Love The Home You’re In

The wife loves the home she is in, but perhaps she loves it too much. She is in the middle of a divorce and cannot come to terms with the fact that the home will likely be sold. The wife is doing everything she can to avoid what is surely inevitable. She is playing every trick in the book to stay there.  But does she need a reality check?  Is she trying to save her home, or a house that was a home once, but no longer? Is it worth going through all that heartache, pain and stress, when a true home can be made out of the humblest property?

The husband, however, has played a real blinder. From my perspective, he has carefully and strategically planned his Perfect Divorce.

When the couple were first married, they had very little. The husband has since become an extremely high earner. With at least another 10 years still to go before his retirement, the husband told his wife that he wanted a change of direction. He explained that although the income was fabulous, he’d had enough of such a stressful working lifestyle. He wanted to stop and change direction, and had found an opening in a different field. He explained that although the couple’s income would fall, there would be other benefits. Besides, with their investment portfolio and with no mortgage to speak of, the future looked healthy and rosy.

The wife immediately agreed. She was content raising their children, and maintaining their beautiful home.

Shortly after the husband left his job, he told his wife that his future plans also (unfortunately) included a divorce. He had met someone else, with whom he had fallen in love. However the wife was reassured that she would be well provided for. Their investments would be divided and the house would be sold for a seven-figure sum.  The husband could afford to buy off his wife’s maintenance claims for a clean break, and still have enough money for himself. Using Duxbury to compute her income requirements, all of it could be afforded and she would be very nicely rehoused. Not to worry!

Not to worry? The wife’s reaction was predictable. The phrase hell hath no fury springs to mind! To date, she has resisted all attempts to negotiate a settlement that involves a sale of her beloved family home.

The husband appears unperturbed by his wife’s attempts to stay put. This remains his Perfect Divorce. He is confident that a sale of the house is inevitable – be it by agreement or court order. Furthermore, his reduced income means that there is no question at all of the wife continuing to share in it, by receiving lifetime spousal maintenance or indeed any maintenance at all. A clean break is also inevitable. The “dead” capital tied up in the house, which will now be used to rehouse his wife and buy off her maintenance claims, never meant anything to him in real terms at all. It wasn’t as if he could go out and spend it!

So he plans to use it wisely, to fund his clean break and end his wife’s claims against him for good. Perhaps her angry behaviour has only served to make him feel that his own actions have been acceptable. She has proved herself to be deeply unpleasant. If he needed justification for what he has done, he now has it in spades.

If he ever decides to return to his former, more lucrative profession, it will be too late for his unhappy wife. All her claims, arising out of a lengthy marriage, will have been completely closed off. Had the husband remained in his original job, such an option would have been far less likely. Instead, the wife would have stood a better chance of staying in her beloved home with little financial difficulty. There is little chance of that now.

It would appear that for the husband, taking a drop in income has been a financially astute move. And what can the wife say? She went along with him when he wanted to “downsize”.

So is it the Perfect Divorce?

I will let you decide.

Image: Cezanne, ‘The House with the Cracked Walls’.

Our offices in Yorkshire and Cheshire are busier than ever and our newest office, off High Holborn, is set to open early next year.  We are looking for senior solicitors to join our teams in all these locations and, since I know that plenty of lawyers read this blog, I thought that it would be a great place to start!

Our locations

I have written before about how blessed I feel to live in such a beautiful part of the world, and how much I enjoy beginning every week with my drive into Harrogate. The town is at the gateway to the Yorkshire Dales and our Harrogate office (above) is the town’s former courthouse. It is a gorgeous old building in the town centre.

Our office in Hale, meanwhile, is the Camellia Building on Oxford Road. Stowe Family Law expanded into Cheshire after we observed that increased numbers of clients were flying into Manchester Airport and then making the trip across the Pennines so that they could see us. Our Cheshire office opened in 2008 and quickly became popular with clients from Hale, Altrincham, Manchester and beyond.

As for London: we are on track to open our Fulwood Place office in early 2011, and we are looking forward to it.

