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.
Assets acquired prior to the marriage
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.
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