The social media message that has recently stirred our interest is the declaration by Gwyneth Paltrow that she and Chris Martin are consciously uncoupling. It has sparked great debate over how and what people choose to reveal about their relationships. In a world where status and technology are centre stage the power to manipulate the release of news is key to success.
I do not propose to debate what conscious uncoupling is although it sounds much kinder than the cold harsh word DIVORCE (a world I inhabit as a Collaborative Family Lawyer and Mediator although I am often at pains to redefine what I do, as divorce conjures up largely ugly images).
Happily, more people today, for the sake of their children, family and careers, increasingly choose to handle the management of “break-ups” with greater care like Gwyneth Paltrow and Chris Martin. The message of messy and costly mismanaged courtroom dramas appearing like front page tabloid tombstones are generally to be avoided if at all possible. Even more so now that the President of our family court has since the start of this year heralded a greater transparency of the workings of the family courts. His aim is to improve public understanding of the court process and confidence in the court system. No more can people safely assume their affairs will be handled in private when they engage with the court.
Of course, there are those who seek out the justice system because they believe only within the law can they be provided for and protected. Just such a case was Luckwell v Limata reported on 28 February 2014. This case was considered by Justice Holman to be of public interest, coming as it did the day after the Law Commission reported on the use of pre-nuptial agreements.
In the case decided by Justice Holman he had to balance an application by a father for financial provision from his wealthy wife against the existence of agreements entered into before the marriage in 2005 as well as during the marriage. The agreements attempted to limit what should be available financially to him if the marriage broke down. In particular the father agreed he would make no claim on resources available to his wife that were either gifts from her family or property she retained separately from him.
The Law Commission have recommended that agreements properly entered into with legal advice should be made binding by law. Until the law is changed to reflect that, agreements will have great weight and importance but the court can still apply its judgment differently to the result intended by the pre-nuptial agreements.
In the Luckwell v Limata case, although the father had legal advice on entering into the agreement, the decision made by Justice Holman proved more generous to him than the agreements. A number of factors permitted the Judge to exercise his discretion to reach a conclusion different to what the parties intended:
- He has power to impose his determination instead of what they planned.
- His assessment of the welfare and needs of the children (always a difficult one to factor into pre-nuptial agreements).
- The father’s needs (where needs should be met from the wealth of the parties in favour of the estate bearing responsibility).
- Reallocation of the resources despite the existence of the agreements.
Whether this judicial flexibility can be retained in the future will depend on changes to the law which might come in the form of making pre-nuptial agreements binding or a more formula based approach in the division of wealth when parents uncouple.
Despite Luckwell v Limata endeavouring to prescribe for their uncoupling by agreement, in the end, a different result was imposed upon them. Hopefully Gwyneth Paltrow and Chris Martin will fare better in the plans they now make, though how public they choose to make the details remains in their control unless they abdicate the decision making to the courts.
Whether you choose a consensual or court based solution, our specialist family lawyers can assist you in the uncoupling challenge.