: International families face a number of additional problems. One of the main questions which arise is where to petition for divorce. An international family may have a choice between a number of different jurisdictions and each one will have different laws in respect of divorce and this can have a significant effect on the outcome. ‘Forum shopping’ cases are common in Hong Kong. Advice from the other jurisdictions is advisable.

Also, assets located in different countries may prove problematic, although on the face of it all assets of a party living in Hong Kong no matter where they are situated will be assessed for division, in reality it may prove to be harder to assess the value and to enforce an order, depending on the jurisdiction in which the assets are held. International

injunctions can be applied for, as well as mirror orders but generally it is more expensive and complicated to proceed when the assets are held overseas.

In addition there may be problems with where the children should live, and there are many cases in Hong Kong for the relocation of children in international families. Hong Kong is a signatory to the Hague Convention for the return of abducted children but Mainland China is not.

3. Have there been any recent regulatory changes or interesting developments?

Cooper: The recent move to processing all divorces in a limited number of centralised regional hearing centres (see 1 above) is intended to speed up the divorce process and free up time in the county courts. It is also aimed at reducing fraud (in one notorious recent case, 180 Italian couples were discovered to have falsely used the same address in England in order to obtain a divorce in this jurisdiction – a situation likely to be identified much faster with a centralised divorce process).

In terms of developing case law, two significant recent developments relate to the circumstances in which the court 11

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can set aside orders made on divorce previously and the circumstances in which the courts may consider granting an application for a financial relief even many years after a marriage has ended (see question 4 below).

Kaufman: The President of the Family Division, Sir James Munby has just announced that next year he plans to start bringing in digitalisation of the whole divorce process. He says that at present the involvement of Judges and indeed lawyers is a waste of time and money as in most cases where the divorce is by agreement, it can be carried through to its natural conclusion without any Court hearings or pronouncements in Court and can simply be done online.

If this new streamlined procedure was being brought in at the same time as no fault divorce (which Sir James Munby favours – see above) then logically there would be more justification for an online system of divorce. The Judge himself said that an entirely paperless and digitised Court must be a “vision not of some distant future but of what has to be, and I believe can be, achieved over the next four years of the Court’s modernisation programme”. He said that although these are troubled times for law, the civilised world will always need lawyers: “this is a time for courage 12

but also for optimism”. With the same Judge calling for Barristers to do more work on a direct access basis without involvement of solicitors, family work will be reducing and the world of family law is about to be even more competitive for we solicitors specialising in this work.

Jezova: Slovakia recently passed an amendment in Family code where the rights of child and the best interest of the child were strengthened. The child has the right to state an opinion on the situation. The child has also the right for grandparents and spending time with them. The equality of the influence of both parents on upbringing the child was highlighted too.

It is interesting that Slovakia did not have any national rules and law for abduction cases according to Hague Convention and we enacted the national law for that type of cases just now.

Green: The second reading of the No Fault Divorce private members’ Bill has now been postponed until 11 March 2016, when it is hoped there will be progress in the passing of this bill. This would allow a divorce on the basis of a joint petition, without one party having to allay blame on the other.

Ku: A hot topic at the moment is the long awaited reform of the law in respect of children. There is currently a consultation paper on the proposed Children’s Proceedings Bill which may do away with the old terminology of custody and access with its connotations of parental rights and ownership over children to be replaced with the more modern concept of parental responsibility where both parents are recognised as having an ongoing responsibility to their children. It is hoped that this will reduce the number of children’s applications and the feeling that one party has’ lost’ and the other has ‘won’ in respect of their children. It will also tidy up some of the anomalies currently in the legislation in respect of children (some of which are fundamental such as the age of majority) and clarify the approach the court should take in respect of children’s disputes (such as including a statutory checklist of factors to consider and taking into account the views of the child).

dure rules (the White Book). As the reforms are so extensive, it is unlikely that these rules will come into force soon.

Also in the pipeline are proposed fundamental changes to family law procedure which will bring into force a set of procedural rules similar to that which exists in England. This will consolidate procedure from matrimonial legislation as well as civil procedure normally found in the Hong Kong Civil Proce-

The court noted the following: • it is better for all parties to resolve financial matters between them by way of agreement rather than in court • an agreement between the parties cannot oust the power of the court to make orders and is not a contract enforceable in law

4. Are there any noteworthy case studies or recent examples of new case law precedent?

Cooper: Sharland v Sharland [2015] UKSC 60 was a case in which the parties had reached a settlement – after hearing the husband’s evidence at trial – whereby the wife would receive 30% of the net sale proceeds of the husband’s company. She later discovered that the company was being prepared for an initial public offering at a far higher valuation than had been disclosed by the husband in his evidence. The wife sought to set aside the consent order on the basis of the husband’s non-disclosure, and a trial judge found that the husband’s evidence had been dishonest. The Supreme Court allowed the wife’s appeal, directing that the consent order would not be sealed.