Our firm

Stowe Family Law is featured in Chambers and the Legal 500, and much of our work is national and international. Hands-on and hectic, it requires high levels of skill and dedication. Our clients range from homemakers to politicians, showbiz personalities and business leaders. Our fee earners travel frequently between our offices, seeing clients and making use of the courts in each area, and often litigate in London.

Unusually for a family law firm, Stowe Family Law has an in-house forensic accountancy team. Our forensic accountants can provide immediate advice about the likely scale and nature of a case, saving our clients substantial amounts of time and money.

We also like to “give back” to our local communities, taking on pro bono cases and running free legal advice clinics. These have proved popular.

Our ideal candidates

We are looking for qualified solicitors who have excellent negotiation skills and demonstrable track records in complex asset cases.

We already offer collaborative family law at all our offices and we intend to extend our alternative dispute resolution services imminently, so training in mediation would be an advantage.

Membership of an advanced accreditation system is desirable.

For the right candidates, we can offer immediate partnership with excellent accompanying packages.

Finally, we are also interested in hearing from barristers who are considering a change of direction.

Get in touch

If you are interested, pleased contact our chief executive, Andrew Williams, on 01423 532600 or chiefexecutive@stowefamilylaw.co.uk for further information.

We work hard but we are a happy, friendly bunch and we will be pleased to welcome new lawyers to our busy team.

Saturday’s Daily Telegraph confirmed that not only have prices which rose slightly in 2009 begun to fall back, but also that further falls are on their way and that there won’t be any upwards movement in the market for some time to come.

Many sellers, especially those going through divorce, seem to believe that their home is worth what it was two years ago when the market was still inflated. Divorcing couples have negotiated and reached a settlement based on a false premise and are coming unstuck when they realise that their property will not fetch the figure on which they based their agreement.

I have been compiling advice for those who are trying to sell property in a difficult market – see the list of tips at the bottom of this post. I also asked estate agents from Savills for their thoughts. Savills has offices in the same locations as our own – Yorkshire, Cheshire and London – so the company is particularly well placed to comment on property trends that may affect our clients.

I would like to share some of their most striking insights with you in greater detail.  If you are considering or are going through a divorce, and you have concerns about the housing market in your area, I hope that the following expert opinions may be of help.

Mark Holden, of Savills Cheshire, told us that two years ago the market was a very different place with the value of homes having doubled or even quadrupled in the 14 years prior. Buyers prepared to pay asking prices without argument.

He believes that at present, people expect to pay substantially less – and if a seller won’t accept an offer, then a buyer will often simply shrug and walk away. Apparently a typical buyer will presume that there is another property around the corner, and that those sellers will “play ball”.

Lucian Cook, Director of Savills Residential Research, says: “There is evidence that high house prices [and] divorces are linked”.  This is understandable when you think about it: both parties want to extract as much value as they can from what may be their only significant capital asset. In other words, they want to get the highest price possible.

But where does this leave you if you are separating or divorcing and need to maximise the value of your asset? What are the implications in the current market if you are trying to sell for the best price, but are desperate to move on with your life?

Demand in Cheshire

Savills has recently forecast a further slump in residential property sales this year. It predicts that prices won’t reach their 2007 high again until 2014.

Back in Cheshire, Mark Holden says: “the best way to maximise the property value is to price it realistically in the first place.  Then there is every chance of the selling price increasing through competition.

“In the main the only premiums in the last two years have been achieved through competition rather than asking high in the first place.”

He believes that part of the problem is unrealistic expectations cultivated by the boom years, noting that two years ago people in Cheshire expected to pay £3m for a house with a swimming pool – but that now, purchasers expect a swimming pool if they are paying £2 million.  Quite a drop!

He also confirms that although market conditions have changed, sellers are struggling to adapt. He notes that it is not only the national economic climate affecting prices, but also local factors.

In Cheshire for example, Holden points out that many speculative developers who had seen no end to the rising market were surprised to find there were few buyers for the 30 – 40 high-end, new build properties in various stages of completion. Many of these have been sold considerably discounted and the remainder have been let. The ready availability of these new homes swamped the market and buyers have been ignoring older homes which, ironically, developers were previously buying at a premium to re-develop. Mark Holden says that the market for properties costing more than £2 million has not been very active over the past 18 months, unless tempted by discounts or property that “ticked all the boxes”.

