Although most divorces involve much smaller sums of money, the recent judgment in the Heather Mills/ Paul McCartney divorce is of general interest in a number of areas.

The case involved a ‘short’ marriage, four years but with a child. In general, where marriage is short the courts look at the assets built up during the marriage rather than applying a straight 50% split as a starting point. It also involved a marriage where there were enough assets to achieve a clean break without on-going maintenance for the lower earning spouse. In many average divorces there is not enough money to achieve this.

Ms Mills was awarded a capital sum that would yield her 600,000 a year in income which was what her needs were determined to be. She received about 24m including properties, which was more than the 15m pre-hearing offer but less than potentially she might have been awarded.

Also of general relevance in short marriages is whether there was a cohabitation period before marriage which increasingly is added on in ascertaining marriage length. Here the court did not accept the parties lived together before the marriage. In some short marriages, if the period when couples do live together is added to a marriage, a longer period is considered with implications for asset division. The court also found there was over spending by the lower earner of the higher earner’s money after the separation and 500,000 was taken from the award to compensate the husband for that sum.

The other relevant issue was proof — keeping paper work. Being able to show what was spent on what items is very helpful in proving issues in a divorce case. The judgment appeared to show that Ms Mills was unable to prove a number of aspects. Whether she might have done had she not represented herself in person at the trial remains to be seen.

Finally the Government recently announced that its proposals to give cohabitants similar rights on divorce to those who are married had been abandoned. Yet many believe there are “common law marriage” rights under English law which do not in fact exist. It is important that our clients do take some advice on their rights before moving in with a partner. It is wise to ensure wills are drawn up and, in some cases, for properties to be owned jointly and the shareholding clearly set out. Those people concerned about financial claims from a partner when a relationship breaks up can reduce the risks (a) by not marrying and simply cohabiting (b) if they are unmarried, ensuring any house in which they live is in their sole name and not that of their partner and (c) if they cohabit and the property is in their name alone, avoiding taking any financial contribution from their partner towards the mortgage.

For those contemplating marriage it may be wise to enter into a pre-nuptial agreement. Although they are not legally binding in this country they can sometimes be persuasive.


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