Family lawyers who help you start or end a relationship with confidence

We are thrilled to have been awarded Gold Website of the Year in this year’s SME Business Awards!

The Awards Ceremony

The SME Business Awards Ceremony was held on Monday, 24th June, at Double Tree Hilton in Milton Keynes. This is a spectacular venue as it is within the MK Dons Stadium! After a drinks reception, it was time to take our seats and be welcomed by Harry’s Rainbow – a charity local to Milton Keynes to support children through bereavement.

Following a delicious three-course meal, we were serenaded by two amazing singers, Rory Campbell and Andy Searle. The atmosphere was amazing, and everyone was in high spirits!

Website of the Year

It was then time for the awards—each category had a silver and gold winner.

Watson Morris had made it to the final of three categories

• Website of the Year
• Best New Business of the Year
• High Growth Business of the Year

We were overjoyed to achieve the gold Website of the Year award.

Our Website

At Watson Morris, we strive to provide people with clear and relevant legal advice regarding all aspects of family law, and our website is one way we do that. Over the past two years that we have been in business, we have created different ways for people to access information that can help them regardless of whether they are clients or not.

Our insights provide advice on specific situations and questions that we get asked regularly. Some of our most popular insights answer questions that are popular on search engines, and this is the main source of traffic to these pages on our website.

We also have downloadable guides and information that people can access for free anytime. These have been created to help people in times of need.

We understand that any area of family law can be an emotional and daunting time. Whether it’s divorce, financial disputes, child arrangements, pre/post-nuptial agreements, relocation, grandparents’ rights, surrogacy, etc., we want to help people and give them the confidence to get through whatever family law issues they are facing. We have found our website to be a great tool for this, and we will continue to create a hub of information that can be accessed by anyone facing these challenges.

Peter Morris says “We were absolutely thrilled that Watson Morris Family Law won the gold award for Website of the Year at the SME MK & Buckinghamshire Business Awards. We are proud of what we have created and that the website enables anyone who needs information or advice to view a wide range of quality materials in an easily accessible way.”

Overall, we had a great evening; winning the award was the cherry on top! Thank you to everyone who has worked with us over the years to help us achieve Website of the Year!

In all divorce cases involving financial issues, there is an ongoing Duty of Disclosure. This means both parties have a duty to provide full, frank, clear and verifiable financial disclosure. 

The duty of disclosure is an important legal aspect of divorce and separation to ensure both parties are left in a fair position following the divorce. We hear all too often of spouses who suggest keeping the lawyers out of the settlement and limiting the amount of financial information that will be provided. For example, this is often the case when one of the parties has taken the lead in handling the family finances. 

If you are facing this situation, contact Watson Morris today for a free, no-obligation consultation to discuss the risks and options available.

What is a duty of disclosure? What does it mean?

The duty of disclosure is a requirement for both the husband and the wife to give disclosure of all material facts, documents and other information relevant to the issues in the case. There must be no hidden materials, funds, documentation or information. Full disclosure must be given whether it helps the party’s case or not, and details of any material changes must be provided at the earliest possible opportunity after the initial disclosure has been given. It could even continue beyond the making of the substantive order in circumstances where there are ongoing financial obligations between the parties, such as ongoing maintenance payments. 

Why is it important to comply with this duty?

The duty of disclosure exists because full and frank disclosure is regarded as being fundamental if the parties are to seek to clarify and identify the issues between them, and openness in all dealings is essential. More fundamentally, if the court proceeds to make an order, whether by consent or otherwise, where there has been non-disclosure of a material fact, the order may be set aside. This would be relevant where the court would have made a substantially different order had it been aware of the non-disclosure.

Is it possible for spouses to agree that they don’t want to see each other’s financial disclosure?

In short, the answer is no; a party has a duty to the other party to provide full and frank disclosure in addition to their duty to the court. One party cannot exonerate another party from complying with the duty of disclosure. As the court has ruled in a leading case, ‘it is not for a litigant to judge the ambit of the duty to disclose or the consequences of disclosure; any information which is relevant to the outcome must be disclosed’.

What information must be provided for full disclosure?

‘Disclosure’ relates to all relevant facts and documents. The method adopted in the majority of cases is to use the format of Form E (see Form E Financial statement (publishing.service.gov.uk) ). This is the standard court form used when the parties are involved in proceedings. The form is comprehensive and must be accompanied by 12 months of bank statements, property valuations, mortgage statements, wage slips, P60s, P11d forms, up-to-date company accounts, details of any liabilities, the existence of any trusts and details of any cash held. It should also include a comprehensive analysis of each party’s future income and capital needs, such as their housing budget, along with an indication of the order they will be asking the court to make. 

Is the standard the same in all cases?

The disclosure should be proportionate to the issues in question and the amount at stake. In many cases, more disclosure than that required by Form E may be required. For example, where the circumstances of the case are particularly complicated. It is also correct that some people have extraordinarily complicated financial resources, often involving tax planning measures, trusts, overseas assets and corporate structures. As a general rule, the more complex a party’s financial presentation is, the greater the duty is for them to explain their position with clarity and to provide all necessary supporting information and documents. 

How is further information obtained?