London bucks the national trend

In London the market has been buoyed somewhat by overseas investment capitalising on the weak pound.

Yolande Barnes, Director of Research at Savills says: “Their buying power has already extended to the lower tiers of “prime” London, particularly new developments which are once again being bought for investment.”

However this is viewed by many as an artificial resurrection of the market, with Richard Donnell, head of research at the Hometrack housing consultancy, commenting in the Daily Telegraph that the bounce “has been distinctly one-dimensional. It’s being driven by a high proportion of sales from cash buyers and overseas investors.”

But what about the rest of the country?  Barnes goes on to say: “Turnover is likely to remain very low and, set against the current increase in available stock, will suppress any price growth and will result in small price falls in some markets.”

Mark Holden of Savills advises sellers to be realistic, suggesting that they follow guide prices from estate agents and don’t hold on to dreams of the unrealistic prices of 2007 and 2008.  He also debunks the myth that renovations and planning permission add value to a property, saying that most people simply can’t be bothered with the additional cost and work involved in extending a home, especially when the market is already saturated with properties that have everything a buyer is looking for.

He also notes that contrary to popular perception, kitchens and bathroom suites are often not worth upgrading as they are usually the first thing to be removed when new owners move in.

The options for divorcing couples

So where does all this leave you?  After all, you don’t want to be left with a house you can’t sell and both parties in the divorce unable to move on.

Typically the wife can’t afford to settle for less capital and the husband doesn’t want to sell for a lower price if it means he will also see less money. In some cases where there is limited equity and the first lump sum available goes to the wife as part of the settlement, the husband has no incentive to agree to a reduction in asking price that will leave him without a penny.

Lucian Cook, of Savills Residential Research, says: “With so much conflict it is not surprising that logic does not always feature strongly amongst divorcing sellers. In the current market, the split of proceeds seems to be even more difficult. The spouse with children resents the diminishing proceeds as they feel obliged to buy back into the market, whereas husbands are able to stay out of the market in rented apartments, waiting for prices to fall further.”

If one party stubbornly refuses to sell, couples may have no alternative but to go back to court for a review of the agreement, or an order for sale. That alternative, of course, is to bite the bullet and start again with the entire settlement. It may not be a bad option.

Advice for divorcing sellers in the current market

1. Be realistic in your selling price. You aren’t going to get as much as two years ago and the market is a much tougher place for sellers.
2. Don’t spend a fortune doing up the property or obtaining planning permission. It won’t increase the price of the property. People are savvier to home improvements and you are not going to be able to offer anything new that isn’t already on the market.
3. However, it is important to keep your house looking uncluttered, neat and attractive. It is possible to do this without spending a fortune. Don’t waste time and money arguing with your former partner about the cost of keeping the garden done or adding a lick of paint where it is needed. It may just make the difference to a buyer.
4. Don’t delay.  Professionals recommend avoiding delay as they believe the market will get worse before it gets better, with an increased number of sellers flooding the market.
5. Go local. Helen Silver of The Property Styling Company says, “Don’t just go for the biggest estate agency or the one offering the highest price. See who’s actively advertising, has a good internet presence and has evidence of recent local sales.”

Above all, remember that the whole market is depressed. Even though the value of your share in a property may have decreased, remember that if you buy now you could grab yourself a bargain – especially if, despite the divorce, you can afford one of those new builds in Cheshire!

Note: we would like to thank Lucian Cook and Mark Holden of Savills for their assistance with this post.

 
Stowe Family Law is the UK’s largest specialist family law firm, with offices and divorce solicitors in London, Yorkshire and Cheshire.

With an outstanding national and international reputation, the firm provides a full range of private client family law services. Our divorce solicitors are praised by clients, the media and legal guides for their knowledge and expertise.

Marilyn Stowe and members of the Stowe Family Law team

I had advised our client to remain calm and patient; although he had done so, I know that it is easier to give such advice than it is to accept it. If it’s your case, then of course you are bound to worry. However if you have a competent lawyer, and you can see that things are going your way, the chances are that they will continue to do so. As I said to my client, if I had thought that we couldn’t deliver, I would have said so. Why put him through something hopeless? It isn’t my style and never will be.

