James Thornton, Author at James Thornton Family Law

10 August 2026

Prenuptial Agreements: Do They Really Decide What Happens on Divorce?

Prenuptial agreements are becoming increasingly common.

Once regarded as something associated mainly with celebrities and the very wealthy, they are now increasingly seen as a sensible way for couples to discuss their financial arrangements before getting married.

But an important question remains:

If we sign a prenup, does it mean the court will simply enforce it if we divorce?

A recent High Court decision, IC v AD [2026] EWFC 224, provides a useful reminder that the answer is: not quite.

A £26.6 Million Marriage

The case involved assets worth approximately £26.6 million. The parties had entered into a prenuptial agreement which provided that the wife would receive assets worth approximately £2.8 million on divorce.

The agreement was upheld and played a very significant role in determining the outcome. But the wife ultimately received approximately £3.13 million.

Why?

Because the court concluded that the terms of the prenup did not quite meet her needs. That difference is important. The prenup was not ignored. Far from it. It was treated as the starting point and governing framework. But it did not prevent the court from making an additional award where necessary to meet the wife's needs.

Prenups Are Not "Iron-Clad"

The Supreme Court's decision in Radmacher v Granatino remains the starting point.

A properly negotiated prenuptial agreement will generally be given substantial weight where it was freely entered into, with both parties understanding its implications, and where it would be fair to hold the parties to it.

But a prenup does not remove the court's statutory discretion. The court remains required to consider the factors in section 25 of the Matrimonial Causes Act 1973, including the parties' needs, resources, standard of living, contributions and the welfare of any children.

That is particularly important where the agreement leaves one spouse without sufficient resources to meet their reasonable needs.

Needs Can Still Override the Numbers

In IC v AD, the court effectively adopted the prenup's intended financial framework but then carried out a separate needs assessment.

The wife was assessed as having reasonable spending needs of approximately £13,000 per month, with a separate provision for the children. The judge capitalised her future spousal income requirement at £1 million.

That additional provision resulted in a final award of approximately £3.13 million.

Importantly, the judge did not treat this as an invitation to redistribute the husband's wealth generally. The wife did not acquire a share of his other assets, including his future partnership interests. The remainder of the financial arrangements reflected the prenup and resulted in a clean break.

This is perhaps the most useful way to understand prenups: They can substantially limit a future financial claim, but they cannot necessarily eliminate the court's obligation to address needs.

Why Are Prenups Becoming More Popular?

There are good reasons for the growing interest in prenuptial agreements:

Protecting pre-marital wealth

Someone entering a marriage with substantial savings, a business, inherited wealth or property may want greater certainty about what happens if the marriage ends.

Protecting family wealth

Parents may be particularly keen to ensure that family wealth intended to pass from one generation to the next is not unnecessarily exposed to future financial claims.

Second marriages

People marrying later in life may have accumulated significant assets, pensions and business interests and may also have children from previous relationships. A prenup can help clarify expectations and reduce uncertainty.

Certainty

Perhaps the greatest attraction is simply knowing what the starting position will be if the marriage breaks down. Divorce is stressful enough without having to litigate every financial issue from scratch.

But There Are Downsides

Prenuptial agreements are not a magic wand. A poorly drafted agreement can create uncertainty rather than remove it. There is also a danger of focusing too heavily on protecting assets at the expense of what happens to the financially weaker spouse if circumstances change.

People have children.

Careers change.

Businesses fail or flourish.

Illness can occur.

A couple who were financially independent when they married may have a very different financial relationship ten or twenty years later.

A sensible prenup should therefore anticipate change rather than simply attempt to freeze the parties' financial positions on the wedding day.

Fairness Still Matters

One of the important themes running through the modern law is autonomy. Adults should generally be entitled to decide how they wish to organise their financial affairs. That is why the courts increasingly respect properly entered-into prenuptial agreements. But autonomy is not absolute.

The court ultimately retains a responsibility to achieve a fair outcome, particularly where children or genuine financial needs are involved. IC v AD demonstrates that balance perfectly: the court respected the parties' agreement, but did not allow it to prevent a proper assessment of the wife's needs.

So, Should You Have a Prenup?

There is no universal answer.

For someone entering a marriage with substantial pre-marital wealth, a business, inherited assets or children from a previous relationship, a prenup may provide valuable protection and certainty. For others, it may add unnecessary complexity.

The important point is that a prenup should not simply be something presented to a future spouse shortly before the wedding with a request to "sign here".

The circumstances in which it is negotiated matter enormously. Both parties should have the opportunity to obtain independent legal advice, understand the agreement and enter into it voluntarily.

It should also be reviewed if circumstances change significantly.

The Bigger Picture

The law has moved a long way from the days when prenuptial agreements were regarded as having little or no legal significance in England and Wales. Following Radmacher and subsequent authorities, a carefully prepared agreement can carry considerable weight. But IC v AD provides a useful reality check.

A prenup can shape the outcome. It can protect wealth. It can limit a sharing claim. It can provide valuable certainty. But it cannot necessarily contract out of the court's responsibility to meet genuine needs.

That is perhaps the best reason for obtaining specialist advice before signing one. A good prenup is not about trying to predict the future. It is about making sensible financial arrangements today while recognising that life—and marriages—can change.

Published by James Thornton in Blog

Tags: case law, prenup, prenuptial agreements, radmacher

7 August 2026

Rich on Paper, Poor in Practice? How Courts Divide Businesses and Other Illiquid Assets

When people think about divorce, they often focus on one question: "How much is everything worth?"

