The current reputation of the discretionary system of separation of assets and income on divorce in England and Wales is that it is amongst the most generous to the spouse who has not created the wealth directly or brought assets into the marriage.
In addition, although the discretionary regime allows each case to be dealt with on its own merits, it is both potentially expensive and does not provide an easily predictable outcome. This is often deeply frustrating to clients who have their own view as to what it is fair to include within that settlement, in particular as regards inherited wealth and assets created before the marriage.
Entrepreneurs and businessmen who expect to be able to regulate their private asset ownership in the same way as their business, would often like to be able to set up a contract to enable this to be done.
The most recent cases on pre nuptial agreements and post nuptial agreements – Radmacher and McCleod – have made it clear that such agreements are now very much encouraged by the Courts, although as long-awaited reform of the statute in this area is yet to happen. With English judges now heavily influenced by European systems on divorce, which generally give much greater certainty of outcome, any person about to enter into a marriage is advised to enter into a pre nuptial agreement prior to that marriage if they want the best certainty of outcome on a subsequent divorce. We can advise as to how best to affect this in a way which is fair, clear and dignified for both parties. In addition, it is now the case that an agreement made after the marriage (a post nuptial agreement), provided it is properly entered into, can significantly influence a subsequent divorce settlement.
We can also advise discretely on the resilience and effectiveness of UK and international trust structures and other corporate/property structures to subsequent divorce in England.
Contact: Andrew Breakwell, Daniel Eames, Gareth Schofield