It was a successful day and I left Hale feeling good. Wednesday and Thursday were spent in London, at the new Stowe Family Law London office (due to open later this year), Middle Temple and 1 Hare Court. On Friday, I was back seeing clients at the Stowe Family Law Yorkshire office.

By Saturday morning when I got up at 6 am, I felt quite exhausted. But the week wasn’t over… I was a speaker at the Annual Family Law School Seminar at Staffordshire University (above).

This year the Seminar was entitled Family Law and Human Rights: Strange Bedfellows or a Perfect Match? I was invited to speak by Law School lecturer Dr Sue Jenkinson; being the “Hey ho! I’m up for anything!” type, I immediately accepted.

I bumped into Prof Chris Barton, who had chaired a Law Society Family Law Conference that I helped to organise a few years ago. That day was almost hijacked by a stunt carried out by two members of Fathers 4 Justice. The former children’s minister Margaret Hodge was standing between us, giving her speech, when she was approached by two members of the group (posing as family lawyers) and slapped in handcuffs. We both watched in horror as it happened. Neither he nor I were asked to give a statement or evidence at the subsequent criminal trial, and the men concerned were acquitted. I haven’t seen Chris since then, so we had some catching up to do on Saturday! An academic, he is also extremely kind, giving plenty of reassurance to this nervous speaker! On this occasion Chris was a member of the audience.

First up was Daniel Monk, Senior Lecturer at Birkbeck College, University of London. His talk: Home Education Debates – do children’s rights help? Last year he co-wrote a book with Lady Hale, Judge Pearl and Professor Cooke, called The Family, Law and Society.

Sonia Harris-Short has a first class degree in Law from Oxford and an LLM from Canada. Currently a law lecturer at the University of Birmingham, she spoke about Shared Residence Orders: what they are and what they should be in law, as well as the child’s welfare and rights being taken into account.

My talk was called Media and the Family Courts – Punishing the Innocent and Protecting the Guilty. I spoke about the media and the family courts within the context of Human Rights legislation. The talk is due to be published on the university’s website – I’ll post a link.

I made two main points. Firstly, my concern that the private lives of those going through divorce should not be public. Secondly, that child care cases should be public – but should also be subject to safeguards to protect the children and the family.

After lunch, Ruth Lamont focused on Brussels II legislation. Currently working on the legal framework dealing with family dissolution within the EU, Dr Lamont is a law lecturer who is shortly to join the Liverpool Law School at the University of Liverpool.

Judith Masson, Professor of Socio-Legal Studies at the University of Bristol, then delivered a paper called Protecting Children or Protecting Human Rights. I could have listened to her for much longer than her allotted time allowed, as her insights into child care law and practice made for a good deal of thought. Prof Masson is a former member of the Judicial Studies Board. Currently she is the Academic member of the Family Justice Council, which strives to improve the experiences of the families and children who use the family justice system.

I’ve saved the best for last!

The final speaker at the Annual Family Law Seminar was Lord Justice Wilson. In my last post I wrote about how important I believe it is for the “Great and Good” to mix with “the rest of us” beyond the bounds of the M25. I note that John Bolch of Family Lore agrees with me.

Well, I can now assure you that it does happen. Lord Justice Wilson is the judge who gave a most helpful speech to practitioners in the Marco Pierre White divorce case. He recognised the difficulties faced by family lawyers in practice, in relation to the discovery and disclosure of documents. I am looking forward to the outcome of the Imerman divorce case, which follows a similar theme and will be heard by the Court of Appeal shortly. Family lawyers do require clarification of our position, and the position of our clients.

I discovered that Lord Justice Wilson has been attending this seminar for years.  His genuine desire to appreciate and absorb new information and ideas, from academics who had spent so much of their time and effort crafting their talks, was readily apparent. His talk, View from the Bench, explored the concerns that he has as a judge who regularly deals with care work. He was impressive.

It was an exhausting day and an exhausting week, but I loved it.