But experienced family lawyers know there is another question which can be just as important: "Can those assets actually be turned into cash?"

A recent Court of Appeal decision, Culligan v Rosemin-Culligan [2026] EWCA Civ 948, is a fascinating reminder that £10 million in shares is not the same as £10 million in the bank.

Not All Millions Are Equal

The case involved a very substantial family fortune of around £27 million. However, almost half of the wealth consisted of shares in a private technology company.

Although those shares had been professionally valued at many millions of pounds, they could not simply be sold tomorrow. There was no public market, no guaranteed buyer, no dividend income and no certainty as to when—or even whether—their value would ultimately be realised.

The Court of Appeal described these as illiquid and risk-laden assets.

That distinction became central to the appeal.

Paper Wealth Isn't Spending Money

Many people assume that if an expert values a business or private company at several million pounds, that money is effectively sitting in the owner's bank account.

In reality, the position can be very different.

Private company shares may:

be impossible to sell;
be subject to shareholder restrictions;
produce no income;
depend entirely on future commercial success; or
never achieve the estimated valuation.

The owner may therefore appear extremely wealthy while having very little accessible cash.

The court must balance that commercial reality with the need to achieve fairness on divorce.

Sharing the Risk, Not Just the Reward

The appeal centred on an important principle derived from the well-known case of Wells v Wells [2002] EWCA Civ 476.

The trial judge had sought to protect the wife by allocating her a larger proportion of the liquid assets while leaving the husband holding most of the risky company shares.

The Court of Appeal disagreed.

It emphasised that fairness generally means sharing both the opportunities and the risks of matrimonial assets. If one spouse receives most of the cash while the other is left holding uncertain investments, the outcome may not be truly equal at all.
As Thorpe LJ memorably observed in Wells, fairness is achieved by sharing both the "copper-bottomed" assets and the "illiquid and risk-laden" ones.

A Valuable Reminder About Business Owners

The case is particularly relevant for entrepreneurs. Many business owners worry that divorce will force the immediate sale of their company.

In reality, family courts are often keen to avoid destroying a successful business simply to achieve a clean break. Instead, judges look for practical solutions that preserve value while ensuring fairness between the parties.

That may involve:

transferring shares;
deferred lump sums;
contingent payments; or
carefully balancing liquid and illiquid assets.

Every case turns on its own facts.

The Court Also Corrected an Important Misunderstanding

Another interesting feature of the judgment concerns the husband's business. The trial judge had concluded that the husband had converted a valuable matrimonial asset into something riskier by exchanging shares in one company for shares in another.

The Court of Appeal rejected that analysis.

On the evidence, the original company was itself already an illiquid private business facing significant financial difficulties. The transaction had not transformed a secure asset into a risky one. If anything, it had improved the prospects of creating value by saving the business and exchanging one illiquid investment for another with greater commercial potential.

It is a useful reminder that judges must look carefully at the commercial evidence rather than simply assume that a business restructuring has disadvantaged one party.

Fairness Doesn't Mean Cash for One and Risk for the Other

Perhaps the most important lesson from Culligan is that fairness is about more than simply ensuring each spouse receives assets with the same headline value.

The quality of those assets also matters.

Cash in the bank.
A listed investment portfolio.
A private company.
A start-up business.
Commercial property.

Each carries different levels of liquidity and different degrees of risk.

The family court's task is to ensure that one spouse does not walk away with secure, easily realised assets while the other is left holding all the uncertainty.

Final Thoughts

Modern family wealth is becoming increasingly complex. Many families now hold significant assets in businesses, private companies, technology ventures, investment portfolios and digital assets rather than simply in bricks and mortar.

Culligan v Rosemin-Culligan reminds us that valuation is only part of the picture. A fair financial settlement requires the court to look beyond headline figures and consider how easily assets can be realised, what risks they carry and whether those risks are being shared fairly.

If your financial circumstances involve a business, company shares or other illiquid investments, specialist legal advice is essential. Cases involving these assets often require expert valuation evidence and careful planning to achieve a fair outcome without unnecessarily damaging the underlying business or investment.

Published by James Thornton in Blog

Tags: business assets, case law, copper bottomed, entrepreneurs, illiquidity, wells sharing

6 August 2026

Is an Inheritance Safe on Divorce?

One of the most common questions I am asked by clients is:

"My spouse has inherited money. Does that mean I'm entitled to half?"

Or, from the other perspective:

"I've just inherited from my parents. Surely that's mine?"

A recent decision in P v P (Inheritance at the End of a Long Marriage) [2026] EWFC 209 (B) demonstrates why the answer is rarely black and white.

The case is particularly interesting because the inheritance arrived right at the end of a long marriage, creating a difficult balancing exercise between protecting inherited wealth and meeting the financial needs of both spouses.

The Facts

The parties had been together for over 25 years.

Towards the end of the marriage, the husband inherited property worth approximately £310,000. It was accepted that this inheritance had not contributed to the family's standard of living because it had been received only after the parties had effectively separated.

Ordinarily, that would point strongly towards the inheritance being treated as non-matrimonial property.

But that was not the end of the story.

Inheritance Is Not Automatically Ringfenced

Many people assume inherited assets are always protected on divorce.

They are not.

The family courts distinguish between sharing and needs.

Where an inheritance has remained separate from the marriage, the court may decide it should not be shared equally. However, if the other spouse's reasonable housing or income needs cannot otherwise be met, the court can still make use of inherited assets.

