This is the second half of a series of commentaries about how divorce law and family disputes play out around the world over a number of issues, such as religion, cross-border legal frictions, the impact of Brexit and claims that men get a raw deal.

There are a lot of divorce cases involving high net worth individuals out there and, for understandable if not always defensible reasons, they attract media attention. The fights over seven-figure or higher sums of money, yachts, houses and other possessions fascinates people even while it also repels. But beyond the gossip there are serious, issues concerning property rights, enforcement of contract and predictability of law. (And, of course, the welfare and best interests of children and other dependents.) Wealth advisors cannot afford to be unaware of these issues. 

This is the second part of a two-part feature gathering views on divorce cases. (Here is the first part.) We welcome further feedback. Email tom.burroughes@wealthbriefing.com and Jackie.Bennion@clearviewpublishing.com

When a consent order is not the end of a story for divorcing couples.
By Polly Calver, Trainee Solicitor, and Rosie Schumm, Partner, in the Family Team at Forsters LLP.
Former Deutsche Bank commodities trader Kerim Derhalli recently made headlines by suing his ex-wife in the civil courts. He was claiming arrears of rent which he argued were due as a result of her occupation of the family home after a divorce settlement. The court reportedly found in Mr Derhalli's favour, concluding that his ex-wife Mrs Richardson-Derhalli's right to live in the property held in his sole name had been extinguished on pronouncement of decree absolute.

But how did Mr Derhalli and Mrs Richardson-Derhalli end up in this position? As family lawyers, we are familiar with situations where an agreement on divorce, embodied in a consent order approved by the court, is not quite the end of the story for divorcing couples. In this article, we look at the options for spouses who feel that their ex-spouse isn't "playing along" with the spirit - or the letter - of the agreement reached.

Option 1: Prevention rather than cure
Whilst it is always easier to spot the traps with hindsight, a well-drafted order can second-guess most difficulties before they arise. When negotiating, attending mediation, or working with your lawyer to draft an order, make sure you consider - and try to reach an agreement with your spouse on - what will happen in a range of eventualities. If you have agreed to sell the family home, what will you do if, like Mr Derhalli's property, it does not sell as quickly as expected? Will the spouse still living there move out to rental accommodation by a certain date? Will the conduct of sale of the property change hands? Will you lower the asking price after a set amount of time? Discussing these issues in advance is the best way to make sure you are on the same page, especially given the current difficulties of selling property in the high-end market.

Option 2: Enforcement in the family courts
The family courts have broad powers to enforce the orders that they make, including consent orders. If a spouse or ex-spouse fails to comply with a term in an order, the court can make use of an armoury of remedies, including taking control of goods, charging property, and providing for sums to be taken directly out of the offending spouse's pay cheque. In enforcing a money or property order, the court can include sums for interest and arrears. Ultimately, if a spouse fails to comply with an order, he or she could be in contempt of court, and given a prison sentence or community service (essentially unpaid work like removing graffiti). 

Option 3: Resort to the civil courts
The judgment in Mr Derhalli's case has yet to be published, but the case draws our attention towards a different route for divorcing couples. While the divorce process is ongoing, spouses have special protections in family law. But once the dust has settled, an agreement reached, and decree absolute pronounced, these fall away. The parties can then in theory look to the underlying property law to determine "who owns what". It is unusual for financial arrangements not to be resolved fully within a financial remedy order (by consent or after a final hearing). But while the vagaries of the property market continue to frustrate the court's order for a property to be sold after decree absolute, Mr Derhalli has highlighted that the default position will be that which has been registered at the land registry.

Option 4: Vary the order
A word of caution before turning to the civil courts - defaulting to underlying property law might not be the end of the matter. Where an order on divorce has not yet been executed, and there has been a significant change in circumstances, the family court can vary the order. In the case of US v SR [2018] EWHC 3207, the court treated the decline of the Russian property market as just such a significant change. If an order requires the sale of a property, and that property has not been sold, either party may apply to the court for a variation. This will re-open the range of powers open to the court under the Matrimonial Causes Act 1973, and it will exercise them according to what is fair in all the circumstances. The contents of a consent order not having been carried through to their conclusion, the family court will not leave the parties alone in "finding a solution for each of [the] parties to the practical difficulties of realising value in the underlying matrimonial estate" (Mrs Justice Richardson, US v SR).