To fulfil the duty of disclosure in more complicated cases, a detailed questionnaire will be prepared. This will set out details of any outstanding information and request full particulars of any further information or documents required in order to understand the party’s financial disclosure. In cases involving substantial assets or complicated structures, such as corporate assets or trusts, it is sensible to work with a shadow expert, such as a forensic accountant or a business valuation expert. Although this can be expensive, often the stakes are high and the benefits of having a complete understanding of the other party’s financial position and the true value of their assets cannot be overstated. Where further information is required, it is important to ask the right questions, and a shadow expert will help with this.

What happens if non-disclosure is discovered before an order is made?

Non-disclosure may be penalised in costs. The Court of Appeal has also confirmed that the court is entitled to prioritise the needs of a party not guilty of litigation misconduct. Significantly, the non-disclosing party will lose credibility, and the court is entitled to treat all of their evidence with suspicion and draw adverse inferences from their non-disclosure. If the court concludes that funds have been hidden, then it should attempt a realistic and reasonable quantification of those funds and add them back into the matrimonial ‘pot’ when deciding on the financial division.

What if a party refuses to provide information?

As well as facing the likely prospect of an order for costs, a request may be made that a penal notice is attached to the order requiring them to give disclosure. In more extreme cases of non-disclosure, the defaulting party may be held to be in contempt of court. 

In one decided case, the court imposed a sentence of six months imprisonment for contempt of court where the husband had failed to comply with an order requiring him to provide further information in respect of his financial situation.

Working together to achieve a fair outcome.

The duty to give full and frank disclosure is fundamental to achieving a fair outcome. Any failure or reluctance to provide disclosure should set off alarm bells. 

If you are in a situation where your ex-partner is trying to “keep the lawyers out” and handle the separation without full disclosure, then contact us today. There are risks to both parties if the duty of disclosure is not met and failing to take action could mean you are also penalised. We can discuss the options available to you to compel the other party to provide all of the information required. 

One of the unexpected announcements contained in Chancellor Jeremy Hunt’s pre-election spring budget last week was an increase in resources allocated to support non-court dispute resolution. This promotes the resolution of disputes out of court using all forms of Alternative Dispute Resolution (ADR). 

It is difficult to disagree with the chancellor’s statement: ‘Too many legal cases, particularly in family law, should never go to court, and it would cost us less if they didn’t. So, we will spend £170m to fund non-court resolution, reduce reoffending and digitise the court process.’

Distribution of the budget for non-court resolution

As ever, the devil is in the detail, and the Treasury’s budget ‘red book’ published following the announcement reveals that the budget for non-court dispute resolution breaks down into £55m for the family courts’ to offer online targeted guidance and earlier legal advice, shortening wait times and supporting families through non-court dispute resolution’. 

Of the rest, £100m is for rehabilitative activities in prisons and £15m ‘to introduce digital solutions, reducing administrative burdens in the courts’. In the opinion of the Law Society, this did not go far enough when measured against the overall needs of the justice system. Nevertheless, extra funding is to be welcomed. It is important for anyone faced with a family law dispute to be aware of the various types of ADR available and the court rules which require anyone contemplating court proceedings to consider ADR.

What are the court family procedure rules?

A recently released Practice Direction Update lists a number of amendments to the Family Procedure Rules, which must be followed in all cases. This update is “intended to increase MIAM [(Mediation Information and Assessment Meetings)] attendance and the earlier resolution of private law proceedings relating to children and financial remedy proceedings.”

So, what then is a MIAM?

Attendance at an MIAM provides an opportunity for the parties to a dispute to receive information about the different processes of non-court dispute resolution and to understand the benefits they can offer as ways to resolve disputes. At that meeting, a trained mediator will discuss with the parties the nature of their dispute and will explore whether a form of non-court dispute resolution would be a suitable way to resolve the issues on which there is disagreement.

What are the different types of Alternative Dispute Resolution available?

There are various types of non-court dispute resolution which can enable parties to settle disagreements, for example, mediation, arbitration, evaluation by a neutral third party (such as a private Financial Dispute Resolution process) and collaborative law. A mediator who conducts an MIAM is a qualified independent facilitator who will also discuss all potentially suitable forms of non-court dispute resolution.”.

What are the implications of not attending MIAM?

For non-court resolution to be successful moving forward, there will be much greater scrutiny on parties who seek to claim an exemption to the requirement to attend an MIAM. The courts will now actively consider the reasons given by anyone claiming an exemption as follows:

• To ensure the validity of any MIAM exemption claims, inquiries will be made by the court into any such claims.

• If a MIAM exemption claim is found to be invalid or no longer applicable, the court may suggest the applicant or the parties attend a MIAM and is entitled to adjourn proceedings to that end.

• If any party attended non-court dispute resolution within four months prior to the date of the current court application for the same or a similar dispute, a MIAM exemption applies. In this case, evidence is required in the form of “written confirmation from the non-court dispute resolution provider that the prospective applicant has attended”.

• Where a MIAM exemption claim requires evidence, this must be provided with the application form.

In all cases, exemptions based on domestic abuse will be upheld. In all other cases, when the parties come to court, the court will likely ask the parties for their views on non-court dispute resolution. Although it cannot require parties to attend ADR, the court has general powers to adjourn proceedings and make it clear to the parties that they should use this time to attend non-court dispute resolution. If any party fails to attend non-court dispute resolution, this will not affect any substantive decision, but it may be taken into account when the court is making a decision as to whether an order for costs should be made.