That is exactly what happened here.

Although the inheritance retained its non-matrimonial character, the husband's inherited wealth was nevertheless partly "invaded" to meet the wife's housing needs. The wife was awarded £240,000, while the husband retained the balance of his inherited assets.

The case is an excellent reminder that non-matrimonial does not necessarily mean untouchable.

Timing Really Does Matter

One of the most significant features of the judgment is the emphasis placed on when the inheritance was received.

Deputy District Judge David Hodson observed that the inheritance arrived very late in the relationship and had not shaped the family's lifestyle during the marriage. That was an important factor in preserving its non-matrimonial status.

Had the inheritance been received years earlier and used to renovate the family home, support family spending or purchase joint assets, the outcome may have been very different.

Following the Supreme Court's decision in Standish v Standish, the courts increasingly focus on how an asset has been treated during the marriage, not simply where it originated.

Needs Still Come First

Although inheritance often dominates media headlines, this case reminds us that needs remain central to financial remedy cases.

The judge carefully assessed the parties' future housing requirements, mortgage capacity and earning potential. The husband's significant health problems also played a major role in the outcome, reducing his future earning capacity and influencing the court's overall exercise of discretion.

In other words, the court was not deciding whether the wife "deserved" part of the inheritance.

It was deciding what level of financial provision was fair in light of both parties' future needs.

A Practical Warning About Settlement Offers

The judgment also contains a valuable lesson about litigation strategy.

The wife pursued an open offer seeking virtually all of the non-pension matrimonial assets for much of the proceedings. The judge concluded that this unrealistic position had been a significant driver of the litigation and ultimately refused her application for costs. Instead, she was ordered to reimburse the husband for half the cost of an updated pension report after refusing to contribute to it.

It is a timely reminder that sensible negotiation is not a sign of weakness. Unrealistic positions can increase costs, prolong disputes and ultimately damage a party's credibility.

A Growing Issue for Modern Families

Perhaps the most thought-provoking part of the judgment appears at the very end.

Judge Hodson observed that he had encountered another remarkably similar case only weeks later (since delivery of his judgement and before its reporting) and suggested that disputes involving late-arriving inheritances are likely to become increasingly common. As people divorce later in life, many will do so just as their parents' estates begin to pass to the next generation.

It is an insightful observation.

With people living longer, marrying later and inheriting later, family courts are likely to see more cases where inherited wealth arrives shortly before—or even during—divorce proceedings.

Final Thoughts

There is no universal rule that inheritances are always protected, nor that they are always shared.

Every case turns on its own facts.

The court will consider when the inheritance was received, whether it became part of the family's shared resources, the length of the marriage and, above all, whether one party's reasonable needs require some use of that inherited wealth.

If you are divorcing and either you or your spouse has received an inheritance, obtaining specialist legal advice at an early stage is essential. As P v P demonstrates, timing, evidence and careful legal analysis can make a substantial difference to the outcome.

Published by James Thornton in Blog

Tags: case law, inherited wealth, non matrimonial assets, standish

2 July 2026

When Does “Mine” Become “Ours”? Matrimonialisation After Standish

One of the hottest topics in family law over the past year has been the concept of matrimonialisation. It sounds technical, but the principle is surprisingly simple.

If one spouse brings valuable assets into a marriage, do those assets always remain theirs? Or can they, over time, become part of the matrimonial pot to be shared equally on divorce?

A recent decision of Recorder Christopher Stirling in BC v BC (No. 2) [2026] EWFC 37 provides one of the clearest examples yet of how the courts are applying the Supreme Court's landmark decision in Standish v Standish.

The answer, perhaps unsurprisingly, is that it depends on what the parties did with the asset during the marriage.

What Is Matrimonialisation?

Not every asset owned by a husband or wife is automatically shared equally on divorce.

Generally speaking:

matrimonial assets—those built up during the relationship through the parties' joint endeavours—are normally shared equally; and
non-matrimonial assets, such as wealth acquired before the relationship, by inheritance or by gift, may justify a different approach.

The difficult question is what happens when an asset starts life as non-matrimonial but is used extensively for the benefit of the family.

That is where matrimonialisation comes in.

The Shares That Changed Character

In BC v BC, the husband owned valuable company shares before the parties' relationship reached the stage of cohabitation akin to marriage. They were therefore clearly non-matrimonial property at the outset.

Years later, however, the position looked very different.

Rather than keeping those shares separate, the husband borrowed millions of pounds against them. Those funds were paid into the parties' joint bank account and used to acquire and renovate family properties, fund their lifestyle and meet joint expenditure.

The judge concluded that, by this stage, the original non-matrimonial character of the shares had been lost. The shares had become, in his words, "well and truly matrimonialised."

What Does Standish Mean in Practice?

The Supreme Court in Standish explained that matrimonialisation depends on how the parties have treated an asset over time.

It is not simply a question of who originally owned it. Recorder Stirling adopted that approach, observing that matrimonialisation rests on the parties treating the asset as a shared resource. Here, the value generated by the husband's shares had been used to purchase jointly owned property and finance the family's life together.

That made all the difference.

No Halfway House

Perhaps the most interesting part of the judgment comes next.

The husband accepted that the shares had, to some extent, become matrimonial. However, he argued that their original source should still justify him receiving a slightly larger share—around 55% rather than an equal division.

