Financial and Legal Advice - Page 13

Couples who have a high net worth and a celebrity status are now having to choose negotiated divorce settlements in an attempt to avoid a court appearance as they could lose their privacy as many high profile divorce cases are now reported in the press.

This leads to sensitive information being leaked such as personal details, financial arrangements as well as the way in which their assets are divided.

If sensitive financial information is leaked to the press there is a real concern as it can lead to a security risk or even inform rival businesses of an individual’s financial position which can work against them.

Those individuals who have a high net worth can apply for a restriction to be put in place on any form of reporting via an application for privacy but this can often work to their disadvantage as all couples who apply for these applications have a responsibility to inform the press so that they have the opportunity to contest.

Where cases occur that involve an individual who has a high net worth instead of a celebrity, it can lead to unnecessary attention from the media especially if they are not obvious targets as it makes them aware of a divorce case that could be news worthy that they otherwise wouldn’t have been aware of.

Problems can also be made worse because individuals can also use the media to their advantage as it can lead to their ex-partner having to take an unfair settlement through making threats to proceed with a court hearing which can then lead to further exposure.

In April 2009, Journalists were allowed to sit in on most family law cases following many years of heated arguments.

Some family court judges also allowed a completely open court, however in some cases, where court cases involved the identity of a child or an adult who was vulnerable, the court would remain closed.

Many judges encourage transparency when it comes to the family courts but there are some who are against it which can lead to an increased level of inconsistency and conflicts.

There was one instance where Mr Justice Mostyn heavily criticised another judge known as Mr Justice Holman. He was criticised for giving his views on the restrictions put in place for the press because he believed that, that should only be granted access for a limited number of cases.

The issue is that there are no strict guidelines in place regarding what is allowed to be published and what isn’t which means that family law hearings and privacy applications do not ease the problem simply because the press can contest them.

Therefore, those high net worth couples who are considering separation, have to do all they can to ensure that their personal information is hidden from the eyes of the public through avoiding any court proceedings.

This can be made possible by family mediation or arbitration which enables both parties to come to a solution, whilst also avoiding any form of interest from the media.

This article was provided by family law specialists K J Smith Solicitors, an experienced family law firm operating in London, Reading, Henley-on-Thames, Guildford and Basingstoke.

What is meant by leave to remove : how do such situations arise?

I am often asked to advise where one parent (nearly always the children’s mother) wants to move to another country with the children of the family, after the breakdown of her marriage/ relationship with the other parent.

She may wish to return to her country of origin, where she will have the practical and emotional support of her family and friends; she may have a new partner or spouse who comes from another country, or has a new job opportunity in another country and wants to join her new partner in that new country; or she may wish to move abroad to take up a better job opportunity for herself there.

There are also cases where a mother wishes to move to another country with which she has no close connection but which she feels will offer a better quality of life, or better life chances for herself and her children than where she is currently living.

It is generally felt by lawyers that it is more difficult to obtain permission to relocate abroad in the latter, “lifestyle”, type of cases.

When the other parent wishes to remain in the UK and does not agree to the children relocating abroad, the dispute between the parents can cause enormous distress and anguish to all involved – the two parents, their children and their wider circle of family members and close friends – all of whom will be affected by the outcome.

When the parents are unable to agree about whether or not the children should move to live permanently in another country, the court will have to determine what should happen. This is known as “leave to remove”.

 The Current Law and Guidance on Leave to Remove:

No parent may remove a child permanently from the UK without the written consent of the other parent (and/or any other person who has legal parental responsibility for the child) or the leave (permission) of the court.

This is so even if the other parent does not have parental responsibility (which all mothers have automatically and most fathers also have) for the child because interference with a parent’s “rights of custody”(which need not include daily care and control of the child) will amount to child abduction, which is likely to result in an order for the summary return of the child to the  UK under the Hague Convention on Child Abduction 1980 and will usually also be a criminal offence.

Similarly, remaining in a foreign country with your children after the end of an agreed holiday will amount to a wrongful retention, which is also actionable under the Hague Convention 1980.

The important distinction between legal principle (which must be followed) and guidance (to help the Judge to decide the case but which is not binding on him/her) in leave to remove cases:

There is only one legal principle applicable in relocation cases: that the welfare of the individual child concerned is the court’s paramount consideration (“the Welfare Principle”).

The court must carry out a global holistic evaluation of the welfare of each child by reference to specific factors set out in the Children Act 1989 (known as ” the Welfare Checklist”), involving an analysis of all the welfare options, followed by evaluation of the positives and negatives of each option.

All the options put forward by the relocating parent (nearly always the children’s mother) must be weighed against the competing options of the other parent (nearly always the father). In particular there must always be an analysis of the potential benefits to each child of the relocation to the new country measured against the erosion in the quality of the children’s relationship with the parent who will be left behind in the event of the relocation.

The Welfare Checklist factors are as follows:

• the child’s wishes and feelings (of increasing importance with the child’s increasing age and maturity);
• the child’s physical, emotional and educational needs;
• the likely effect on each child of any change in his circumstances;
• the child’s age, sex, background and any relevant characteristics;
• any harm the child has suffered or is at risk of suffering;
• how capable each of the parents are in meeting each child’s needs; and
• the range of powers available to the court in the proceedings.

