This article was originally published on leading sports law website LawInSport in August 2022.
This is the third in a series of articles exploring key family law issues facing athletes over the course of their careers. It explores the process of divorce and separation in England and Wales and its financial implications, including the options available if you and your partner cannot come to an agreement on how to divide your assets. It will answer the following questions:
- How do I get divorced?
- How will our assets and income be treated following divorce?
- Can the press report on my divorce?
- Are there any other options available to me if I do not want to go to court?
How do I get divorced in England?
Marital breakdown is something that widely affects athletes at all stages of their careers. The pressure of competing and travel can weigh heavily on a marriage and moving clubs or retirement can often be a trigger to a relationship breakdown. It has been reported that one third of football marriages breakdown within a year of a player’s retirement1.
Firstly, you need to consider whether you are entitled to divorce in this jurisdiction, and this depends on your connection to England and Wales. In technical terms, a court would have regard to your ‘habitual residence’ and ‘domicile’. Put simply, where do you usually live and where do you consider to be your permanent home? If the answer is England or Wales (note that Scotland and Ireland are separate jurisdictions), then you will most likely be entitled to divorce here.
The answer may not be so simple for athletes who may have multiple homes around the world while competing. In that case, the relevant considerations in determining whether you are habitually resident or domiciled in England and Wales, and therefore entitled to divorce here, would be your nationality, place of marriage, your tax status and where you have lived the majority of your life with your spouse. It is always worth consulting a solicitor before taking action, particularly if you have ties to or assets in other jurisdictions.
Once you have established that you are entitled to divorce in England and Wales, you can make an application via the MyHMCTS online portal2. On 6 April 2022, a new law came into force which changed the landscape of divorce3. Prior to this, if you wanted to get a divorce, the law required one party to place blame at the feet of their spouse. Fortunately, this is no longer the case thanks to the introduction of ‘No Fault Divorce’. Under the new legislation, all you have to do is make a statement in your application that your marriage has irretrievably broken down – you do not have to explain why or provide any evidence. You can make a sole application for divorce, or you and your spouse can apply jointly. It is hoped that this ‘no fault divorce’ will pave the way for amicable and collaborative negotiations regarding the division of the marital assets arising from divorce.
After your divorce application has been issued by the court, you have to wait a minimum of 20 weeks before applying for what is called a Conditional Order. This is the interim order in divorce, and you and your spouse will remain legally married at this stage. You must then wait a further six weeks before applying for the final Conditional Order. Only upon the granting of the final Conditional Order will your divorce be finalised by law. Until this final order, you and your spouse will remain entitled to any spousal benefits you may have, for example, inheritance, pension provisions, life assurance policies and medical insurance policies.
What happens to our assets and income, how will they be treated following divorce?
The English legal system is regarded as one of the most generous in the world to the financially weaker party when it comes to determining how marital assets should be divided on divorce. Financial and non-financial contributions to a marriage are considered equal in the eyes of the English court. In other words, the contribution of a ‘breadwinning’ spouse who has financially supported the family throughout a marriage is treated equally to that of the ‘homemaking’ spouse who may have stayed at home throughout the marriage, raising the children and running the home. This means that assets built up during the course of a marriage are considered ‘matrimonial’ and available for division between divorcing spouses, regardless of who earned or purchased those assets.
Athletes and their advisors would be wise to bear this in mind when considering career opportunities and relocations to this jurisdiction. In April 2022, it was reported in the tabloids that the German born Chelsea head coach, Thomas Tuchel’s wife filed for divorce in England after relocating here in August 2021, seven months after her husband joined Chelsea4. Tuchel allegedly earns £7million per year at Chelsea and his wife reportedly quit her job at a German newspaper to bring up their family.
The starting point for a financial settlement is that marital assets are split 50/50 regardless of who earned the money. It is possible to argue that a party has made a ‘special contribution’ to the marriage which warrants a departure from equality, colloquially referred to as the ‘genius argument’. Ryan Giggs made this argument following his divorce but reached a financial settlement out of court with his wife before the court decided this point. Athletes would be wise to assume such arguments are unlikely to succeed. By way of example, the founder of online fashion giant, ASOS, tried and failed to make this argument during his divorce5.