On Sunday, I went to call for my father for our weekly walk, which we both call our “Weekly Treat”. He is a veteran of more than 40 marathons; following my knee operation last year I now walk, rather than run, three miles through Roundhay Park in Leeds where my parents live. My father always, without fail, treats me like the little schoolgirl I used to be. He always will.

And do you know? After that high flying week, it felt great.

This was the subject of my talk on Thursday evening, when Stowe Family Law and Lane-Smith & Shindler, a firm of specialist trusts and estates practitioners based in central Manchester, held a joint seminar (above) at the Marriott Hotel in Hale Barns. The audience comprised of retail and private banks, accountants, investment managers and IFAs.

Speakers from both firms discussed the impact of relationship breakdown on family wealth, and advised on steps to protect family wealth. Marilyn Stowe spoke about the changes in ancillary relief law over the last 10 years, which have led to far larger payouts to spouses in big money cases. Geoffrey Shindler of Lane-Smith & Shindler explored the impact of this change in the law on family trusts, and described how trusts could be vulnerable to different forms of attack from spouses. Paul Davies of Lane-Smith & Shindler explained how different drafting techniques can be used to provide added protection to trusts.

I chose to speak about the rise of prenuptial and postnuptial agreements to their current status, and described the mechanics by which the agreements are constructed. At the time of writing, such agreements are extremely influential on decisions made by our family courts in England and Wales.

Because of the level of interest in this talk, and the question and answers that followed, we are reprinting the accompanying handout here. If you are considering a prenuptial or postnuptial agreement, we hope that this information is useful. This is an area in which Stowe Family Law specialises, so you can always leave a comment or contact us directly with any additional queries.

Prenuptial and postnuptial agreements: are they any good?

A recent seismic shift in the law

Historically, the UK courts, and UK legislation have paid scant, if any, regard to pre-nuptial agreements. However, the UK courts have, over several years, radically changed their views, largely as a result of changing attitudes within society. In particular, there have been three cases during 2008 and 2009 that have changed the landscape.

Where are you without one?

Usually in court! The courts have wide discretionary powers, and they take into account a whole host of factors, so therefore the results are very hard to predict. Delay (18-24 months is not unusual). Very significant legal costs. The starting point is capital split 50:50, but there can be departures from this. There may also need to be a substantial division of future income.

How effective are prenuptial agreements?

Legally: A prenuptial agreement cannot completely exclude any involvement by the family court. However, a properly done agreement will carry substantial weight with the courts. It was said to be: “A factor of magnetic importance” in the 2008 Court of Appeal case of Crossley v Crossley (involving a ‘career divorcee’).

Psychologically: The agreement will manage expectations. Who would risk trying to get out of one?

What makes an effective prenuptial agreement?

1. Independent specialist legal advice – on both sides.

2. Financial disclosure.

3. Reasonable financial provision

4. Not at the altar!

…although there may even be a relaxation of those criteria

In the Court of Appeal case of Radmacher v Granatino in July 2009 the husband (the poorer party) had not received legal advice, there had been no proper financial disclosure, and the financial provision for the husband was not reasonable, yet the court still upheld the prenuptial agreement to a large extent. However, the husband is taking his case to the Supreme Court later this year.

Prenuptial agreements can be linked with the creation of Trusts.

This can add another layer of protection. The trusts can be created at the same time. Their existence would be disclosed during the negotiations for the pre-nuptial agreement. One should choose the legal jurisdiction for the trust carefully. Perhaps a selection? Dynastic trusts are better.

Are prenuptial agreements useful for everyone?

They are of considerable benefit where either or both of the couple are wealthy, or have very high incomes, or where either or both expect to acquire family money at some stage in the future.

Even if the couple are not wealthy and don’t expect to come into money, it may well be useful to have a short, low cost agreement which deals only with issues of principle, e.g. the parties will have shared care of the children.

Limited shelf life?

The value of a prenuptial agreement is likely to fall away after 20+ years of marriage.

