London’s reputation as the divorce capital of the world is well established. When compared to the systems used to divide assets in other countries, the English courts have a deserved and perhaps notorious reputation for their generosity to the financially weaker party within a marriage.
In general, they tend to award a greater percentage of the available capital assets and more by way of income support. It is usually advantageous for the financially weaker party to divorce in England while the stronger will try to avoid it.
As a consequence, many couples with connections to more than one country become embroiled in preliminary litigation about the country in which the divorce should take place, often spanning many months and costing tens of thousands of pounds: the financially weaker party almost always arguing for London, and the other for elsewhere.
Sometimes, this is money and time well spent as there are jurisdictions in which courts are incredibly ‘mean’ to spouses needing support and the money spent on legal fees will easily be recouped if the argument is won.
Whilst historically the financially stronger party was usually the husband, and the weaker party the wife, societal changes mean that this is no longer necessarily the case. If the man within the relationship is the lower earner or has adopted the role of homemaker and carer for the children, his claims and financial needs are likely to be interpreted generously by the English courts and may result in the ongoing payment of maintenance or ‘manimony’ to them.
The generosity of the English courts to the financially weaker party can be demonstrated in the judicial approach to a number of issues that are encountered on divorce. For example:
1. Nuptial agreements (pre and post marriage): in many countries these are binding upon the parties but in England the courts can still override the terms of the agreement. The court will not enforce the terms unless it is considered fair to hold the parties to their agreement. The court will also usually want to see both parties receiving independent legal advice and at least some basic financial disclosure before signing an agreement. The English approach will almost certainly usually favour the financially weaker party to the agreement.
2. Trust assets: these are not ‘out of bounds’ for the family court. A trust may be treated as a financial resource of the parties, particularly where the family has relied on provision from the trust during the marriage. The court may encourage the trustees to make distributions to enable the beneficiary to comply with the terms of any order made against them. In more extreme cases, the court may determine that a trust is in fact a nuptial settlement. This gives the court very wide and far-reaching powers.
3. Maintenance: whilst the English court has a duty to try and bring both parties financial relationships to an end as soon as possible, the payment of ongoing maintenance (known as alimony in some jurisdictions) is a common outcome in English settlements. It is most common where a paying party has a high income but there are insufficient assets to ensure the other spouse has a capital cushion to meet their income needs. This is not always the case in other countries, where income needs are not approached as generously as they are in England.
4. Even where divorces have taken place outside of England, the English courts may still make orders following an overseas divorce, provided that they have sufficient connection to England, which will also often favour the financially weaker party.
More generally, the generosity of the English courts is reflected in the approach to capital division. The starting point in long marriages is that there should be an equal division of the assets; contributions by each spouse, whether financial, income generating or in the home will be viewed as equal.
The court will consider what is fair in the overall circumstances of the case. It also pervades the court’s approach to various issues that arise. The courts have wide ranging powers to make a plethora of different orders on a divorce which include orders in relation to capital such as properties, pensions and investments, alongside orders for the ongoing payment of maintenance (alimony)
Following the aftermath of the pandemic and increasingly flexible work patterns, together with underlying societal trends this is something that is only likely to continue.