No fault divorce – time for a change in the law?
It seems as though we may finally be moving to a change in the law surrounding divorce and bringing it into the 21st century.
The case of Owens v Owens hit headlines recently when the Supreme Court unanimously concluded that Tini Owens would not be able to divorce her husband. Many were left asking if someone is clearly in an unhappy marriage and wants a divorce then how can the law stop this? How can the state intervene in such a personal matter?
The answer lies in the Matrimonial Causes Act 1973. In order to divorce in England and Wales, the law requires and irretrievable breakdown and one of 5 ‘facts’ to be relied upon. They are:
- 5 years separation;
- 2 years separation and consent;
- Adultery; and
- Unreasonable Behaviour
In the Owens case, Tini Owens married Hugh Owens in 1978, and they subsequently had two children, who are now adults. In 2012 Tini Owens began a 10-month long affair and in 2015 she started living separately from her husband, in a nearby property. She then commenced divorce proceedings based on her husband’s unreasonable behaviour. Mr Owens contested her petition for divorce, her petition for divorce was subsequently dismissed by the Family Court and she appealed to The Court of Appeal.
The Court of Appeal dismissed her appeal, finding her listed examples of behaviour to be “significantly exaggerated”, and that she was “more sensitive than most wives”. The Supreme Court judges, albeit reluctantly, dismissed Mrs Owens’ appeal and upheld the Court of Appeal’s judgment. As the law currently stands, Mrs Owens will have to wait until 2020 when she will have been separated for 5 years and can divorce without Mr Owens’ agreement.
The case has brought to the forefront again that unless you have been separated for a period of 2 years and you both agree to a divorce, people find themselves ‘blaming’ the other party in order to divorce sooner. At what is already a difficult time both emotionally and usually financially, and when couples are trying to ensure minimal upset to children, this generally does nothing to help the relationship between the parties and causes more anxiety and animosity.
Following the Owens case, the government have now said that they are launching a consultation proposing to remove the use of ‘fault’ for the breakdown of a marriage and to also consider stopping people being able to contest a divorce. The government is considering making the irretrievable breakdown of the marriage the sole reason for a divorce which would remove the requirement to show bad conduct from the other party as is the requirement when using unreasonable behaviour under the current law.
So where are we now?
At the present time, the law remains that you need to rely on one of the 5 facts set out above but it does seem as though at some point in the future we may see a divorce system that does not inflame already difficult situations and cause anxiety and upset.
If you need advice or representation in relation to a divorce or other matter, please call our family law expert, Suzanne Henderson on 0117 9777403 to book a free 30-minute face to face appointment.
Owens v Owens  EWCA Civ 182
Owens v Owens  UKSC 41Read More
First-time buyers: Cooke Painter offers legal support to first-time buyers as numbers hit all-time high.
For the first time in over a decade, 2017 hit record high numbers of first-time buyers, according to figures released by UK Finance, the trade body for Britain’s banks.
According to the official figures, a total of 365,000 buyers, an annual increase of 7.4%, took ownership of their first home in 2017. Property experts say that schemes such as the governments ‘help-to-buy’, lower deposits and cheaper mortgage deals have all contributed to this trend. The data also showed signs of a less buoyant ‘buy-to-let’ market, which continues to be impacted by tax and regulatory changes.
More good news for homebuyers came in January with data from the Halifax, showing a ‘swift deceleration in price growth’. The firm reported that house price inflation had moderated to 2.2% after price falls in early 2018.
With the current year showing positive signs of being a good time to get on the property ladder, Wajid Darr, Cooke Painters conveyancing expert, offers his guidance to property buyers on taking care of the legal side to moving home. This simple guide explains what you should expect from your lawyer and what part you, as the buyer, will play in the conveyancing process:
The buyer is responsible for communicating any key details or concerns to be checked out.
Help your legal professional to understand and identify any issues. Communicate clearly if you have any concerns or worries about the new property so that your lawyer can ensure the proper checks are made. For example, if you plan to run a business from your new garage or love the outlook from the field next door, make sure you mention this to your legal professional so that they can check any planning requirement or restrictions.