Postnuptial agreements are even more influential than prenuptial agreements

Exactly the same concept as a prenuptial agreement,only done after the wedding. This can be done whether the marriage is in trouble or not. If the parties have independent legal advice, if they provide financial disclosure, if there is no duress, and as long as there is reasonable financial provision for any children, the House of Lords decided (in the Privy Council case of MacLeod v MacLeod in December 2008) that a post-nuptial agreement should be upheld: “However lacking in generosity the provision made for the wife…”. However, the family courts do still have power to vary them, so they cannot be seen as a guarantee of a particular result, particularly if they do not even meet the poorer party’s financial needs.

Keep them under review

If the family’s circumstances change considerably, the pre- or postnuptial agreement might need to be reviewed and altered. However a well drafted agreement can normally take account of most potential changes. There could even be a periodic review clause in the original agreement. However, even if the agreement does not properly allow for changes, or is not reviewed, it can still be of persuasive value to the court.

A word on cohabitation.

The government’s plans to change the current unclear and outdated law were shelved in 2008. It is not clear whether a Conservative government would take them off the shelf!

Cohabitation agreements, either before or after the cohabitation has actually started, can be drawn up in a very similar way to pre or post nuptial agreements, and can deal with the same issues. Similar procedures to the creation of pre and post nuptial agreements should be followed

They have not yet been fully tested by the courts, but they are likely to be highly persuasive.

Stowe Family Law is the UK’s largest specialist family law firm, with offices and divorce solicitors in London, Yorkshire and Cheshire.

With an outstanding national and international reputation, the firm provides a full range of private client family law services. Our divorce solicitors are praised by clients, the media and legal guides for their knowledge and expertise.

Marilyn Stowe and members of the Stowe Family Law team

When clients are anxious about court appearances, I always advise them how best to cope. On this occasion I administered the same advice to myself: the day will pass faster and better than you think; then begins the period of recovery. As my doctor told me, I have had an operation on the most important weight-bearing joint in my body. It will take time to recover; I must be patient.

Just as a patient isn’t “cured” in the operating theatre, a divorce doesn’t “end” in the courtroom. A client must never think that an appearance in court or a day of settlement will provide immediate closure. A subsequent period of recuperation and rest is essential: it allows the client’s mind to settle and readjust. Often for example, when the immediate trauma of the divorce is over, clients can suffer from panic attacks and other stress-related conditions. These are normal and are part of a healing process that, in my experience, typically lasts for 12 months after the case is resolved. I advise my clients that they should not expect a quick fix. It won’t happen. I have found that when clients know that those up and down days will continue for some time, they find it easier to deal with their experiences and emotions. For many of them, the healing process is all about the conquering of the unknown.

A couple of days before I went into hospital, a member of our admin team came in my office, to discuss a client who was fretting about the divorce and financial process. Our client wanted to know what the courtroom would look like, how she should dress and how she should speak in court. What exactly was going to happen to her? What form would the hearing take? Would she have to sit like a criminal in the dock?

These are perfectly normal concerns, and ones in which my team at Stowe Family Law is well-versed. They spoke to our client carefully, reassured her and advised her that divorce hearings are civil – rather than criminal – proceedings. Only in the most complicated of cases, involving a large number of people and many reams of paper, is it likely that clients will sit in anything other than a small room. In most cases, the lawyers sit either side of a table and a judge, not wearing robes, sits at its head. There is no “dock”.

I reflected on that client’s concerns as I sat in the Spire Hospital, nervously waiting to go to theatre. I realised that although a divorce hearing and an operation are not the same – although I am sure that parallels can be drawn! – I understood her worries only too well. Because I too was anxious about what was going to happen to me. We shared similar fears: the fear of the unknown, the fear of the risks, the fear of not having any control and the fear of the future.

When a relationship breaks down, emotions can be very difficult to control. Divorce is an extremely turbulent time: it is not unusual for people to find themselves unable to hide their feelings. They may express themselves inappropriately – and sometime we lawyers will bear the brunt. Others will bottle up their emotions and this, too, can be a mistake. I always make a point of telling my clients that they are not alone; there are others who are in similar situations and who feel exactly the same as they do.