How is the drive towards non-court dispute resolution relevant in practice?

Recent figures have suggested that the number of divorces in England and Wales has fallen to its lowest rate since 1971. According to the latest ONS figures, a total of 80,057 divorces occurred in 2022: 78,759 opposite-sex divorces and a further 1,298 same-sex divorces. That’s a significant fall from the 2021 figures of 111,934 and 1,571, respectively, and considerably down from 1993 when divorce rates peaked with 165,018 divorces granted.

Despite this, there has been no corresponding fall in the number of private law applications issued in respect of children disputes or financial remedy applications. It is significant that, particularly in cases involving children, there is a significant difference between the number of applications issued and the substantially lower number of cases in which the court goes on to make an order. It follows that in the majority of those cases, an agreement was reached. This must mean that the parties could have resolved their issues using ADR instead of dealing with the matter through expensive and stressful court proceedings. Not only would this have saved significant money in legal fees, but also ADR has the advantage of being less stressful and time-consuming than court proceedings. Family cases are unique in that the parties to a dispute will often have an ongoing relationship whether they want to or not, as they share responsibility for their children. ADR can help parties navigate their future relationship in a more constructive and amicable way.

How can we help at Watson Morris Family Law?

At Watson Morris, we are keen advocates for ADR, and the increased funding for non-court dispute resolution announced by the chancellor will be welcomed. 

Although ADR will not be suitable in some cases, such as cases involving domestic abuse or where the court needs to make orders on an emergency basis, in the vast majority of cases, there may be a role for ADR. 

We are experts in supporting our clients through ADR and providing information about all types of ADR which should be considered. For further information or advice, please contact us.

As Family Lawyers, we help our clients with all areas of law and legal formalities regarding family, relationships, children, etc. One of these areas is divorce. Around this time of year, there is a lot of talk about “divorce day”.

What is Divorce Day?

The first working Monday of the New Year is often referred to as “divorce day”. This is the day when, according to media reports, family lawyers see an increase in enquiries after Christmas and the new year. This year, divorce day is technically Monday, 8th January 2024.

Is Divorce Day a Myth?

According to our experience, yes, the whole concept of “divorce day” is a myth perpetuated equally by the marketing departments of law firms keen to generate business and journalists looking for a story.

It is correct that we tend to see an increase in enquiries following holiday periods, but this is to be expected when most law forms are closed during the holiday periods. However, people do not decide to divorce based on the time of year.

Christmas is a magical time for some, but it can be a tough time for those in unhappy relationships. The statistics on police callouts in cases involving domestic abuse sadly bear this out. We wrote a piece about this before Christmas:  https://watsonmorrisfamilylaw.co.uk/supporting-victims-of-domestic-abuse-at-christmas/

Divorce Facts in the UK

The recent ONS statistics show a mixed picture, and there is no evidence of a January spike in recorded cases.

It is correct that divorce rates have risen in the last few years – 113,505 couples divorced in 2021 compared to 103,592 couples in 2020, which is a 9.6% increase.

The ONS also considers trends over a longer period of time, noting changes in the percentage of marriages ending in divorce by their 10th wedding anniversary. Back in 1965, 1 in 10 couples who married that year were divorced by their 10th anniversary. This increased to 1 in 4 couples for those married in 1995. However, for couples married in 2011 (the most recent cohort to have reached this milestone), we have seen a decrease, with fewer than 1 in 5 marriages ending in divorce by their 10th wedding anniversary.

Once couples reach their 20th year of marriage, they are significantly less likely to divorce.

Support when divorcing in different circumstances 

Making the decision to leave a long-term relationship and take legal advice is never an easy one, no matter what time of the year.

No-Fault Divorce System 

Separations can happen for a wide variety of reasons, and all cases are different. Not all separations are acrimonious, and some couples come to us merely to address the formalities. This could be limited to advice regarding the process of divorce itself, which has become far less acrimonious by the introduction of the no-fault system, which means couples no longer have to find reasons to blame each other for the breakdown of their marriage. Other cases may involve advice regarding the implementation of a pre-nuptial or post-nuptial agreement and the steps required to ensure the parties are financially protected against financial claims in the future.

More complex divorce cases

We also see more complex cases where there is sadly no prospect of an early agreement, trust has broken down, and financial insecurity or problems with the arrangements for children mean that urgent action is needed. In those cases, our role is to ensure the client is guided and supported through an often time-consuming and forensic legal process.

Alongside legal advice, it is also necessary to consider the emotional well-being of all our clients, which we do through collaboration with our in-house coaches.

Making sure divorce is the answer

One of the important steps we take in all cases is to discuss what steps may have been taken to try and save the marriage and whether the breakdown is considered final.

Professional help can be invaluable when working to save a marriage. It can provide a supportive and non-judgmental place for people to identify the problems they face in their relationship. In suitable cases, relationship counselling can be an option before embarking on the legal process of divorce. This can be successful, but even if not, it can be helpful for the couple to understand how they have come to this point, and this will narrow any areas of disagreement which might otherwise create costly issues in the divorce process.

Our experience shows that nobody starts a marriage or relationship thinking about divorce or separation, and clients do not consult lawyers for advice without considering the significance of doing so and being very clear that it is the right thing to do.

