By Editor Jon Brady
It all started with a pair of farmers.
Martin and Pamela White got married in 1961 and went into business together, investing £2,000 each in a burgeoning dairy farm.
A year later, they bought Blagroves Farm in Somerset – some 160 acres of land, with what was remarked upon as a ‘fine Jacobean house’ at its centre. All in all, their own little corner of the country cost £32,000, funded by a mortgage and a family loan.
The business expanded, growing the land to 337 acres, which the pair owned together and jointly, going as far as to merge their capital accounts.
Mr White was a hard-toiling farmer; his wife the homemaker who brought up their children Katherine, Philip and Hilary while also contributing to the farm’s running.
In short, they did everything together. Until they didn’t.
In 1994, Mrs White left the farm and filed for divorce, seeking her share of their combined fortune which, when all was considered, weighed in at £4.6million.
But a judge gave her £800,000 – less than she wanted to start a new business – after ruling that she should hand all jointly owned assets to her ex-husband.
To break up their farming business, he said, would be ‘unwise’, and the £800,000 he granted should be enough to allow her to continue living comfortably.
She appealed – and the Court of Appeal upped the settlement to £1.5million, ruling that she had contributed just as much to the family as a homemaker and was entitled to her fair share.
Mr White appealed to the House of Lords, then the highest court in the country, while his wife cross-appealed in a bid for exactly half of the assets.
Ultimately, the appeals were dismissed in October 2000 – but not before the Lords made legal history by requiring courts to consider the ‘yardstick of equality’ as the starting position.
Lord Nicholls of Birkenhead considered: ‘If (they) by their joint efforts over many years, his directly in his business and hers indirectly at home, have built up a valuable business from scratch, why should… the husband left with a much larger share?’
Unlikely as it seems, this agricultural dissolution, and the conclusion that couples share wealth, regardless of who earns it, elevated England and Wales – and London in particular – to the status of divorce capital of the world.
‘Before White v White, that idea that the contribution from the homemaker was considered as valuable as the contribution from the breadwinner, was not the approach,’ Stacey Nevin, a partner in Kingsley Napley’s family and divorce department and a specialist in international family law, told MailOnline.
‘The conclusion of the case was that the contribution, the value added to the marital partnership, has equal value.
‘So the decisions during the marriage and the assets that are built up during that partnership are considered, as a starting position, to be equal, because it is considered that the decisions were made together as a couple.’
These days, divorcees-to-be flock to the capital to take advantage of the precedent set by White v White, which established the jurisdiction as one of the most generous when it comes to ‘financially weaker’ individuals.
It’s why London courts ruled on Princess Haya of Jordan’s £554m split from Dubai ruler Sheik Mohammed bin Rashid Al Maktoum, and the ex of Russian oligarch Farkhad Akhmedov as she fought to claim a share of his $1.375bn oil fortune.
‘The starting position for the court is an equal division of the matrimonial resources,’ Ms Nevin added.
‘But the court then looks for reasons to depart from that equality, and that could mean the financially weaker party has a greater share.
‘It’s that discretionary element that can make England and Wales a very beneficial jurisdiction to the financial weak party. We are known as the divorce capital of the world, particularly London.’
In England and Wales, divorce laws permit people who have foreign marriages to file for a split regardless of where it was registered.
But they can also launch bids for financial relief if the divorce was granted abroad – so long as the court considers they have grounds for doing so and meet certain requirements.
These relate to whether at least one of the parties being domiciled in England and Wales at the time they apply, or being habitually resident for a period of time beforehand.
But should a test be met, those who are less well off than their spouses can take advantage of what experts say are some of the most generous settlement principles in the world.
And it can often mean the financially weaker party is racing to file divorce papers before their better-off better-half – sometimes, before they even tell them that they want to break things off.
In fact, the biggest divorce cases in English legal history have involved foreign couples who were already divorced sometime before papers were filed seeking a division of assets.
Princess Haya bint Hussein of Jordan was awarded £554million by the High Court from her husband, Mohammed bin Rashid Al Maktoum – the ruler of Dubai.
Sheikh Mohammed had divorced her under Sharia law in 2019 – before she fled to the UK where, as an ambassador of Jordan, she had leave to remain, and waited a year before filing her claim.
And Tatiana Akhmedova – later Soroka – claimed £150million of what was meant to be a £453million award from her ex-husband, Russian gas baron Farkhad Akhmedov.
The pair were married for 20 years as he made millions from his early investment in, and subsequent takeover of, energy firm ZAO Northgas.
Azerbaijan-born Akhmedov filed for divorce in 2000 – but Akhmedova, who lives in London, did not seek a division of assets until 2013, a year after he sold his stake in Northgas for $1.375billion.
Ms Nevin continued: ‘Sometimes we see couples divorcing here who are not English nationals and were married elsewhere, but one or both has since moved here.
‘It can be suggested that the weaker financial party has re-centred their life here for jurisdictional purposes. More often than not it’s because the outcome is likely to be more generous (for them) here.