The judge rejected that submission. He held that once an asset has become matrimonialised, there is generally no room for a hybrid approach. Either the asset remains non-matrimonial, or it has become matrimonial and falls to be shared under the ordinary sharing principle. There was no principled basis for awarding the husband an extra five per cent simply because the shares had originally belonged to him.

For practitioners, that may prove to be one of the most significant aspects of the decision.

It's Not Just About Ownership

The case is a reminder that family courts look beyond legal title. What matters is how assets have been treated throughout the relationship. An inheritance invested in the family home. Business wealth used to buy jointly owned properties. Savings placed into joint accounts.

These are all examples of circumstances in which originally non-matrimonial property may gradually lose its separate identity.

Other Interesting Features

The judgment also contains several practical points.

First, the court carefully analysed when cohabitation akin to marriage actually began, rejecting the argument that simply spending increasing amounts of time together was enough. Instead, the judge looked for objective markers such as purchasing a home together, opening joint bank accounts and becoming financially interdependent.

Secondly, despite the family's very substantial wealth, the court adopted a pragmatic approach to liquidity. Rather than allowing valuable overseas properties to be retained, it ordered their sale to ensure a significant anticipated HMRC liability could be met and to avoid future litigation over payment of the tax debt.

Finally, the judge favoured transferring company shares directly to the wife, protected by conventional "drag and tag" provisions, rather than leaving the parties financially tied together through a complex web of deferred payments, undertakings and continuing obligations. The court preferred a clean, workable solution over one likely to generate further disputes.

What Does This Mean for Couples?

For anyone entering a marriage with existing wealth, BC v BC contains an important lesson. Simply owning an asset before the relationship does not guarantee that it will remain separate forever. If it is repeatedly used as a family resource, invested into joint property or relied upon to support the marital partnership, the court may conclude that it has become matrimonial property capable of equal sharing.

That does not mean every pre-marital asset will automatically be divided equally. Far from it. But after Standish and now BC v BC, the focus is increasingly on how the parties have treated the asset during the relationship, rather than simply where it came from.

Final Thoughts

The law on matrimonialisation is becoming clearer. Standish provided the framework. BC v BC demonstrates how that framework works in practice.

For separating couples, the message is straightforward: the history of an asset is important, but so too is its journey. An asset that begins life as "mine" can, over the course of a long marriage, become "ours".

Understanding where that line is drawn can make a difference worth millions of pounds.

Published by James Thornton in Blog

Tags: case law, matrimonial assets, matrimonialisation, non matrimonial assets, standish

1 July 2026

Conduct in Divorce: Why Serious Allegations Still Rarely Change the Outcome

One of the questions I am asked most frequently is "Surely the judge will take their behaviour into account?"

For many people, it feels instinctively unfair that a spouse who has behaved badly should receive the same financial outcome as someone who has acted honestly and responsibly. The reality is rather different.

A recent decision in WK v HN [2026] EWFC 169 (B) provides an excellent illustration of where the law on conduct currently stands—and why conduct arguments continue to face a very high hurdle.

The Allegations

The case involved a lengthy list of allegations against the husband. The wife argued that he had:

dissipated business assets;
diverted company money;
made improper payments;
manipulated company accounts; and
reduced the value of the matrimonial assets.

The allegations were substantial and required a five-day hearing to determine them. Yet, after hearing all of the evidence, the court rejected the central conduct allegations. The assets were ultimately divided on an equal basis.

Suspicion Is Not Enough

One of the striking features of the judgment is the distinction the court drew between suspicion and proof. There were undoubtedly unusual transactions. Money had moved between companies. Large sums had been spent. Invoices appeared inconsistent. Third parties had played significant roles. The judge accepted that aspects of the evidence raised legitimate questions. However, questions are not the same as proof.

For example, although invoices appeared different and some transactions looked unusual, the evidence ultimately pointed towards a trusted third party rather than deliberate misconduct by the husband. Likewise, what appeared at first sight to be questionable transfers between businesses were accepted as properly accounted-for intercompany loans. The husband may, in the judge's words, have been naïve in placing too much trust in others, but naïveté is not the same as dishonesty.

Conduct Is More Than Bad Behaviour

The decision reflects the increasingly settled approach adopted by the Family Court over recent years. Judges have repeatedly emphasised that conduct arguments are exceptional.

As Peel J explained in Tsvetkov v Khayrova, a party alleging conduct must establish three things:

the facts relied upon;
that those facts meet the exceptionally high statutory threshold; and
an identifiable financial consequence caused by that conduct.

The Court of Appeal reinforced in Goddard-Watts v Goddard-Watts that financial remedy proceedings are not designed to punish bad behaviour. Except in unusual cases, litigation misconduct is addressed through costs orders, while financial conduct generally requires a measurable financial impact before it will affect the substantive award.

More recently, Cusworth J in LP v MP drew together these authorities, together with Mostyn J's analysis in OG v AG, emphasising that conduct falls into different categories—personal misconduct, economic misconduct, add-back, litigation conduct and adverse inferences—and that it is important not to blur them. Each has its own legal consequences and not every allegation will affect the financial outcome.

Taken together, these authorities show that the courts remain firmly focused on fairness rather than punishment.

Not Every Poor Business Decision Is Misconduct

Another useful lesson from WK v HN is that business mistakes are not automatically conduct. The husband had delegated significant responsibility for one of the pharmacies to a trusted friend. With hindsight, the arrangement proved problematic.

The judge described the husband as having been naïve in allowing his friend so much autonomy. However, poor management, misplaced trust or commercial misjudgment are not necessarily evidence of wanton and reckless dissipation.