Final Thoughts on Divorce Day 2024

Although “Divorce Day” doesn’t technically exist, the new year provides an opportunity for hope and optimism and an important symbol for change and renewal. If you require help discussing issues within your relationship, including taking legal advice, the team at Watson Morris is here to help you.

When it comes to supporting victims of domestic abuse, Christmas is the most critical time of year. At Watson Morris, we help and support clients in various situations. One of the areas we specialise in is supporting victims of domestic abuse. Sadly, this can be prevalent during holiday periods, particularly Christmas, which often brings with it a reported increase in police call-outs for incidents of domestic abuse.

What is classed as domestic abuse?

Women’s Aid defines domestic abuse as an incident or pattern of incidents of controlling, coercive, threatening, degrading and violent behaviour, including sexual violence, in the majority of cases by a partner or ex-partner but also by a family member or carer. It is widespread. In the vast majority of cases, it is experienced by women and is perpetrated by men.

Domestic abuse can include, but is not limited to, the following:

• Coercive control (a pattern of intimidation, degradation, isolation and control with the use or threat of physical or sexual violence)
• Psychological and/or emotional abuse [2].
• Physical or sexual abuse.
• Financial or economic abuse.
• Harassment and stalking.
• Online or digital abuse.

The increase in domestic abuse at Christmas 

Supporting victims of domestic abuse at Christmas is incredibly important because every year, there is an increase in reported cases. A number of reasons are suggested for the well-reported spike in domestic abuse incidents over the Christmas period. Financial pressures, alcohol on tap, trying to create the ‘perfect’ Christmas and being cooped up together for long periods all contribute to a regular rise in domestic abuse at Christmas.

Christmas is meant to be the most wonderful time of the year, but we know that for women and children experiencing domestic abuse, it is far from this and can be a frightening and isolating time.

We know that for women experiencing economic abuse, the run-up to Christmas, with its expectations and additional expenses, can be particularly hard. This may be even more significant during a cost-of-living crisis.

Experts in domestic and economic abuse will say it is not the events themselves that cause abuse. Instead, they provide an excuse for perpetrators to exert more power and control over an intimate partner. It is essential for anyone experiencing domestic abuse at Christmas or any time of year to recognise that perpetrators of abuse choose to act abusively and should always be held responsible for their own behaviour.

Many perpetrators will use Christmas and other factors, such as alcohol, finances or mental ill-health, to excuse their abusive behaviours or, more often than not, blame their victim for the abuse.

The Christmas period causes additional difficulties for victims, with fewer opportunities to report abuse and routes to safety shut down. School closures for the holidays also mean that opportunities for children to report abuse and access support are restricted.

How can Watson Morris help protect and support victims of domestic abuse over Christmas?

At Watson Morris, we are experienced in dealing with clients who have been affected by any form of domestic abuse. We can advise and represent clients who may need the court’s protection using remedies such as an injunction.

There are two main types of injunction available under Part 4 of the Family Law Act 1996: a non-molestation order and an occupation order.  

• A non-molestation order is aimed at preventing your partner, ex-partner or other family member from using or threatening violence against you or your child, intimidating, harassing or pestering you. If someone breaks the terms of their non-molestation order, it is a criminal offence.
• An occupation order regulates who can live in the family home and can also restrict a perpetrator from entering the surrounding area.

We can also help in cases involving coercive control. Coercive or controlling behaviour does not relate to a single incident; it is a purposeful pattern of incidents that occur over time in order for one individual to exert power, control or coercion over another. Coercive and controlling behaviour is also a criminal offence. For further information or to book a free consultation, please visit Home – Watson Morris Family Law

If you or someone you know is experiencing domestic abuse at Christmas or at any time of year, you can go to the Freephone 24-Hour National Domestic Violence Helpline on 0808 2000 247 or go to www.nationaldomesticviolencehelpline.org.uk. Anyone in immediate danger should call 999.

When parents separate, their first thought is often about their family and the effects of parental separation on children. 

At Watson Morris, we are lawyers specialising in all areas of family law, including divorce and separation. We work closely with our clients to try and keep the impact of the separation to a minimum for all involved. 

Effects of parental separation on children 

The excellent resources provided by Resolution (see How Important is the Voice of the Child | Resolution ) show that children, like the adults involved, will react emotionally to the separation of their parents. Their experience and the effects of parental separation on children will depend upon their age and personality. The way in which their parents decide to deal with the separation will also have an effect on the way the children process and deal with their feelings.

Other experts highlight different factors that affect children; for example, a young child is likely to feel that acrimony and divorce between parents are their fault. They may feel over-responsible, ashamed and guilty. 

Factors affecting children during parental separation

The overall feelings of children during their parent’s separation may be greater when there is a high degree of acrimony between parents. There may be problems surrounding communication or a refusal to accept a new status quo. Some parents become victims and rely on their child/children for support. They may broadcast too much information or insist that the child choose to love one parent more than another and show this preference with any number of behaviours.

Once this pattern becomes entrenched, the child is in for a tough time. If a child must choose who to ‘side’ with, they risk losing the other parent, which is a huge amount of pressure for a child to have to endure. They can get trapped in an impossible situation. They cannot be themselves, and that is because they live on eggshells, working out what will please the fighting parents the most and how they can keep their dysfunctional family happy. 

