Divorce and Selling the Family Home
As Manchester divorce and family finance solicitors advising separated couples we get a lot of calls from husbands or wives concerned about divorce and selling the family home. In this blog, our family law solicitors look at the issues and your best options when it comes to divorce and selling the family home.
For expert family law advice call our team or complete our online enquiry form.
Should I sell the family home?
Sadly, some divorcing couples don’t have a choice: the family home has to be sold. For others, you can make the financial or personal choice to either sell up, transfer the property to your husband or wife or keep the property yourself.
Often people have a strong knee-jerk reaction that they must keep the family home at all costs whilst others are equally adamant that they don’t want to stay in the family home because of the memories associated with it. Undoubtedly selling a family home involves hassle so it is best to consider all your options and the practicalities of a move, such as:
How much is the family home worth and how much will I need to spend to buy a new property?
If I stay at the family home would the mortgage company agree to transfer the mortgage into my name?
If I sell and buy another property what is the maximum mortgage that I could get?
Can I afford the monthly mortgage payments and the upkeep on the family home if I get spousal maintenance or child support or if I have to make those payments out of my salary?
Is it better to make a fresh start or to downsize so I can have some cash to spend on holidays or little luxuries?
Will my husband or wife agree to the sale of the family home?
The effect of market conditions on your decision to sell the family home.
Experienced family law solicitors encourage separating couples to look at whether they should sell the family home or not from a short and long-term perspective so you make the right decision for you and your family. However, the current housing market conditions may inevitably have some influence on your decision-making process because:
You are worried about the time to achieve a sale and getting your sale price
You are concerned about getting the mortgage on the family home transferred to you or taking out a mortgage on a new property and mortgage rates
You don’t feel that your job is secure or you are worried that your husband or wife could be at risk of being made redundant and redundancy will affect their ability to pay you child support and spousal maintenance
With or without the pressures of a cost-of-living crisis the decision to sell the family home, or resolving which one of you should stay at the family home, is always stressful. That is why it is best to take time over your decision and not be too influenced by the views of teenage children who may be leaving home to go to university soon leaving you with a house that is too large for you and without sufficient money to pay for life’s little luxuries or to pay for car repairs.
If you end up with the family home the trade-off may be that you don’t get a share of your husband or wife’s pension. That may mean you eventually have to sell the family home to fund your retirement. However, the released equity on the sale of the family home won’t necessarily give you the same income return that a pension sharing order would have done. That’s why it is best to carefully consider if the short-term hassle of selling the family home and moving is in your long-term best interests if it means you get a pension sharing order.
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The best way to divorce and sell the family home.
If you are getting divorced and thinking about selling the family home here are our tips on selling the family home whilst separating from a partner or getting divorced:
Is it realistic for you both to live at the family home until it is sold bearing in mind that once the property is sold it will take time for the conveyancing process to reach completion? It is advisable to always take legal advice before leaving the family home as doing so may make your husband or wife less keen to achieve a sale. However, if the atmosphere at home is affecting you, then one option would be for one of you to rent a property or stay with family until the family home is sold
Consult with your husband or wife about the sale price and choice of estate agent and make sure that the estate agent keeps you both informed about viewings and feedback from prospective buyers. That way if the estate agent recommends a reduction in the sale price your spouse is more likely to be willing to consider this
Get your paperwork in order as requests for documents from your buyer’s solicitor can delay the sale of the family home. If you have had work carried out at the property you need to locate your planning and building regulation documents, electrical, gas and FENSA certificates or organise duplicate paperwork
Agree on how you will divide the household contents as the last thing that you are likely to want to do is try and sort out household contents at the date of the sale. It is best to list the household contents and both sign the agreed schedule and the division of contents between the two of you and highlight what items, if any, will be sold with the house
Think about whether you want to sell the family home if you haven’t reached a financial settlement with your husband or wife. It is common for a sale of the family home to be achieved before you reach a full financial settlement including how pensions, business assets and investments are split as well as whether spousal maintenance should be paid and for how long. If you are happy with the sale price of the family home and fear that you will risk losing your buyer if you delay you could agree with your husband or wife that the net proceeds of the sale (after discharging the mortgage, conveyancing solicitor and estate agent fees) are kept in a joint account or by a solicitor until an agreement is reached or a financial court order is made. In some situations, you can agree to the release of some extra money to allow you to buy your planned new property or to discharge family debts
If your spouse won’t agree to a sale of the family home get a court order. If you are certain that the family home has to be sold as it isn’t financially possible for either of you to take it on because the mortgage company won’t transfer the existing mortgage into one of your names or you won’t be able to afford the mortgage on one salary then speak to Evolve Family Law about starting financial proceedings for an order for sale of the family home. If your husband or wife won’t cooperate with the sale of the property then a family judge has the power to make orders about the sale price, and the choice of estate agent. The judge can even sign the paperwork to sell the property if your ex-partner refuses to sign the contract to sell the house or the deed of transfer
How can Evolve Family Law solicitors help?