The role of your lawyer in the conveyancing process.
A lawyer’s role is to look into the legal aspect of the purchase and be the conduit between you, your estate agent and any building society, bank or mortgage provider. This would include planning permissions, issues being investigated, checking entitlement for the sale, boundary responsibilities as well as financial obligations and buyers rights to property usage. They will not be able to help with any building, structural or working orders and you will need a surveyor to report on these issues. They can, however, advise on the feasibility of future building projects by reviewing any legal restrictions that may apply.
Cover all the bases.
A reputable conveyancing professional will explain the part they play in the process from the outset, in plain language, answering any queries or concerns that you may have. Make sure that you ask any and all questions as early as possible. Once contracts are exchanged, it is generally too late to do anything about issues raised as you will be legally committed to the purchase as the buyer of that property.
What should you be doing to protect yourself?
Technical checks and surveys should be left to professionals such as solicitors and surveyors, however, this is your new property and there are steps that you can take to feel secure in your property purchase decision. Visit the house a few times to look for practical issues that you can highlight to your appointed professionals; look out for shared right of way, problems with walls, roofs or windows etc. Remember your solicitor will not visit the house so they won’t be aware of things like bus stops outside or overhead power lines unless you tell them. Going back to the property or street on different times and different days could help to provide an alternative aspect on what living in the area would be like. Your lawyer will usually send you a ‘title plan’ showing the boundary for the property in red. It’s a good idea to take the plan along with you to the property and make sure that the shape on the plan is in accordance with the physical situation on site.
Arranging payments and fees.
Most lawyers these days are upfront with their fees and payment process. Discussing your funding arrangements with your solicitor from the outset will help to alleviate any issues that may occur later on. You will both be clear on any expectations around the amounts to pay and how these funds will be transferred to your lawyer.
At Cooke Painter, we undertake all types of property transactions, from the purchase of a house or flat for a first-time buyer, to complex commercial property transactions. Find out more about our conveyancing services.
Our conveyancing experts will guide you through the process and explain all the costs in full, including disbursements, which is any money we pay on your behalf to a third party, and agents fees where applicable. Our team will ensure that you understand from the start all the steps and fees involved so that there are no sudden surprises. We offer fixed fee work in the majority of straightforward conveyancing transactions, please use the contact us form to ask for a free estimate.Read More
If you made an application for a Lasting Power of Attorney between April 2013 and March 2017 you may be eligible for a partial refund on the fee paid.
The Government have launched a scheme to refund anyone who may have paid more than they should have when applying to register a Lasting Power of Attorney (LPA). If you made an application to register a Lasting or Enduring Power of Attorney with the Office of the Public Guardian (OPG) between 1st April 2013 and 31st March 2017, you could be due a partial refund.
With two types of LPA, financial and health & welfare, there is a potential that some people could be due a refund of up to £108 if they have made an application for both. The Ministry of Justice estimates that up to 1.7m applications might be affected.
The refund is being given as between 2013 and 2017, the OPG operating costs came down as more people applied for LPA’s and the process became more efficient. The application fee should have been reduced in line with this and the Ministry of Justice have accepted that clients can claim this money back.
How do I apply?
If you believe that you, or someone you know may be eligible to claim a refund from the OPG then you should contact them on 0300 456 0300 option 6 between 10am and 5pm Monday to Friday.
Alternatively a claim can be made using the online service. Only one form needs to be completed for each donor and the OPG will find all LPA application fees paid by the donor during that period. For more information visit www.gov.uk/power-of-attorney-refund
Do I need a solicitor?
Although you do not need a solicitor to make a claim for a fee refund, you may have some concerns or queries about an existing or new LPA, and in this case, it is a good idea to seek advice from a legal expert. An LPA is a powerful and important document and a qualified solicitor will have extensive experience in correctly preparing them.