This has been described to me as living in separate corners of a boxing ring and never having a chance to live on their own secure ground. Lack of a secure ground will, of course, breed insecurity.

Often, the reason that fighting between parents becomes more intense is when there is a period of transition. Examples of this are when houses must be changed, finances need restructuring, new partners are introduced, or babies come into the picture. Previously manageable arrangements can get tripped up, and all the old acrimony can rise to the surface again. 

How to minimise the effects of parental separation on children

What, then, are the alternatives when parents want to minimise the effects of parental separation on children? Resolution provides some excellent materials to help parents to navigate a way through these issues. See Parenting through Separation | Resolution We would encourage all parents facing these issues to take a look. Hence, they have a better understanding of what their child will be experiencing and how they can be shielded from the fallout of their parent’s separation.

In our experience, children hate the idea of court proceedings, and this is one of the elements where children feel the effects of the separation most. 

Court proceedings take a lot of time and hard work, which can lead to a feeling of abandonment for the children as it takes their parents away from them. 

The stress in each household becomes tangible. This may result in children knowing more about the case than the parents realise despite their best efforts. Although, sometimes, the involvement of the children in the case is entirely deliberate. This is another unfortunate area which undoubtedly leads to negative effects of separating parents on children. 

Therapy for children during divorce

In cases where children become too involved in their parent’s separation, or any case where the parents think they need it, therapy is useful for children. It means they have a safe place to unload. 

They must also be given permission and space to have their own lives with their friends and concentrate on their schoolwork, having fun, and growing up.

Avoid court if possible 

Mediation is much better than court, if possible, and we would always advocate trying that route before any other. If that fails, then court might be the last resort, but it does not always bring finality and can cause more effects on children.

In cases involving older children, child-inclusive mediation can help reduce the effects of parental separation on children. Child-inclusive mediation involves children directly in the mediation process. The goal of child-inclusive mediation is to provide children with a safe and supportive environment to express their views and concerns and to help parents make decisions that are in the best interests of their children.

Whilst court proceedings are sometimes needed in difficult cases involving welfare issues, they should not be the first option. Experience shows that problems are best solved when people talk, and support is available if you need a helping hand.

Handling communication to minimise effects of parental separation on children

During parental separation, there are often communication issues. Sometimes, communication difficulties can be overcome by simple technology solutions such as OurFamilyWizard. This is a comprehensive app that offers features such as messaging, expense tracking, journaling, and third-party access for professionals. See OurFamilyWizard | The Best Coparenting App. This avoids the risks inherent in managing time between two households.

Separation and divorce with Watson Morris 

If you are worried about the effects of parental separation on children, contact our team today. We work with families through separation to help keep negative effects to a minimum and ensure the welfare of everyone involved. 

For more information or a no-obligation discussion, please get in touch with us today. 

As family lawyers in the UK, we are often asked how to approach divorce if one party lives in a foreign country.  

My spouse lives abroad – can we divorce in England and Wales?

The courts in England and Wales do have the power to deal with divorces when one party lives abroad, but it is important to make sure that any necessary legal criteria are met before starting your divorce.

Divorcing a spouse if they live in a foreign country: Initial considerations

When divorcing a spouse, if they live in a foreign country, there are some aspects you should consider.

Firstly, you should consider your options for divorce in the jurisdiction (legal system) for each country which may be available. Although the law of England and Wales is robust and fair, there may be strategic advantages to commencing divorce proceedings in a different jurisdiction.

It is therefore important to obtain advice on your legal position under English and Welsh law, but also under the laws of the foreign jurisdiction before you decide on where you want to start divorce proceedings.

The law for divorcing a spouse if they live in a foreign country 

The legal bases for the courts of England and Wales to have jurisdiction to deal with a divorce when a spouse lives in a foreign country are set out in s5 of the Domicile and Matrimonial Proceedings Act 1973 (DMPA 1973). Specifically, when one party is living in a foreign country, the courts in England and Wales can still deal with a new divorce application provided:

• Both parties were last habitually resident in England and Wales, and one of them continues to reside there.
• The respondent (the person responding to the divorce) is habitually resident in England and Wales.
• For a joint application, either party is habitually resident in England and Wales.
• The applicant (the person applying for the divorce) is habitually resident in England and Wales and has resided there for at least one year immediately before the application was made.
• The applicant is domiciled and habitually resident in England and Wales and has resided there for at least six months immediately before the application was made.
• Either party is domiciled in England and Wales.

You can see that there are a broad range of scenarios which will allow the courts of England and Wales to deal with a divorce petition when one party is not in the country; however, they all centre around habitual residence and domicile, which need further explanation.

Habitual Residence Explained 

Habitual residence can be complicated, and you should always talk to your lawyer about this in cases where one party lives abroad. Habitual residence is exclusive – a person can only be habitually resident in one country at a given time (although this may change to different countries over time). 

This country will be where they have their ‘centre of interests’. See the case of V v V [2011] EWHC 1190 (Fam), which relies on the report of Dr Alegria Borrás, which clarifies habitual residence. A variety of characteristics would be expected from a person who is habitually resident in a particular country – for example; a court will look at where that person holds property, where their post is received, the language they speak around their house, where children are schooled and many other factors to establish habitual residence. 