This distinction is important, particularly where family businesses are involved. Divorce judges are not there to second-guess every commercial decision made during a marriage.

The Cost of Conduct Allegations

The judgment also raises a practical question. Conduct cases are expensive. Here, the court devoted five days to hearing allegations which ultimately failed. Clients considering conduct allegations should therefore ask not only "Can I prove it?" but also "Will proving it actually change the financial outcome?" Increasingly, those are two very different questions.

Final Thoughts

The law on conduct has become much clearer over the past few years. While the courts remain willing to take truly exceptional conduct into account, the threshold remains deliberately high.

WK v HN reinforces an important message. Suspicion, poor business decisions or even unusual financial transactions will not, without more, justify a departure from the ordinary principles governing financial remedy cases.

For anyone considering raising conduct allegations, careful legal advice at an early stage is essential. The strongest cases are those supported by clear evidence, a demonstrable financial consequence and a realistic assessment of whether the allegations are likely to affect the ultimate award.

As this case demonstrates, conduct may be one of the most talked-about aspects of financial remedy law—but it remains one of the hardest to prove successfully.

Published by James Thornton in Blog

Tags: case law, conduct, financial misconduct, litigation conduct

22 June 2026

Divorce Costs Out of Control? A Judge’s Warning on Legal Fees in Financial Remedy Cases

One of the most common questions family lawyers are asked is: "How much is this divorce going to cost?"

A recent High Court decision, AB v CD [2026] EWHC 1504 (Fam), shows just how quickly legal costs can escalate in high-conflict financial remedy proceedings—and why courts are increasingly concerned about proportionality.

The case involved applications for Maintenance Pending Suit (interim maintenance) and a Legal Services Payment Order (LSPO), which is an order requiring one spouse to fund the other's legal representation.

The wife argued that she could not reasonably fund the litigation herself and sought substantial financial assistance from the husband.

The court agreed that funding was necessary. However, what makes this case particularly interesting is not the fact that an LSPO was granted. Rather, it is the judge's concern about the extraordinary level of costs already being incurred at a very early stage of the proceedings.

Costs Rising Before the Case Has Properly Begun

By the time of the first hearing, the wife's costs across the financial remedy and children proceedings had already reached approximately £175,000. Even more strikingly, the total funding sought to take the case only to the First Appointment was said to be approximately £367,000.

The judge described these figures as "extraordinary".

For many separating couples, such sums are almost unimaginable. Yet the case serves as a reminder of how quickly costs can accumulate when proceedings become contested, particularly where there are disputes about income, disclosure, children, or the availability of resources.

What Is a Legal Services Payment Order?

An LSPO exists to ensure that one party is not unfairly disadvantaged in litigation because they lack access to funds. The purpose is not to punish the wealthier spouse. Nor is it intended to provide an unlimited litigation budget. Instead, the court seeks to create a level playing field so that both parties can participate effectively and obtain appropriate legal advice.

In this case, the wife sought significantly more funding than the court ultimately awarded. While the judge accepted that she required assistance, he was also concerned to ensure that any order remained reasonable and affordable.

The final award was £160,000—substantial by any measure, but less than half the amount sought.

A Reminder That Costs Matter

One of the most important messages from the judgment is that the court expects legal costs to remain proportionate. Family proceedings are often emotionally charged. It can be tempting for parties to pursue every issue, challenge every point, and leave no stone unturned. But litigation comes at a price. Every pound spent on legal fees is a pound that may ultimately no longer be available to either party or their children. Judges are increasingly alive to that reality.

Read the Small Print

The case also highlights a practical point that many clients overlook. Where legal fees are deferred or paid on credit, it is important to understand the terms on which that funding is provided. Some retainers may allow interest to accrue on unpaid bills, potentially increasing the overall cost significantly if litigation becomes protracted.

Before entering into any funding arrangement, clients should ensure they understand:

how fees will be charged;
when bills become payable;
whether interest applies to outstanding balances; and
what happens if the case takes longer than expected.

Good legal advice includes understanding not only your rights and obligations in the litigation, but also the financial implications of pursuing it.

The Importance of Early Resolution

Perhaps the most striking aspect of the judgment is the judge's observation that more realistic positions from both sides at an early stage might have avoided some of the costs being incurred. That is a lesson which applies far beyond this particular case.

While some disputes inevitably require court intervention, many can be narrowed—or even resolved—through sensible negotiation, mediation, arbitration, or other forms of non-court dispute resolution. The earlier that happens, the greater the prospect of preserving resources for the future rather than spending them on litigation.

Final Thoughts

AB v CD is a reminder that family litigation is not simply about who wins and who loses. It is also about how the process is managed and what it costs. Legal Services Payment Orders remain an important tool for ensuring fairness where there is an imbalance of resources. But this case demonstrates that the court will carefully scrutinise the level of funding sought and will expect parties and their advisers to keep costs under control.

For anyone embarking on financial remedy proceedings, the message is simple: Seek advice early, keep a close eye on costs, and remember that the most successful outcome is often the one that preserves as much of the family's resources as possible.

Published by James Thornton in Blog

Tags: case law, costs, legal services payment order, lspo, mps

19 June 2026

Pay First, Argue Later? Understanding Hadkinson Orders in Family Law

Most people assume that if they are involved in court proceedings, they have an automatic right to be heard. In almost every case, they would be right.

