11 June 2021
Advocate Adrian Brown, Partner at Collas Crill, discusses how to divorce amicably whether you are a billionaire – or not.
Firstly it was Gwyneth Paltrow and Chris Martin, then it was Brad Pitt and Angelina Jolie and Jeff Bezos and his wife MacKenzie Scott and now Bill Gates and his wife Melinda are to divorce amicably.
After 27 years together, the news came via social media. The message was clear:
"We no longer believe that we can grow together as a couple in the next phase of our lives."
The divorce petition signed by both Bill and Melinda filed in the King County Superior Court in Seattle described their marriage as "irretrievably broken". The petition included a request that the Court approve a pre-existing separation contract dividing all of their assets believed to be worth in excess of $130billion. On separation, Bill transferred shares to Melinda worth £1.4billion and the deal was just about done. What perhaps was less well publicised was that each party hired their own team of lawyers to negotiate the settlement, but the end result was quick, amicable and relatively inexpensive compared to the likely cost of contested divorce proceedings.
So why did the world's richest couple choose to divorce amicably and how do you achieve a fair and amicable settlement at minimal cost, both personally and financially?
The starting point has to be a joint decision to deal with matters amicably. Without that you are nowhere. Of course, whether this is possible depends very much upon the willingness and co-operation of both parties. There can be no doubt that for most people, divorce is a painful process where feelings are often running high. Emotionally, the parties may be in very different places and whilst one party may still be coming to terms with the end of the marriage, the other may well be looking to the future. If this can be overcome, there may be a chance of reaching an amicable settlement in relation to finances and children.
Comprehensive reform of the divorce process is long overdue. As things stand, unless you have been separated for two years and have the consent of the other party then to obtain a divorce you must prove that the breakdown of the marriage is due to the fault of the other party either by way of adultery or unreasonable behaviour. This in itself is not helpful and playing the blame game will almost inevitably drive the parties further apart. There is a common misconception that in dividing assets on divorce the Courts will take into account a party's misconduct. The reality is that the Court will only consider a party's behaviour in very exceptional circumstances. This usually means that there is no advantage in rushing into divorce proceedings which will only increase the level of acrimony to say nothing of the cost.
So against this background, what are the best ways to try and achieve a fair settlement?
- Be realistic. Adopting unrealistic aspirations at the outset is only likely to lead to prolonged litigation which is what no-one wants.
- Not in front of the children. Issues relating to divorce and separation should be dealt with by the adults, not the children. The children need to be kept away from the emotional difficulties you and your spouse may be experiencing. Do not involve the children and do not speak badly about your partner to the children.
- Keep the lines of communication open. Clearly, the more you can discuss matters direct with your spouse the less you will incur by way of legal fees and the more money is available for distribution between the two of you. It really is as simple as that.
- Seek legal advice early. The relationship you have with your divorce lawyer is critically important and you should ensure that your legal advisor is someone you can work with. Your lawyer needs to be knowledgeable, proactive, quick and with an eye to reaching a settlement.
If you are able to navigate your way through all of this then the terms of the settlement can be recorded in a Court Order. This is called a Judicial Separation or to give it its full title a Judicial Separation by Consent. This is the Guernsey equivalent of the Gates' Separation Contract and is unique to Guernsey. Such an Order will record all aspects of your agreement in relation to both finances and the arrangements for your children. A short Court hearing is then listed and both parties attend Court to confirm their agreement. Often both will be legally represented but this is not essential. Once the Order is approved by the Court then you are officially deemed to be legally separated and a divorce will usually follow later. The timescale for this can be anything from weeks to months depending on how quickly the parties want to move.
As a health warning, it should be borne in mind that for various reasons not all cases are suitable to take the Judicial Separation route. However, if you can and as long as the settlement is fair then any divorce lawyer worth their salt should recommend this approach. I am sure Mr & Mrs Gates et al would approve.
Collas Crill can advise on all aspects of divorce. If you require any further information or would like to discuss your situation, please contact Adrian Brown.