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The saying goes that you don’t just marry the individual, you marry the whole family; can the same be said for divorce?24th November 2020 Family Law
Johnny Depp’s libel case, described by the press as a “blockbuster trial”, dominated headlines in July 2020 and reached its conclusion the following November, resulting in a loss for Depp. He had sued NGN over an April 2018 article regarding his relationship with Amber Heard in which the executive editor of The Sun referred to him as a “wife beater”. Depp’s relationship with Heard ended in divorce in 2017 and they each made accusations against the other.
Depp’s ex-partners Vanessa Paradis and Winona Ryder were initially set to give evidence at the trial and the press reported that Depp’s twenty-one year old daughter wished to deliver an impassioned defence of her father on the steps of the High Court, however she was advised against this by his lawyers. Meanwhile, Heard was photographed entering and exiting the High Court every day flanked by an entourage of female supporters including her sister and close friends.
The involvement of Depp and Heard’s loved ones in the trial is a reminder of the role that extended families play in the aftermath of the breakdown of couples’ relationships.
When couples separate, the immediate focus is on the individuals at the epicentre of the separation including the couples’ children, particularly if they are young. However, the impact of relationship breakdown is undoubtedly felt by couples’ wider families and in some cases their reactions to and input in these situations can have a significant bearing on the road ahead, particularly in relation to the resolution of financial and practical issues that may have arisen due to the separation.
How do extended family members feel?
Whilst the answer to this question is often case specific and dependent to an extent on the circumstances of the breakdown of the relationship, there are certainly common themes that are likely to apply to many divorces.
Extended family members may have developed close bonds with their daughter-in law or son-in-law, they may have a strong friendship with them and it’s likely that they will have experienced special life moments alongside them.
In the initial period following separation, many family members will feel sad, disappointed and often helpless. Others may not know how to react. There is likely to be an awareness of the need to balance divided loyalties, particularly if children are involved, and grandparents in particular may be concerned about the impact of the couple’s divorce on their relationship with their grandchildren. Some members of the divorcing couple’s extended families may take sides immediately.
In most cases, the needs of the divorcing couple must be addressed in the first instance with the needs of grandparents and other extended family members taking a backseat, however, divorce can have far reaching consequences for the wider family and relationships and this can result in initial feelings of sadness and disappointment turning into anger, bitterness and resentment. This is particularly the case where family members of the divorcing couple become embroiled in arguments regarding the financial issues arising from the breakdown of the marriage.
Family involvement in financial claims arising on divorce
This can occur where one party to the marriage alleges that the other party is beneficially entitled to assets held in the name of one of their family members. For example, a husband may claim that a property owned in his wife’s parents’ name is in fact held on trust for her. In this scenario, the wife and her family would be likely to dispute this in order to keep what they might see as “their” family assets out of the matrimonial pot.
Similarly, a family member of a party to the marriage may claim that they have an interest in property held by one or both parties to the marriage. An example of this could be where the husband’s sibling may claim to have lent money to him, to fund, say, the purchase of shares in a business. In this scenario, that husband would be likely to support his brother’s claim in order to reduce the assets available to be considered in a financial settlement between him and his wife.
In some cases, it may be necessary for a family member of the divorcing couple to be joined as a third party to financial proceedings between them in order to have their interests represented. This often causes delays in the court process and it can significantly increase the legal costs of all parties involved in the litigation. The inherent risk and expense of litigation is stressful and the impact of this can be to increase animosity and damage already strained relationships between the parties to the marriage and their wider family members.
Inherited and gifted assets
The introduction of wealth to a marriage by way of gifts or inheritance from family members can be a significant factor to be taken into account when determining the appropriate division of assets on divorce. In very many cases, the division of the assets will be determined primarily by the parties’ needs for housing and income. In such a case, the fact that assets have been acquired by gift or inheritance is often of little or no importance in the eyes of the law. However, when both parties needs can be met from the available assets, the fact that assets were gifted or inherited can be highly significant and may lead to a departure from equal sharing.