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• the court will make an order in the terms agreed unless it has reason to believe that there are circumstances into which it ought to enquire • the parties have an ongoing duty to make full and frank disclosure of all relevant information – to one another and to the court In this case, the Wife had been induced to enter into the agreement by the husband’s fraud (i.e. his deliberately false representation) and the order should therefore be set aside. The case is a reminder to parties of the importance of full and frank disclosure, and of the remedies available to a party who discovers that full disclosure has not been made.

In Wyatt v Vince [2015] UKSC 14, the parties had married in 1981 and separated in 1984. They had a son together, and treated the wife’s daughter from a previous relationship as a child of the family. Both parties lived in straitened financial circumstances for many years, until the husband’s green energy business took off in the late 1990s. The husband went on to become a multi-millionaire, while the wife remained in very modest financial circumstances.

It appeared – although the court file had since been lost – that no order was 14

made regarding financial provision at the time when the parties divorced in 1992.

The wife then applied in 2011 for a lump sum payment and for interim payments in respect of her legal costs. The husband sought to strike out her application as being an abuse of process or having no reasonable grounds. The Supreme Court held that the application was not an abuse of process, noting that an application should not be viewed as an abuse of process simply because it has no reasonable prospect of success. The court also held that an application for financial provision would have ‘no reasonable grounds’ where it is not legally recognisable – for example, because the applicant has remarried or there has already been a final determination.

The fact that the wife’s claim has not been struck out does not necessarily mean that her substantive claim will succeed.

The court stressed that she faces ‘formidable difficulties’ in establishing a claim for financial provision, including the short duration of the marriage and the delay. However, the court did note that the wife’s contributions by way of raising the family’s children – including for the years after separation – should be taken into account and may justify a modest financial order being made.

This case will therefore be of interest to any parties in a similar position, and should serve as a reminder to all divorce lawyers of the importance of ensuring that financial claims are not left unresolved on divorce, lest they be revived many years later.

Barretto: There has been an interesting decision relating to “misconduct”, a subject close to many client’s hearts. In MAP v MFP [2015] All ER (D) 251 the husband had a cocaine habit, abused alcohol and spent a significant amount of money on escorts. Although clearly the husband had overspent the judge refused to add back any items of expenditure despite their extravagance. It was decided that a spouse had to take their partner as they found them even though they were flawed. The husband ran and grew a successful business and much was made of the fact that his great abilities had led to the success of the company and the family’s financial wealth. Had he not been so successful then it remains to be seen whether the argument for an add back would have been so readily dismissed.

The judge also found that the husband’s dissipation of resources whilst irresponsible was not a deliberate or wanton dissipation and therefore it would be wrong to add back for this reason. This

suggests that there must be some kind of intention that any reckless spending must be done with the intention of defeating the other party’s financial claims for an add back argument to succeed.

Kaufman: My firm has recently been involved in an important new surrogacy case – DN and another v SJ and Others. There are not that many surrogacy cases in England but it is definitely a growing area and my firm is one of the few with considerable expertise. We have acted in a number of reported cases and this latest one covered two new fascinating elements. Commercial surrogacy is unlawful in England but it was not in Cyprus in 2012 (subsequently the law changed) where an English couple, Husband and Wife, entered into a surrogacy agreement with two surrogates.

The transfers of the embryos were not successful.

Husband and Wife then divorced and the Wife met a new partner who also wanted to proceed to surrogacy and they went back to Cyprus. The embryo transfer took place at a clinic in Cyprus and this time it was successful. The big difference was that the two Cypriot surrogates had not been told before the birth that the embryo was created from the new partner’s genetic material rather than the Wife’s former Husband. The 15

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Wife had been advised in Cyprus it was not necessary. That advice changed at the point when the Wife’s former Husband’s name was going to be given at the hospital when the child was due to be born. She was advised that the surrogate mother should be told about the true identity of the genetic father.

