Pre-nups like Nigella’s can take the pain out of divorce settlements

August 2013

High-speed divorce is back on the discussion boards following the breakdown of the marriage between art collector Charles Saatchi and celebrity chef Nigella Lawson, with the news that their divorce is expected within the month.

And whilst the pre-nup between Saatchi and Lawson looks set to shape the swift progress of their divorce through the courts, with neither making any claim on the other, it’s not just celebrities or the super-rich who can benefit from such agreements.

According to legal experts, the lesson is one that’s useful for everyone, particularly on remarriage or where anyone has a significant inheritance.   

Until recently, pre-nuptial agreements setting out how property was to be divided in the event of a couple divorcing were regarded as void under English law because they were considered to be contrary to public policy.  But since the Supreme Court ruling in the 2010 landmark case of Radmacher v Granatino the Courts have looked more favourably on pre nuptial agreements if “freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement”.

Since the Radmacher and Ganatino case, the Courts are more likely to uphold prenuptial agreements if it appears fair and if both parties disclose all aspects of their financial situation at the time the agreement is entered into.  It also needs to be clear that no pressure is exerted by one on the other to sign the agreement.   

By setting out what each thought was reasonable at the time they got married, pre nuptial agreements can help couples avoid having to negotiate a settlement in difficult circumstances after the relationship breakdown.

“At the very least the Courts are more likely to follow a pre-nup as a guide to what type of financial settlement to make, but it’s not possible to use the agreement to prevent the other party from seeking a different financial settlement through the Courts,” explained family law expert Richard Sauvain

Richard added:  “A pre-nuptial agreement may not always be appropriate for young couples without children because it is hard to tell what the future holds for them, but for a more mature couple, perhaps entering into a second marriage and with adult or nearly-adult children, the case for pre-nups is compelling.  Where couples bring assets and children into the new marriage, these agreements prove a useful way of protecting such assets and making sure there’s financial security for those children from previous relationships.  

“It may seem difficult to discuss such matters in the flush of love and the prospect of a shared future, but it’s a very good way of setting out on the right foot for couples, with everyone sure of how they stand, and clear on how the other feels. ”

For more information please contact, Richard Sauvain on 01296 318500.

Employment Updates - July 2013

 

 

Fees Payable in the Employment Tribunal - Reminder

 

Just a quick reminder that as from Monday 29 July 2013 fees are payable to present a complaint to the Employment Tribunal.  For a complaint of unfair dismissal, the fee to issue the proceedings is £250, with a further fee of £950 payable in advance of the hearing.  These fees are payable by the employee unless they qualify for remission.  If the complaint is upheld, however, it is likely that the employer will be ordered to repay the amount of these fees to the employee.    

 

New employment tribunal rules of procedure also come into force on 29 July 2013. 

 

 

Unfair Dismissal Cap

 

From Monday 29 July 2013 the maximum compensatory award payable for a successful complaint of unfair dismissal changes to £74,200 (the current limit) or one year’s pay, whichever is the lower. 

 

 

Pre-Termination Negotiations

 

Confidential pre-termination negotiations come into force on 29 July 2013.  From this date, employers can make offers of settlement to employees even where there is no current dispute and these offers cannot be used as evidence in cases of ordinary unfair dismissal (unless there was some ‘improper behaviour’ by the employer). 

 

Also from 29 July 2013 Compromise Agreements are re-named “Settlement Agreements”. 

 

ACAS has published a Code of Practice to accompany the above, which can be found at:

 

http://www.acas.org.uk/media/pdf/j/8/Acas-Code-of-Practice-on-Settlement-Agreements.pdf.

 

 

Sickness & Holiday

 

Currently, employers have to provide workers with 5.6 weeks’ paid holiday, which is made up of 4 weeks’ ordinary leave and 1.6 weeks’ additional leave.  Although workers should be allowed to carry over the 4 weeks’ ordinary leave to the next leave year if they are unable to take holiday due to sickness, the Employment Appeal Tribunal has recently ruled that the 1.6 weeks’ additional leave does not carry over automatically in the absence of any agreement between the parties.  The case in question is Sood Enterprises v Healy [2013] UKEAT