At Cooke Painter, our solicitors are specialists in helping families get their affairs in order. We provide a full and comprehensive service that allows you to select trusted friends or family members to deal with affairs on your behalf. We will take you through the intricate procedures that need to be followed to make a successful Power of Attorney. Contact us today on 0117 971 6765 or complete our contact us form for more information.Read More
UK Charity’s Shocking Finding: two-thirds of UK adults don’t have a valid Will in place!
A recent survey by Macmillan Cancer Support found that 2 out of 3 adults in the UK have yet to make a Will and those with a Will in place are likely to be making common errors.
Two-thirds of the UK adult population are still to make a Will, according to research by UK charity MacMillan Cancer Support, meaning that their property, assets, money and even dependent children could be left with someone they have not chosen. Without a will in place when you die, the law decides how your estate is passed on – and this might not be in line with your wishes.
The research conducted in December 2017, even more worryingly shows that 42% of over 55’s don’t have a will and the findings also suggest that up to 1.5million people may have unknowingly invalidated their will by getting married. Marriage automatically voids ant previously made Will.
The charity’s survey also found that even those who had made a will were making common errors such as still including an ex-partner, not adding new beneficiaries like children or grandchildren and leaving in someone who they had ‘planned to remove’.
Official guidance recommends that people review their Will every five years and after any major life changes, yet a quarter of respondents hadn’t updated their Will in at least five years.
Commenting on the research findings, Wajid Darr, Director at Cooke Painter Solicitors in Bristol said “It is shocking to hear that almost two-thirds of people who need a Will still haven’t got one in place, however the start of a new year is the ideal time to think about getting your affairs in order. If you already have a Will in place, maybe now is a good time to check that it is still valid, particularly if it was written over five years ago.”
Making sure your will is legally valid
If your circumstances change, or if you haven’t checked your Will in some time, it is important that you update the contents to ensure that it remains legally valid. If you die without a valid Will in place, there are certain rules, which dictate how the money, property or possessions should be allocated. This may not be the way that you would have wished your money and possessions to be distributed. Your Will doesn’t have to be a complicated document, a Will is a valid will as long as it:
- Says how your estate should be shared out when you die.
- Was made when you were able to make your own decisions and you weren’t put under pressure about who to leave things to.
- Is signed and dated by you in the presence of two adult, independent witnesses, and then signed by the two witnesses in your presence – the witnesses can’t be people who are going to inherit anything from you (or their husband/wife or civil partner.
There are however, some circumstances when it is particularly advisable to use a solicitor to help write your Will. These are where:
- you share a property with someone who is not your husband, wife or civil partner;
- you wish to make provision for a dependant who is unable to care for themselves;
- there are several family members who may make a claim on the Will, for example, a second wife or children from a first marriage;
- your permanent home is not in the United Kingdom;
- where you are concerned about the possible impact of care fees;
- where Inheritance Tax could potentially be an issue for your estate;
- you are resident in the UK but there is overseas property involved; and
- if there is a business involved.
Mr Darr continued: “If you’re unsure in any way about the validity of your Will, then it is prudent to have it written and checked by a legal professional. The consequences of not having a well-drafted Will can be dire, and as the results in the survey show, many of us fall into the trap of not keeping our Will up to date.
“Using a professional to write your Will prevents those common mistakes from being made. Their experience and legal knowledge means solicitors can foresee and deal with any potential issues in addition they can advise on safely storing your Will, granting probate and executing your final wishes.”
Read the full article on the Macmillan/Opinion Matters survey. https://www.macmillan.org.uk/aboutus/news/latest_news/will-ful-ignorance-macmillan-reveals-the-shocking-state-of-uk-wills-.aspx
Bristol-based law firm Cooke Painter Solicitors appoint new head of family law
Cooke Painter Solicitors Ltd, a specialist law firm based in Bristol, has appointed Suzanne Henderson to head up their family law division. Suzanne is an extremely experienced family solicitor with expertise in divorce, financial matters, co-habitation agreements and also has particular expertise as a Resolution lawyer.
The appointment has been well timed with January, often cited as one of the busiest months of the year for separation and divorce. Statistical trends show us that couples often hold off initiating proceedings until after important family celebrations such as Christmas.