This resulted in the surrogate being extremely distressed. Ultimately she insisted on a new Surrogacy Agreement with the Wife and her new partner, the birth took place in England and the child was given to the care of the original Wife and her new partner.

We applied for a Parental Order on their behalf which is the standard procedure in these cases. The Judge had to be satisfied under the Human Embryology and Fertilisation Act 2008 that the child’s lifelong needs would be met by the making of the Order. The Judge certainly ruled for the first time that in the circumstances this case and in future situations which were similar there needs to be complete transparency with the surrogates and if the genetic father has been changed surrogates must be told.

The second unusual element is that this was the first case where the Wife and her partner did not live full-time together and one of the criteria that must be satisfied is that “the Applicants are 16

two persons who are living as partners in an enduring family relationship”.

There is no statutory definition and it is a question of fact for the Court. In this particular case because of their respective child and work commitments they were only living under the same roof a few days a week and at some weekends and certainly not seven days a week. The Judge ruled that “it is not uncommon in many families for one of the parents to live away from the family home for periods of time due to work or other commitments and it could not be suggested that such circumstances would defeat the suggestion of an enduring family relationship”. The Judge ruled there clearly was a committed relationship which would continue and that when the circumstances permitted the parties would live together fulltime and therefore the Parental Order was made.

Because of their only recent history, Surrogacy Agreements and Applications to the Court under the 2008 Act are relatively novel and therefore clients involved in such matters do need to have lawyers with experience in these types of cases and all of the unusual facts which they can throw up.

Green: Rebecca Hannah Steinfeld (2) Charles Robin Keidan v The Secretary

of State of Education [2016] EWHC 128 (Admin) – an opposite sex couple wanted to formalise their relationship, but objected to the institution of marriage so wished to enter into a civil partnership. Their application failed, as the Civil Partnership Act is clear that parties have to be of the same sex.

Supreme Court decisions in Sharland v Sharland [2015] UKSC 60 and Gohil v Gohil [2015] UKSC 61: Dealing with the setting aside of Consent Orders on the grounds of fraudulent non-disclosure is within the Court’s powers.

Ku: There were many significant cases in 2014. These included the landmark case of SPH v SA in which the Court of Final Appeal confirmed that the law in England as set out in the case of Radmacher v Granatino, was good law in Hong Kong. Essentially this meant that prenuptial agreements would be likely to be enforced in Hong Kong.

In addition in 2014 there was the landmark case of KLK v PLTO (The ‘Poon’ case) in which the Court of Final Appeal held that all the assets of a trust would be vulnerable on divorce if it could be proved that the settlor could have access to the funds in the trust at any time, those assets could be treated as a resource of the party.

In 2015 there was a landmark Court of Appeal case concerning the removal of children and which reviewed the law on habitual residence under the Hague Convention : LCYP v JEK. The case dealt with the importance of the children’s wishes and removed the previous test in respect of the parent’s agreement and intention.

Withers were involved in all three landmark decisions.

5. Has the recent rise in cohabitation altered the divorce law landscape?

Cooper: It would be difficult to say that recent increases in cohabitation have caused significant changes, but there are some implications which can be seen.

Typically, a settled period of cohabitation will trigger similar consequences to re-marriage – it is commonplace to provide in financial orders that six months’ cohabitation will trigger a sale of the former matrimonial home where it is to be occupied by one of the parties pending a deferred sale at a later date.

Cohabitation does not automatically terminate the recipient spouse’s maintenance, but the case law provides that where there is cohabitation is a new relationship of ‘stability and permanence’, the court will either refuse to order 17

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maintenance or reduce it to nil on an application for variation - Grey v Grey (2009) EWCA Civ 1424.

not be acting on this recommendation and it is unlikely that we will see development in this area any time soon.

It is worth noting that in calculating the length of a marriage (which has a bearing on the extent to which the parties’ assets should be divided equally on divorce), periods of cohabitation prior to marriage are included, reflecting the widespread practice of premarital cohabitation.

Barretto: Cohabitation, unlike marriage, does not give rise to claims of sharing on relationship breakdown. It is unfortunate that in this day and age, many people still believe that there is a special legal status, called “common law marriage” that gives them rights to the capital and income of the other party when the cohabitation comes to an end.

This is not the case, and this misconception has often led to one spouse, usually the mother, being left in a position of real financial need when the relationship ends. Although the children will be looked after financially the mother has no right to any maintenance for herself and nor can she demand a share of her partner’s capital except in those circumstances covered by Trust Law.

