With all the doom and gloom that often surrounds separation, we start the first episode of 2023 with a story about a “good divorce” as David tells the story of how his break up went well and wasn’t acrimonious. 

He and his ex-wife Claire deliberately decided from the beginning to agree on settling the finances fairly and equally, and to remain good friends as they co-parented their children after the divorce. 

It’s called an “order by consent” and this episode SplittingUp.com founder Joanne Major finds out more about how best to approach a divorce when both sides are amicable by speaking to Major Family Law specialist Katie Wright. 

But despite the goodwill, there can be pitfalls along the way and legal advice is always recommended, especially when international property and assets are part of the agreement – as was the case for David. Joanne hears from international family law specialist and broadcaster Lucy Loizou from The International Family Law Group about how to navigate international waters.

Joanne 0:10

Hello, and thanks for joining me again on the SplittingUp.com Podcast. I'm Joanne Major, a family lawyer in the North East of England, and I set up the website SplittingUp.com to help people going through a separation or divorce, and who just don't know where to turn to for help and advice.

Joanne 0:32

In each episode of the podcast we hear from someone who's been on this journey and has made it out the other side. Today, we'll be hearing about a good divorce and how to remain on good terms with your ex regarding both the financial consequences of a marital breakup, and how divorcing with dignity can also have a positive lasting impact on the children.

Joanne 0:59

But we'll also be taking a deeper dive into something that can trip up the most agreeable of separations...the trickier aspects of owning property and assets together abroad.

Joanne 1:15

But before we start, I've just got to say that as everyone's situation is different, although our podcast is intended to be helpfully informative, and thought-provoking, it cannot be taken as legal advice. For more information on our disclaimer, please go to the website's podcast page. So first, let's hear David's story. As always, it's not his real name. But David has some important things to share.

Joanne 1:42

His breakup six years ago wasn't acrimonious. Instead, he and his wife Claire deliberately decided from the outset that they wanted to do things by agreement and by consent. They wanted to resolve the financial process in a fair and equitable way. And they wanted to remain good friends as they co-parented their children following the divorce.

David 2:11

Hi, I'm David. My story is probably a little different to most divorce stories. My ex-wife, Claire and I stayed close throughout the whole proceedings and worked with each other and our solicitors to a very happy conclusion for both of us. It does not always have to be mud-chucking and spite in a divorce, as we both proved, but obviously, that's down to how and why you split up.

David 2:38

We'd been married for ten years, together for 17, with two boys aged three and six at the time.

David 2:47

We definitely knew for a long while that things were not right, and the spark had gone from our relationship, and it was time for us to seriously think about our future together. We both knew that most couples would probably convince themselves to give it another go for the kids' sake, as we did not have any major problems, but we also knew that would be the wrong thing to do, as when your heart is out of something, especially your relationship, there is no point dragging it on for possibly another couple of years or so.

David 3:15

By then the boys would get older and become far more aware of what was happening and therefore far more affected by it. And we knew they were to be our priority. So we decided we would not give it another go as we thought that would only delay the inevitable.

David 3:31

So to keep as much continuity going with the boys as possible, I actually rented a property on the same estate close by so it was easy to keep daily contact with them, and they stayed at mine often from the very start. To be honest, at that age they were both fine and seemed to enjoy having their own rooms in each of our houses. And they soon learn to play us against each other to get what they wanted. Much easier for them – us both being in separate houses - bless them!

David 4:03

The way we saw it from the start was that we both had wills made out leaving the boys everything between them. We are both past the age of having more children, and if we ever remarried a new partner, we will both be doing pre-nups therefore keeping the boys sole heirs. So why would we ever need to haggle about what each of us was to receive in our divorce? As we both are lucky to have enough to live on ‘til a ripe old age.

David 4:29

We had a property company together - even property abroad - so although we had agreed everything when we decided to divorce, in the respect that Claire gets what she had when we met, I get what I had at that point too, and we split what we have accumulated together.