In summary, a person has to be able to show, in case it is questioned, that their life really is in their country of habitual residence.

Domicile Explained 

Being domiciled in a particular country is also complex and something to discuss with your lawyer. 

There are multiple types of domicile, but a person will generally be considered domiciled in the jurisdiction where they have their permanent home. 

As with habitual residence, a person can only be domiciled in one place at a particular time, although their place of domicile can change over time. For example, a child will be domiciled where they are born, but this could change as they grow up if their family moves to another country. Then, as an adult, that same person may choose to have their permanent home in a different country, thus changing their domicile again.

Domicile and habitual residence when divorcing a spouse if they live in a foreign country

So, we can see that, in many cases, it will be possible for the courts of England and Wales to deal with a divorce even where one party is living abroad, provided one of the jurisdictional legal criteria are met under s5 DMPA 1973. 

Apply the above criteria to your situation, consider where you and the other party are habitually resident and domiciled. Then, you can be prepared with this knowledge when discussing your case with your lawyer.

Existing proceedings 

Please do bear in mind that if the other party has already commenced divorce proceedings in another jurisdiction, then your options will be more limited. This is outside the scope of this article, but you should talk to your lawyer if this has already happened or if you think the other party might try to do this.

How Watson Morris can help with divorcing a spouse if they live in a foreign country. 

Please contact any member of the team at Watson Morris if you need help with your divorce, if your spouse lives in a foreign country, or if you have any questions about where and how to start your divorce proceedings. We will be able to help you.

A recurring theme in divorce cases involving interests in a business is that where there is a business, there is likely to be a disagreement about what it is worth. Therefore, business valuations in divorce are a very popular talking point.

The reasons for disagreements around valuations are many and varied and often depend on the type of business and whether the parties own it jointly or not.

Why business valuations in divorce cause disputes 

If only one party owns the shares in a limited company, the other will feel vulnerable and determined to ensure they receive their fair share. Often, the non-owning spouse has played a role in the business, perhaps in setting it up or, as an employee, or by being appointed the company secretary.

Often, the functions of the company secretary are discharged by third parties, such as the company’s accountants, but appointing a spouse as the company secretary enables the couple to manage their financial affairs by being remunerated in the most tax-efficient way.

It is often the ability to extract funds from the business and the future maintainable earnings from the business that is at the heart of the dispute. Not only is the ability of the business to generate income relevant to the value of the business, but this will also directly influence other issues, such as the appropriate level of maintenance. The business is often the goose that lays the golden egg, enabling the family to fund their lifestyle. Determining how the business should be shared post-divorce can be incredibly difficult and often acrimonious.

Getting the business valued during divorce

Faced with the above issues, the court’s approach will be to direct that a single joint expert be appointed to value the business. The question for the valuer to consider is what would a willing buyer be prepared to pay for the company as a going concern.

Business valuation process 

The business valuation process for divorce includes an evaluation of the future maintainable earnings of the business and the ability of the business to generate funds to meet the claims of the non-owning spouse without affecting its future viability. Allowances are also made for tax and the costs of disposal to arrive at a net figure.

The most common methods used are the capitalised future maintainable earning method and the net assets method. Valuing a business on an earnings basis involves calculating the amount of earnings, often in the form of turnover, EBITDA or post-tax profits, which the company can sustain for the foreseeable future.

A multiplier is then applied, representing the number of future earnings that a potential purchaser might consider acquiring. A valuation on a net assets basis values the assets in the business, less the liabilities of that business, either as a going concern or on a breakup basis.

This assumes that the assets must be sold immediately. Again, a net figure is arrived at after tax and selling costs are taken into account.

The valuation of any business is inherently risky, and the decided cases provide useful guidance. For example:

H v H [2008] 2 FLR 2092 (Moylan J):

“The purpose of valuations, when required, is to assist the court in testing the fairness of the proposed outcome. It is not to ensure mathematical/accounting accuracy, which is invariably no more than a chimera. Further, to seek to construct the whole edifice of an award on a business valuation which is no more than a broad, or even very broad, guide is to risk creating an edifice which is unsound and, hence, likely to be unfair. In my experience, valuations of shares in private companies are among the most fragile valuations which can be obtained.”

Chai v Peng [2018] 1 FLR 248 (Bodey J):

‘It is a familiar approach to depart from equality of outcome where one party (usually the wife) is to receive cash, while the other party (usually the husband) is to retain the illiquid business assets with all the risks (and possible advantages) involved.’

In Chai v Peng, the wife received 40% of the ‘kitty’ to reflect this fact. These observations apply forcefully where a business has been valued on an Earnings Basis but less so when businesses are valued on a Net Assets Basis, which is regarded as more reliable. A phrase often used is that valuation is more art than science.

Challenging business valuations in divorce

Given the broad range possible in business valuations, it is perhaps unsurprising that one of the spouses may be disappointed with the conclusions of a single joint expert. In those circumstances, it is sometimes possible to argue for the instruction of a second expert and to rely on their evidence – a so-called “Daniels v Walker” application. These are not straightforward applications, and the basis of the application must be more than peripheral or” fanciful” to use the court’s expression. 