It is also significant to note that unmarried cohabitants have no recourse to financial remedies arising out of their relationship. On separation they will have to rely on their existing property rights, although they may be able to establish a beneficial interest in a former family home by way of a constructive or resulting trust (i.e. through a common intention to be inferred from the parties’ conduct or through financial contributions to a property which is not registered in their name).

The Law Commission recommended in 2007 that the government should implement a scheme of financial relief for cohabiting couples who have had a child together or who have lived together for a minimum period, subject to the ability to opt out by written agreement. The Government has announced that it will 18

Kaufman: The office for National Statistics produced their latest survey in 2015 which showed that cohabitating couple families continued to be the fastest growing family type in the UK reaching 3.2 million (the great majority of these being opposite sex couples).

Cohabitating couple families account for 17% of all families in the UK. Amazingly, despite a lot of legal and

press comment in trying to explain the legal pitfalls of cohabitation compared to marriage, in a survey not long ago, 51% of persons answering thought that unmarried couples who live together for some time probably or definitely had a “common law marriage” which gives them the same legal rights as married couples. This absolutely is not legally the case and in law there is no such thing as a “common law marriage”.

Strangely, cohabitees can do better if their partner dies without leaving them any reasonable provision than if they separated whilst alive. The cohabitee who was being financially supported at the time of his or her partner’s death can make a claim for reasonable financial provision under the 1975 Inheritance Act. No statute gives such a right to a cohabitee who may separate from his or her partner. Claims can be made if there is a child or children of the relationship but only in respect of financial support for that child not for the individual himself or herself. As one Judge has put it “one is aware anecdotally of cases of cohabitation which have lasted 20, 30, 35 years and then break down… and where the woman has made precisely the same career sacrifices, precisely the same sacrifices as many women do as a consequence of marriage but she may be, to use the vernacular, thrown on the

scrapheap… had the parties been married she would have had a very significant claim to a very significant financial relief ”.

Various organisations as well as Judges have called for reform and there has been indeed previously a bill before Parliament to give cohabitees greater financial rights but such moves have never got very far due to politics and such like.

With marriages staying roughly the same level year on year and cohabitations significantly increasing year on year, there is a dramatic change in the family law landscape as more and more cases are coming before lawyers trying to assist cohabitees as best they can in the event of relationship breakdown.

Hence an increase in TOLATA cases has been taking place. Interestingly, there are also more and more cases of parties entering into cohabitation only after going to lawyers for Cohabitation Agreements in the same way as Prenuptial Agreements are on the increase for people getting married.

Jezova: If we look at statistical information about Slovakia we will find that in the year 2014, 10,514 marriages were divorced. In 2013, 10,900 marriages were divorced. So the tendency of divorced 19

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marriages in Slovakia is decreasing.

On the other hand we have the trend of young parents not getting married.

Generally from 100 marriages, 39 were divorced. Most of the applications are filed by Slovakian women.

At the beginning of a period from 2000, the number of divorces accounted for almost 9300, this was gradually increasing until 2006 with 12,700 divorces. In the following period until 2010, the frequency distribution was above 12,000 divorces a year. Since 2010, the divorce rate has a slightly declining trend.

Green: Not greatly, as there is still no unified statute to deal with cohabitation as there is with marriage and civil partnerships. Cohabiting couples have to rely on the laws governing land and trusts and children law, if there are children of the family. Court cases under The Trusts of Land and Appointment of Trustees Act 1996 are governed by the Civil Procedure Rules, rather than the Family Procedure Rules, creating a stark contrast between cohabitation and a divorce case.

With respect to child maintenance, parents can enter into agreements between themselves or rely on the Child Maintenance Service or utilise specific provision within the Children Act 1989 for lump sum payments or claims against 20

property, for the children.

Ku: Cohabitation cases have their own complications but as yet these cases have not had an impact on the legislature. Simply put, the laws which are in force to protect married couples and their children do not exist for co-habittees. For example, a spouse can claim monthly maintenance, a lump sum settlement and transfer of property. A co-habittee will have to depend on the civil laws in respect of ownership and contribution. Therefore, for example a ‘common law wife’ who may have been living with her partner for a number of years, will not have any entitlement to financial security unless she can prove she has made her own financial contribution. She will be able to claim maintenance for her children and as part of that a carer’s allowance which will take into account her needs but the courts cannot treat her in the same way as a divorcing spouse. In addition, the rules are less favourable in respect of the children of unmarried parents.