Andrew Stone, Managing Director at Cooke Painter explains “Our firm regularly sees an uplift in enquiries about divorce during the first few months of the year. I am delighted with the appointment of Suzanne Henderson to head up our family division at such a crucial time. Her experience and skills mean that she is not only the right person to lead the family team forward but will also offer our clients the much needed support and advice they need during a difficult period.”
Suzanne gained her experience as a family lawyer and Resolution Accredited Specialist working with clients in the South East and South West. She deals with all aspects of family and will be based at the Wells Road office, but serving clients throughout Bristol and the South of England. As well as being an Accredited Specialist in financial provision she can also advise alongside mediation and on court applications such as removal from the jurisdiction, removal of parental responsibility and change of a child’s surname.
She has close links with the Women Lawyers Division Bristol, being a committee member and is involved with events and seminars hosted by them.
Commenting on the new role Suzanne said “It has always been a priority for me to serve my clients in the best way I know how. My advice is professional but helpful and I like everyone to feel at ease from our very first meeting. Heading up the family law division at Cooke Painter not only allows me to continue practising in something I enjoy and am passionate about, but also as the business grows, to develop a team of like-minded legal specialists who have the best interests of their clients at heart.”
Suzanne said the company expects to see double the amount of enquiries about divorce during January than in the previous six months.
Official figures show divorces of opposite-sex couples in England and Wales increased by 5.8% in 2016 compared with 2015 The most recent figures from the Office for National Statistics show that 106,959 couples divorced in 2016 – an increase of 5.8% in a single year.
Commenting on this Suzanne said; “These figures show there is a real need for reliable and knowledgeable family law experts to support people through the complex process of divorce. I am very much looking forward to being part of such a proactive and innovative law firm, one that is committed to serving the needs of its local community and is providing the legal services they genuinely need”.
Contact Suzanne or any member of the Family Law team for expert, confidential advice by calling 0117 977 7403 or by emailing: Suzanneh@cps-sols.co.ukRead More
Christmas has been and gone and the next major holiday is Easter. It is too easy for holiday arrangements to cause arguments and frayed tempers.
It doesn’t need to be this way following your divorce. With a little gentle, expert advice and a reassuring guiding hand, this potential time of conflict can be navigated with little or no stress.
The Starting Point and a Note of Caution
If there is a court order, a Child Arrangements Order, (it used to be called a Residence Order) which stipulates where your children should live and the contact levels between parents and children, this will always be the first port of call for any family lawyer.
It can sometimes be tempting for the parents to informally agree a notional variation to the court order, allowing Dad, in our example, to take the kids on holiday for a couple of weeks, despite this being in breach of the court order. Often, such an agreement won’t cause any problems but there is a good deal of risk in taking this course.
Courts do not like their orders being breached. Let’s say Dad takes the kids away, in breach of a court order, with the informal agreement of Mum. If, for whatever reason, the relationship deteriorates following the divorce and Mum reneges on the agreement, this could put Dad in a very vulnerable position. Of course, the same applies if the positions were reversed.
The far better course in such a situation would be to have that agreement in writing, a solicitor’s letter between the lawyers for both Mum and Dad – ‘formalising’ that agreement helps mitigate the risks of unpleasantness further down the line.
On the other hand, if you are the person who holds a Child Arrangements Order you are permitted to take your child abroad for no more than 28 days without seeking the permission of the other parent. Nevertheless, even though this is your ‘right’ it may be more politically prudent to consult with the other parent, helping to keep the relationship as positive and as conciliatory as possible for the future benefit of all concerned.
What if there is no court order?
Parental responsibility (PR) is a legal term which simply dictates who can make important decisions about the child. As long as both parents are named on the birth certificate both Mum and Dad would ordinarily have PR. Others can have PR also, but this is less common. If you’re not sure whether you have PR, or if you haven’t got PR and would like it, please get in touch and we’ll help you with this.
As a general rule, even if Mum or Dad have PR they should not take the child out of the country without the permission of the other parent. To simply take the child abroad without receiving permission could be child abduction, a criminal offence. A short spell in prison would probably spoil your holiday.