David 4:45

I did though still need a solicitor, obviously. My legal team were amazing right throughout the whole divorce process, and although we had a few hiccups at times, it did all come together well for us.

David 5:01

Of course, everything was not a fairy tale. There were problems as you can imagine, when you're dividing lots of assets, especially joint properties. Sometimes the legal side of things just don't fall in line as you would have hoped. But we did get there in the end, we achieved our joint objective, and we obtained a final financial order by consent, as neither of us wanted to end up in court.

David 5:31

So now, moving on six years, we are all in a good place. The four of us do spend time together for the boys as much as possible, and they've kept in close contact with all Claire's family, which was so important to me. The great thing is that we have both had relationships since we split up and met each other as partners and all got on well, again, very important for the boys.

David 5:53

As I said in the beginning, this is a different story. I have to be honest, I actually don't know anyone else that had a divorce like ours. But if you stay adult about the matter and don't let emotion and bad advice from others taint you - and of course get a good lawyer who understands what you want - as you can see from our situation, a more than amicable result in a very sad and life changing ordeal can be achieved.

David 6:20

I have to say that doing the divorce the way we did it, and the outcome, has made me a better person, and much happier than if we had gone about in any other way. On a final note, one of my friends actually once said: "I hear that you had an amazing divorce? Mine was terrible." I replied: "If there is such a thing, yes I did," and laughed, and managed not to say..."if Carlsberg did divorces!"

Joanne 6:50

Well, David considered that he had one of the best divorces in the world. But of course, much of that was because of the goodwill that existed between him and his wife, Claire, and because of that, they were able to agree the financial terms of their settlement by consent.

Joanne 7:07

So with me today is senior lawyer Katie Wright of specialist family law firm Major Family Law. Hello, Katie.

Katie Wright 7:13

Hi, Joanne. Good to be with you.

Joanne 7:16

Thanks, Katie. Katie is going to talk to us a little bit about what “orders by consent” are in financial proceedings. Over to you Katie.

Joanne 7:23

A financial consent order is a court order obtained alongside divorce proceedings, which sets out how incomes, assets and pensions are to be divided, including property and savings. You can only obtain a financial order if you or your wife or husband have first started divorce proceedings.

Katie Wright 7:41

In most cases, it is possible for a financial order to be made by consent, like in David and Claire's case. It is possible to then send it to the judge for their approval. In some cases, this can't happen, and a judge would then need to decide the terms of the order. By obtaining legal advice at an early stage, you will give yourself the best possible chance of being able to reach an agreement by consent with your wife or husband.

Katie Wright 8:04

It is really important to obtain a final order when you get divorced, even if there's nothing in joint names, or you don't own a property or have any assets.

Joanne 8:13

Just to interrupt you there, Katie, but there is actually a very famous case out there isn't there? Some case law regarding this, where the parties, many years after divorce, didn't have the financial order, did they? And it caused all sorts of repercussions. Do you remember that one?

Katie Wright 8:26

I do Jo, yes, that's right. That can apply to many people out there, which is why we always suggest getting specialist legal advice early on. The reason for this is because things can change in the future. For example, you could inherit money or a property, buy your own home or even win the lottery. The last thing you want is for your ex-wife or ex-husband to be able to make any claims against anything you may have now or in the future. Even if you've been divorced for years, they are entitled to make those claims against your income, assets, pensions and even inheritances unless a financial order has been made.

Joanne 9:00

No, that's absolutely right, and I know it's something that increasingly clients are getting in touch with us about, aren't they? Because they may have been divorced some years ago, but all of a sudden are realising that they don't have the benefit of one of those final financial orders.

Katie Wright 9:14

Yes, that's right, Jo. If you haven't ended the financial claims at the time of divorce, you can still do so even if it's years ahead. By consulting a lawyer, they can explain what you can do, all the things that need to be sorted out so that you can get things finalised and give yourself some financial security.

