2023 was a busy year for high-net-worth family law. There were landmark divorce cases, privacy pilot schemes and disputes over the legal standing of prenuptial agreements. Some 43 per cent of the barristers, solicitors and divorce support professionals interviewed for the 2023 Spear’s Family Law Survey reported an increased caseload over the last 12 months. Although there is an overall downwards trend, three out of five family lawyers expect a steady number of divorces over the next year.
Yet there was uncertainty, too. A Law Commission inquiry into guidelines on financial provision for ex-spouses was announced, and the outcome of a multi-billion pound divorce case could impact England’s long-standing reputation as the HNW divorce capital of the world.
Clarity over transparency
In January, a pilot of new transparency rules began in Leeds, Cardiff and Carlisle. Under its rules, a judge can make a ‘transparency order’ that would allow an increased range of people to attend and report on a case, although anonymity rules would stay in place. It is too soon to say what effect that will have on the HNW cases, which often take place in London, although many family barristers, solicitors and divorce support professionals interviewed by Spear's had misgivings.
The power of the prenup is given a boost
The power of prenups was given a vote of confidence from the High Court in the case of MN v AN – more than a decade on from a seminal case.
In Radmacher v Granatino (2010), the Supreme Court said that although prenuptial agreements are not binding in English law, they will be upheld if they are freely entered into, with a full appreciation of the implications and if they are fair in the circumstances prevailing at the time of a divorce, namely if they do not leave a party in ‘a predicament of real need’.
In MN v AN, the wife argued she had been unfairly influenced into signing the contract. She argued the £11.75 million to which she was entitled (out of total assets of £46.5 million) was unfair. The judge disagreed.
‘This is the latest word in an ongoing debate,’ continued Tatham. ‘Should two autonomous individuals be free to agree on what should happen in the event of a divorce, or should the state intervene if it considers that agreement to be unfair? Should certainty trump fairness? After a series of cases that have been seen to soften the decision in Radmacher, this latest judgment favours autonomy and certainty and may be seen as a boost to the power of prenup.’
A year on from no-fault divorce
The Spear’s Family Law survey 2023, published earlier this year, focused on the impact of the introduction of no-fault divorce – one year on.
Not only is it no longer necessary for the court to find one party at fault for the breakdown of the marriage, it is no longer any part of normal proceedings. The couple declares that their relationship has irrevocably broken down in a straightforward online form and the divorce begins with far less formality and state intervention into people’s private lives.
The vast majority of the family solicitors, barristers and divorce support professionals said no-fault divorce was well received by HNW clients. The non-adversarial approach was the biggest single reason why it has been welcomed, with 77 per cent of positive respondents naming it. Other reasons for celebration included reduced costs, staying out of courts, the effect on children and doing away with the need to specify unreasonable behaviour. As David Greer of Katz Partners put it, ‘It has consigned to history the grotesque charade of drafting particulars on unreasonable behaviour which was painful and embarrassing for all concerned.’
Celebrity star power shines a light on family law issues
Among the most high-profile family law cases in 2023 had serious star power: the separation of Game of Thrones actress Sophie Turner and musician Joe Jonas, of The Jonas Brothers. Jonas filed for divorce in Miami Dade County, Florida, stating the four-year marriage was ‘irretrievably broken’. Turner has enlisted the expertise of Catherine Bedford, partner at Harbottle & Lewis and winner of Lawyer of the Year – Family Law at the Spear’s Awards 2022.
The case between Turner, who is British, and Jonas, who is American, shines a light on the issue of international custody arrangements. The issue of how – and where – to raise their two children will be among the issues decided in the divorce.
‘When an international couple separates and there are children involved, it is not as easy as one of them packing up and going back to live in their home country,’ explained Antonia Mee, founding partner at Burgess Mee. ‘That is because in many countries, including England, the returning parent needs the other parent’s permission to take the children with them or, if no permission is given, a court order granting permission.’
It is understood Turner and Jonas have turned to mediation, which was also tried this year by A-list former couple Brad Pitt and Angelina Jolie. This approach holds significant advantages, wrote Arabella Murphy, founder of Propitious, in an article for Spear's.
‘After a successful mediation, no one breaks out the party poppers – or leaves in tears. But everyone feels a huge sense of relief that they won’t have to bear the stress and expense of litigation any more.’
David Allison is named Family Lawyer of the Year
David Allison, director at Family Law in Partnership, was recognised with the Lawyer of the Year – Family Law award at the Spear's Awards 2023. ‘The panel commended our winner for their handling of a landmark case that made headlines this year,’ noted Spear’s editor-in-chief Edwin Smith.
Allison led a team which successfully represented a Russian businesswoman Alla Rakshina in a case against her Greek husband, Lazaros Xanthopoulos.
This case has led to several reported judgments over recent months. The most well-known was a decision of Mr Justice Mostyn that is a leading authority on the privacy of family proceedings. This judgment also hit the national press, largely due to what Mr Justice Mostyn described as the ‘apocalyptic’ legal costs. The judge’s comments have also led to discussions about orders for legal costs funding under the Legal Aid, Sentencing & Punishment of Offenders Act (LSPO).