At Evolve Family Law we recognise that deciding to separate and sell the family home is hard. Often, the decision is finely balanced so you need specialist help to look at all your financial settlement options and work out whether the option of selling the family home is the best one for you. We will support you in negotiating a financial settlement with your ex-partner so you can move on with your life.
For expert family law advice call our team or complete our online enquiry form.
Robin Charrot
Feb 16, 2024
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7 minute read
Can I Get a Divorce Online?
Evolve divorce solicitors can confirm that you can get divorced online with us. However, many of our North West family law clients like to pop into one of our offices in Holmes Chapel, Cheshire or North Manchester to meet their divorce solicitor face-to-face.
The decision is yours to make – whether you are divorcing online or meeting with us at our offices you get a named divorce solicitor to handle your no-fault divorce and to answer any queries. Of course, you get the same level of excellent client service whether you decide to meet with us or not.
If you need help with applying for a no-fault divorce call our team or complete our online enquiry form.
The no-fault divorce
With the introduction of no-fault divorce proceedings, the divorce process in England became a bit more streamlined. Sadly, the divorce timescales have not speeded up as you are still looking at around 7 months from the start of your divorce application until you get your final order of divorce.
The process and timeframe are the same whether you are applying purely online or after meeting with your divorce solicitor. It takes around 7 months to get divorced because the law imposes time delays on how quickly you can finalise your divorce. Our divorce solicitors understand that these delays are frustrating when you know your own mind and you do not want to back track on your decision to divorce your husband or wife.
The good thing about the no-fault divorce process is that you can choose to apply jointly for a divorce with your husband or wife. There is no requirement to do so. Whether you apply as a sole divorce applicant or jointly with your husband or wife the divorce process is very similar. In addition, even if your spouse does not agree to the divorce there are very limited ways to oppose the divorce.
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Why see a divorce solicitor if you can divorce online?
‘Why see a divorce solicitor if you can divorce online?’ is a good question. There are many different reasons why you may want to meet us in person. For example, your divorce is an immensely distressing personal experience for you and you do not want to feel like a ‘number’. Alternatively, you may feel confident about Evolve Family Law handling your no-fault divorce online but you want to meet with a specialist family law solicitor to discuss the parenting, custody and contact arrangements for your children or the potential financial settlement.
Sometimes nothing beats sitting down with your family law solicitor to understand your legal options and to work out the solution that works best for you and your family. It may be that you are comfortable having discussions online after a first meeting or that you need the reassurance of a face-to-face meeting to help you make some of the most important decisions that will affect your life and that of your children. For example, will the care of the children be shared by co-parenting or will the children reside with you? Will you keep the family home or should you agree to the sale of the property and to the making of a pension sharing order? Should you agree to a clean break financial court order and what would that type of court order mean for your family if you lost your job and could not return to work?
A personal online divorce
Whether you instruct us online or in person we provide a personal and professional divorce service.
At Evolve Family Law we recognise that every client and family is different. That is why we discuss with you how you want us to work for you. It could be online, email, phone, in person or even using old-fashioned post. We aim to find the divorce process that is the least stressful for you.
