Camilla Choudhury- Khawaja was Called to the Bar in 1998 by the Honourable Society of Grays’ Inn, following in the footsteps of both her Grandfather and Father. Camilla is a family law barrister with a specialist practice in matrimonial finance. Camilla lives with her sons, Aman & Aden in Hertfordshire.
Camilla established her own law practice in 2012, a result of having been through a difficult divorce and experiencing the legal system from a wholly different perspective. She came to appreciate a constant support in the form of one lawyer who would know the case back to front and would be with the client from beginning to end was exactly what was amiss.
Camilla says, ‘meeting my barrister for the first time on the day of the hearing, for example, was unnerving and highlighted exactly where I could make a difference professionally. It was difficult to leave an employed role and the certainty of income to take a risk or rather a leap of faith and start up alone but that is exactly what I did, the journey to becoming a sole practitioner was a tough one but one that I am proud of every single day. I was in uncharted territory, a young woman with two young children, I suddenly found myself a single parent, navigating daily life let alone a professional one was difficult. But with faith and a profound belief that God was and remains by my side it became possible.’
In this world, there is no force equal to the strength of a woman determined to rise. W.E.B. Du Bois
What it means to be a ‘single parent’, a term synonymous with negativity and disadvantage. Determined to break the mould, defy conventional wisdom and shake off old prejudices. I raised both my sons to achieve, to believe they are capable of anything, of becoming happy and successful young men. Aman is today, an investment banker with Deutsche Bank and Aden is reading Law at Warwick University, a barrister in the making. I could not be more proud. Both are Merchant Taylors’ boys, their education and academic success is key. Indeed it was education, gifted to me by my own parents that has allowed for the life I in turn give my sons.
With divorce settlement guidelines set to come under official scrutiny, Camilla explains how proposed reforms could play out in practice. The Matrimonial Causes Act 1973 is the law under which matrimonial finances are dealt in divorce proceedings, the Act reached its 50th anniversary in 2023, the Act gives the court the power to resolve financial matters upon divorce, such as the division of property and pensions. Camilla says a review of financial provision upon divorce is indeed opportune.
The Law Commission published a report in December 2024 with guidelines on financial provision upon divorce. Britain’s top divorce lawyer took public aim at the current legislation in the House of Lords, Fiona Shackleton branded laws governing financial settlements ‘hopelessly out of date’ in a speech to her peers. More recently a London High Court judge who oversaw a destructive £9 million divorce raised concerns over legal costs beyond any reasonable comprehension in a written ruling.
Could London’s reputation as ‘divorce capital of the world’ be under threat from an overhaul of the law? And how would reform work?
Baroness Shackleton of Belgravia, leading family lawyer, admitted she and her colleagues make a ‘fortune from arguing’ because a lack of consistent guidelines and dependence on case law results in excess litigation. The law is failing to deliver justice for divorcing couples and their children, says Shackleton, who counts the King of England (then Prince Charles) and Paul McCartney among her former clients. ‘There is no use in having a divorce if the money is not sorted out,’ she told the House of Lords. ‘The house has to be sold and the children are caught in the conflict.’ Shackleton’s speech came in support of a long-running campaign spearheaded by her fellow cross bencher Baroness Deech.
Deech, an expert in the ethics of family law, says the UK is ‘lagging 50 years behind nearly every other country in the western world’. Changes to the current 1973 guidelines should focus on four things; ‘certainty; reducing litigation; delivering equality; and [clarifying] prenups.’
Practising divorce lawyers such as myself welcome the movement for reform, with some caveats. The main danger is that strict rules can actually lead to unfair outcomes. Courts need to be able to look at all circumstances in order to make the right decision. The draft bill had proposed to cap spousal maintenance to five years, aside from exceptional circumstances. This is a good example of the law being slightly more prescriptive while still maintaining the necessary discretion. Crucially, it would limit the scope for claimants to argue that they should be supported for many years to come.
Uncertainty in the current system
In theory, divorce settlements in England and Wales are governed by the Matrimonial Causes Act 1973. Assets were divided according to the ‘reasonable needs’ of the financially-weaker party, until a surprising decision by the House of Lords in 2000 led to a new approach that increased the discretion available to judges.
A farming couple from Somerset had spent six years wrangling over how their £4.6 million marital assets from their 30-year marriage should be split until law lords ruled that along with ‘reasonable needs’, courts should keep in mind ‘the yardstick of equality’ when dividing assets
‘There should be no bias in favour of the money-earner and the child- carer,’ Lord Nicholls said at the time. Despite the emphasis on equality in White, some parties have since been able to successfully argue for a more old-fashioned approach of so-called ‘lifetime maintenance’. This is where courts award a large sum to the financially-weaker party on the basis that they have become accustomed to a certain lifestyle.
‘Cases like these are operating perfectly within the law,’ says Deech. ‘But they show how the system encourages excessive demands.’ Instead she says that the law should be updated to limit the scope around ‘lifetime maintenance’ and prioritise the needs of any children involved.
Pre Nups, are they a good idea?
Providing greater support and recognition for the ability of couples to enter into a pre-nuptial or post-nuptial agreement to expressly set out how they wish to divide their financial resources in the event of divorce is a good idea. Specific guidance upon circumstances when a clean break may not be appropriate and if so, how long parties may expect ongoing financial support from their spouse to continue for would be welcome.
In 2010, a major decision saw the Supreme Court recognise prenuptial agreements, at least in principle, thereby giving new legal status to prenups in the UK. The case concerned a divorce between the German heiress Katrin Radmacher and her ex-husband Nicolas Granatino. Radmacher’s lawyers were able to successfully argue that the court should apply the couple’s prenuptial agreement, limiting Granatino’s access to her wealth. ‘Under the current system, challenging a prenup can lead to long and extensive litigation – particularly for international families,’ says Deech. That means that a party can use the threat of litigation in order to get their way, even if it means less money for any children involved.
Both White v White 2020 and the Radmacher rulings have radically changed how the courts approach divorce law, electively departing from the 1973 legislation. Whatever the merits of the decisions, they have also increased the potential for costly litigation as parties battle for the best settlement. By putting the law around prenups on a statutory footing, with clearer guidelines on when pre- and post-nups apply, parliament can provide comprehensive rules, limiting the scope for an uncertain future. Despite the Law Commission review looming, I do not believe it will make England less attractive to divorcing high net worth individuals. The biggest pull factor for high net worth clients is the huge respect for the integrity of our judicial process. Though, of course, if English divorce law begins to look more like its European and American counterparts and the high net worth client’s chances of a unique settlement in London closes, that might change
I dedicate this article to my Father who passed two years ago in March 2023. Dad you are very much missed, thank you for encouraging me to read law and for making me the Barrister I am today. I love you Abba.
Camilla Choudhury – Khawaja, Barrister at Law
www.camillakhawaja.com
