Capital, Property Adjustment and Pension Sharing
In deciding how to divide the assets, the Court (and solicitors whilst attempting to negotiate a settlement) must take into account, amongst other cases, the decision in White -v- White. The starting point is that the assets of the marriage are to be divided equally. If, however, this would be unfair the Court must take into account Section 25 of the Matrimonial Causes Act 1973 and, in particular, the following:-
- The income, earning capacity, property and other financial resources which each of the parties has or is likely to have in the foreseeable future….
- The financial need, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future.
- The standard of living enjoyed by the family before the breakdown of the marriage.
- The age of each party to the marriage and the duration of the marriage.
- Any physical or mental disability of either of the parties to the marriage.
- The contributions which each of the parties has made or is likely to make in the foreseeable future to the welfare of the family.
- The conduct of each party
- The value to each of the parties of any benefit (for example a pension) which either party will lose the chance of acquiring.
Pension funds often prove to be the most valuable assets of the marriage and ones in which no wife should ever be persuaded in to thinking she does not have an interest.
The Court has the power to make, with or without the consent of both parties, the following orders in favour of either party:-
- Periodical payments– maintenance before Decree Nisi and continuing afterwards either for a fixed period or until a specific event such as a spouse’s remarriage
- A lump sum order– relating to a split of the parties` capital assets
- A property adjustment order -an order relating to the sale or transfer of the matrimonial home or other properties in which the parties have an interest
- A Pension Sharing, Pension Offsetting or Pension Attachment Order.
Clean Break Order
The effect of such an Order is that the rights of each party to make any further claims against the other or the Estate of the other arising out of the marriage in relation to maintenance, capital, property, Pension Sharing or otherwise are dismissed. So, once the Order is made:
- You will become wholly financially independent from your husband/wife
- If your husband/wife wins the National Lottery or inherits money, you will not be able to apply to the Court for any part of his/her money
- If you fall on hard times, you will not be able to apply to the Court for a Maintenance Order for yourself
- If he/she dies leaving all his/her Estate to e.g. the Battersea Dogs Home or his/her new partner, you will not be able to apply to the Court for an Order pursuant to the Inheritance (Provision for Family and Dependents) Act 1975 or otherwise for provision from his Estate
- It does not apply to any children of the family thus, if your spouse dies making no provision for a child of the family, you will be able to make an application under the same Act for financial provision from the Estate.
The financial settlement is often one of the most contested parts of relationship breakdown. Our approach is to try and help you to work towards a negotiated settlement rather than face the stress and cost of Court proceedings. Where possible we will encourage mediation and discussion to reach the best outcome for you and your family in a non-confrontational way.