If a 50/50 division of the matrimonial assets results in a financial outcome that does not meet one party’s needs, then the law allows for a departure from equality in favour of the party with the greater needs. This may be because they do not earn an income having given up their career to raise children. Establishing a party’s ‘needs’ is highly discretionary and relevant factors include the length of the marriage, minor children, age and the lifestyle enjoyed during the marriage. The English courts also consider that they have jurisdiction to make orders about the treatment and division of assets held worldwide.
Sportspeople living or relocating to this jurisdiction would be wise to take legal advice on entering into a pre or post nuptial agreement, which we covered in our second article in this series.
Treatment of income is also relevant. A divorcing sportsperson is likely to be liable to pay ongoing maintenance to their spouse and towards the upkeep of any children, particularly if their spouse does not work or has given up their own career to support the athlete. The English court has the power to make a spousal maintenance order payable for the remainder of the paying party’s life. Life term spousal maintenance orders are less common nowadays, but athletes should be alive to the fact that the court still has the power to order them.
Given that some athletes, particularly premier league footballers earn at very high levels, they can expect a maintenance award to be high. However, recent case law demonstrates that these awards can be reduced quite substantially if a player’s earnings reduce significantly. The court will need to be satisfied that the recipient of the maintenance can adjust 'without undue hardship'. However, this can be established in the circumstances where the 'goose that laid the golden eggs is no more….' and there are 'significant financial consequences for both parties'.6 This will quite often apply to top flight footballers (or other athletes), whose earnings reduce significantly in the latter years of their careers.
If I have to go to court, can the press report on the financial proceedings arising from my divorce?
A key area of concern for sportspeople facing relationship breakdowns is unwanted publicity. This is a warranted concern as the English press has a penchant for high profile separations and particularly high net worth divorces.
Athletes should not assume that if they enter into court proceedings their anonymity will be protected – long gone are the days of super injunctions. There are increasingly more calls within the English court system for transparency in the family courts and it is likely that the press and legal bloggers will soon be permitted to attend court hearings and report contemporaneously. While the identity of children must still to be protected and kept private, it is increasingly likely that a high-profile person will be named by the press and, if their case proceeds to a final hearing, the judgment will be published.7
Sports professionals would be wise to consider alternative forms of dispute resolution which guarantee anonymity and are often more cost effective and timely than the traditional family court route.
I am not keen on the publicity risks. Are there any other options available to me if I cannot reach an agreement with my spouse on how to divide our assets?
The first port of call on the breakdown of your marriage is to take advice from a family law solicitor who will guide you through the next steps.
Mediation is a valuable dispute resolution tool for families. Specially trained mediators can work with a couple to try and reach an amicable financial settlement by agreement preserving the relationship. This can be particularly helpful if you are co-parenting children as the process is entirely private and confidential. Athletes looking for specialist family mediators committed to amicable dispute resolution can use the Resolution ‘Find a law professional’ tool8.
It is now possible for a couple to approach one solicitor, who can advise them both about the law relating to divorce and finances upon separation. This concept of ‘one lawyer, one couple’ is relatively new, but is being embraced by family lawyers as a particularly helpful route where the couple want to separate amicably and obtain some advice and assistance while navigating the process.
If you are unable to reach an agreement directly, via mediation or through your solicitors, athletes may wish to arbitrate rather than issue court proceedings. Arbitration is private and your case will be kept out of the press, but it works in the same way as the court. An arbitrator will take the place of a family court judge and determine the outcome of the financial claims before them. Whilst there are additional costs involved in paying for the Arbitrator to act as the judge, the benefits far outweigh those costs in that the parties are guaranteed privacy, and a much quicker decision due to the overburdened and very slow family court system. The delay incurred in the family court system is one of the main reasons that legal costs escalate in financial remedy claims. The time spent waiting for a court to make a decision requires more work to be done in terms of preparing updating financial disclosure, negotiating interim financial arrangements etc. and often exasperates the dispute between the parties.
Relationship breakdowns are emotional and difficult for everyone, but having legal advisors onboard from the outset can calm the waters and go some way to mitigating the financial implications arising from divorce.