Where religious issues arise.
Isobel Mundy, Senior Associate at BDB Pitmans.
The English courts have a wide discretion in family matters and will exercise it creatively to bring about a fair result in matrimonial proceedings. The Moher case is such an example, where the husband has refused to grant his estranged wife a get, the document by which a Jewish marriage is ended. 

The court has ordered a financial clean break conditional upon him doing so. In short, until he provides the get, the husband must pay his wife monthly maintenance of £1,850.00. 

Mr Moher claims that a get provided in such circumstances would not be given freely if the continuing payments pressurise him into doing so and therefore not valid under Jewish religious law. 

A civil marriage in England and Wales, ends when decree absolute is granted, upon the application of the petitioner, (the bringer of divorce proceedings) but it is also open to the respondent to apply for decree absolute in certain circumstances.  

However, under Jewish law and in certain other religions too, a religious divorce is required in addition to decree absolute to completely cut the ties of marriage. Under Jewish law, the Bet Din (Rabbinical court) cannot (except in very rare circumstances) pronounce a divorce. Instead, the wife has to receive the divorce, the get, from her husband. If he refuses to provide it, the marriage cannot be dissolved and the wife cannot remarry within the Jewish faith, even if she obtains a civil divorce.  

Therefore, a get refusal has serious consequences for a wife. It creates the agunah (chained wife). She will be committing adultery if she has another relationship and the status of any children of that relationship will be adversely affected. 

A decision in respect of Mr Moher’s appeal is awaited, but it is worth noting that Moher is not an isolated case of pressure being put on a recalcitrant husband refusing a get.  Within the Jewish community, the plight of the agunah has long been the subject of concern. The Bet Din can and does place sanctions to pressure the husband into providing a get and in Israel, the civil courts can impose a prison sentence for get refusals. The use of pre-nuptial agreements which oblige a husband to provide a get in the event of marriage breakdown is becoming more widely advocated. Such agreements, like the Moher decision, can provide that a refusal to divorce results in a financial penalty in the form of spousal support until the divorce is given. 

English statute already provides a form of leverage in marriages where a get is denied. In 2002, s10A was inserted into the Matrimonial Causes Act 1973  specifically to provide Jewish wives with some bargaining power. The section provides that a court may delay the making absolute of a civil divorce decree until the parties have certified that a religious divorce has been granted by the appropriate authorities. Although for obvious reasons, an s10A application has a limited coercive effect if the husband has no urgent desire to divorce, it is reported that the legislation has reduced the number of agunot.

At present, only the Jewish religion is included within s10A but it is open to other religions to seek to be “prescribed? within the legislation.

It is interesting that Mr Moher is also appealing against the lump sum awarded to his wife, of £1.6 million, saying that it represents 85 per cent of the family’s wealth. One reason for an award which is such, on the face of it, a significant departure from equality, could be that the husband failed to satisfy the court that he had given full disclosure. It does seem on balance that Mr Moher’s evidence did not find favour with the court.

In Muslim marriages, Islamic law allows men to divorce their wives by making a simple declaration, but women must seek permission to divorce a husband from an Islamic scholar – an imperfect and costly process. The Nikah is becoming more widely used to ensure that the wife has the ability to divorce freely if the relationship breaks down. 

Unfortunately, however, many people are not aware that only Muslim ceremonies undertaken in countries with Sharia law systems are recognised under English matrimonial law. In England and Wales, having just the Nikah, will not create a legally recognised marriage because a civil registry marriage is also required. The relevance of this is that couples married in a civil ceremony, (in England and Wales) have rights which a non-married couple generally do not have, upon divorce, in particular, financial provision, including maintenance for themselves and their children and provision of a home. Therefore, should the relationship break down, the more vulnerable party, in most cases, the woman, can find herself, after a long relationship, having no claim to property or anything else.

Again the English High Court has recently used its powers to assist the financially weaker spouse in declaring a marriage, although not valid, to be void. This is relevant as only valid and void marriages give rise to a claim for financial provision, whereas invalid marriages do not.

In a 2018 case, the parties were married in an Islamic ceremony. Although the intention was to also have a civil ceremony, in a long relationship of many years with children, the husband avoided doing so. Upon separation, the wife brought divorce proceedings as a first required step to make a claim for financial provision. The husband declared that there was no marriage due to the lack of civil ceremony. The court found that in this instance, the marriage was not valid, but would have been, but for the lack of civil ceremony and was therefore void, enabling the wife to bring a claim for financial provision.   
 
Also, see this article about whether the legal system in England and Wales discriminates against men.