If you wish to take your child abroad they will, of course, need a passport but not everyone can get a passport on a child’s behalf. If the child is 15 years old or younger, the application needs to be made on the child’s behalf but if they’re between 12 and 15 years of age, they’ll need to sign the application form too.
In applying for a passport, the issue of Parental Responsibility is relevant once again. To apply for a passport on a child’s behalf you need to have PR. If there is more than one person with PR you need to obtain written permission from each person with it.
The usual time scales for receiving a new passport for a child is three weeks from date of application, but this can be longer at busy holiday times. Therefore if you want to take your child away for the holidays, you’ll need to get permission first and then apply for the passport, so make sure you begin this process in good time.
What happens if someone with PR refuses?
Ordinarily, even if someone with PR initially refuses to give permission to either obtain a passport or allow you to take the child abroad, with careful, gentle negotiation, they can often be persuaded to give that permission. We will always try and negotiate a sensible resolution rather than taking the matter to court. Time and again, a polite letter from a solicitor, explaining the reasons why you want to take the child abroad proves to be an effective way of taking the heat out of the situation and will often result in an agreement that is acceptable to both parties.
It should be noted that an application to the court and asking a court to make a decision about the issue is almost always the more expensive option. To quote Winston Churchill, Jaw Jaw not War War should therefore be the preferred approach.
However, if the parties can’t come to an agreement an application can be made to the court. With careful preparation, a sensible application and a reasonable approach, courts are generally positively pre-disposed to granting this type of an application. The solicitors at Cooke Painter will be able to advise you about what you’ll need and your chances of success.
What if I suspect my former partner is going to take out child abroad?
Whether that person has PR or not, you can make an emergency application to the court to prevent them from taking the child abroad, this is called a Prohibited Steps Order.
The solicitors at Cooke Painter have a good deal of experience in applying for court orders preventing the removal of a child from the jurisdiction where, for instance, it is suspected that ‘holiday’ is simply a ruse for re-location. In such cases it is important to obtain as much evidence as possible about the real intentions of the other parent, Facebook posts, WhatsApp messages or an email ‘out of office’ responder can all prove to be good sources of evidence to establish the true position.
On the other hand, if your former partner has a genuine wish to take your child on holiday then Cooke Painter solicitors can help in arranging safeguards that will help to reassure you in the event that you agree to allow the child to go on holiday.
The holidays can act as a flash point. This can be avoided. It is important to plan well ahead, to seek early advice, to contact your former partner and ask for permission well in advance of the intended holiday. This will allow you to negotiate, without the pressure of time.
If further advice or action is then needed from your lawyers, there is still plenty of time for this to take place and hopefully, without needing to go to court. If you need any help or assistance do get in touch with our expert family lawyers at Cooke Painter solicitors.Read More
I want to divorce my partner… but I don’t know where they are
What’s the Issue?
The title of this blog could be mistaken for a tag line on the Jeremy Kyle show but surprisingly this issue comes up more regularly than most people would expect.
The absent or missing partner situation encompasses a wide variety of scenarios, the simple, “I don’t have their new address”, to the more complicated, “I’ve not seen them for 30 years and I think they’ve moved to Nepal”. We’ve seen it all here at Cooke Painter.
There are also many reasons why someone may leave abruptly, failing to leave a forwarding address or any clue as to their intended destination.
Whatever the reason for contact being lost, the simple fact of not being able to find your former partner can cause real difficulties when wishing to divorce, perhaps having met a new partner and wishing to re-marry or enter into a new civil partnership.
It sounds obvious but the easiest way of resolving the issue is to find your former partner. There are many ways of doing this, contact family and friends, check social media, make enquiries with their former employer or social club or organisation they may belong or have belonged to. It is surprising how regularly these old fashioned, cheap, options can be successful.
However, if those enquiries are unsuccessful you may wish to contact a solicitor at Cooke Painter to help because it becomes a little more complicated from here on in.
The Court Process
The first thing that needs to happen is that your freshly completed divorce petition needs to be sent to the last known address. After this it is necessary to see whether that divorce petition has been returned to the court unopened. We can help you with this.
