“The Italian Job” …..re Spousal Maintenance

SHOULD THE UK COURTS FOLLOW THE ITALIAN SUPREME COURT ON SPOUSAL MAINTENANCE?  Vijaya Sumputh, Solicitor, Family Law specialist at Curwens asks whether this case will have any effect.

According to “The Telegraph”, Vittorio Grilli, the former Italian Economy and Finance Minister (2012-2013) and his former wife Lisa Lowenstein, an American businesswoman, divorced acrimoniously in 2013.  Vittorio was ordered to pay his former wife the monthly sum of €2M to maintain her lifestyle but that was not the end of legal proceedings as Lisa then returned to Court to make Vittorio pay her debts.

The Court of Appeal in Milan rejected her claim for maintenance payments for life on the grounds that her Income Tax Returns were incomplete and Vittorio’s income had since reduced, so Lisa took the matter to the Supreme Court in 2014.

In May 2017 the Supreme Court of Cassation in Rome ruled that divorcees do not have the right to automatic indefinite maintenance payments.   The Judges stated that divorce should be modernized and not be seen as “set up for life”.  They concluded that divorcees who have independent means or the capacity to work, should not expect to receive maintenance payments indefinitely. They stated that divorced parties are not all entitled to maintain the same “tenor of life” as when married and, if possible, they need to learn to be self sufficient.

The Judges further recommended that keeping up payments indefinitely can be “an obstacle to starting a new family”  and have called for the divorce law to reflect modern relationships.

Now that the Italian Family Law system has rejected the idea that divorced spouses are guaranteed their previous standard of living, it is likely that many Italian divorcees will want to challenge their divorce settlements, however, the Italian Family Court will have to be incredibly careful not to discriminate against the financially weaker party and unfairly disadvantage those without the means to gain financial independence.  While they may no longer guarantee life long maintenance payments, they must guarantee provision for those who lose their earning capacity because of their commitment to marriage.

Given Italy’s trend, it will be interesting to see if other justice systems will also be tempted to reform the reasoning behind divorce settlements.

In contrast, only a few months ago, in a UK divorce case, Mills v. Mills, the former husband asked to end indefinite maintenance payments under English Law.  The parties were married for 13 years. The wife said that in the early years of the marriage, she ran her own beauty business and financially supported the family while the husband finished his studies, after which they both then worked together to set up his business as a surveyor. The parties have one son, who is now at university.

Towards the end of the marriage, the wife suffered serious health problems and had to reduce her working hours. The parties separated in 2001 and divorced in 2002. They reached an agreement that the family home would be sold, the wife would receive £230,000.00 from the sale to buy a new home for herself and their son, and husband would keep his business assets. Additionally, the husband agreed to pay the wife spousal maintenance of £1,100 per month. In 2014 the husband applied to court to end those payments and the wife cross-applied to increase them. The judge disagreed with both of them so they both appealed.

The Court of Appeal found that the original judge had erred in not increasing the maintenance to cover the wife’s shortfall, despite knowing that she could not meet her basic needs and the husband could afford it. The appeal court increased the maintenance to £1,440 per month indefinitely.

This shows that in the UK, maintenance payments continue to be set for a limited period of time or until one party dies, marries or enters into a civil partnership but the Court calculates maintenance payments based on the financially weaker party’s income needs and earning capacity, considering a range of factors such as their age, the length and living standard of their marriage, their health and caring commitments. While each case is specific to its own facts, the Court’s objective is always to enable a party to make a transition to independence where possible. On the facts of the Mills case, the wife was not able to make that transition

At Curwens we are regularly faced with the issue of claims for maintenance, acting for either the person making or challenging the claim.   We provide expert advice on what is a reasonable amount to expect to be awarded or agreed.  We will also guide you through the procedure and explain the financial risks where agreements cannot be reached.  It is therefore essential that you obtain expert legal advice on your position.

