How can I protect my assets, including my pension, when I divorce?
There is an absolute requirement if finances are to be dealt with as part of a divorce that each person must provide full and frank financial disclosure. This means that information about all assets in your sole name or jointly with anyone else must be shown. This requirement of full and frank disclosure is required whether you are dealing with matters through the court or through any alternative methods of resolving family disputes, such as mediation or collaborative law.
This does not mean that by disclosing an asset that it is ‘up for grabs’ by the other person. There are several factors the court looks at when dividing assets upon divorce which are set out in the Matrimonial Causes Act 1973. First priority is given to the needs of the children. This means that when dividing the assets, we must give first consideration to where the children are to live and how each party can provide a home for them to stay in.
The other factors set out in the Matrimonial Causes Act can be used to protect your assets where appropriate. See our factsheet for more detailed information on settling financial issues during divorce or separation. Commonly, when couples separate they want to protect the assets they brought to the marriage, or pensions which have been accumulated prior to the marriage, or inheritances they have received.
How and whether an asset can be protected will depend upon your own particular circumstances. For example, the longer a couple are married the less likely it is that assets brought to the marriage will be protected and treated as assets to be separated out from the matrimonial assets. The passage of time dilutes how such assets are treated. There is no set rule on how long a relationship has to be in existence before the money brought to the marriage is treated as a matrimonial asset. However broadly, a relationship from 12 -15 years will start to see such a dilution. Relationships of 15 – 20 years+ will normally mean that the starting point for the division of all assets is an equal one. However, a shorter marriage, such as 3 or 4 years may mean that the assets each party brought to the marriage are retained by that person.
Pensions would seem to be an obvious asset which can be separated out and any pre-relationship accrual separated out. However, if we are dealing with the same pension through the relationship then it is not an easy calculation to make. It is possible to instruct an actuary to try to value how much of the pension was accrued prior to the marriage but it is not an exact science and there are different methods in which such a valuation can be carried out. Some couples, if the pension is to be protected, will work out how long the pension has been in existence and of that time, how many years they have been together. For example:
A husband has had the same pension for 16 years.
The parties have been married for 10 years.
They agree the wife should have a half share of 10 years of the pension. The pension transfer value is required to calculate how much this is, or again they can turn to an actuary for assistance depending upon the type of pension.
Inheritances are treated differently to other assets on divorce and can be much easier to protect. Our legal system recognises that the person who bequeathed the inheritance will usually want the person they left the funds to, to be the one to retain those. Inheritances will therefore be ring-fenced if possible upon separation and treated differently to the other assets. The person who received the inheritance may be able to protect this asset by keeping it in their sole name, showing that the matrimonial assets will meet the needs of the children and the other party and that this inheritance should therefore be protected for them. An inheritance becomes much harder to protect if it is put into joint names or, as is often the case, is used to reduce/pay off the mortgage on the family home.
Although there is the duty of full and frank financial disclosure, by being up front about the assets you hold, with good legal advice you can use the law to help in trying to protect some assets.
For more information about what I have spoken about in this blog, please do get in touch: [email protected] : 023 92000086
Someone is named in a living will set up by their parents. This person is then involved in a divorce. Would the spouse of the named person have any claim on the potential inheritance from the living will. Should the living will be declared as an asset?
The living will has been in place for about 5 years and names the 2 children but not any spouses of these children.
Thank you for your comment. A living will is usually a document which sets out someone’s wishes in respect of future possible medical care. I wonder if you mean something different to being named in a living will? All assets should be declared but being named in a Will is not an asset and it is unusual to disclose that you have been named in a Will as part of the divorce process. If you wish to contact me directly to explain more about what you mean by a living will I may be able to give you a better response to your query.
Having recently divorced and reached a settlement with the other party, including spousal maintenance (agree lump sum settlement) and ongoing child maintenance.. how does one move ones life forward, eg purchasing a property without the fear that the other party will not seek to make a further claim against it at a later date. How can one protect ones assets against such an occurrence? Setting up a trust? Limited liability company? Offshore ownership of the asset? Confused as to safest options..
Thank you for your comment. Have you entered a court order confirming the division of the financial assets? If so, this provides confirmation that no further financial claims can be made between you arising from the marriage. If you have not obtained an order then it is important that you do this to finalise the financial claims either of you can make. You are welcome to contact me directly if you would like to know more about obtaining an order and how I can help.
Hi, I have been separated for 5.5 years but never divorced. Now I?m looking at getting a divorce, would my pension contributions post separation be taken into account, or just pension contributions to the date of separation.
