ENGLAND & WALES Law and Practice Contributed by: Jeremy Levison, Miranda Green and Alexander Bartlett, Levison Meltzer Pigott
relation when spending time between their parents’ households. Quantification The court has various tools at its disposal if the value (or ownership of an asset) is disputed. A court will often appoint an expert to advise the court and the parties jointly on the value of various assets such as pensions or businesses. This can be of particular use when an asset may be considered to have both mat ‑ rimonial and non-matrimonial elements, for example where an asset is owned prior to the marriage but accrues value during the relationship as a result of one or both parties’ endeavour. A typical example might be a business or a pension. When a court believes that a party is seeking to obfus ‑ cate their financial position, it can seek to compel dis ‑ closure. For example, it can order that an individual be made available to provide evidence and to be cross- examined, or that a third party, such as a bank, pro ‑ vide disclosure directly. If ultimately the court considers that it does not have adequate disclosure available to it, then it can still make a final decision and indeed can draw an adverse inference as to why a party has failed to provide that information. Orders Available to the Court The court can make a wide range of orders in order to effect a fair financial outcome, including but not limited to: • the sale of property and distribution of its sale proceeds; • the sharing of pension assets; and • periodical payments by one party for the benefit of the other or for a child of the family (commonly known as spousal and child maintenance, respec ‑ tively) – it can include the payment of school fees. Trusts Unlike some jurisdictions, the courts of England and Wales can and will consider assets held within a trust structure even when they are not held in either party’s legal name. The court has broad powers to vary the terms of a trust to achieve a fair outcome (subject to
the law which applies to trusts more generally) pro ‑ viding that the trust is determined to be a nuptial set ‑ tlement. The question of whether a trust is nuptial is consid ‑ ered in broad terms, looking at whether the trust is connected to the marriage such that it makes (or has made) ongoing provision for either party to the mar ‑ riage. It is worth noting that the question of wheth ‑ er a trust is nuptial is distinct from consideration of whether the assets of a trust are matrimonial (versus non-matrimonial) for the purposes of the above divi ‑ sion exercise. Property Regimes There is no delineation between property regimes upon parties in England and Wales entering into a marriage. If a couple wishes to impact the court’s dis ‑ cretion, then they would need to enter into a pre- or postnuptial settlement, more on which below. 2.4 Spousal Maintenance Attitudes to Spousal Maintenance England and Wales, and particularly London, has a reputation as a candidate for divorce capital of the world. It is perceived to be one of the most generous to a financially weaker party. That reputation is in no small part a result of the court’s perceived approach to spousal maintenance. There was a time when joint lives maintenance orders were relatively common: an order that one party would pay maintenance to the other for the duration of their life. There has been a considerable change of momen ‑ tum, which has precipitated several parties to revisit those orders and to seek their premature termination or variation downwards. As for more recent cases, it is not unusual to see maintenance orders made (if at all) for a fixed period: commonly between two and five years in the absence of special circumstances. Both parties are assessed on the basis that they shall maximise their earning capacities moving forward, and the terms of payment are often pinned to milestones in the children’s edu ‑ cation.
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