However, there is a rare and powerful exception known as a Hadkinson order. A recent decision of Mr Justice McKendrick in Re A and Z (No. 3) (Enforcement and Publication) [2026] EWFC 146 shows just how serious the consequences can be when a party repeatedly ignores court orders.

The case involved applications to enforce unpaid maintenance pending suit and legal services payment orders. In simple terms, one party had obtained court orders requiring the other to make payments, but those orders had not been complied with.

The court's response was striking. A Hadkinson order was made preventing the defaulting party from continuing to participate in the proceedings until the arrears were addressed.

For many readers, the obvious question is: Can a court really stop someone from arguing their case because they have not obeyed an earlier order?

The answer is yes—but only in exceptional circumstances.

What Is a Hadkinson Order?

The name comes from the Court of Appeal case Hadkinson v Hadkinson decided in 1952.

The principle is that a person who is in deliberate breach of a court order may, in some circumstances, be prevented from taking further steps in the litigation until they have complied. It is sometimes described as the legal equivalent of "If you want the court's assistance, you must first respect the court's authority."

That does not mean every breach will result in a party being silenced. Family courts are generally reluctant to prevent someone from participating in proceedings. After all, access to justice is a fundamental principle. But where a party is deliberately refusing to comply with orders while simultaneously seeking to use the court process for their own benefit, the court may intervene.

Why Are Hadkinson Orders So Rare?

The courts have repeatedly stressed that these orders are a remedy of last resort. Before making one, a judge will typically consider:

Whether there has been a clear breach of an existing order.
Whether the breach is deliberate.
Whether the breach is continuing.
Whether the non-compliance is affecting the fair administration of justice.
Whether a less severe sanction would be sufficient.

The court must also consider whether preventing participation would be proportionate and fair. In other words, this is not a punishment. It is a tool designed to protect the integrity of the legal process.

Maintenance Orders Are Not Suggestions

One of the important messages emerging from this case is that maintenance orders and legal services payment orders are not optional. Parties sometimes assume that if they disagree with an order, or intend to appeal it, they can simply ignore it in the meantime.

That is a dangerous assumption.

The proper course is usually to apply to vary, suspend or appeal the order. Simply refusing to comply can lead to enforcement action, costs consequences, and in extreme cases, restrictions on participation in ongoing proceedings.

A Wider Lesson About Litigation Conduct

The case also highlights a broader theme that appears increasingly in modern family litigation: judicial frustration with persistent non-compliance.

Family proceedings depend upon parties obeying orders relating to:

disclosure,
maintenance,
legal costs,
property transfers, and
child arrangements.

The system only works if court orders are respected. While family judges are often patient and pragmatic, there comes a point where repeated breaches may trigger more serious consequences.

What Should Clients Take Away From This?

There are three practical lessons.

First, if a court makes an order against you, take legal advice immediately. Ignoring it is rarely a good strategy.

Second, if compliance is genuinely impossible, tell the court promptly and seek appropriate relief. Courts are generally far more sympathetic to those who engage than those who simply refuse.

Third, if the other party is persistently ignoring court orders, enforcement options may be available. The court's powers are often broader than many people realise.

Final Thoughts

Hadkinson orders remain rare. Most family litigants will never encounter one. But Re A and Z (No. 3) is a powerful reminder that court orders are not merely recommendations. They are binding obligations.

The family courts strive to ensure that everyone has a fair opportunity to be heard. Equally, they expect parties to respect the authority of the court. In exceptional cases, those two principles collide. When they do, a Hadkinson order may provide the answer.

The message is simple : If you want the court to hear your arguments, make sure you have first complied with its orders.

Published by James Thornton in Blog

Tags: case law, enforcement, hadkinson, hadkinson orders

3 June 2026

The Right to Be Heard: Fairness in Family Proceedings

Family court proceedings are often emotionally charged, financially significant, and life-changing. Most people understand that they may not always get the outcome they want. What they do expect, however, is a fair opportunity to present their case.

A recent High Court decision, P v M [2026] EWHC 1330 (Fam), is a timely reminder that the right to a fair hearing remains one of the cornerstones of the family justice system.

Fairness Matters as Much as the Outcome

The case concerned an appeal against a financial remedy decision involving spousal and child maintenance. The wife argued that the original hearing had been unfair, particularly in relation to the way evidence about the husband's income and earning capacity had been explored.

The appeal succeeded.

What makes the case particularly interesting is that the High Court's focus was not simply on whether the original judge reached the correct conclusion. Instead, the court examined whether the process itself had been fair.

That distinction is important. The justice system is not merely concerned with arriving at an answer. It must also ensure that both parties have a proper opportunity to present evidence, challenge the other side's case, and be heard.

Can a Judge Intervene Too Much?

Family judges are expected to manage cases actively. They are not passive observers. Effective case management helps keep proceedings focused, proportionate and efficient.

However, there is a balance to be struck.

In P v M, the High Court concluded that excessive judicial intervention had, in effect, prevented key issues from being properly explored. The result was that important questions concerning the husband's financial position were not adequately tested.

For practitioners, this serves as a reminder that robust case management must never come at the expense of procedural fairness.

The Importance of Cross-Examination

Another notable feature of the judgment was its discussion of cross-examination.

The court criticised findings that had been made against the wife on matters that had not been properly put to her during questioning. This reflects a long-established legal principle: if a party's evidence is challenged, they should generally be given an opportunity to answer that challenge.

In practical terms, this means that parties should not be taken by surprise by adverse findings on issues that were never properly explored during the hearing.