Cooper: One issue which increasingly creates difficulties in respect of older divorcing couples relates to pensions – an area in which the court’s approach has not always been clear, particularly when it comes to offsetting.

With younger couples it can be fairly straightforward to offset a pension held by one party with a lump sum to be paid to the other, with little disadvantage to the paying party, as he can continue to build up the pension by making further contributions. Where a pension is in payment however, it is no more than an income stream (see Martin-Dye v Martin-Dye [2006] EWCA Civ 681) and cannot be increased through future contributions.

There are no civil partnership laws in Hong Kong.

Particular difficulties can arise where there is an age gap between the parties.

See for example SJ v RA [2014] EWHC 4050, where the Wife was refused a pension sharing order providing equality of income because she was much younger than the Husband and this would have resulted in her receiving a much larger share of the overall value of the pension fund.

6. Following the recent ‘Silver Splitters’ boom, can you outline any unique challenges this creates for divorce lawyers?

Another difficulty arises out of the increasing tendency for adult children to remain at home or be financially supported by older parents. Unlike with

minor children, whose needs are the court’s first priority, the court is not obliged to give precedence to the needs of adult children who may live with or rely on one or other of the parties.

It is also often the case that a priority of older couples is to preserve assets for their children to inherit – and in some cases these will be children from previous marriages. Again, this is not a matter to which the court is required to give priority.

Barretto: Pensions and the different ways to treat them are usually at the heart of matters when older couples divorce. Often the pension/s will be the most valuable asset and it will need to be decided how to treat them for the purpose of achieving a fair financial settlement. Often actuaries are instructed on a single joint expert basis to calculate what percentage share of one spouse’s pension is needed to achieve equality of income on retirement. It is also widely accepted that the Cash Equivalent Value of a pension may not always be an accurate reflection of the actual value, and once again, actuaries are instructed, often at great expense.

Jezova: Official figures have shown a marked increase in divorce among couples around retirement age in recent 21

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years. It is thought to be the result of a combination of changing social attitudes, the prospect of a longer retirement as people increasingly live longer.

The majority of such dissolutions are initiated by women.

This recent trend brings us new challenges into law and also for divorce lawyers. Firstly, the question of whether the marriage is disrupted in such a way that the marriage needs to be divorced. In case the spouses were together for ages and they went through more marriage crises and have the history behind, the reasoning of the divorce might be the first challenge. The children are already grown up so silver splitters do not fight for the children. Another challenge is connected with women and their position after the divorce in cases when women where whole life at home looking after children and household. Slovak law is not prepared for such cases and the maintenance for divorced wives is another challenge.

Green: In such cases, usually neither party are working and so their assets are finite with no capacity to increase and so it is often a challenge to divide assets to provide two homes. Pensions are normally in payment so once again a finite income pot which has to be divided to fund two homes.

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Ku: Not sure if there has been such a silver splitters boom in Hong Kong as the UK but when people divorce later in life, there are different issues at stake.

It’s less about the children and earning capacity and more about lump sum division to make sure both parties have adequate savings to go securely on into retirement and old age. Pensions are often in issue. In England there are specific rules relating to pension splitting but in Hong Kong the situation is more straightforward as most people pay into a MPF which is easily quantifiable.

Long marriages will normally result in a 50/50 split of the assets and contributions by the breadwinner and the homemaker are deemed to be of equal value.

7. Is gender inequality and discrimination still a pervasive issue in modern day divorce proceedings?

Cooper: The leading case law (White v White; Miller v Miller/McFarlane v McFarlane) makes it clear that it is not permissible to discriminate on the basis of gender – the contributions of the ‘breadwinner’ and the ‘home-maker’ are to be valued equally, and in all cases the starting point (and cross-check at the end) should be equal division of the matrimonial assets unless good reason can be shown to depart from equal division.

There is a perception that England and Wales is a jurisdiction which makes particularly generous provision for wives in comparison to other jurisdictions, and there is often a sense that there may be indirect discrimination where, by virtue of the fact that primary care of the children tends to be awarded to the mother, wives often end up with a larger share of the family assets. On the other hand, wives who have contributed through home-making but have not had children may receive a much less favourable outcome. Whether this is reflective of a gender bias/fixed ideas as to gender roles on the part of the judiciary or simply reflective of the way many couples in fact organise their lives prior to separation is a more open question.

