Emily Brand, one of London’s best Divorce Lawyers, talks with Divorce Saloon’s International Correspondent
You are recognized as one of the UK’s top Divorce and Matrimonial Law Solicitors. How were you able to create and cultivate this reputation?
Goodness, that’s quite a complicated question! To start with, I would say that I was very lucky to have received such a good training. I started out at a very well respected law firm here in London. It’s there I learned how different Family Law is from other types of Civil litigation. In other civil cases, when you win you walk away, and that’s the end of it. But in Family Law, what does it mean to win? If you think about it, there really are no winners. There are (usually) two parents, and they usually have to keep on co-parenting even after separation. The children have to be raised. So when I was trained, it was with the idea that any blow against the “opponent” might be a blow against the family itself. One has to be careful about “winning”, so to speak. This is a guiding principle for me and one I learned early on – that you always have to be careful about the impact on the family as a whole… I have also been lucky in having worked on several ground-breaking cases and these have helped to build my reputation in the field.
What has changed as far as children are concerned in the last 3-5 years or so? What are the ground-breaking issues or the hot button issues?
The biggest change I have seen is really a change in terminology. I think the court recognises that this is not a boxing match, and there has been a gradual attempt by the legislature to reduce the divisiveness between parents – because that is obviously not in the interest of the family and does not serve the children. So mostly there is a change in terminology. For example we now talk about “child arrangement orders” and not “residence and contact orders.” Things like that… And I think that’s important and is beginning to make a big difference.
What is your forte as a divorce solicitor? Are you known for being really good with prenups, or negotiating, or handling cases with many moving parts? What would you say you are known for?
Many moving parts! Actually, I think I am quite good at problem solving and juggling. That may be because I took Latin at school! It’s this thing again about breaking down language, and then putting it all back together; I do think it’s the education I had that serves me now in my work, which is probably why I like drafting prenups. The cases are like puzzles and that’s what I love. Or it could also be because I ’m a mother of three myself, am very used to multi-tasking! I really enjoy the challenge of resolving complex problems with many moving parts.
Speaking of prenups, you were one of the lawyers on the Radmacher case that famously recognized the enforceability of prenups for the first time in UK. Which side were you on for that case?
The winning side, of course!
And does the Radmacher decision mean that prenups are ipso facto enforceable under UK law?
No, merely that it will be one of the factors to be taken into account: whereas before, prenups were technically void as being contrary to public policy, now a court can consider such an agreement along with all other factors. It is given weight – though it may still not be decisive. In other words, a party cannot oust the jurisdiction of the court with a prenup. Radmacher could be seen as a pragmatic acceptance of the high divorce rate in UK, and a recognition that it may bee cheaper for the country as a whole to recognize or give weight to what the parties intended. If you compare that to the situation before – where prenups were void for public policy – you can almost see the subtle cultural shift. If you consider the fact that, for example, Paul McCartney did not have a prenup with Heather Mills? Because these were void before Radmacher. So now comes Radmacher (which means “wheelmaker” in German, by the way!): a German national living in the UK. She thought she had an enforceable, binding contract with her husband, who was French and therefore from a jurisdiction that fully recognizes these agreements. Indeed, it was very naughty of him to challenge it! But he lost. He didn’t get a penny in his capacity as a spouse as agreed in the contract/prenup. You could also look at it from the cultural perspective. In the past, there was a paternalistic notion that women needed special protection, and thus prenups – probably quite rightly perhaps for previous generations – were potentially seen as a way for men to take advantage of helpless women. Marriage was for life and therefore you could not enter into already planning the exit. This is changing. It is seen as a form of sexism to suggest that women – who are now as equally as educated as men – should need special protection from their own decisions to enter into premarital contracts. Judges recognize that women are as equally capable as men in understanding what they have signed. Indeed, both parties are equally capable of understanding what they have signed, and thus the prenup is one of the factors the courts will look at. In Radmacher, it was the husband who wanted to challenge the prenup since it was the wife who had more money. And as I said, he lost. But it is a mistake to think you can just walk into the court, prenup in hand, and oust the jurisdiction of the court. Radmacher did not go all the way in making new law in that sense.
What makes London such an interesting hub for the very affluent?