For clients, it reinforces why preparation and proper representation remain so important. The opportunity to test evidence and challenge assertions is a fundamental part of achieving a fair outcome.

Complex Finances Require Proper Evidence

The case also highlights the difficulties that can arise when courts are dealing with complex income structures.

The husband's finances involved companies, dividends and taxation issues. The High Court held that assumptions had been made without sufficient evidential foundation.

This serves as a useful reminder that financial remedy cases are often far more complicated than simply looking at a payslip. Business owners, self-employed individuals and those with investment income frequently require detailed financial analysis before the court can reach reliable conclusions.

A Growing Challenge for Litigants in Person

Although this case involved legal representation, it raises wider questions about the increasing number of litigants in person in family proceedings.

Many individuals now find themselves navigating complex financial disputes without professional assistance. Understanding disclosure obligations, evidential requirements and procedural rules can be challenging even for experienced lawyers.

When key issues such as income, pensions, business interests or maintenance are involved, mistakes can have lasting consequences.

The Bigger Picture

The decision is a reminder that family courts must balance efficiency with fairness. Cases need to move forward, but not at the expense of ensuring that parties have a genuine opportunity to present their case.

Fair hearings are not simply a technical legal requirement. They are fundamental to public confidence in the justice system.

Whatever the outcome, parties should leave court knowing that they were heard, that the evidence was properly tested, and that the decision was reached through a fair process.

Final Thoughts

Most family law clients hope never to find themselves involved in an appeal. The best outcome is usually to get matters right the first time.

That is why obtaining specialist legal advice at an early stage can be so important. Proper preparation, effective presentation of evidence and a clear understanding of the issues can not only improve the prospects of a successful outcome but may also help avoid costly and stressful challenges later.

As P v M demonstrates, the right to be heard is one of the most important rights any litigant has. Ensuring that right is protected remains at the heart of the family justice system.

Published by James Thornton in Blog

Tags: appeal, case law, fairness, periodical payments, variation

20 May 2026

Family Loans, Divorce and “Whose Money Is It Anyway?” — Lessons from TP v OP

One of the most difficult issues in financial remedy cases arises when wider family members become involved.

Was the money a gift?
A loan?
An investment?
Or an attempt to protect wealth from a spouse’s claim?

The recent High Court case of TP v OP & Anor [2026] EWHC 1179 (Fam) is a fascinating example of how these disputes play out — and why informal family financial arrangements can become hugely problematic during divorce proceedings.

The Background

The case involved a preliminary issue hearing within financial remedy proceedings. At the centre of the dispute was a very substantial alleged debt: approximately £3.5 million said to be owed by the wife to her brother.

That issue mattered enormously because if the debt was genuine, it would significantly reduce the assets available for division between the spouses.

As is often the case in family litigation, the court therefore had to decide a deceptively simple question: Was this a real debt — or not?

Why Family “Loans” Are So Important in Divorce Cases

This type of dispute is increasingly common. Parents, siblings and extended family often provide:

deposits for houses,
business funding,
living expenses, or
large cash transfers during marriage.

But when relationships break down, those arrangements suddenly come under intense scrutiny. Courts will closely examine:

whether repayment was genuinely expected,
whether any repayments were ever made,
whether there was documentation,
and how the parties behaved at the time.

In many cases, what families describe as a “loan” turns out, legally, to look much more like a gift.

The Court Found the Debt Was Genuine

What makes TP v OP particularly interesting is that the court ultimately concluded that the wife did genuinely owe the money to her brother. That is significant because courts are often sceptical about large family debts raised during divorce proceedings — particularly where:

documentation is weak,
repayment has never been enforced, or
the arrangement appears designed to reduce the matrimonial assets.

Here, however, the evidence persuaded the court that the liability was real.

Timing and Motive Matter

An important issue in cases like this is whether arrangements are created — or reshaped — after separation to try to defeat financial claims. The judgment touches on section 37 of the Matrimonial Causes Act 1973, which gives the court powers where transactions are designed to:

defeat claims for financial relief,
reduce the assets available for distribution, or
frustrate enforcement.

The court can, in some situations:

restrain transactions, or
even set them aside altogether.

That makes these cases particularly fact-sensitive. The court is not simply asking: “Is there paperwork?” It is asking: “What was genuinely intended, and when?”

A Wider Trend in Family Litigation

The case reflects a growing trend in modern financial remedy litigation:

increasingly complex family wealth structures,
informal inter-family lending, and
disputes involving third-party intervenors.

What may begin as a divorce between spouses can quickly evolve into litigation involving:

parents,
siblings,
companies,
trusts, and
competing beneficial ownership claims.

These disputes are often expensive because they move beyond ordinary family law into areas overlapping with:

contract law,
trusts law, and
property law.

The Practical Problem with Informal Family Arrangements

One of the clearest lessons from the case is this: Informal arrangements create risk. Families frequently avoid formal loan agreements because:

they trust each other,
they want flexibility, or
formal documentation feels uncomfortable.

But years later, during divorce proceedings, that lack of clarity can become a major evidential problem. Courts prefer contemporaneous evidence:

written agreements,
repayment schedules,
bank records,
emails, or
evidence of actual repayments.

Without those things, proving the existence of a genuine loan can become very difficult.

Practical Lessons for Clients

This case offers several important takeaways:

Document family loans properly

If money is intended to be repaid, record it clearly.

Treat loans consistently

Repayments, demands and accounting treatment all matter.

Courts are alert to “manufactured” liabilities

Debts raised only after separation are likely to face scrutiny.