There is limited case law on the subject, but the following principles set out in Bulic v Harwoods & Ors [2012] are relevant when the court is deciding whether or not to grant the application:

• ‘What represents justice between the parties will very much depend upon the facts of each case’.
• ‘the saving of time and money is likely to assume greater significance in inverse proportion to the centrality of the issues’.
• ‘Where the court is concerned with a relatively “peripheral” issue, it is likely to be only in unusual circumstances that the services of a single joint expert will be dispensed with’.
• ‘the court is less likely to be ready to dispense with a single joint expert where the evidence is of a non-technical nature’.

Handling business valuations in divorce – final thoughts 

In summary, a disagreement regarding the single joint expert’s opinion on a business evaluations in divorce will not usually be enough to succeed in a Daniels v Walker application. Normally, technical reasons will be required, which in itself will involve working with a shadow expert in the background to consider carefully any shortcomings in the single joint expert’s report and the reasons for arriving at their conclusions.

If the application is successful, the court is also likely to give directions for the single joint expert to meet the proposed new expert with a view to narrowing the issues between the parties and saving costs. 

If no agreement can be reached between the experts, they may both be directed to attend court and give evidence.

When it comes to business evaluations in divorce, the arguments are technical and complicated as the stakes can be high for each of the parties. Differences in valuations can sometimes mean a difference in the millions of pounds, and the business is often the most valuable asset in the case. 

The costs of obtaining expert evidence can be very high, with fees of c.£10,000 not uncommon, so this will only be appropriate in cases where the values of the assets in the case are proportionate to the costs incurred. 

A poorly drafted application is likely to result in an order for costs being made against the unsuccessful party. It is essential that expert advice is taken as soon as possible from an experienced team. 

Here at Watson Morris, we are adept at dealing with these issues. If you are working through business evaluations during a divorce, then contact us today for expert legal advice. 

At Watson Morris, we work with our clients to support them when it comes to all aspects of family law, one of which being avoidance of disposition orders. 

What is an avoidance of disposition order?

An avoidance of disposition order is a court order that can be issued in divorce proceedings if one party intentionally attempts to dispose of assets in order to undermine the financial claims of the other party. 

Disposing of assets may involve concealing or diminishing items earmarked for distribution. If there is evidence of such actions, the court has the authority to nullify the disposal by making an avoidance of disposition order.

When will the court make an avoidance of disposition order?

The courts have been given statutory powers to set aside or ‘avoid’ transactions made with the intention of frustrating the other party’s financial claims. In most circumstances, by applying these powers, the court can salvage the applicant’s claims even after the dissipation has taken place. The main statutory provisions are contained in s 37(2)(b) and (c) of the Matrimonial Causes Act 1973. 

However, the court also has a broader general power pursuant to s 423 of the Insolvency Act 1986 to set aside transactions that are intended to put assets beyond the reach of persons who have a claim against the person disposing of the asset. In most cases, the provisions of MCA 1973, s 37(2)(b) or (c) will suffice, but there may be cases where it will be preferable to apply under the Insolvency Act 1986 as well. 

The court’s jurisdiction under the two provisions is not identical, and one provision may be easier to apply on the particular facts of a case than the other.

When is an application for an avoidance of disposition order necessary?

Not all transactions need to be set aside. It is important to consider the size of the transaction relative to the remaining assets. As long as there are other remaining assets which are sufficient to meet the applicant’s claims, the court can make orders to preserve those assets whilst proceedings are pending and then make appropriate orders at the final hearing. 

What other options are there?

This court can achieve a fair outcome without an avoidance of disposition order by taking the disposal into account as either as part of the overall circumstances of the case or as conduct which it would be inequitable to disregard. 

The court can proceed on the basis that the assets which the respondent has disposed of without good reason should continue to be treated as part of his capital reserves at the end of the marriage. In other words, the court will treat the respondent as if still in possession of the dissipated funds and ‘add back’ or ‘re-attribute’ those funds to his share of the assets. 

This approach is not without risk, as the court may find that the expenditure was reasonable, depending on the circumstances. In N v F (Financial Orders: Pre-Acquired Wealth), the court said:

‘In this country, we have separate property. If a party disposes of assets with the intention of defeating the other party’s claim, then such a transaction can be reversed under s 37 of the MCA 1973 similarly, where there is “clear evidence of dissipation (in which there is a wanton element)” then the dissipated sums can be added back or re-attributed (see Vaughan v Vaughan [2008] 1 FLR 1108 at para [14]). But short of this, a party can do what he wants with his money. What is not acceptable is a faint criticism falling short of either of these standards. If a party seeks a set-aside or a re-attribution then she must nail her colours to the mast.’

Mostyn J returned to that theme in BJ v MJ and another where he went further and said:

‘Although intellectually pure, the problem with this technique is that it does not re-create any actual money. It is, in truth, a process of penalisation. In my judgment, it should be applied very cautiously indeed and only where the dissipation is demonstrably wanton. I am not satisfied that here, the gifts to C are to be characterised in this way. True, the timing is suspicious, but other than that, there was no evidence that the gifts were anything other than bona fide. They would represent sensible IHT planning anyway. I therefore decline to add the gifts back. Generally speaking, I suggest that it would be altogether better where a reversal of a transaction is sought, that it is made pursuant to s 37 MCA 1973, where the disponee can be heard and where strict statutory criteria must be met.’

What are the relevant considerations when considering an avoidance of disposition application?