Well, I think it is just how our laws are set up and the leading case on this is the White v White case, where it was held that a 50/50 division of assets is the starting point; and each case should be considered against the yardstick of equality. So this is very favorable when you are the spouse with fewer assets.
So there is a 50/50 presumption?
No, it is not a presumption, it is a starting point – which admittedly is a high starting point. But the idea is that, for example, the non-earning spouse, who is often the wife, who stayed at home to raise a family, made contributions to the marriage as the “carer”: and this has the same value as the person who goes out to earn. And from this starting point, then the court analyzes what is actually equitable. It is case by case: it’s a discretionary system. But the idea is that the non-earning spouse might like London and the UK for this reason – when you compare it, for example, to a place like Munich, or other cities and jurisdictions in the EU, where there isn’t such a high starting point and where “contributions” to the marriage are given less weight than here in UK.
What are some of the ethical rules for lawyers in the UK? For example with fees, retainer agreements, relationship with clients?
Here in the UK, a solicitor can charge whatever fee he or she wants. And they can choose to have a retainer or not.
So if a solicitor wanted to charge £1,500 per hour for a divorce, that is permitted? Wouldn’t that be unreasonable?
Yes, of course it is permitted: there is nothing stopping them. This concept of a “reasonable fee” does not exist under our law. Though of course there is a going rate: I would say I have seen up to about £600 per hour. And if the other side is ordered to pay your costs, there is a capping. Your rate is fixed depending on the location of your office. So if you have an order for costs they would pay a fixed cost. But there really is no rule that dictates what a solicitor can charge a client in this private contractual relationship.
Do divorce lawyers get disbarred fairly commonly in UK?
No. I have not heard of a single solicitor who has been disbarred in all my years of practice. There would have to be a serious breach of the solicitor’s code of conduct.
What is considered a serious breach?
Inappropriate handling of client funds, for example.
What do you find most frustrating about being a divorce and Family Law solicitor?
Enforcement. This is a very difficult problem. And of course now with Legal Aid no longer being available due to the recent legislation, that creates other frustrations.
No legal aid? How is that possible?
The government no longer funds Legal Aid. So many litigants are “doing it themselves.” And this is a difficult problem in many instances.
What are your career highlights?
I have had many, some not so newsworthy, as others. But I am particularly proud of the work I did in the early stages of the Prest v Petrodel divorce case. You could see this is as a case where justice prevailed over technicalities. I was delighted that Mrs Prest succeeded. The case involved the Nigerian oil baron Michael Prest who tried to use the corporate veil to prevent his wife from receiving her fair share of the matrimonial assets. As I said, I have had many highlights. For me, meeting or exceeding my client’s expectations is what I always try to do and I am very pleased when I achieve that.
What advice would you give to young lawyers who are up and coming and who want to establish themselves as successful international divorce lawyers?
My first piece of advice would be to work in another country or jurisdiction. I taught English Common Law in Berlin. I taught judges as well. This was a massive eye-opener. I think it’s essential to learn about other jurisdictions. This will really open up your mind to how things are done in other places, and this is important. I’d also say: Learn a few languages – legal language specifically. Learn about different cultures. What we take as read in our jurisdiction may be totally different in another jurisdiction. Never assume we are using the same vocabulary. English-speaking lawyers need to be more multi-lingual, and not just in Latin!
Edited and adapted by Jeannie Goldstein
Interview by Marion TD Lewis, Esq, LL.M
Emily Brand, Partner at London–based firm Winckworth Sherwood, specialises in all aspects of family law, with particular experience in complex international disputes and relationship breakdown involving foreign elements. Recommended in the Legal 500, she speaks fluent German and has lectured undergraduates at the Free University in Berlin and at the University of Potsdam as well as teaching judges in Berlin. She was educated at St John’s College, Cambridge and placed in the top ten at law school.
Emily aims to combine strategic and commercial expertise with sensitivity and compassion for her clients’ individual circumstances. Described by her clients and Counsel as having abundant reservoirs of empathy and understanding, Emily has the technical know-how and drive to achieve imaginative solutions, whether restricting access to wealth or unlocking it. Having worked on the groundbreaking cases of Radmacher v Grantino (concerning a pre-nuptial agreement) and Young v Young (committal proceedings), she is particularly skilled in complex cross-jurisdictional litigation.
Pre-Nuptial Agreements, Matrimonial & Relationship Breakdown, Cohabitation and Children
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