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What if: Milk turns sour for Tom and Dustin

by Megan Bennie

British Olympian Tom Daley wed his American screenwriter husband Dustin Lance Black last week. The couple released photos of them celebrating their union with friends and family and later on, photos of them planting a tree to symbolise the marriage. It looked like a beautiful day and the picture-perfect location of Bovey Castle in Devon looked the ideal spot for these two Prince Charmings to take the plunge. But what if it were to go wrong…

We sincerely hope it doesn’t but here are some questions the couple face should the worst happen.

Same sex, same rules?
By and large, same sex couples are subject to exactly the same rules as mixed sex couples. Marriages are formed in the same way, ended in the same way and gay couples are entitled to the same rights upon marriage as heterosexual couples.
One difference, which has proved controversial, is that same sex couples can’t be divorced on the basis of adultery in the same way as a straight couple could. Some campaigners have argued this represents a value judgment on gay relationships, that they are somehow more promiscuous. The government has responded that the difference is actually down to the legal definition of adultery. This currently requires sexual intercourse between a man and a woman – so not kissing or oral sex – but there is a gap in a law where, say, a lesbian woman may want to bring her marriage to end where her wife has had sex with a man outside marriage.
We rarely advise people to petition on the basis of adultery so in practice the difference has minimal effect. Adultery must be admitted or proven – something that is hard to do because it involved a very private act. And in any case, forming a relationship, no matter how brief, with another person would certainly be regarded as very unreasonable behaviour.
Behaviour doesn’t necessarily have to have the ‘gasp’ factor though. It can be something as simple as fundamental differences where money, children or career are concerned. We all saw Dustin on the sidelines at the Rio Olympics cheering Tom on, but if this were to change and Dustin was no longer supportive as something as important as his husband’s career, that could be grounds for a divorce.

Dive right in
The couple are American (Dustin) and British (Tom). They married in the UK and may well have a pre-nuptial agreement. Such agreements are increasingly popular as people dive into matrimonial life together but their treatment is very different on opposite sides of the pond.
The vast majority of pre-nup agreements made in the US are binding upon the couple. In the UK the picture is very different. Our legal system doesn’t give them the same cast iron enforceability that other countries do (even some very similar European countries like Italy). In the UK a pre-nup will be one of the wide-range of circumstances a court can take into account when a marriage breaks down. It may be that the pre-nup is the most important factor and the court makes an order in line with its terms, but it may be disregarded entirely by the court. If you are thinking about a pre-nup and aren’t sure whether it could be useful, a short chat with a solicitor will clear things up for you.

Pool your resources
As soon as a couple marry, virtually everything they own becomes ‘matrimonial property’ and, in the event of a divorce, subject to the powers of the court. Judges have a great deal of discretion in the family legal system of England and Wales, so it is up to the couple to make their own arguments as to why certain property should be excluded as matrimonial property. The kinds of property that is usually found in dispute includes: assets obtained before marriage or after separation and inheritances.
This is something the couple would have to think about. Dustin would want to hang onto his Oscar statue for dear life. However, something as rare as an Oscar has a value: if there weren’t many assets to go around, Tom could argue that the statue should be sold to a collector or that if Dustin keeps it, his settlement should be less to reflect the fact he retains a valuable asset. Normally these rules apply to houses/flats, pensions and so on, but it’s worth remembering that they could be applied to anything at all that the couple own jointly or separately.

Career Men
The couple, who have been together since 2013, have a 20 year age gap between them. If they were to break up, this is something the court will consider. The law in this area sets out a list of factors a judge would consider, including age, disability, earning capacity, needs and resources.
If this were a typical marriage involving everyday people, say office workers, the court would have to consider the fact that Tom, who is 22, might be able to work for another 20 years after Dustin, who is 42, has retired. This might mean Dustin gets a greater share of assets to make up for not being able to work for as long.
However, this celebrity couple would prove a bit of a headache for a judge, the older man, Dustin, is an Oscar-winning screenwriter and there’s no reason he can’t keep doing that for the rest of life. Whereas Tom, although he is 20 years younger, is an athlete with a shorter career. It is likely experts would be required to give evidence as to potential earnings Tom could make from endorsements, coaching or even presenting television programmes.

We’re certain Dustin and Tom have a long and happy future together now they’ve taken the plunge. However, if they do split, the issues above are the kinds of things they’ll have to consider. But they’re not just problems for celebrity couples: anyone can face these issues. The key, and something the couple would no doubt do, is to take good legal advice. Your solicitor is your coach when you’re facing a high dive into divorce.

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