By Jennifer Macdonald
An English High Court judge has ordered Belgian property tycoon, Didier Thiry, to pay to his wife Alisa approximately £17 million in a controversial and bitterly contested divorce settlement. Whilst awards of this nature may seem rather far removed from the average couple going through a divorce, the case has in fact raised a number of important issues which are relevant to individuals whatever their means.
Mr and Mrs Thiry entered into a prenuptial agreement prior to their marriage, which sought to ensure that, in the event of divorce, they would be left in the same position they were in when they married. Mrs Thiry had brought to the marriage a rather substantial fortune of her own, having been the former wife of Stephen Marks, founder of French Connection.
The position in Scotland and England in relation to prenuptial agreements differs quite considerably. In Scotland, it is generally accepted that prenuptial agreements are 'legally enforceable' and binding on a person, provided the terms are fair and reasonable at the time they are entered into. The position in England, however, is much less certain. Whilst there are current proposals to make prenuptial agreements legally binding in England and Wales, this has not yet been enacted.
Whilst prenuptial agreements are often considered to be the preserve of the rich and famous, they are in fact very useful for any individuals who might want to protect business assets, property or other savings, regardless of their wealth.
Incidentally, under Scots Law, property which was given to, or inherited by one party (or owned by them) prior to the marriage, is ordinarily excluded from the definition of 'matrimonial property'. However, this is subject to a number of caveats, and where parties wish to protect assets which were brought into a marriage, a prenuptial agreement is always advisable.
Interestingly, it has been suggested that the behaviour of Mr Thiry contributed to the substantial award made against him. The judge described it as"restorative justice", labelling Mr Thiry as manipulative, sadistic, and unprincipled in his behaviour. A prison sentence had previously been imposed upon Mr Thiry for contempt of court after he failed to disclose relevant information. In a bid to evade prison, he has subsequently refused to return to the UK.
In Scotland, the concept of 'no-fault' divorce is fundamental to the application of family law, and awards are not affected by a party's behaviour either during the course of the marriage or following a relationship breakdown. Nevertheless, the law does provide that the conduct of a party may be relevant where it has either adversely affected the parties' financial resources, or where it would be manifestly inequitable to leave the conduct out of account. Scottish courts do also have the power to impose prison sentences and other punitive judgements in the event that one party refuses to comply with a court order.
Perhaps in a bid to further restore the scales of justice, the judge has also ordered Mr Thiry to meet his wife's legal bills, totalling around £500,000. Expenses add a further layer of complexity to divorce proceedings, and specialist advice should always be sought.
If you would like any more information about any of the issues discussed in this post, including prenuptial agreements, financial provision on divorce, or the treatment of previously acquired property, please contact a member of the Family Law Team, who can advise on all aspects of family law.