The party from whose family the gifted or inherited assets originate may seek to isolate these assets and exclude them entirely or in part from the matrimonial pot. Depending on the precise circumstances of the case, the court might accept this approach but it can be difficult to trace what proportion of the couple’s current wealth relates to the gift or inheritance. Alternatively, the court may apply a percentage departure from 50/50 sharing to recognise to the significance of the contribution of the gifted, or inherited wealth.
In many cases, gifted or inherited assets may have been so mingled with other assets that the fact of a gift or inheritance will make very little impact on the final outcome, especially where the assets were received a long time before separation.
Gifted or inherited assets can prove to be a particularly emotive factor in financial proceedings on divorce that puts strain on the extended family of the divorcing couple. This is particularly the case if commitments have been made within family units for gifted or inherited assets to be preserved for future generations.
Practical and emotional support
Whilst the involvement of wider family members in financial issues arising from marital breakdown can have a lasting, detrimental effect on family relationships, recognition must be given to the invaluable practical, emotional and economic support that they may provide to one or both parties to the divorce in the short or long term.
The first meeting with the solicitor can be a daunting and upsetting inevitability for many people experiencing relationship breakdown. In many cases it is the parents or a sibling that will accompany their family member to the first meeting in order to assist them emotionally and practically to navigate the road ahead.
Similarly, it is these individuals that may provide childcare to enable their family member to attend long court hearings or to take time out to look after themselves during what is often a very stressful period.
It is important that divorcing couples recognise that their children will benefit from having loving, equal relationships with their grandparents, aunts, uncles and cousins on both sides of the family and it is their responsibility to encourage and maintain these relationships insofar as they possibly can.
It is common for there to be a financial imbalance between the parties to a divorce. One party may have a successful career whilst the other party may have assumed the role of homemaker during the marriage. Following separation, the financially weaker party may have limited access to the resources they require to obtain legal advice or to meet their outgoings. It is common for these individuals to look to their family members to provide them with financial support until a financial settlement has been reached. This may involve a contribution to household outgoings or, subject to affordability, it may be that members of the individual’s wider family agree to fund their legal fees on the basis that they will be repaid as part of the financial settlement.
Methods to preserve family relationships upon divorce
A significant amount of the acrimony that may be experienced by divorcing couples and their extended family members is caused by the potential impact of one party’s financial claims arising from the marriage on wider family resources and the uncertainty this brings.
There are various steps that can be taken in contemplation of marriage, or once marriage has taken place, which may alleviate some of that uncertainty in the event of separation or divorce:
- Pre or Post Nuptial Agreement; these documents can record arrangements as to how family wealth that has been gifted and/or inherited is to be dealt with in the event of a divorce. If drafted appropriately, they can provide greater certainty for parties to a marriage and their wider families, and assist with maintenance of relationships amongst extended family members upon divorce.
- Declaration of Trust; this document can record financial contributions made by a family member towards assets owned by one or both parties to a marriage, to help protect their contribution in the event of divorce. This can reduce the likelihood that the family member will need to intervene in financial proceedings between the divorcing couple if the legal position is clear from the start.
Bringing it all together
Divorce truly is a family affair. This can be a positive thing when a divorcing couple’s wider family offers stability and emotional and practical support in times of turmoil. With good legal advice, a certain amount of “future-proofing” is possible where extended family members are considering lending money to each other, or gifting assets by will or during their lifetime. However, it can become very messy where existing family tensions bubble to the surface at the point of separation, particularly where there is money involved.
Managing family conflict at the time of divorce can be challenging. JMW frequently advises individuals from families of all shapes and sizes about divorce, succession planning and wealth preservation, including the formation of pre- and post-nuptial agreements. Get in touch with our team today for an initial consultation by calling us on 0800 652 5577, or by completing our online enquiry form so we can call back at a time that is convenient for you.