When considering an avoidance of disposition application, it’s important to take into account the size of the transaction relative to the overall assets in the case. In practice, all cases turn on their particular facts, but the court is unlikely to take a cautious approach where the ‘add-back’ relates to a very significant part of the overall assets. 

Consideration should be given to the type of asset and the nature of the disposition. All categories of asset can be relevant, whether real property such as land or buildings, savings and investments, shares and even pensions. All such assets are capable of falling within the court’s powers. It is also possible for the court to pierce the corporate veil in cases where a company is, in reality, the alter ego of the party to the proceedings.

What is a disposition?

A “disposition” includes any conveyance, assurance or gift (except by will) of property of any description and a “reviewable disposition” is any disposition made by a party to financial remedy proceedings (before or after commencement) unless it was made for valuable consideration to someone acting in good faith and without notice of the intention to defeat the claim. It may also include the registration of a charge against particular assets, the effect of which is to reduce the value of assets available for distribution. It is perfectly possible to set aside a charge in the same way as any other “disposition” under S. 37 of the Matrimonial Causes Act 1973.

It is also possible to apply after the substantive proceedings have concluded, for example, as an aid to enforcing an order. 

Watson Morris on avoidance of disposition orders

In summary, when it comes to avoidance of disposition orders, the court’s powers are wide-ranging and highly effective. However, it is essential that anyone contemplating an application for an avoidance of disposition order proceeds with caution. 

If correctly pursued, an avoidance of disposition order is a powerful tool to further the interests of the client. However, if action is taken in a way the court considers inappropriate, the application will be rejected, and this will have far-reaching consequences. 

It is, therefore, essential to obtain expert legal advice on avoidance of disposition orders. In cases where a principle of equal sharing applies to the matrimonial ‘pot’, often the most significant question is what is the full measure of the ‘pot.’

For more information or to discuss your case, contact the team at Watson Morris today. 

What is a non-molestation order? A non-molestation order is a form of injunction which protects people from violence or harassment. It is designed to protect people from molestation.

Non-molestation orders are one of the strongest and best ways an individual can protect themselves against any form of domestic abuse.

Molestation is given no particular definition, but applications are often brought on the basis of physical or psychological abuse, threats, intimidation, stalking and nuisance communications. Orders come with a power of arrest so that the Police can arrest a perpetrator who breaches an order.

Non-molestation orders are incredibly effective and can be applied for quickly and easily. They can also be made to prevent a perpetrator from using or threatening violence towards children. Breach of a non-molestation order is also a criminal offence.

Who can apply for a non-molestation order?

To make an application for a non-molestation order, there must be an association between the person making an application and the abuser. This association must be under the Family Law Act 1996 and includes:

• Former and current spouses
• Civil partners
• Cohabitants
• Fiancé(e)s
• Relatives
• People living in the same household
• The parents of children in the house  
• Those who have been in intimate personal relationships

Do I have to attend court to apply for a non-molestation order?

The short answer is yes. To apply for a non-molestation order, you must complete an application form and a witness statement setting out in detail examples of the behaviour you are relying on in support of the application.

In urgent cases where your safety or the safety of any children is at risk, the other party will not be given notice of the first application. This is called a ‘without notice’ application. If that process is followed, the court will make a non-molestation order without hearing evidence from the other party.

In all other cases, the court will fix an urgent date for a hearing ‘on notice’ to the other party. They will be asked whether they accept the order being made or whether they contest the order. If a respondent accepts the order, the order will be made. If they contest it, the other party can file evidence to challenge the statement made in support of the application, and the court will decide whether to grant the order.

What is a non-molestation order? What does the order include?

Any non-molestation orders will contain a list of things the respondent is prohibited from doing. Typically, a non-molestation order will prevent someone from:

1. Using or threatening to use violence against the applicant or encouraging anyone else to do so.
2. Intimidating, harassing or pestering the applicant or encouraging anyone else to do so.
3. Communicating with the applicant.
4. Damaging or destroying property belonging to the applicant or encouraging anyone else to do so.
5. Going near where the applicant lives or anywhere it is believed the applicant is living.

How does the court decide whether to make the non-molestation order?

When making a non-molestation order, the court considers the health (mental and physical), safety and well-being of the applicant or any relevant child. It must be satisfied that there is evidence of molestation and that the applicant or children need protection from the court. 

How long does a non-molestation order last?

The order can last either for a specified period of time or indefinitely depending on what the court decides.

What are undertakings?

In many cases, instead of agreeing to an order, the respondent will offer to provide an undertaking not to carry out the behaviour complained of in the application. Undertakings are legally binding promises to the court and are an alternative to the court making an order. The advantage of accepting an undertaking from the person applying for an order is that they are given legal protection without the delay and expense of a contested hearing.

The other party will sometimes offer an undertaking to avoid the court making serious findings against them. The difference is that breach of an undertaking is contempt of court, which can be punished by committal to prison, but it is not a criminal offence, and no power of arrest can be attached.

Non-molestation orders and Watson Morris

Non-molestation orders can be applied for quickly and, in serious cases of physical threats or abuse, without giving the other party notice of the application. They are a highly effective tool in a wide range of situations.

Anyone seeking further advice on non-molestation orders or other areas of family law should contact the team at Watson Morris today.

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