Once it has been returned unopened (assuming the former partner no longer lives at the last known address) you can ask the court for permission to serve the petition in another way, such as email, or maybe on their employer.
But these options, especially where a number of years have elapsed, will often be unsuccessful and it is at this point that further applications need to be made to the court to explore other ways of finding their new address. There are some hoops to jump through and therefore you may want help with this.
The Final Step
If, having followed the steps above, the former partner still can’t be located an application can be made to the court to ‘dispense with service’. There are particular forms to complete to do this and a further fee needs to be paid. If all is in order, the court can then grant permission to dispense with service and the divorce process can begin proper.
The important thing to remember is that a step by step approach needs to be adopted. As with many court processes it’s about doing things in the right way, in the right order and obtaining the right evidence.
If you would like assistance with any of these issues the team of family law experts at Cooke Painter are here to help.Read More
Grandparents’ Rights – What happens if they are denied access?
There are two common reasons for grandparents being denied access to their grandchildren; either a fall out between the grandparents and their own son or daughter, or where there is a family breakdown and the children live with their mum or dad, who isn’t the son or daughter of the grandparents.
Negotiate and Mediate
The first thing to say is that in most cases where contact is being denied, with some careful negotiation, with cool heads, an agreement can often be reached that allows contact to take place.
This is the very best way to preserve a long term relationship between grandparents and their grandchildren, despite the potentially difficult relationship with the parents or between the parents.
The Legal Bit
However, if an agreement can’t be reached grandparents have relatively few options.
The first thing to note is that grandparents don’t have an automatic right to apply to the court for contact because they don’t have something called ‘Parental Responsibility’, or PR for short.
What grandparents can do however is apply to the court for ‘leave’ (which simply means permission) to apply for a contact order. So an extra hurdle but not an insurmountable one.
The court will then consider lots of different factors but these can be put into three broad questions:
- What sort of relationship is there/has there been between grandparents and grandchild?
- What type of contact is being asked for?
- What effect contact may have on the child?
What is CAFCASS?
Sometimes a CAFCASS officer (Children and Family Court Advisory and Support Service) will be appointed to help the court look at any welfare issues or to help answer the three questions set out above.
Grandparents are often understandable reticent about opening up to a stranger, but time and again enthusiastic engagement with CAFCASS is often the first step in establishing strong evidence in support of a grandparents’ contact application.
The courts are becoming more amenable to applications made by grandparents, recognising that having a wide family support network is often in the best interests of the child.
Therefore, if the preferred option of gentle negotiation is unsuccessful, approaching the courts is a viable, realistic option. If you would like to discuss this issue further then contact the family team at Cooke Painter.Read More
What happens to company assets after divorce?
“I know I may have to divide some of my company shares with my partner, but what about other company assets?”
As a starting point it is worth remembering that anything ‘owned’ by the divorcing couple is fair game to be included as part of the settlement pot. Shares in a company would be no different.
However, it becomes more difficult when one of the parties to the divorce wants to include business assets in the sharing pot. The business assets may be fleet vehicles, an expensive company car, a factory unit or office block, or valuable machinery and therefore may well increase the value of the sharing pot considerably.
The Corporate Veil
You may have heard the mysterious phrase of ‘piercing the corporate veil’ and wondered what it means. Well, first of all, let’s look at what the corporate veil is. Imagine the corporate veil is a moat between an individual’s assets on one side and the company owned assets on the other. You can see over the moat and see what the company has, but it is tricky to get at them, at the very least, you might have to get your feet wet.
Piercing the corporate veil is the building a raft to cross the moat (to extend the metaphor still further) but to be able to build the raft you have to have the right materials and the right tools and these aren’t easy to find. The right tools, in the context of a divorce are as follows;
- where the company is being used to avoid satisfying court orders, or otherwise
- it is being used to avoid legal obligations (such as personal assets being transferred to it)
But that’s not the end of the story. The court doesn’t have to pierce the corporate veil in every case.