Vijaya (Asha) Sumputh

vijaya.sumputh@curwens.co.uk

Family Law Solicitor – Curwens LLP.

Vijaya offers both fixed fees and flexible pricing for all family law services. For an initial consultation, call Vijaya direct on 0208 884 7221 and she will be happy to help you with all your family queries.

www.curwens.co.uk                                                                                      CURWENS LLP

D-I-V-O-R-C-E – who gets what?

This month, I’m grateful to my colleague, Vijaya Sumputh, a specialist Family Law Solicitor at Curwens for her timely advice on the way some family assets are dealt with in divorce :

“According to a recent article in the Guardian, divorce enquiries are expected to rise more than 300% at the beginning of the year.  As Family Law solicitors, in this situation, we’re often asked the big question :  Who gets what?

The process of dividing the marital assets on divorce or family breakdown can be  emotional and complicated. What our clients want is a clear idea of what they may end up with at the end of this process, for example:

  • Who gets the matrimonial home?
  • Who gets the engagement ring?
  • Who gets the family pet?

Sadly, it’s not always possible to give a definitive answer to these questions, particularly in the early stages.

The Courts approach each case on its own individual set of facts – what might be right for one family, may not necessarily be right in all cases. The law in England and Wales is based on a discretionary regime which means there is a vast range of settlement options available in different circumstances.

There is no hard-and-fast rule, which is why it is important to take legal advice so that you have a better idea of the range of likely outcomes in your case.

Who gets the family home?

Often the family home is the biggest matrimonial asset and potentially the most emotionally significant one. Whether the house will end up being sold (and the net proceeds of sale divided) or transferred to one of the spouses, very much depends on the family’s needs.

In some cases, the family home may be kept by one spouse if that spouse is the primary carer for the children. Unless there is sufficient net equity in the property to re-house both spouses in a mortgage-free property, priority will usually be given to the spouse who needs to have the children living with him or her.

In some cases, the family home is kept by one party until a defined point in the future (such as when the children are all over 18) when the former family home can be placed on the market for sale at a price to be agreed by the parties (or if they can’t agree, as determined by a Court).

If, however, there are other assets that a Court can take into account, then one spouse may be able to retain the house permanently and pay other funds to the other person to “buy out” their interest.

When making any financial order, the court will look at a number of factors such as the length of the marriage, the age of the parties, whether they are working and what their earning capacity is, whether there are children, what each party’s needs are and what assets are available to meet those needs. It’s complicated, so do take legal advice.

Who gets the engagement ring?

The answer to this question can vary depending on whether the engagement ring was a family heirloom or perhaps inherited by one party. More often than not, engagement rings are retained by the wife to be passed down to one of the children.

As a general rule, the courts prefer chattels to be divided by agreement but if no agreement can be reached, the court can simply order all chattels to be sold and the proceeds divided.

Who gets the pet?

The family pet is mostly regarded as a member of the family but as the Courts will usually treat family pets much in the same way as any other chattel, we strongly encourage the parties to agree who will have responsibility for continuing to care for (and pay for) their family pet! ”

Vijaya Sumputh  –  0208 363 4444  –  Vijaya.sumputh@curwens.co.uk

www.curwens.co.uk

“Money, money, money – must be funny – in a rich man’s world…….”

We’ve all heard of pre-nups for the rich and famous but those of us who live more “ordinary” lives also should think about finances when going into a relationship and, sadly, if things start to go wrong – don’t let “heart rule head”.  I’m grateful to my colleague, Vijaya Sumputh, a Family Law expert at Curwens Solicitors, for her thoughts on this :

PROTECTING YOUR FINANCES FOLLOWING A RELATIONSHIP BREAKDOWN

Beginning a new relationship can often feel like entering uncharted waters. All you want to do is to live happily ever after with your new partner, but people often don’t consider what happens if the relationship ends.  A split can have a devastating emotional impact and financial uncertainty adds significant stress to an already difficult time.   A recent study suggests that as many as 2 million Britons are in debt because their ex-partner continued to spend after they’d separated – a “dirty separation trick” by a bitter “Ex”.