Family members may become parties to litigation

Large financial arrangements can pull relatives directly into the case.

Transparency is essential

Attempts to conceal or restructure assets rarely end well.

Final Thoughts

TP v OP is a reminder that divorce cases are often about much more than simply dividing assets. They can involve:

competing family narratives,
informal financial arrangements, and
difficult questions about intention and credibility.

Ultimately, the court’s task is to identify financial reality — not simply accept labels attached after the event.

And in family law, few things create more uncertainty than substantial sums changing hands without clear documentation in place.

Published by James Thornton in Blog

Tags: case law, debts, family loans, loans, parental loans, s37 mca 1973, soft loan

12 May 2026

Too Late to Appeal? Finality, Delay and Second Chances in Financial Remedy Cases

One of the hardest lessons in litigation is this: Even an arguable appeal can fail if it is brought too late.

That was the central message in FG v BN [2026] EWFC 101 (B), a recent financial remedies appeal in which the husband sought permission to appeal a final order more than ten months out of time.

The case is a useful reminder of how seriously the family courts treat:

procedural deadlines,
compliance with court orders, and
the principle of finality in litigation.

It also highlights the difficult balance courts must strike where mental health issues are raised as part of the explanation for delay.

The Background

The husband applied for permission to appeal a financial remedy order made in January 2025. The problem? The appeal was issued around 10½ months late. Given that appeals in family proceedings are generally expected within 21 days, this was described by the court as a “serious and significant breach of the rules.”

The Court’s Starting Point: Finality Matters

Recorder Chandler KC emphasised a key principle: Litigation must eventually come to an end. The court noted that appeals brought more than a year late have only been allowed in truly exceptional circumstances, such as:

orders that were impossible to implement, or
serious procedural irregularities affecting the safety of findings.

This case, while difficult, did not meet that threshold.

Mental Health and Delay

One of the more sensitive aspects of the case was the husband’s evidence regarding depression and mental health difficulties. The court accepted that:

he had been diagnosed with recurrent depressive disorder, and
his mental health had affected his ability to engage with the litigation.

Importantly, the judge did show flexibility. The court accepted there was a “good explanation” for part of the delay, including:

mental health struggles,
original legal advice against appealing,
changing solicitors, and
delays obtaining the transcript.

But that was not enough to save the appeal.

The Problem: The “Unexplained” Delay

The decisive issue became the final few months. By mid-August 2025:

the husband had new solicitors,
the transcript had been obtained, and
counsel had been instructed.

Yet the appeal was still not issued until December. The judge concluded there was no satisfactory explanation for the further four months of delay. That gap ultimately proved fatal.

Compliance Still Matters

Another striking feature of the case was the court’s focus on the husband’s broader litigation conduct. The judgment records repeated failures to comply with court directions, including:

non-compliance with First Appointment directions, and
even late service of appeal documents after the appeal had already been issued.

The court also noted that the husband was:

legally represented for most of the proceedings, and
himself a former solicitor and tribunal judge.

That did not mean the court lacked sympathy — but it did affect how the delay was assessed.

Limbo for the Other Party

An important practical point emerged from the court’s reasoning: Appeals do not affect only the appellant. The wife had been left unable to move on fully with her life while the litigation remained unresolved. The judgment records ongoing disputes over property sales and implementation of the order.

This reflects a broader judicial concern:

prolonged litigation creates uncertainty,
increases costs, and
prevents families from achieving closure.

Some Appeal Grounds Were Arguable — But It Still Wasn’t Enough

Interestingly, the judge accepted that parts of the husband’s proposed appeal were arguably reasonable. But that alone did not justify relief from sanctions.

This is a crucial point for clients: Having an arguable case is not enough if procedural rules are ignored.

Practical Lessons for Clients

This case contains several important lessons:

Appeal deadlines matter

The 21-day time limit is taken extremely seriously.

Act quickly if you are unhappy with an order

Delay weakens even potentially strong arguments.

Mental health may explain delay — but not indefinitely

Courts will consider personal difficulties carefully, but they still expect action once parties are capable of engaging.

Compliance affects credibility

A history of ignoring court orders can significantly damage later applications.

Finality is a powerful principle

The courts are increasingly reluctant to reopen litigation without compelling reasons.

Final Thoughts

Family litigation can be emotionally exhausting, particularly after contested financial proceedings. This case shows that courts are willing to take a compassionate approach where mental health difficulties genuinely affect a party’s ability to engage. But compassion has limits.

Ultimately, the court’s message was clear: If you want to challenge a financial order, you must act promptly, comply with the rules, and explain any delay fully and convincingly.

Because in family law, timing can be just as important as the merits of the case itself.

Published by James Thornton in Blog

Tags: appeal, appeals, case law, delay, finality

Older Posts ›

Prenuptial Agreements: Do They Really Decide What Happens on Divorce?

Is an Inheritance Safe on Divorce?

When Does “Mine” Become “Ours”? Matrimonialisation After Standish

Conduct in Divorce: Why Serious Allegations Still Rarely Change the Outcome

Divorce Costs Out of Control? A Judge’s Warning on Legal Fees in Financial Remedy Cases

Pay First, Argue Later? Understanding Hadkinson Orders in Family Law

The Right to Be Heard: Fairness in Family Proceedings

Family Loans, Divorce and “Whose Money Is It Anyway?” — Lessons from TP v OP

Too Late to Appeal? Finality, Delay and Second Chances in Financial Remedy Cases

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