Where and how best for individuals and families to resolve their personal disputes privately

Speakers: Withers LLP: Chris Priestley, Diana Parker, Steven Kempster, Caroline Thompson

Q: Can a pre-nup ever be water-tight?
A: There is no doubt that the existence of a pre-nup is a game changer in terms of the outcome of a case. It displaces the starting point of 50/50 division and lowers the bar for the maximum award to the weaker party. However, whilst the English Courts continue to have an overarching discretionary jurisdiction over the resolution of financial issues following divorce with a mandate of ensuring the outcome is ‘fair’; a pre-nup cannot be ‘water-tight’.

Q: What advice would you give to approaching the topic of a prenup with one’s partner?
A: Prenups are rarely solely about the couple, and much more likely to concern greater family issues, such as a responsibility to continue to pass inheritance to future generations or the ongoing concern of a family business. My advice would be to discuss the wider context with your partner and make sure that they understand how the pre-nup fits into the bigger picture of your family background. A greater understanding of the wider family dynamics is likely to help your marriage in any event. My other tip is to start the discussion early – definitely don’t leave it until just before the wedding.

Q: In a non-married couple does the ‘financially weak’ partner still have the right to claim 50% of the assets of the wealthier partner on separation?
A: On divorce the English court has power to distribute the matrimonial assets between the couple and the starting point is 50/50. This is the same when a couple have a registered civil partnership.
For a non-married couple there is currently no underlying statutory framework that arises to govern a separation. There are no claims that can be made for the benefit of the weaker party as a consequence of their status as former cohabitee and the length or the ‘quality’ of the relationship is irrelevant.
It may be possible to make a claim in respect of a specific property, for example, if a home is owned in the name of one party but there is evidence of an agreement that it should be shared, then this could give rise to claim in trusts and property law. However, the law is archaic and requiring reform and in the meantime, is governed by a set of complex and obscure principles which apply on a case by case basis
Separate legal remedies are available in relation to children (of non-married parents), through the Child Maintenance Service and also when certain financial thresholds are met, or in particular circumstances of need, under the Children Act 1989.

Q: Can a post-nup act as an incentive to the financially weaker party during troubled times?
A: A marriage is an extremely complex relationship and I have never seen a case where just one factor is the sole cause of breakdown. Of course it would depend on the terms, but when you have something as important as your marriage at stake, I would suggest that any nuptial agreement, is very carefully considered and negotiated so that it serves the marriage well.

Q: Is an FDR hearing legally binding or simply a guide/opinion given by a judge?
A: An FDR, Financial Dispute Resolution Hearing is where a Judge hears both sides put forward their proposals for settlement and why they think they are justified. The Judge then gives an ‘early neutral evaluation’ of each of the issues, and typically, recommends the specifics of an overall settlement that he or she thinks would be adopted if you end up at a final hearing. The recommendation is not binding.

Q: Is an FDR good value for money? Doesn’t it double the process?
A: The timetabling of the court process means that the FDR Hearing is scheduled to take place after exchange of answers to questionnaires and at the first point when both sides should have a clear understanding of the overall financial picture. This clarity provides a good opportunity for settlement. After this point positions will become increasingly polarised as legal submissions including witness statement of all the relevant legal arguments are prepared.
As I recently said in my blog, although it’s quite possible that the Judge at the final hearing may impose a different outcome to that proposed by the FDR Judge – his or her job is not solving the Times crossword – there is no one right answer. There is a spectrum within which the answer will always be right, in that it will be unappealable.

Q: Can you use media interest to your advantage during litigation ?
A: In our view it is not only possible, but essential to engage in proper messaging throughout any litigation – bearing in mind of course, that that “messaging” may include a decision not to engage on a subject or at a particular time. If you are advised that communication about the litigation will not be detrimental to your claim, you do need to consider your timing, and we can assist you with that. As with every aspect of your personal and professional life, careful thought and pre-planning is very much advised. You need to be clear what it is that you are hoping to achieve and what the potential repercussions could be. You should remember that, once the media becomes interested in a matter, you – to some extent – lose control; in pursuing their own agenda to publish a news story, the media will not be dictated to by you. However, by sensible and proportionate engagement you can seek to ensure that the media has accurate information and is not, for example, only provided with what might be a partial and biased impression given by your opponent. You will not wish to engage in an unattractive mud-slinging match in the press which your opponent may wish to flourish in front of the judge and which could expose you to criticism in the eyes of the public, and in a commercial dispute, could result in a de-appreciation of the value of the asset at dispute in the litigation.

Q: How will GDPR change how you handle issues with reputation management?
A: This is a very good if extremely complex question, which is difficult to answer in any comprehensive manner in only a few paragraphs, given the length and complexity of the GDPR (not to mention the vagueness of its drafting which has opened up the potential for fresh legal battleground in the reputation sphere). Broadly speaking, however, the GDPR strengthens individuals’ data protection rights in a number of ways. For example, Article 17 of the GDPR provides for a “right to erasure”; as the name suggests this provides for enhanced rights to request that personal data (i.e. information about you and from which you are identifiable) be erased. This is something which we would expect to see used more and more, both to protect individuals from potential reputational harm and also from misuse of their data and/or invasion of their privacy. Following the introduction of the Defamation Act 2013, there has been a shift away from defamation actions and increasing emphasis on data protection rights. This looks only set to continue with the new GPDR and Data Protection Act 2018.