Married Couples

Here, the Court has the power under the Matrimonial Causes Act 1973 to split the debt between the two parties based on their financial needs and the Court may award more to the paying party including spousal maintenance to cover the repayments.

Unmarried Couples

There is no such protection for unmarried, cohabiting couples. In long term relationships, many couples set up joint bank accounts (even if marriage is not their immediate plan) to cover mortgage/rent and bills. This normally ends once the relationship comes to an end, because living with someone does not create a legal relationship.   So, if a couple has a joint debt and then splits up, both can end up being liable for the debt and one may be stuck with it if the other party doesn’t pay.  Unmarried couples must think about what happens to their investments if they split up – if the family home is to be sold, how will the proceeds be split ?

Protection

You can protect yourself by getting your solicitor to draft a “Cohabitation” or  “Living Together” agreement (also known as a deed) which sets out who pays what and what would happen to the assets if the relationship comes to an end, with a Declaration of Trust as to the ownership of the house.  You can also consider using Mediation or negotiation to resolve issues.

It may seem pessimistic to think about a relationship ending when you’re just starting out together, but on the other hand, a break up can be devastating emotionally, so a living together agreement helps with the practical issues, to reach a quick settlement.

If you think what I have described fits your circumstances, do give Vijaya a call for a no obligation chat on 0208 363 4444 or e-mail us at vijaya.sumputh@curwens.co.uk

D-I-V-O-R-C-E

….so sang the legendary country singer, Tammy Wynette almost 50 years ago. With a divorce so many years ago, one might think it was all “done and dusted” as did a Mr. Dale Vince who divorced his wife, Kathleen Wyatt, in 1992, but, not necessarily so, as the Supreme Court ruled recently. For the subject of this blog, I’m grateful to my colleague at Curwens, Family Law specialist, Vijaya Sumputh :

“The talk of this week has been about Kathleen Wyatt (“Kathleen”) and Dale Vince (“Dale”), whose case is a warning to many couples starting divorce proceedings and emphasises the importance of seeking legal advice to finalise financial matters. Kathleen’s marriage to Dale ended in divorce in 1992. At the time neither party had any financial security. Kathleen raised their children without significant financial support from Dale, who eventually went on to have a successful career and acquire considerable wealth.

In 2011, nearly 25 years after their separation and over 20 years after their divorce, Kathleen lodged a maintenance claim seeking a £1.9 million payout from Dale. Her application was originally dismissed under Rule 4.4 of Family Procedure Rules on the basis that there was no prospect of success or was an abuse of the court’s process. Kathleen took her case to the Supreme Court, where Lord Wilson stated that Kathleen’s claim was “legally recognisable” and not an “abuse of process”. His Lordship admitted that “it is obvious, even at this stage, that an award approaching [£1.9million] is out of the question,” but one factor Kathleen could rely on to justify a financial claim was that of her much greater contribution to the upbringing of the parties’ children over many years. Consequently, she may now be entitled to make a claim for a mortgage free property and maintenance.

This decision is striking because matrimonial claims are very different to other civil claims and remain alive after the marriage has come to an end. This case reminds us that there is no time limit for former spouses to apply to a Court in England and Wales for a financial settlement following a divorce, even if their claim is considered to be weak. We have to wait and see whether Kathleen’s application has any value when reassessed by the Family Court, but, meanwhile we may see an increase in opportunistic divorce financial applications.

This is a wake-up call for divorcing couples who do not want to have sleepless nights and a big hole in their pockets, that they should obtain a financial order from the Court at the time of their divorce stating that neither party will make a further financial claim against the other.”

vijaya.sumputh@curwens.co.uk
March 2015
http://www.curwens.co.uk