In fact, I keep a regular supply of tissues in my office because it is quite normal for clients to become extremely upset at the beginning of a case. It is no surprise -indeed it is expected – for a client to break down in tears at a first meeting. Emotions are at their rawest; the pain is at its most intense.

In the Spire Hospital I discovered for myself why clients can be so unlike themselves at first – and why the advice that we provide is spot on. Everyone there did their best to make that nightmare day as pleasant as they could, and I very much appreciated it.

At Stowe Family Law, we too go to great lengths to ensure that our offices are as comfortable and welcoming as they can be. We have paintings on the walls and comfortable sofas in our reception areas. We let the sunshine pour through the windows and – most importantly – we always put time and care into listening to our clients and understanding their needs. We encourage our clients to talk to us, and to tell us straightaway if they have any worries. As a result I believe that the men and women who come to see us – even those who are visibly upset at the first meeting – soon feel relaxed and cared-for whenever they are here.

Even small details, such as flowers, can lift a client’s spirits. We always have cut flowers on display; earlier this week, on my first visit since surgery to our office in Cheshire, I noticed that the camellia outside is in full bloom. It looks stunning; no wonder our family law office in Cheshire is called The Camellia Building! I took a photo on my phone (above); I hope you like it. It certainly gave me a lot of joy.

Could we – or should we -do anything else to help? If you have experiences of your own to share, I would be very interested to hear them.

Stowe Family Law was the proud sponsor of the 3:30 pm Henry Gee Fillies’ Stakes, which was televised on Channel 4 and won by Angus Newz. I presented the winner’s trophy to the horse’s owner and trainer, Micky Quinn (pictured), and winning jockey Frannie Norton.

Henry Gee was the founding father of Chester Races. It is believed that it is from his name that we get the popular slang term “gee-gees” when talking about horses.

This was the first event that we have sponsored at Chester, and a great day was had by all. We look forward to developing our strong reputation and presence in the region over the coming years – and I doubt that Chester Racecourse has seen the last of us!

By Lizzie Murphy, Yorkshire Post.

WHEN it comes to family law there are few more formidable opponents than Marilyn Stowe.

She says she can tell when someone is having an affair just by looking at them, knows if someone is lying from their handwriting, and will persevere to the end in order to win a case.

To read the rest of the interview, click here.

A trust is an investment – so is sound advice.

Trusts are, without a doubt, bêtes noires for many family lawyers . A client attending a first meeting will expect clear answers, not waffle, particularly if he or she is the beneficiary of a trust.

Here at Stowe Family Law, we were recently visited by the barrister Simon Sugar. One of the specialist family law set at One Garden Court, London, he is the co-author of Unlocking Matrimonial Assets on Divorce, which I thoroughly recommend. We invited him to come here to speak about the content of his book, and to ensure that our lawyers’ specialist knowledge of various forms of trusts and offshore assets was sufficiently refreshed and updated.

Simon Sugar’s visit was arranged as part of Stowe Family Law’s in-house programme for Continuing Professional Development (CPD). This is prepared by one of our partners, Rachel Roberts, and is greatly valued by us all.

Every year we select a thorny subject and immerse ourselves within it. Last year, we chose cohabitation and the law. Professor Rebecca Bailey Harris, of 1 Hare Court, came to our Harrogate offices and gave a talk that was so clear and so straightforward, it’s a pity she didn’t publish it for the entire profession. It was brilliant.

This year, we have chosen trusts. Following Simon Sugar’s masterclass, we were visited today by the Chancery barrister Daniel Hochberg, of Wilberforce Chambers in London. We were delighted to have him here: he has appeared in a number of leading cases. These include Charman v Charman, in which he acted for Mrs Charman.

He led an interactive session at our offices entitled “Divorce and Offshore Trustees: Strategy and Current Legal Problems”. We were set a case study to consider in advance: in it, we were acting for Jersey Trustees in what appeared to be potentially a “sham” trust. We had to consider the position as English lawyers asked to advise the Trustees.

A solicitor who will be joining our Cheshire office, when it opens in May, is currently based in Jersey. He has many years of experience in this field, and joined the session from Jersey to provide practical advice on what would happen in a Jersey court.