Jezova: Generally speaking you cannot observe discrimination or inequality in divorce cases when no children were born during the marriage. Slovakia is a very pro-European country and we can observe it follows all European standards in the court procedures. On the other hand when minor children were born during the marriage and the court deals with parental rights and duties to the children after the marriage, the court considers the needs of the children. The natural need also according to the European courts is to be with the mother until the mother is able and willing to

take care of the child. In many surveys, it was found, that men feel discriminated in their role of fathers and they want to be concerned with an education and a care of their children. The majority of children are in custody of mothers.

Here to be considered are the needs of the child, the age of the child and the equality of the parents in the upbringing of the child. The proper regime which enables both parents to influence their children should be considered.

Green: Not as much as it once was.

Courts are far more willing to give father’s care of children if that is in the children’s best interests. Further, it is not uncommon for maintenance orders to be made against high flying wives in favour of husbands.

Ku: Not particularly in respect of spouses as the legislature and case law protects the weaker party quite well in Hong Kong (some would say too well).

But see the answer in respect of cohabitees. There is clearly a discrimination against these parties and their children.

Also note the comments regarding the lack of civil partnership legislation. We are well off a consideration of same-sex marriage. There was an interesting case which went to the Court of Final Appeal in 2013 W v Registrar of Marriages in which the Court of Appeal had con23

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strued the relevant passages from the Marriage Ordinance as not permitting the marriage of a transgender woman to marry her male partner on the basis that the parties were not respectively male and female. The Court of Final Appeal queried whether the Marriage Ordinance could be construed to be incompatible with the right to marry under the Basic Law and concluded that it was. Legco was then given time to discuss amendments to the law, which to our knowledge has yet to be passed – which rather suggests the affirmative to this question in respect of the rights of transgender and homosexuals in HK. 8. How can you help a client protect their finances during divorce or dissolution?

Cooper: Divorce lawyers need to be aware of the provisions under section 37 Matrimonial Causes Act 1973, which empower the court to prevent a disposition of assets which is about to be made – or set aside a disposition which has been made within the last three years – which would have the intention of defeating the Applicant’s claim for financial provision. In these circumstances the Respondent is required to disprove the presumption that such a disposition was (or will be) made with the intention of defeating the Applicant’s claim.

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A disposition can include selling, mortgaging or giving away property.

It is also possible to obtain a freezing injunction under the High Court’s inherent jurisdiction – which can be a worldwide freezing injunction – where it is feared that the Respondent may be about to dispose of assets.

Green: If a client is not a joint owner of the matrimonial home, a matrimonial home rights notice should be lodged with the Land Registry immediately.

This will protect their interest until a divorce is finalised. If there is suspicion of the other party dissipating assets, a Section 37 Matrimonial Causes Act injunction can be obtained to freeze assets and bank accounts, until resolution of finances. As some claims are only available to spouses/civil partners, it is good advice to delay finalising a divorce/dissolution, until a financial agreement has been reached.

Ku: If a party suspects that the other spouse has tried, or is trying to dispose of assets during divorce, he or she can make an s17 MPPO application to set aside any dispositions made by the other party which are clearly aimed at defeating her claim and taking assets out of the marital pot for division. This can be made locally or internationally.

The aggrieved spouse can also apply for a mareva injunction to freeze the assets of the party who has tried to deal with property which would be subject to a claim.

Both parties have an obligation to the court and to each other to make a full and frank disclosure of their assets. The courts have a wide discretion to order documents to be produced and inspected if there is any doubt about inadequate disclosure.

Anton Piller orders allow a party to enter the other party’s premises for the purpose of searching for and retaining documents if there is a real concern that the documents will be removed or destroyed. This is preferable to the party trying to get these documents herself, which has been outlawed following the English case of Imerman v Tchenguiz in 2010.

give effect to a pre-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.

Parties are strongly advised to have taken independent legal advice and provided disclosure of their assets prior to such an agreement. While there is no cast-iron guarantee that these agreements will be upheld – it is important to note that they are subject to review for ‘fairness’ in the circumstances prevailing at the time they come to be implemented, the court will be slow to overturn an agreement that was freely made with full understanding of the consequences.

9. What measures are available to clients to protect their finances before or during marriage?

Radmacher equally applies to postnuptial agreements. As noted at question 6 above, these agreements may be particularly relevant for older couples in second or subsequent marriages where they wish to preserve assets for children of the previous marriage.

