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  1. Law
September 1, 2006

Just Married! (Subject to Contract)

By Spear's

From pre-nup to bust-up, the business of marriage ain’t what it used to be, says Sandra Davis

In his letters to Nancy Mitford in 1954, Evelyn Waugh once said of marital unions – the idea preposterous, the posture ridiculous, and the expense damnable. Ours is an era of easy living – the whirlwind romance, the extravagant wedding in sunnier climes, followed in quick succession by the snappy divorce.

Generations of by-gone years clung to their wedding vows, spurning the blandishments of extra-marital suitors and with them, the prospect of divorce proceedings – and a visit to the law courts. Perhaps romance really is dead; if so, those who mourn its loss have only the comfort of pre-nuptial agreements and acrimonious divorce suits with which to console themselves.

For richer or for poorer, for better or worse; wither way, nothing mends a broken  heart quicker than the resounding sense that your dearly beloved has taken you to the cleaners.

Love is a currency that crosses all borders; it cheats geography, often owing a debt to the joy of telecommunication and the pocket Blackberry, in this way surviving even the challenge of disparate time zones. Nonetheless, the laws of marriage, marital break-up, and, alas, money, are as diverse as Europe is culturally.

When a pan-European marriage crumbles and its parties hold passports of varying nationalities, or share a nationality, but live abroad – or merely have assets scattered about – an ordinary dissolution takes on the guise of an altogether uglier beast. That is because the European divorce law offers the legal version of a department store – something for everyone.

But for those with a predilection for retail therapy, be warned, in the world of divorce settlements, the designer sale pledges a discount that fluctuates according to the nationality of its customer. The multi-lingual bride, like the veteran shopper, will have done her research well before sale time – so that when discount banners go up and the marriage winds down, spouses waste no time in seizing the most lucrative deal.

With marriage, as with any corporate merger, the shrewd businessman (or woman) would do well to muster caution, foster prudence, and to seek advice – before, during, and at the end of marriage, in the face of divorce. Even the most seasoned entrepreneur has recourse to a personal adviser from time to time; so too does the fallen bride, or the duped groom, who must face the realities of divorce and grapple with the law that governs it.

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Such a bleak climate demands the aid of a skilled legal operator one who flits with ease between the roles of diplomat and litigator, as and when each case demands it.

Talk of money is the domain of the vulgar and uncouth, and so tradition has it that such chatter is the territory only of philistines: the unrefined and uncultured in our midst. As with so many adages, this notion has evolved – indeed, gone full circle. In America, pre-nups are a way of life: they come in all shapes and sizes and they can be custom-made to cover almost any eventuality, including custody of the faithful dog.

Whilst they have a growing presence on the continent, they are a great deal less common in this country, perhaps because the British, true to form, are still wondering how best to deal tactfully with broaching the subject of money in the context of amore and ‘I do’.

Coupled with this is the reality that pre-nuptial agreements in this jurisdiction do not yet have the force of law and deal only with financial issues. Nevertheless, they are likely to be upheld by the courts in this country, and, at the very least, are deemed persuasive, so long as the pre-nup is fair, has not been signed under duress, and has involved independent advice, in conjunction with full and frank financial disclosure by both parties.

It is simply a matter of time before we follow suit with our American counterparts, and such agreements are entered into as a matter of course before marriage.

This has never been more so than now, in a climate weighty with foreboding at the outcome of a catalogue of heavyweight court cases in this country. As men and women alike await, with baited breath, the size of their booty, allotted by the highest courts across the land, it is more than money that has nor emerged as being at stake.
Indeed, what is also now at stake, is the UK’s reputation as hub that promises women to the tidy sum they have so shamelessly hankered after, amidst the troubled waters of divorce. Like the gallant knight to the nubile princess, pre-nuptial agreements have emerged as favoured contenders in winning the hearts of those contemplating marriage and monogamy.

England has scaled the ranks with ease and alacrity to emerge second only to the divorce courts of Beverly Hills, as the forum most favoured for marital meltdown. Men, impecunious and pecunious alike, would be wise to heed the verdict of the House of Lords over the coming months before making any rash decisions, like turning to England as their domicile and residence of choice.

The outcome of two ground-breaking divorce cases hangs in the balance; in the dextrous hands and hallowed minds of five law lords lies the decision to exercise munificence, and moreover, to which party.

As the tabloids unveiled late last year, with great relish, Mrs Miller’s coup in gaining £5 million for under three years of marriage, so too the case of Mrs McFarlane will determine quite how much the discarded wife may hope to receive, after a lengthy matrimony with a husband whose career has reaped fruitful financial rewards.

Indeed, one might say that these are uncertain time, in which fear of the unknown looms large. No wonder then that pre-nups seem such a beacon of light in the burgeoning darkness – they have become financial lifelines to those who value their financial security above all else.

For some it is too late to toy with the possibility of such an agreement, and they can happily forgo the chore of amending clauses and negotiating deals. In lieu, they find themselves in the divorce arena that commands division of assets and the sharing of estates.

Procedure and process differ in each jurisdiction, but those couples who hark from disparate continents, and are puzzled by the prospect of which arena to divorce in, should take solace. For like the prized item in the designer sale, eyed fervently by the seasoned shopper, having torn it from its hanger, and parted with your plastic, it is safely in your possession.

It is not for fellow shoppers to make bids for your prize. And so it is with divorce within most territories in Europe. The first part nimble enough to seek swift advice from an astute lawyer, and then issue proceedings first in their chosen jurisdiction, has a priceless reward.

And coveted it should be: for the remaining party must then forgo any attempt at lengthy or costly disputes about the country in which it would be best to issue proceedings. Put simply, it amounts to a matter of tacit forward planning and swift legal advice, taken from a lawyer adept in the intricacies of which forum would be most advantageous to their client.

When a dispute straddles national boundaries, spouses can select the jurisdiction in which they stand to gain the best deal – and depending on your gender, some jurisdiction prove more favourable than others. In the realm of spousal support, Europe divides roughly into two camps: countries such as Italy, Spain, Germany and Greece favour alimony – where payments stretch out for years, or a lifetime.

Contrastingly, courts in France, Finland, and the United Kingdom are inclined to award lump sum payments, or ‘clean breaks’. Whilst this distinction is hand advice to commit to memory, take note that the terms of financial support vary considerably more than this and often reflect a national ethos. Sweden, a cradle of gender equality, happens to be one of the worst places in Europe to be an abandoned middle-aged housewife – most divorcing women get little more from the courts than advice on how to find a job or register for state benefits.

Judicial discretion also injects an element of chance into divorce proceedings, and this is one reason why awards in this country can be hard to predict. British courts lean towards settlements that are ‘just and equitable’, and the tendency is to preserve personal fortunes, especially in the case of shorter marriages.

As an institution, marriage appears to be in decline, especially in the United Kingdom, London is the divorce capital of Europe! Perhaps this is of little wonder in view of the impact exercised by matrimonial laws both in this jurisdiction and elsewhere. Yet, choosing not to enter into the ambit of pre-nuptial contracts will not necessarily guarantee a safer outcome.

Indeed, those who reject marriage in preference of cohabitation and long, often childless unions, are no more protected than their married counter-parts – if anything they have fewer rights. The concept of a ‘common-law wife’ is little more than a fallacy which met its demise in 1753, as too did any right that it promised women by virtue of such status.

At most, a woman in a long-term relationship with children born out of wedlock will receive a carer’s allowance – at a level significantly lower than would be achieved following divorce. This foreknowledge might just be enough to fire any romance and the prospect of a fairtytale marriage.

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