Ayesha Vardag: Britain's Top Divorce Lawyer Speaks
Top UK divorce lawyer Ayesha Vardag is the Managing Director of Vardags, a leading London law firm dealing with high-net-worth and cutting-edge divorce and family cases. Her trailblazing firm recently secured a win for German heiress Katrin Radmacher in a divorce dispute that was argued before the Supreme Court. In so doing, Vardag helped change the way prenuptial agreements are now handled in English law. She responded to questions from the Huffington Post via email from her office in London.
Elizabeth Hurley is reportedly getting a 'quickie' divorce from Arun Nayar. What does that mean in the UK?
The phrase 'quickie divorce', as well as sounding very slightly naughty, pushes all kinds of socio-political buttons about the decline of marriage, the destruction of the nuclear family and the end of life as we know it. This is all nonsense. What is generally meant by a 'quickie divorce' is either that the couple are proceeding through the relatively straightforward divorce process by consent--this doesn't mean they won't spend potentially years fighting about the financial payout--but the dissolution of the marriage itself is agreed and can take place in a matter of weeks, or that the couple have agreed on their finances as well as the divorce itself, and are either going to make no financial claims (which I understand to be the case with Liz Hurley) or have agreed what the settlement will be.
The same rules apply to everyone. However, as to a quick resolution of the money side, some cases fit better than others. Arun Nayar is understood to have access to very significant family wealth. Liz Hurley has her reputed £13 million. Both are therefore doing just fine. A battle between them would potentially be complex and finely balanced, for uncertain gain and with horrible publicity (we all remember what happened to Heather Mills), whereas the draw of being able to avoid the debilitating process and get on with life is a strong one. Liz Hurley, some years ago, famously, and with great dignity, turned down the big financial payout she was in line for from the father of her child after he unsuccessfully disputed his paternity. She and Nayar are a classy pair. But not all couples have the luxury of being able to walk away.
Thanks to your Radmacher v Granatino win, prenuptial agreements are now recognized under English law, whereas before they were rarely recognized. What are the cultural implications of that?
Culturally, England is slowly catching up with the rest of continental Europe and the United States where prenuptial agreements are relatively commonplace and socially acceptable. Now, foreign nationals who choose to live and work in London will no longer experience the rather nasty shock or unexpected windfall of finding that their prenuptial agreement, carefully and legitimately agreed in a country where it's completely valid, gets torn up and thrown away by the English courts because they happen to be living in England when they divorce.
In terms of the English culture itself, in my experience it seems that most Brits were not even aware that England did not recognize prenuptial agreements until Radmacher hit the headlines. Brits don't much like prenups though: they see them as unromantic and demonstrating a lack of trust. The tide is turning slowly, though. Increasingly, especially where there is significant pre-acquired wealth or children from an earlier family to provide for, individuals are turning to prenups to enable them to marry without feeling excessively exposed, especially in the light of extremely high and often controversial payouts in the English family courts.
What has been the reaction on the ground to this ruling and its implications?
Polls suggest that over 70% of Brits think prenuptial agreements should be binding in the UK. I think by and large the public feel that they should have the ability to enter into an agreement with their spouse or potential spouse without the state's interference, particularly as without a nuptial agreement couples face potentially years of costly and debilitating litigation. There is a sense that couples should have the choice to contract out of a lengthy court process, as long as the agreement is fair and reasonable, and that when they do they should be held to their bargains.
You handle multimillion and billion-pound cases. Tell me about the particular charms and problems of handling such high-net-worth individuals.
The closer you get to a variety of individuals, the more you realize that absolutely everyone is both very unique and different from others and also very much the same in so many ways. Obviously there are details to deal with in high-profile cases, and you have to manage PR and reputation issues along with the core material. However the principles are always the same. Divorce strips people down to basic emotions. Princesses and billionaires feel exactly the same things in emotional crises as bankers and shop assistants.
Which cases do you wish you'd been involved with? Why?
I would have liked to act on the Madonna-Ritchie divorce and children case. Not only because I grew up dancing to "Like a Virgin" and "Papa don't Preach", and went through divorced single-motherhood myself in the Botticelli-look, baby Lourdes years ... and required every boyfriend I had at that time to listen to the Ray of Light album, but because this case was fascinating. The argument about when one parent should be allowed to remove the children to another country is all the more complex when there are children from different fathers whose needs have to be met. You have to strike the right balance for a complex modern family, and one has to be very creative to achieve that.
Tell me about some of the cases you have been involved with that deal with Islamic divorce law. What are some of the challenges there?
Being based in London, a cosmopolitan city and a playground and workplace of the princes and princesses of the Middle East as well as the wealthy jet set of South Asia, we have dealt with numerous cases involving Islamic divorce law... 'Islamic law' is not uniform in its application in Muslim countries. Each country interprets Islamic law differently and applies it differently in different circumstances. You therefore have to be very careful before making any huge assumptions: no two cases will ever be the same...We recently acted on a fascinating application for a decree in nullity. A US multi-millionaire denied that his glamorous European wedding, accepted as a valid marriage in Islamic law, was any sort of marriage at all. We accepted that the marriage was defective in some registration formalities but said that meant it was a void marriage (a familiar concept in English law, still enabling financial provision), not a complete non-marriage. This raised a fascinating question about the respect and value to be accorded to marriages which are valid according to the religious rites of the parties and valid in Islamic countries across the world, when they don't comply with all the technical rules which would make them properly valid here. We were looking forward to making some law on that one, but, happily for the parties, the case settled at the eleventh hour.
How would you sum up the British attitude toward divorce in general as compared to Americans?
The divorce rates in both countries are above 40% for first marriages. That makes me think that both Brits and Americans are facing similar issues when it comes to marriage and divorce and the attitude seems to be, if you are unhappy: get out.
Britain is Europe's top venue for expensive divorces. Why?
London has long been known as the 'divorce capital of the world' particularly for wives. The shift started in 2000 when the law made clear there was no distinction between breadwinner and homemaker, it didn't matter who earned the money, and the marital assets were all up for sharing. The generosity of the English courts came under the spotlight after several 'big money' divorce awards, in favor of wives.
For example, in 2006, in the case of Miller v Miller, the American-born wife was awarded £5 million of the husband's £17 million fortune after less than three years of a childless marriage. The husband appealed all the way through the English courts and lost. In court, the wife was referred to by the husband's team as a "spendthrift termagent" and it was remarked that it would have been cheaper for the husband to run her over in his car. The Courts in England have generally been very generous in their awards to wives, which can be a double edged sword: the fear of this level of financial award creates a temptation to conceal assets or to avoid marriage all together.
Is there a bit of advice you would offer to avoid some of the inevitable post-divorce wrangling--or at least lessen the pain?
When I meet a new client, each individual, whether male or female, is always at a different stage in the emotional process of the divorce. Some are in a state of shock, others very depressed, most are suffering from low self-esteem and above all extreme anxiety of what is to come in the divorce proceedings. Sometimes a client will need to be referred to a therapist. Sometimes they need a spa retreat, a makeover, a shopping day or a dating agency or to have me introduce them to some like-minded people. Sometimes they just need to be allowed to get on with it in a rather stiff-upper-lipped sort of way. I think it is important for anyone going through the process to remember that this is possibly as bad and low as they will ever feel in their entire lives, and I always remind them that before long they will almost certainly find love and companionship again and look back on this time with an increasingly dim recollection. Life goes on, and in my experience it gets better and better: the trick, as somebody said, is to keep breathing.
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Huffington Post Sara Wilson First Posted: 01/26/11 10:46 AM ET Updated: 05/25/11 07:25 PM ET