Cooper: While historically pre-nuptial agreements have held little sway in English law, the picture is now rather different following the decision of the Supreme Court in Radmacher v Granatino, which ruled that courts should

Barretto: Before a marriage the client can enter into a pre-nuptial agreement if they wish to try and protect any asset from being shared in possible future divorce proceedings. It is important that certain conditions are met to 25

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give the pre-nuptial the best possible chance of being upheld. These include; full disclosure of the financial position of each party, each party must obtain independent legal advice (one solicitor cannot act for both parties), the terms of the pre-nuptial should not leave one party in a situation of dire financial need and must be fair and it should not be signed too close to the marriage (at least 4 weeks before).

Kaufman: In the old days Trusts were a common measure that lawyers advised clients to use to protect existing wealth be that property, money or business interests. However, today there are additional complications with Trusts and far more tax implications on an ongoing basis.

In cases involving significant assets which one party wishes to protect, the best form of protection today is the Nuptial Agreement – Pre-Nuptial before marriage and Post-Nuptial during the marriage in appropriate circumstances.

The law has changed dramatically in recent years after the Radmacher case.

Whilst the Radmacher case preserved the ability of the Court to rule that a Nuptial Agreement is not to be enforced because it is “unfair” in some 26

way or another, the general view from experienced lawyers and indeed from the subsequent Court decisions is that as long as the agreement has been entered into both parties freely and voluntarily and both fully understanding its implications and consequences without any duress or other factor which might vitiate against the agreement being followed, then a spouse trying to get out of an agreement will find it very difficult.

Although Radmacher did not say that it was absolutely necessary, it is considered more than sensible for each party to have his or her own legal advice and for there to be full financial disclosure on both sides.

We have seen a considerable increase in Nuptial Agreements in the last two or three years and it is one of the few “growth” areas in family law giving more work to family lawyers.

Apart from the obvious objective of the parties achieving a measure of “certainty” in the event of a divorce, the key reasons for having a Nuptial Agreement is for the wealthier party to preserve and ring-fence as far as possible pre-existing assets and wealth and also, often at the behest of parents or other family members, to protect already given inheritances and gifts from family and also future gifts from family either

during lifetime or on death of the family member.

These agreements can be a minefield and involve tremendous responsibility for the lawyers concerned. One has to always be careful not to end up with an agreement which gives the weaker financial party nothing or too little so that the Court could overturn the agreement as being unfair. Often these days, agreements have escalating scales of financial reward to the weaker party depending on how many years marriage have occurred.

In the more complex wealth cases the discussions and negotiations can go on longer than expected and involve greater costs than anticipated. Clients need to be encouraged to start thinking about a Pre-Nup a good length of time before the marriage and not at the last minute.

In the global market place in which we all operate, there are going to be lots of cases involving assets outside of the jurisdiction and issues of the parties possibly living abroad in the future when a breakdown might occur. This means knowing really good lawyers in lots of foreign jurisdictions whose help will be needed to make sure that any Nuptial Agreement is enforceable in their jurisdictions as well as our own.

Away from Nuptial Agreements, some specific tips for the client with business interests which they want to protect: • Do not transfer shares in a business to a spouse for tax reasons • Do not ask or allow a spouse to invest in the business • Do not ask or allow a spouse to be a director or company secretary.

Jezova: Under Slovak law, currently there is no possibility to conclude a prenuptial agreement.

Before a marriage: The engaged couple has an opportunity to make a list of assets gained before the marriage on a special document with their notarised certified signatures. Although things acquired before marriage are not included in joint property.

During the marriage: Joint property of spouses arises automatically by marriage. It comprises all property that may be owned and acquired by any of the spouses during the marriage, with some exceptions. There is a possibility for spouses to enter into an agreement in the form of a notarial deed, which may extend or reduce the scope of the joint property of spouses. In the case of extending, the joint property of spouses shall include also things, that would otherwise fall into the exclusive ownership 27

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of only one of the spouses like property acquired by inheritance or donation as well as things whose nature indicates that such serve the personal needs, or the exercise of a profession of only one of the spouses. If there is a limitation to the joint property of spouses, certain items, which would otherwise fall within the joint property of spouses, may be exempted from it. A limitation that would cause the joint property of spouses to cease existing is not allowed.