Joanne 9:30

So finally, Katie, could you just explain what's sort of the difference then about reaching an order by consent as opposed to going to court to fight it out? Because that's essentially really what David and Claire were interested in - they made a promise really to each other at the very outset. They were not going to go to court and get a judge determine the outcome of their financial future. They want you to sort it out themselves. So what what's the fundamental difference?

Katie Wright 9:53

The difference, Jo, is that by obtaining order by consent, you can ensure that you and your your wife or your husband are able to agree as much as possible between you. The process to go through is that firstly, you or your wife or husband will need to provide documents to each other or through solicitors to confirm your incomes, assets, pensions, and any debts and your solicitor will then be able to advise you as to what would be a fair settlement.

Often, we're finding that couples have a good idea of what they would like the terms to be, and a solicitor can then advise about whether these are fair and reasonable. Solicitors know what kinds of orders financial judges will be likely to approve, and what types of orders are likely to be rejected.

Secondly, once the terms have been agreed, then a solicitor will prepare the draft financial order which will be sent to a judge once you've both signed and approved it. Provided a judge is happy with it, it will be approved and sent to your solicitor. This ensures that no matter what happens in the future, you and your husband or wife are protected. This is particularly important because as we've touched on if the worst should happen, for example, if your wife or husband becomes bankrupt in the future or is made redundant or even loses their own home, once the financial order has been made, they cannot make any claims against you in the future.

And that's what is otherwise known as a clean break order, isn't it? Katie?

Yes, Jo, it is yes.

So it's really fundamental and very, very important advice that you do need to end those financial claims, if indeed you're dealing with divorce proceedings. And that's something suddenly a lawyer will say to you, and I suppose maybe the final thing, Katie would be that, you know, people could say, well, “I'll just download one of those consent orders or clean break orders off the internet.” Is that something that you would recommend?

No, Jo, because every case is different, every family is different, and it's really important that every couple seeks their own specialist legal advice. It is possible to do a lot of the groundwork and legwork yourself, but we always advise seeking legal advice at an early stage, which can save you money in the long run.

Absolutely, and sage advice Katie, as we come across many clients, I guess, who haven't done things correctly. And that's when ultimately they find themselves with a wheel falling off and then have to instruct solicitors at a later date. So thank you very much. That's been really helpful. And of course, if anybody has any queries about orders by consent or clean break orders, or indeed they were divorced many years ago, and they didn't end those financial claims, then it may not be too late. So do get in touch with Katie Wright, senior lawyer at Major Family Law, and she'll be delighted to assist you. Thanks very much, Katie.

Thanks, Jo, all the best.

Listening to David's story, he was talking about how his divorce was probably the best divorce in the world - such a great line - but despite the goodwill that existed between David and his wife, he said that the legal side of things wasn't always entirely straightforward. Now, that wasn't because they weren't agreed on how to share their assets, but it was because their affairs were complicated as they had property and assets abroad.

With me today is Lucy Loizou, who's a family lawyer specialising in international family law matters. Welcome, Lucy.

Hello, Jo. Thank you.

Can you explain, Lucy, why having assets abroad can be problematic, and do you have any practical tips and advice that you could share to any of the listeners today who may have foreign property or assets offshore and are thinking of a separation or divorce?

Yes, Jo, of course. And it's wonderful to hear that David and his ex-spouse were able to agree a settlement by consent - that's always something that we try to achieve. When we have these international elements, you're absolutely right, it can be problematic and that's for a number of reasons.

Firstly, sometimes the parties don't understand the nature of the asset if it's held in another jurisdiction. They may not understand about how to value that asset, and the other big problem that can sometimes be faced is whilst they can come to an agreement by consent, is it possible thereafter to enforce that agreement that they reach, whether it be in a court order, or otherwise? So these are some of the problems that, you know, we have to deal with and coming to a specialist, international family lawyer is so important at an early stage.