Different weight will be attached to the different Checklist factors, depending on the particular circumstances of the case.

Judicial guidance from previous Court of Appeal decisions, including Payne v. Payne in 2001, is still relevant to help judges identify the most important factors to be taken into account in deciding the welfare question, the weight to be attached to them and to promote judicial consistency in decision-making, but not so as to dictate a particular outcome to the case.

Each case must be decided on its own particular facts and the judge hearing each case is entitled to decide the extent to which the Payne guidance assists him or her.

The court’s emphasis on the importance of “the emotional and psychological well-being of the primary carer” in Payne, as interpreted in subsequent cases up until 2011 meant that a primary carer (mother’s) application for leave to remove would usually succeed unless her relocation plans were ill thought out and/or or she was motivated by the desire to obstruct the children’s relationship with their father.

Now, no assumptions are to be made in favour of a parent seeking to relocate the children abroad and consequently the left behind parent is more likely to be successful in opposing the relocation than used to be the case.

The outcome of applications for leave to remove tend to be much more finely balanced and difficult to predict than before, which underlines the importance for parents obtaining expert specialised legal advice in relation to international relocation cases.

About Maeve

Maeve O’Higgins, Family Law Partner at Burlingtons, solicitors in London

For more information and advice in individual cases about international leave to remove, you can contact me by email:

maeve.ohiggins@burlingtonslegal.com

 (020) 7529 5420

 Please visit our website on international/relocation of children leave to remove www.leavetoremove.info

Divorce can a difficult and distressing time and for everyone involved.

One of the main aims is ensuring that each party receives a fair settlement, and that the same standard of living is maintained by all after separation.

In a high net worth divorce however, it is likely that there will be complex financial affairs, multiple businesses, investments, property, shares and other liquid and fixed assets.

It is a common scenario where one party has limited financial involvement in the marriage and has limited knowledge of what the marital assets are. This may provoke a spouse to misrepresent their financial situation in order to preserve their wealth, and may even be tempted to hide their assets.

A spouse hiding or understating assets can have significant effect on the other party as it could affect the distribution of wealth, alimony and child support awarded by the court.  However this does not mean it is uncommon.

In most high value divorces, there is an international element and the use of offshore structures to hide property, shareholdings, trusts and bank is a frequent occurrence in the court room.

Other assets may be in the form of cash, real estate, vehicles, stocks, bonds, valuable art, jewellery and antiques, all of which may be in several different countries, with different banks or companies.

Taking this into account, it’s important to call upon experienced advisors during this process in order to locate these assets and ensure a fairer hearing and judgement for the other party.

One of the most effective solutions would be to retain an experienced investigative firm as they have experience in thoroughly reviewing public records and can connect the dots between corporate affiliations and structures, analyse tax havens and conduct beneficial ownership checks.

Often during a high value divorce, an asset search will need to be worldwide as a simple search in the United Kingdom will yield limited results.

A good divorce asset investigation should begin as early as possible, ideally once divorce proceedings have begun and there has been an initial disclosure on the Form E petition.

Both the parties are required to submit a Form E that summarises their financial situation – a declaration of all assets and incomes, details of income from all sources and possible expenses post-divorce, capital needs in the future to support themselves and children (if applicable), etc.

Upon review of this document each party should have a clear idea of any disparities and if assets are attempted to be hidden. Once this has been established, an investigative plan can be drawn up.

Using the Form E as the benchmark, the investigative team will examine the document to evaluate possible lines of enquiry. The investigative firm will conduct its own independent research by gathering data and making a comparison to discover any non-disclosure issues.

The process should look to identify an investigative plan by identifying any jurisdictions in which the partner has conducted business and where they have spent significant time. This should give the investigative team a map on which to base investigations and start their searches.

From then on they will work closely with the spouse and their legal team to structure the way the assets are introduced into the case and negotiate non-disclosure issues.

It is important that if you have concerns about hidden assets that you seek professional advice. Consider making contact with an investigative firm that have experience in tracing and locating hidden assets.

Locating assets in a divorce case is a time consuming process, but it can produce excellent results particularly if there is an international element. In my experience of working in this field on high level asset investigations, there is almost always an asset hidden.

Frank Morey is CEO of Virtus Risk Management and an experienced security risk management advisor with expertise in helping HNW individuals understand their exposure to risk and offering guidance on managing these risks effectively.

For the past six years, he has focused on better serving the security needs of the high net worth community through innovative service design and has developed a diverse base of expertise within various security disciplines that he integrates to deliver a holistic approach to security and risk

Frank has previously held senior management positions at Banham Security, acting as lead security advisor for their HNW client base and has managed a variety of security projects from planning through to implementation.

Prior to his career in the security industry, Frank served as a Royal Marine with 45 Commando where he was deployed on operational tours of Afghanistan, Iraq and Northern Ireland. During this time he developed a comprehensive knowledge of global security operations in austere environments, high professional standards and a strong sense of integrity and confidentiality.

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