The author examines different trends within family law, such as the number of divorce cases, the uses of pre- and post-nuptial agreements, the development of arbitration, and more.

The data gathered by family courts is important reference material for private client lawyers handling clients’ family issues, which often feature in these pages given the implications for wealth. How well, or not, do the statistics capture what is happening in family law, and, if there are problems, what can be done? 

To explain this topic is Charmaine Hast, a consultant in the family team of Collyer Bristow. (More on Hast below the article.) The editors of this publication are pleased to share such insights; the usual editorial disclaimers apply. Email tom.burroughes@wealthbriefing.com and amanda.cheesley@clearviewpublishing.com

Interestingly, when statistics are published which, among other things, reflect an increase by 2 per cent in domestic violence applications and the number of orders made decreased by less than 1 per cent, various questions arise. When divorce cases drop by 1 per cent and continue to fall from the peak seen in 2022 further questions arise. However, the same statistics show that from October to December 2024 there were increases in financial remedy and domestic violence applications.  

What the public may not be aware of is that in the court system financial applications would have taken 45 weeks for proceedings to be completed; there are, of course, quicker and less expensive alternatives. As an arbitrator (CIArb), I have experienced financial applications which, with sensible directions, result in a binding judgment by an arbitrator, even in complex matters, within about half the time.  

It is not unknown for a final settlement to be reached in 30 weeks. The additional cost of an arbitrator is easily justified in less time being spent on the two sets of solicitors who are bound to comply with an exacting timetable. The ADR process where parties proceed to a private Financial Dispute Resolution has also seen a huge percentage of matters settled, outside the public eye.

Over the years, the family law arena has weathered the decrease in heterosexual divorces, the addition of same sex divorces, peppered with the requirement for pre- and post-nuptial agreements and even cohabitation agreements. These were not the order of the day prior to the case of Granatino v Radmacher in 2010.  

The public has always operated under the misapprehension that there are “common law marriages” – there are not – and that pre- and post-nuptial agreements are not binding. Pre- and post-nuptial agreements carry weight with our courts if they are properly executed and, most importantly, “fair.” Unlike [the time] when mediation raised its head in the family law arena, and many dipped their toe into the mediation pool – aiming to try to please both parties, which in many cases was being guided by a non-family lawyer – pre-nuptial agreements are another beast altogether.  

The latest statistics show a decrease in marriages and therefore a decrease in divorces and perhaps, if more people knew about the weight of pre-nuptial agreements, this statistic would be different from that which has recently been published.  

There are rightly many family lawyers who do not undertake drafting pre- and post-nuptial agreements because the word “fair” is a hurdle. The certificate which solicitors and barristers attach to pre-nuptial agreements as evidence that each party has received independent legal advice, obviously does not reflect the advice given. However, the advice which must be given is whether in the view of the legal practitioner, the pre- or post-nuptial agreement will carry weight.

Regrettably, this is where one separates the men from the boys. There are many family practitioners who are excellent at the fact-finding mission of ascertaining assets and sourcing the correct value of those assets. Many practitioners however do not have the inclination to then commit to what is “fair.”  

Many would say that in England and Wales where the present government is seemingly introducing fiscal obligations, including a burden on private pensions, marriage is one option which provides mitigation for families. The reluctance to marry, which would change the curve of the present statistics, would no doubt dissipate if the public knew that pre-nuptial agreements are worth the time, effort and money required to put a valid contract in place.  

Understandably there are many who will not embark upon the task of drafting these documents and, more importantly, how often are pre- and post-nuptial agreements reviewed. There is no doubt that many agreements which will now, despite the increase in the attractiveness of these contracts in the last 15 years, carry no weight whatsoever. One also wonders whether this will open the flood gates to pre- and post-nuptial agreements being used not only by the rich and famous, but by the man or woman in the street. The costs of these documents are not unsubstantial but with the effluxion of time, these contracts should provide protection for a family’s ever-increasing asset position as they go through life, with a natural inclination for “more.” 

I can recall many years ago being interviewed on national TV and debating with the editor of a national newspaper, why the man or woman in the street, who is not “rich and famous” should seriously consider this course of action for financial protection. This, in my view, is one way of taking a possible spoke out of the wheel by trying to give more longevity to marriages which deserve not to have “money” as the problem.

In conclusion, perhaps the question must be asked as to whether the Chancellor’s disliked tax provisions are in fact promoting marriage even for the anti-marriage brigade.

About the author
Charmaine Hast is a highly-regarded name in family law with experience and expertise in advising on complex, high-value and high-profile family matters, often with a cross-border element. She has represented a significant number of public figures including pop stars, actors and actresses, members of parliament, well known sportspeople, TV personalities, and entrepreneurs.

She is a member of the Chartered Institute of Arbitrators and, as one of only a small number of Family Solicitor finance Arbitrators (CIArb), can hand down binding judgments in family law financial matters. Hast has a degree in psychology as well as law and is highly skilled at negotiating extremely favourable settlements and securing exceptional judgments for clients. She is also a qualified South African Attorney and has several reported cases, including The Supreme Court.

Among other accomplishments, Hast established the Family department at Wedlake Bell in 2011 and previously established and headed the Family team of South-East firm, TWM Solicitors. She is a member of Resolution (formerly Solicitors Family Law Association) where she was one of the first accredited specialists in high net worth financial matters and child abductions.