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January 18, 2010

New Year, New Life

By Spear's

Divorce lawyers are the only people who look forward to the January return to work because they know there will be a queue of distraught spouses waiting for their expensive advice outside their door.

DIVORCE LAWYERS ARE the only people who look forward to the January return to work because they know there will be a queue of distraught spouses waiting for their expensive advice outside their door. There is something about Christmas that seems to bring out the worst in families and relationships; marriages that have been spluttering often find the forced company of the holiday season simply too much too bear. The new year brings the chance of a new life.

The problem is that all too often people don’t want just a new life but spousal revenge too, turning what could be a simple split of the assets into an emotional (as well as financial) Jarndyce and Jarndyce. Divorce can be simple: people fail to realise this as they fire the starting pistol of divorce proceedings into their former beloved’s heart.
What divorce lawyers do not tell you is that the real cost is not financial but emotional.

And the moment you start exchanging legal letters, it is all but impossible to ever think the same way about your beloved again. At a very basic level, a husband and wife and a kitchen table and a box of tissues and half a case of Burgundy could quite easily result in the simple division of assets.

The thought of doing it so reasonably and simply does not even occur to many because their lawyers are asking them to fill in their Form E without letting them know that even your average £10 million divorce can be sorted with a Consent Order for £2k so long as both parties are in agreement about what the assets are and how to divide them.

Those planning on getting divorced also need to be better informed. Many high net worths use their divorce lawyers as a form of expensive shrink and haven’t got a clue about how divorce law really works. They sit about writing lists of reasons why they are justified without realising that the UK courts with our ‘no blame’ culture — except in very exceptional cases — simply do not care about behaviour. The only thing that really matters is how much money there is in the communal pot.

If no kitchen table is available, then we recommend the practice of collaborative law. Family lawyers, including the well-regarded James Stewart of Manches, are increasingly turning to this approach, which promotes ‘practical and amicable solutions to family issues without involving the Court’ ( Problems relating to finance and children can be resolved without the formality or expense of judicial proceedings. Even if a partnership ends uncivilly, this is a deeply civil way of undoing it.

However, if you have a pre-nup and intend to get divorced, now may be the perfect time. The reason we urge this haste is that the case of Radmacher v Granatino is coming up for appeal in March at the Supreme Court next year, and it may well change (again) the dynamics of your divorce. When last we met this case, the Court of Appeal had ruled that the pre-nup the parties (she a German heiress, he a banker-turned-scientist) had agreed should stand.

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The more important point at issue was that this was the first time pre-nups had been upheld as legally binding. This overturned decades of case law which said that they were not enforceable legal contracts, but the court found that this was ‘unrealistic’, ‘patronising’ and simply antique.

However, the Supreme Court has accepted an appeal to this case. If they find against Ms Radmacher and revert to the older principle that pre-nups aren’t in fact valid, then anyone with a favourable pre-nup will have missed the boat. So, if you did manage to convince your sweetheart that it really would be a good idea in the highly unlikely event of you ever splitting up to give you half of their fortune, plus the house in Eaton Square and the chateau in Bordeaux, carpe diem and schedule yourself into Fiona Shackleton’s calendar.

Perhaps getting divorced can never be entirely painless, financially or emotionally, but with a little more thought than emotion, it need not consume you even as it frees you.

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