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20 September 2016

There have arguably been many consequences of the evolution of divorce case law since the turn of the century.

Since a notable ruling in favour of Somerset farmer’s wife Pamela White in 2000, the details of collapsed marriages involving individuals who aren’t celebrities seem more interesting to media.

In addition, the way in which couples structure – or separate – their relationships has been informed by the practices in other, more notable cases.

For instance, prenuptial agreements have acquired more weight and proven considerably more popular following the 2010 Supreme Court decision to honour the document signed by German heiress Katrin Radmacher and her ex-husband.

An eye-catching but no less important development has been the way in which the concepts of ‘fairness’ and ‘need’ have been reinforced as critical in courts’ thinking about how assets are divided when husbands and wives part.

Headlines were generated by one case last week, in which a former model, Christina Estrada, was awarded a £75 million settlement from her billionaire former spouse. It has been described as the largest “needs award” ever made by an English divorce court. (

A second, anonymised decision, coincidentally handed down by the same judge, Mrs Justice Roberts, in the High Court’s Family Division only 48 hours before Ms Estrada’s, also underlined the importance of need (

Perhaps more importantly, it touched on how assets built up before a couple marry might be used to arrive at a settlement which is felt to be in the best interests of both.

The matter involved a businessman who married his wife in 2000 when he was in his late sixties and she was 51. She was divorced while he was a widower, having lost his first wife after 28 years of marriage.

Over the years, he had run nursing homes and bought a string of properties in central London. By the time that the couple decided to divorce, the couple were together worth just over £10 million.

She argued that she was entitled to a half-share of the overall joint pot, whereas he rejected that assertion, further claiming that she had “duped” him into marrying her, so that she might have a measure of “personal and financial security”.

As it turned out, the judge reckoned that it was fair that he kept 75 per cent of the overall assets with the remainder being, in part, recognition of the contribution which she had made to their marriage and his business.

In trying to effect a fair solution, the court decided to rely on some of the assets which the husband had amassed before their marriage.

Some people entertain an assumption that such possessions are beyond the scope of a divorce settlement – that anything owned before a couple ties the knot is not up for discussion.

That is, of course, not totally the case. As the judge made clear, the issue at the heart of the matter was that of the wife’s needs and not using pre-marital assets to generate a sum required to meet those needs would be unfair.

The husband’s argument is, in my experience, not unusual. However, the outcome in this case bears out what divorce courts generally regard as something of a fundamental rule: the needs of a less wealthy divorcing spouse trump all.

In the decade and a half since this couple married, prenuptial agreements have grown in frequency. They help establish who brings what to the marriage and provide a simple structure for asset division and one which, I believe, helps reduce the potential for debate or disagreement when bringing a marriage to a close.

As the couple in this case have discovered, arguing that someone is a dupe is both an emotional and factual exercise. Divorce – and the meeting of needs within it – comes down to rather more objective administration.


Contact Oratto on 0845 3883765 to speak with a family law adviser or use our contact form to arrange a call-back.


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15 September 2016

Divorce is an emotionally turbulent time for everyone involved. If the separating couple have children, then, naturally, they will remain the main priority when making arrangements, but there are so many other issues to be sorted out. And one of the main questions will be what will happen to the family home.

Deciding what will happen to a couple's property can be a major stumbling block in a separation because as well as almost certainly being the major financial asset in the relationship, it may also hold many emotional connotations – much more than mere bricks and mortar. Depending on what the catalyst for the relationship breakdown is, it may be a decision that has been thrust very suddenly upon the parties, and, for this reason alone, it's potentially unfair to just expect one partner to up sticks and move out.

15 September 2016

Marriage is a big part of life. Unfortunately, so is divorce.

With many UK couples separating (an estimated 42 per cent, in fact), prenuptial agreements – where a couple agrees prior to the wedding how their assets will be divided in the event of a divorce – seem like the smart choice, if not a little bit of an awkward subject to bring up with a prospective spouse.

14 September 2016

State aid is defined as an advantage in any form whatsoever conferred on a selective basis to undertakings by national public authorities. Therefore, subsidies granted to individuals or general measures open to all enterprises are not covered by this prohibition and do not constitute State aid (examples include general taxation measures or employment legislation). (The European Commission)

Many of a business's most important decisions are influenced by law as it relates to state aid. So, with that in mind, we take this opportunity to ask what, if any, will be the impact of Brexit on state aid law?

Not many people are aware that state aid rules impact across pretty much the full spectrum of corporate, commercial and business activities in Europe, but with the UK's decision to undertake Brexit, state aid law has inevitably fallen into sharp relief.

Of course, with Article 50 yet to be invoked and the UK's post-Brexit arrangements still to be negotiated, there is no clear indication yet what the future of state aid law in the UK will look like.

However, most experts predict with reasonable confidence that the UK will be able to negotiate a free trade agreement ensuring it is able to trade with the EU as part of a single market despite no longer being a member of the EU.

The UK would not be alone in this situation. Iceland, Switzerland, Norway and Liechtenstein are all non-EU members who manage to integrate successfully with the rest of Europe as members of the European Free Trade Association (EFTA). Furthermore, if the UK also joins the European Economic Area (of those countries listed only Switzerland is not an EEA member) it will ensure effective state aid law that is almost indistinguishable from that which applies to EU member states.

However, in the event that the UK finds itself facing an intransigent EU unwilling to negotiate a successful free trade agreement it will have to fall back on the rules laid down by the World Trade Organization.

State aid is a notoriously grey area. Commercial lawyers could spend more time than is useful arguing over which measures constitute unfair advantage – for example, regarding some grants and subsidies – and that which contributes usefully to a stronger EU economy, so-called "compatible aid".

It will be a difficult balancing act to achieve. For example, a European Commission report found that state aid increases manufacturing employment by around 7% in regions where it is granted, but being able to convince the EU that Brexit Britain's state aids are compatible may be more difficult than when we were part of Europe.

If the UK negotiates a post-Brexit free trade agreement with the rest of the EU, the state aid framework will depend heavily on the details of the free trade agreement:

Although nothing can be certain at this time it seems that the impact of Brexit on state aid law will be minimal – although companies and commercial lawyers may have to make some changes to their commercial law considerations.


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05 September 2016

In November 1965 England abolished capital punishment for murder. As a sweeping generalisation, this was done, in part, to remove the risk of hanging the wrong person. More than 51 years later - can the same logic be applied to the new approach of hiring private law firms to tackle cybercrime?

Internet fraud remains a hot topic. In the past year alone, statistics suggest a 5.8m incidence of cybercrime and fraud estimates have reached £193bn per year. Authorities are increasingly under pressure not to just solve the existing crimes, but also to prevent new ones. However, with resources being cut across all police forces, making the task at hand even greater, a new approach has been adopted in a bid to speed things up.

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