New Year, New Husband?

The new year is a time of contemplation and evaluation for many. While most focus on creating or maintaining healthy habits, there are some who will be looking to focus on creating healthy relationships, perhaps by ending marriages that aren’t working out. Since divorces peaked in 2003, rates have steadily been falling, particularly among the younger age groups. However, divorce has remained a prevalent social issue ever since the Divorce Reform Act 1969 made it easier for couples to divorce.

Although it may be a deeply personal issue, celebrity divorces have been increasingly in the public eye, and are sometimes a useful and memorable way to discuss some of the legal problems divorce poses.

Actors Johnny Depp and Amber Heard have recently finalised their divorce through Los Angeles County Superior Court - a recent example of where a settlement has been agreed in absence of a prenuptial agreement. Put simply, a prenuptial agreement – more commonly known as a ‘prenup’- is the document that sets out which assets will go to whom in the event of a divorce. Without this document, all assets will become jointly owned matrimonial assets, so a prenup can avoid costly and lengthy negotiations regarding their distribution. In the UK, courts do not automatically uphold prenups, but will do if it’s considered to be a fair agreement. The Law Commission has recently stated that they should be legally binding so long as the needs of both partners and children have been considered.

In 2008, celebrity couple Heather Mills and Paul McCartney also experienced the downsides of forgoing a prenup. After a lengthy legal battle, Mills was awarded a settlement of a £16.5m sum and assets worth £7.8m, despite forgoing a barrister and representing herself in court, highlighting the truth behind Abraham Lincoln’s famous quote ‘he who represents himself has a fool for a client’. Mr Justice Bennet, who judged the hearing, was less than impressed. In civil and family courts in the UK, these ‘litigants in person’ are allowed some assistance from a lay person if they choose to do so, sometimes called a McKenzie friend. Heather Mills had three of these McKenzie friends: a solicitor-advocate, her sister and an American lawyer.

Worryingly, increasing numbers of couples are attempting to reach settlements without the aid of a solicitor in an attempt to save money. The Law Society has a handy set of guidelines for these litigants, stating what they should expect and how they should behave in court. Additionally, in three cases in 2014 (Q v Q; Re B (A Child); Re C (A Child) [2014] EWFC 31) the President of the Family Division of the High Court affirmed that, where no funding can be obtained, HM Courts & Tribunal Service should fund interpreters, translation of documents, expert witnesses and, in some cases, legal advice; so we can see that this is becoming a common phenomenon, particularly with rising concerns about access to justice for those under financial hardship.

It is important to remember that not all legal issues revolve around money. Custody decisions will always be central in divorce cases, whether relating to children, pets or even beanie babies. While celebrities often present the idea of a perfect family life, they too are not immune from this unpleasant aspect of divorce. For example, Uma Thurman is currently in proceedings at the Manhattan Supreme Court to win custody of her daughter, with both sides of the hearing making accusations about their others mental health and ability to parent. In the UK, parents are encouraged to file a ‘Statement of Arrangements for Children’ with their divorce petition, and in many cases this is enough. Where parties do not agree on a parenting plan, they must each obtain representation for negotiations. Where negotiations fail, a mediator is the first port of call, with a court order being the final resort. This is very different from the previous system under the Custody of Infants Act 1839, which granted mothers the ability to appeal for custody and introduced the tender year’s doctrine (that under the age of four a child is best placed with their mother). Now, both parents are considered on equal footing and all circumstances will be considered when determining the best outcome.

Where courts must determine a fair ‘beanie baby’ distribution, such as in the 1999 Mountain divorce in Las Vegas[6], simply allowing them to take turns choosing under supervision of judge has been an effective precedent.

While we like to follow celebrity divorce for the gossip, it’s worth remembering the complex legal issues that they represent. With an inclination to live healthier lives, coupled with the advances in representation and agreements around prenups, it is an interesting time for the law of divorce. You may have already broken your new year’s resolution to give up the chocolate, but there’s still plenty of time to learn about an area of law you may not be familiar with!