Green: A client can enter into a PreNuptial Agreement before marriage or a Post-Nuptial Agreement after marriage, setting out how the parties intend to divide their finances if the marriage breaks down. Whilst there is no legislation which provides for the agreements, they are taken into consideration by Courts upon divorce providing certain criteria are met. Before marriage, a couple can also enter into a cohabitation agreement.

Ku: Assets can be ring-fenced before marriage for reasons of estate planning and inheritances and if the parties come to an agreement which both find reasonable, the chances are this will now be upheld by the court. Prenuptial agreements which follow certain guidelines are now likely to be enforced in Hong Kong following SPH v SA. These 28

guidelines include ensuring that there is no undue influence or duress when the agreement was made and that the agreement be made at least 28 days before the wedding, there should be adequate disclosure and independent legal advice. Before marriage, family assets which a party would like to protect from divorce could be placed into a trust, so long as the trust is set up carefully and it cannot be said that the assets in the trust remain a resource of the party setting up such a trust. Assets can also be protected if they are held by a company, but again it must be clear that it is the company, not the party, who owns the property.

During marriage the parties can make a post-nuptial agreement. These agreements have the same effect as a prenuptial agreement, and historically were more enforceable as the question of duress was less likely to arise.

10. How often do divorce cases use social media and to what extent can it undermine divorce proceedings?

Cooper: Many people nowadays are not aware of the extent to which information they share on social media can be passed on and viewed by third parties.

This can sometimes provide parties and their lawyers with valuable information and avenues of questioning – for exam-

ple, a wife who posts photographs of an engagement ring from a new partner while claiming to the court she does not intend to remarry, or a husband’s photographs of extravagant holidays abroad when he is claiming to have limited resources and income!

Barretto: Unfortunately posts on social media can often scupper what has until then, been an amicable and constructive conversation about how to resolve matters between separating couples. These posts sometimes result in the awful realisation by one spouse that the other has started a new, hitherto unknown, or that despite one party’s protestations that they are struggling financially, they are able to take wonderful holidays in exotic locations as evidenced by their photos that are posted on social media. The posts are often not by the party themselves, but picked up through the posts of friends and acquaintances unwittingly causing all manner of difficulty in negotiations.

Kaufman: Two incredible statistics – 556 million people now use Facebook; in a recent British survey, 50% of all Brits secretly checked their partner’s Facebook account and one in five of those then had a row in consequence!

Facebook, Skype, Snapchat, Twitter, Instagram, WhatsApp and all the rest is

the modern high-tech world in which we find ourselves and which increasingly is almost always part of any divorce case.

It is now standard practice in my firm that for every new divorce client who comes in there is an immediate instruction, without breaking any laws, to check their partner’s various social media accounts. This then gives a snapshot of the lifestyle of the partner and one which either explicitly shows or gives clues about extra marital relationships, holidays or other trips taken secretly, potentially acquisitions of new assets which they want to boast about, luxurious holidays abroad, etc.

We have all had cases where one party in a Form E or other form of disclosure cries out lack of money, “things are going badly in the business” and yet in the social media we have found evidence of lavish expenditure or being where they shouldn’t be and such like.

It never ceases to amaze me how seemingly intelligent people cannot wait to disclose to the world via social media everything they have been doing, who they have been talking to and what they have been spending their money on.

More often than not, this even occurs after divorce has started.

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Clients need to be warned not only to stop activity on social media once a divorce/breakdown is imminent but if they are in another relationship to try and ensure his or her new partner does the same. We recently had a case where my client professed shortage of money and was going to Thailand mainly on a business trip in very cheap accommodation. Unfortunately he went with his new partner who could not wait to expose on Facebook every aspect of the lavish time she was having with my client!

Truly social media is the new marriage minefield.

Green: Social media can provide ammunition for divorce with for example a husband being able to tack what his wife has been doing through her posts on Twitter, Facebook, Instagram, etc.

Social media can also however be used 30

as a means to serve proceeding where there may be no other way.

Ku: Social media in Hong Kong, as everywhere else, is on the rise. Entries on Facebook, WeChat and other sites often contribute to evidence as to conduct and life style, both of which can be relevant to matrimonial cases. It is important to bear in mind that social media is designed to share information with the world – which is contrary to the confidential nature of divorce proceedings. We would suggest those who are involved in divorce proceedings should consider very carefully when they post to a social media site. This type of evidence might be used to undermine a party’s credibility and even weaken their position.

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