In being recognised at the Spear’s Awards 2023, Allison was praised for being ‘very on top of the case’ and ‘always cool, calm and courteous’. One judge noted Allison remained ‘the consummate professional in what has been ‘searing and visceral litigation’.
Allison also led a team which represented the wife on a long running and complex case involving the financial entitlements on divorce of a British/Russian couple in Tsvetkov v Khayrova.
A crackdown in ‘divorce tourism’ on the horizon?
The contentious law on splitting divorcing couples’ cash was once again in the spotlight this year ahead of a review of the 50-year-old regulations. A Law Commission inquiry into guidelines on financial provision for ex-spouses was announced in March. A report is set to be published in September 2024.
Baroness Shackleton, Britain’s top divorce lawyer, took public aim at the current legislation in the House of Lords, branding laws governing financial settlements ‘hopelessly out of date’ in a speech to her peers. Shackleton’s speech came in support of a long-running campaign spearheaded by her fellow crossbencher Baroness Deech.
Deech, an expert in the ethics of family law, told Spear’s that changes to the current 1973 guidelines should focus on four things; ‘certainty; reducing litigation; delivering equality; and [clarifying] prenups.’
Potanin v Potanina
Russian tycoon Vladimir Potanin took his divorce dispute to the Supreme Court in a bid to avoid paying out in what would be the most expensive divorce case in English history. Potanin, who is subject to sanctions, was seeking to overturn a decision by the Court of Appeal to allow his ex-wife Natalia Potanina to bring a multi-billion-pound claim against him in London. The forthcoming judgment could have wider implications for Britain’s legal standing.
‘Many think the court will have something to say about London’s status as the high-end divorce centre of the world, favourable to divorcing wives (usually) in a way not seen in many other jurisdictions,’ explained Charles Hale KC in an article for Spear’s.
‘Do English judges approve of “forum shopping”? There remains some concern at the ease by which foreign spouses can invoke proceedings in English courts to achieve a greater share of marital wealth especially when family courts are creaking at the seams with pressing backlogs in serious cases involving the welfare of children.
‘We will await the Supreme Court’s judgment in Potanin v Potanina with some interest. It could bring quite a reputational change for London and leave “injured spouses” looking elsewhere.’
40th anniversary of Resolution
Resolution marked its 40th anniversary this year. The body, which has 6,500 members, provides training to lawyers and other family law professionals (including finance professionals, therapists and mediators) in collaborative law and encourages members to adhere to its code of practice, which aims to make separation a more constructive process and includes the imperative to ‘reduce or manage any conflict and confrontation’.
Last year the organisation was credited for the role it played in the introduction of ‘no-fault divorce’ in England and Wales. However it faces criticism for not doing enough to prevent acrimonious divorces, or the practices that fuel them, according to responses to the Spear’s 2023 Family Law Survey.
UAE family law is changing the game for British expats
The Abu Dhabi Civil Family Court was set up in January 2022 for cases involving non-Muslims or Muslims from non-Muslim countries.
This was followed in 2023 with Dubai introducing its own new divorce law for resident non-Muslims. This now means that across the entire UAE the assumption is that divorcing parents have 50:50 custody of children, whereas previously children would have stayed with their mother.
Moreover in Dubai – unlike Abu Dhabi – there is still no division of assets for splitting couples. This means that while the new UAE framework for non-Muslims allows for unlimited alimony, Dubai remains an attractive divorce destination to some because the new law does not get involved in division of assets, nor does it have extraterritorial powers.
This last limitation – applicable also to Abu Dhabi – means that for now, UHNWs and HNWs are unlikely to be able to resolve matters fully there.
When it comes to financial remedies, for run of the mill cases there’s ‘probably no problem’ in them being dealt with in Abu Dhabi civil family court, UAE-based solicitor Byron James, from Expatriate Law, told Alec Marsh. ‘But for complex UHNW or HNW divorces it’s a different story, in which London is likely to continue to play a decisive role.’ At least for now.
Farewell to Maggie Rae
The family law sector said goodbye to a titan of industry in November when Maggie Rae, the ‘grande dame of divorce’ who represented Princess Diana, died on a cruise in the Antarctic.
One of Britain’s most sought-after family lawyers, Rae is remembered by colleagues, clients and friends as an ‘inspirational’ figure whose ‘humour, humanity and kindness’ remained central to her private and professional conduct.
Over a 40-year career, Rae built a reputation for representing high-net-worth and high-profile clients. Yet she is most closely associated with the divorce of Diana, Princess of Wales and the then Prince of Wales. ‘The respect and fondness that Diana had for [Maggie] was clear,’ wrote Rae’s friend Alistair Campbell in an online obituary. ‘Maggie treated Diana like she treated anyone else – with fondness and respect.’
A number of peers shared tributes to Rae when news of her death emerged, including Rachael Kelsey, founding partner of SKO, who wrote: ‘Maggie was a remarkable person and one of the finest lawyers of her generation. She acted for the great, the good, the dispossessed, and the unfashionable – treating all alike, and with unfailing kindness, courtesy and wisdom.’