‘We do often see the financially weak party starting proceedings here before the prospect has even been discussed with their partner, because they want to secure the jurisdiction of the court.’
Such practice, of browsing for the ideal jurisdiction in which to hear a case, is known as ‘forum shopping’ or ‘divorce tourism’.
‘Some people wrongly assume that if you’re not from England or Wales, if you’re not a national and or you are married elsewhere, then this country can’t deal with the divorce. That’s not the case,’ said Ms Nevin.
‘So, in terms of where there might be a race to court to secure the jurisdiction, here we see it a lot where there aren’t divorce proceedings yet, and it benefits one person to have the divorce here, and they can attach themselves (to the country).
‘Absent of there being a legitimate legal challenge, you’re stuck with our far more discretionary court.’
Such a challenge came from businessman Vladimir Potanin – a sanctioned Russian businessman worth some £16billion – who was facing a multibillion-pound challenge from his ex-wife Natalia Potanina in London.
Lawyers for the billionaire took his bid to stop Mrs Potanina’s claim going ahead at a Supreme Court hearing in the capital in October 2023, arguing that Mr Potanin faced ‘prolonged litigation’ in the English courts, which, they noted, are ‘renowned for their generosity’ in divorce cases.
The case had already been heavily litigated in Russia – giving rise to questions over whether an English court ought to be involved at all.
The Supreme Court ruled in Mr Potanin’s favour, concluding that earlier rulings were ‘wrong in law’ and had come amid a ‘dystopian situation’ in the litigation.
Mr Potanin’s lawyers have claimed that the ruling could deter ‘divorce tourism’ in future.
Divorce battles like these, fought in public, can be messy affairs that give the public an unflinching look into the inner workings of a marriage gone wrong – a trump card for the aggrieved, perhaps, and an incentive to wrap things up quickly.
But some couples are now seeking other means of resolving their differences such as arbitration, a direct alternative to court with more flexibility and, crucially, legally-binding decisions that are kept private.
A process such as arbitration may well have been used by former Miss UK Kirsty Roper and her billionaire husband Ernesto Bertarelli in 2021, when they agreed a split after ‘amicable’ discussions.
She walked away with £400million, which included a lump sum and the keys to a £52million home in Switzerland.
Courts are now actively encouraging the use of arbitration and other forms of ‘alternative dispute resolution’, but these require both parties to agree to do so.
Some may prefer to go through court regardless, fighting out the terms of their separation in the public eye after taking months to build up their case.
‘There can be real tangible benefits to individuals for stepping outside of the court process, particularly with something as painful and as personal as a marital breakdown,’ Ms Nevin adds.
‘If privacy is important to those clients, then arbitration is an excellent option and is often quicker than the court process.
‘But for some people the threat of publicity might be beneficial to them, tactically.’
Since White v White, cases have continued to modify and clarify divorce law further – and the latest Supreme Court appeal has given judges another new perspective on how to divide the assets of the rich and not-so-rich alike.
This week, Anna Standish failed in her bid to claim half of banker ex-husband Clive Standish’s £132million fortune.
Ms Standish, described by her ex-husband’s lawyers as having ‘no significant pre-marital wealth’ had been given £25million by the divorce courts, reduced from £45m after Mr Standish appealed.
She had wanted to hold onto a greater share of the £80million she was given to be invested into offshore trusts for their children, taking advantage of her non-dom status and avoiding inheritance tax.
However, she had not established the trusts before the marriage broke down.
Mr Standish had argued that the majority of his assets, including those intended for his children’s trusts, were earned before the marriage and were therefore his – a claim with which the court has agreed.
It undermines the idea that all personal assets are ‘matrimonialised’ following marriage: instead establishing that some, but not all, assets may become shared.
Kate Clark, head of family law at Mishcon de Reya, said the ruling establishes the idea a ‘practical approach’ to matrimonialisation. The word itself did not exist in the English language prior to the Standish case coming to court.
‘If the parties have treated the non-matrimonial asset as a shared resource over a sufficient period of time, it will be treated as matrimonial,’ Ms Clark said.
‘It is hoped that this will help reduce lengthy disputes as to exactly how much each spouse has contributed to assets that have clearly become joint resources over time.
‘That said, the practical effects of the decision will take some working out.’
Lawyers have said the ruling will spark an increase in couples signing pre- and post-nuptial agreements to avoid similarly messy public battles.
While they are largely respected by the courts, pre and post-nups have no legal standing in the UK.
This could change following a recommendation in December from the Law Commission to give them legal recognition – further driving couples to consider drawing them up.
Claire Reid, a partner at Hall Brown Family Law, said today: ‘Wealthier spouses will now be alive to the need to formalise the terms of any transfers of cash or other assets even more clearly to avoid falling into the same complicated situation.
‘That will probably mean ensuring that there are very carefully worded pre- and post-nuptial arrangements put in place to protect them from any future claim of the sort made by Mrs Standish.