In terms of practical tips, Jo, one of the things I would also say and is really important from the outset is that it's always important to take advice in the country that the asset is located. So you'll have your lawyer here in England and Wales, but similarly, if there's a property that's held abroad, and one of the things that David would need to think about is taking advice in that country as to how that property will be dealt with on divorce.

And that includes looking at form of ownership, it looks at whether or not there are any particular nuances as to ownership, and importantly, how that asset can be realised. One other thing, of course, that's important is that there may be tax consequences that arise on the sale or transfer of the property that David has. And so we liaise with international tax advisers to help understand the tax that may arise.

And the big thing is I say again, and we said it at the outset, but similarly, I say it now is: let's always take advice on the enforceability of any English order on any real property abroad. Sometimes it's better to secure an order in this jurisdiction on English assets if you're going to have problems with enforcing against offshore assets.

That's very interesting Lucy. Can I just pull come back on one thing you were saying there that you mentioned? If somebody has property abroad, like in David's case, that you said it's very important for them to be taking advice in the jurisdiction in the country where that asset is. Is that something, though, that you would be doing as the international family lawyer? Because I guess, lots of people maybe, you know, who have property or assets abroad, may not necessarily speak the language. Is that part of your role is it?

Yes, it is. I mean, we are English family lawyers, and we can only advise on English family law, but one of the things that we do day in day out is to instruct foreign lawyers, foreign tax advisors, to help us understand the nature of the assets in the other jurisdiction so that we can present the information and advice in a straightforward way for our clients to be able to understand. So it takes the pressure off the clients having to do that, and similarly, from a lawyer's perspective, once we get that advice, we're able to translate that into wording that may appear in a court order in England - if it's agreed by consent wonderful - and that enables the English court to make the order and therefore make it enforceable and legally binding.

Okay, that's really helpful. Thank you. So I suppose you probably have not a little black book, but probably a very large black book full of contacts across different jurisdictions.

Absolutely. And we say in jest, Jo, but actually it is really important that when you're dealing with these international assets, that you instruct a lawyer in the jurisdiction who you know is good, because there's no point in going to someone who isn't an expert in their field in that jurisdiction.

Absolutely. And very sage advice. So that's very interesting Lucy, and I suppose it goes without saying that knotty family law matters, especially with overseas assets, are always best resolved by way of agreement, rather than the headache of battling things out at court, and ultimately letting the judge decide who gets what.

Absolutely.

As property ownership abroad is becoming increasingly common now, if any of our listeners have got any specific questions of an international family law nature, then do contact Lucy where her details can be found under the expert page on the website SplittingUp.com. I also believe, Lucy, that you have a regular fortnightly family law show on a London Greek radio? Is that correct?

Yes, it is. Jo. For the last 13 years now, as you rightly say, we have this fortnightly phone-in on London Greek radio where people from the Greek Cypriot community call into the radio station, and they ask questions about family law, and we give information to start with so that people can then you know, decide how they want to proceed. And quite often, it relates to thorny international issues that we've been talking about. So it's a most enjoyable thing that I do every fortnight.

Fabulous. Perhaps then just before we close, you'd like to say something in Greek! Fantastic. That's great, Lucy. Well, thanks very much. It's been absolutely super chatting with you today.

Thank you very much, Jo.

And thank you for listening to this latest episode of Splitting Up Dot Pod. I hope our stories and our experts can help you in the same way they did David.

We are covering a whole range of topics surrounding divorce and separation in this series, so do sign up wherever you get your podcasts and check out our archive of episodes.

And there's even more information available on the website SplittingUp.com. We have loads of free advice and long lists of experts you can contact for help and advice.

Good communication and focusing on the bigger picture may just help to keep things calm and come out the other end in a better way. Divorce with dignity and getting specialist legal advice are this week's key takeaways. I'm Joanne Major, and I'll see you next time.