Thank you for your comment. You will have seen that we cannot give advice on this forum. It is something you can raise and ask for pension contributions post separation to be ignored but other factors the court has to consider may mean that this does not happen. If you would like advice more specific to your circumstances then do feel free to contact me directly and I can explain how I can help.
My husband and I separated after 8 1/2 years of marriage. Upon marrying he was living in a rented flat 700 miles away and I owned my own house with a mortgage. His solicitor now wants all of my finance information including house valuation. My husband never moved in with me but instead just visited at weekends. He paid no bills utility bills Or contributed in any way To the upkeep of the house. During the marriage I moved house and renovated a second house on my own in my spare time. He did not contribute to this. Due to this I am in a financially better situation. In addition the ISA I set up to pay off my mortgage has grown. How can I protect what I would?ve had as if I had never been married to him; It seems pretty awful that he should get any part of the money I have worked and saved for when he refuse to ever live with me or contribute. Upon getting married it was because he promised that he would leave his job and move in with me. I just want to break divorce where I don?t want any of his pension or his money and I?m not going to give him any of my pension or mine. He has no documentation that his name was on anything for this house, he has no bills or mail ever sent to this house everything was sent to his flat that he rented as though he totally separate life and I was just a part-time wife.
Thank you for your comment. We are not able to give advice on this forum. However, as set out in the blog, you are both obliged to fully disclose your financial positions to be able to deal with financial matters following a divorce. Disclosing your positions does not mean that everything disclosed is shared. Once the disclosure has taken place you can set out your position, the history and try to negotiate a fair settlement.
Hi. I?ve been married 15 years and co-habited for 2 years with my wife before marriage.
Her pension is worth ?530,000 and mine ?230,000. My wife was paying in to her pension for 15 years before we met. Her pension is final salary and with a private company whereas mine is career average based and a public sector pension.
Would a court view my wife?s pension as ring fenced for the first 15 years or, due to the length of the marriage, would it now count as a matrimonial asset?
I?m considering a pension sharing order or to just write off the difference and walk away without any of it.
In two minds? Help?!
Thank you for your comment. We cannot give advice on this forum. We would need more information about your situation, the other assets and your needs to give advice as to whether it could be possible to ring fence part of the pension. It would not be automatically ring fenced but it could be an argument advanced by your wife. If you would like advice specific to your circumstances then please feel free to contact me directly and I will set out how I can help.
Hi is there a way to protect my house in the Caribbean in case of a divorce? Could I do this beforehand?
Thank you for your comment. We cannot provide advice on this forum and a solicitor would need a lot more detail to provide an answer to your question. You are welcome to contact me directly to find out how I can assist.
Hi, I own 10 x properties which are part of a property portfolio within my family own estate agents. I have been in a 2 year relationship and looking to be married in the near future. What would you advise to protect my assets prior to marriage to avoid these being split if there was a divorce? Hopefully there won?t be a divorce but you never know. Ideally I would like to avoid a pre-nup as this would cause tension I assume prior to marriage? Is there an alternative? Also with these properties being in a property portfolio of a family business (but are in my name) mean they are exempt from any divorce settlement? Thank you in advance.
Kind regards,
Chris
Thank you for your comment. You should consider having a pre-nuptial agreement drawn up to help protect the assets you bring to the marriage. You and your partner can work together to agree the terms of the pre-nuptial agreement. You are welcome to contact me if you would like to know more about how I can help.
How’s the law protecting the hardworking one? Half of time in marriage my husband was/is jobless. I’m the one working hard and paying everything. Whe he was working we pay portion to joint account. I have heard a friend who’s in similar situation but her husband was worst, not working but fighting for the property that he had never pay any of it. and she had to share it with him to end the marriage. How’s that fair? How can we protect ourselves.
Thank you for your comment. Our law has flexibility in it and so every separation can be dealt with based upon its own particular facts. It is possible to consider drawing up a postnuptial agreement if one is making a greater contribution to protect the contributions that person is making. You can obtain advice about your particular circumstances to see what options are available to you.
Hello
I am divorcing and have a large final salary pension built up before I gave up work to bring up family. My husband built up a large amount of debt early in the marriage under his name without my knowledge to pay for mortgage etc due to his business problems.
I have been main carer for 14 years and our autistic son has been home schooled for a year and the last year has been seriously unwell. My husband has not paid into his pension for 15 years of our 20 year marriage. Will I be required to pay half the debt and share my pension? My husbands pension is much smaller.
Thank you for your comment. We are not able to give advice on this forum. To be able to give you advice on how the pensions could be shared we would need a lot more information about the background as there are many factors which are taken into account when the assets are shared. You are welcome to contact me directly if you would like more information about how I could help.