For those with more than a passing interest in trust-related matters, the issues as I see them are as follows:

If an English court is dealing with a divorce, it has powers to vary a trust worldwide and divide up trust assets worldwide.

However, the questions that must be asked include:

1. What kind of trust is it? Is it a bare trust or a discretionary trust? The difference could prove to be of utmost importance. If it is a bare trust and the entitlement of a spouse to the assets is fixed, then it is easier to vary or even extinguish a beneficiary’s interest in the trust. A discretionary beneficiary does not have an identifiable interest in the trust property. Nevertheless, have any distributions been made from the trust which may tend to identify the beneficiary’s interest?

2. Are the trusts “nuptial” settlements, whether “ante nuptial” or “post nuptial”? If neither, the court has no power to vary the trusts in a divorce. If “ante nuptial” it is a harder task than if a trust is “post nuptial” The issue of whether a trust is nuptial and capable of variation under s 24 Matrimonial Causes Act 1973 is tricky in itself, and often the magnitude of the award depends on the answer, making the difference between a relatively modest settlement and a very substantial one indeed.

The presence – or otherwise – of a nuptial element in a trust may appear straightforward to a Chancery barrister, by his interpretation of the meaning of certain clauses in a deed of settlement or deeds of variation thereafter within the context of Chancery law. However, a family lawyer is not necessarily going to obtain the same result in a family law court and the trust still may not be varied. Even if a Trust is not nuptial, then the Court will still consider it as a resource to be taken into account, and may place “judicial encouragement” on the Trustees to cough up some of the assets to assist with an overall settlement. And if there is a variation, this does not guarantee a huge award, but does mean that the assets in the case are not confined simply to the “free” assets which a spouse planning their finances in advance, may have dissipated in the run up to the divorce proceedings and of which the other spouse was completely unaware.

3. Who set up the Trust (this person is known as the Settlor) and for whose benefit and when did this occur? Are the trusts “dynastic” trusts intended to run through the generations? In the Charman case, it was held that the couple’s Bermuda-based Dragon Trust was not dynastic on its specific facts, even though Mr. Charman argued it was and intended to benefit the family through the generations. His letters of wishes to the Trustees made it clear the monies could all be paid to him as the principal beneficiary. The English court held that Mrs Charman was able to access the trust to obtain her award of £48million. Thus the English court treated the trust, even though offshore and subject to Bermudian law, as available for division – notwithstanding the husband’s arguments to the contrary.

4. Is the trust offshore or onshore? The case is going to be much easier if the Trusts are in England and no foreign element is involved.

5. Where and who are the Trustees? Should they be joined into the proceedings? If they are not English, will they submit to the English jurisdiction? What happens if they refuse, particularly if there are no assets in England? In cases with foreign trustees it is likely they will seek directions from their own courts. If the courts order them not to take part in the English proceedings, they have acted properly to establish their position but that may cause ongoing problems for anyone trying to unlock trust assets such as obtaining information, especially if the foreign courts refuse to allow the trustees to provide answers to questions by Letters of Request addressed to the foreign Court.

6. Where are the Trust assets – and of particular note, are there any assets in England? What is the total value of the assets onshore and offshore? What tax implications may arise? If there are assets in the jurisdiction, then from an enforcement perspective it will be much easier to make sure a client is paid – or pays up.

7. How will any judgment be enforced against a Trust? This is a huge subject and even with the benefit of an order could potentially be worthless. English jurisprudence is littered with examples. In Jersey, however, notwithstanding them jealously guarding their jurisdiction over Jersey trusts, the prevailing view seems to be that the Jersey court will not assist a spouse to dodge their responsibility, if there is an order of the English court.

8. Finally: is it a trust at all, or is it a “sham” in reality? Does it exist for the absolute benefit of one of the parties at will? If so, the court has powers to set aside a trust set up to defeat the spouse’s claim. To prove a trust is a sham is difficult and may rebound, leaving the spouse making the application with costs of all parties to pay.

In conclusion, it’s a minefield and I would emphasise that tactics and strategy are critical and need to be considered from the outset. Leave it too late, and a divorce case in England, could be irreparably compromised.