The Family Home
Sometimes the matrimonial home may be owned by the business. Putting to one side lots of problems about the tax ramifications of doing this, when looking at a divorce the court will look at the intentions of the couple to determine whether the matrimonial home should also be in the pot, despite it being owned by the company.
To put this in legal language, it is about separating who may be the ‘legal’ owner (i.e. the company) from who is the ‘beneficial’ owner, the couple.
Dishonesty isn’t needed
Some lawyers tell their clients that to be successful in obtaining a share of property held by a company they have to prove that the assets were owned by the company for dishonest reasons, that it was a sham. Unfortunately, this advice is wrong. All the court will do is look at the intentions of the parties and where the money came from to purchase the particular asset in deciding whether the moat can be crossed.
As will be appreciated, this is a very complicated area of law and specialist advice should be taken at an early stage. Getting it wrong can be a very expensive mistake. If you have any concerns about your own assets, your company assets or those of your spouse, please do get in touch with the family law specialist here at Cooke Painter and we’ll talk you through your options.Read More
". . . the truth is, pensions can be hideously difficult to split between former spouses."
What happens to my pension if I divorce?
After the matrimonial home, a long standing pension is often the most valuable asset which will fall to be determined as part of the financial settlement portion of divorce proceedings.
But the truth is, pensions can be hideously difficult to split between former spouses.
Here at Cooke Painter we will always try and encourage our clients to negotiate as much of a settlement as possible, this will avoid incurring unnecessary legal fees and can help keep the ‘heat’ out of the relationship breakdown.
Unfortunately, pensions are one of those areas where most people will probably need some legal help to make sure that the eventual settlement is both fair and legally enforceable. All that being said, we hope that this blog will help you to understand the general framework of how pensions are divided, the issues that often arise and also help you to formulate the right questions to ask your legal adviser if you choose not to instruct Cooke Painter solicitors.
As the old saying goes, there’s more than one way to skin a cat. In terms of sharing a pension, there are, in fact, three main ways;
- Pension Sharing, and
- Pension Attachment
There are lots of different variations of these three main themes but by focussing on these three, its possible to gain a good understanding of the general position.
Off-Setting is relatively straightforward. In short, the person whose pension it is decides to take less of the current pot of available assets (such as the family home) in order to keep their entire pension for the future.
Pension Sharing does exactly what it says on the tin but uses a piece of legislation that came into force in 2000. The pension is ‘shared’ as part of the overall pot of assets, and the person who is receiving their slice can either choose to re-invest it, in their own new pension pot for example, or if allowed by the pension fund, keep within their spouses existing pension fund, for them to draw from at a later date.
The third main way of dividing pensions, that of Pension Attachment or ‘earmarking’ is where a portion of the pension fund is paid upon retirement, The payment of the ‘earmarked’ part will only be triggered when the ‘owner’ of the pension begins to receive theirs.
Valuing the Pension
Whichever method is adopted the parties will need to know how much the pension is really worth. Old calculations as to future value are rarely reliable and an expert’s report may be required. As an example, if the type of pension concerned relies on investments or the stock market the value on a given date can fluctuate significantly and therefore an expert’s report can often help to ‘even out’ these fluctuations, or at the very least, make a best guess. This type of report is produced by a pension actuary usually called a ‘Pension Sharing Report’.
None of us would choose to pay legal fees if we can avoid it. But like taking out house insurance, getting the right legal advice at the right time can protect you against costly, unforeseen events in the future.
Off-setting can be done without a court order, pension sharing and pension attachment can only be done with a court order so you do need to take some advice on doing this properly even if (as we would encourage you to do) you and your former spouse have managed to divide assets amicably.
To keep legal costs to a minimum it might be helpful if you collect together all of your pension paperwork and to get an up-to-date ‘cash equivalent’ valuation from your pension provider. Once this material has been collated most lawyers who are expert in divorce proceedings will be able to give you a pretty good idea of what to expect and the pros and cons of each type of pension splitting. If you need help in this or any area of family law please do get in touch with us here at Cooke Painter Solicitors.Read More