How much does a divorce cost?
If you apply for a no-fault divorce as a sole applicant or jointly with your spouse, we can provide a fixed-fee divorce service.
We offer a range of other fixed-fee services. For more information on our fees Download Our Price Guide.
If you need help with applying for a no-fault divorce call our team or complete our online enquiry form.
Robin Charrot
Jan 23, 2024
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4 minute read
A Family Lawyers Guide on How to Get The Most Out of Family Mediation
In this blog, our family law solicitors offer tips on how to get the best out of family mediation to help you resolve your family law issue.
For expert family law advice call our team or complete our online enquiry form.
Here are some tips on getting the best out of family mediation:
1.Do you know where you are going?
That may sound like a stupid question but often mediation sessions take place at a mediator’s office and the location may be unfamiliar to you. Your mediation session will not get off to a good start if you arrive late or flustered.
2. Do you have time?
Most mediation sessions last for about an hour to an hour and a half. Sometimes they can run over a bit. It is best to avoid booking the mediation meeting on a day or at a time when you need to rush off to an important business meeting or to do the school run.
3. Is it the right time to mediate?
If a couple has been separated for a while, then it may be the right time to go to mediation. For others, the timing can be more complicated as one of you may feel too raw about the relationship breakdown to be able to engage in mediation.
It is always a balancing exercise because you do not want to leave starting mediation for too long but starting it before one of you is ready can be counterproductive. A spouse who is finding it hard to come to terms with the marriage breakdown might find it helpful to have a period of counselling before or during the mediation sessions.
4. The choice of mediator
Make sure that the mediator is right for you and your spouse or ex-partner. Your solicitors should ideally agree on the choice of mediator.
It can be hard to choose a mediator but do not be swayed by their location and convenience or your friend’s views. These can be important considerations but other factors may influence your decision. It may be the case that you know your spouse would feel more comfortable with a male or female mediator. You may be keen to accommodate their wishes to give mediation the best chance of working.
Your family finances may also be a consideration when looking at the choice of mediator. If you own a family business or have complex finances a mediator with a legal or financial background might best meet your needs.
5. The mediation agenda
At the outset of the mediation sessions, the mediator will normally discuss and agree on an agenda.
You may only have one item on your agenda, for example, to keep the family home or your pension. Although it is important that your spouse, your solicitor and the mediator know what your priority is, it is also important that other things and options are put on the agenda for discussion.
6. Listen
Mediation is a two-way process. That is why it is hard, as you need to listen to your ex-partner’s views to try to reach a compromise. Listening to them should ensure that they treat you with the same courtesy and listen to what you have to say. Mediation sessions can be emotionally hard and can sometimes bring up painful topics or memories. If it is too much for you ask for a break. It is better to have a break rather than continue when you are very emotional or upset.
7. Ask for explanations
Solicitors, mediators and spouses can all assume that you know what they are talking about when they use legal terminology or talk about financial matters, such as pension-sharing options or mortgage finance.
If you are uncertain, about what has been said or what is proposed then ask for clarification. A mediator cannot give legal advice but they can explain legal or financial terminology. You should also ask for a detailed explanation from your family law solicitor and not make any decisions about your options and any proposed agreement until you have done so.
8. The past is in the past
When you are in mediation, it can be tempting to go back over old history. Sometimes it can be relevant. For example, if one of you paid the deposit on the family home or received an inheritance. Sometimes going over old history just makes it harder to reach a compromise. For example, if you want to look at the reasons for the marriage breakdown.
Mediation is normally about looking at the future and helping you reach an agreement that will work for the family. If too much time is spent on reviewing what went wrong it can be hard to focus on reaching an agreement.
9. There is more than one option
It is very rare for there to be only one solution in mediation. There are normally many options and it is best to go to mediation without having a fixed view that your preferred resolution is the only acceptable option.
10. Do your homework
A mediator will often ask you to bring some paperwork or carry out some investigations before the next mediation session. For example, you may be asked to get an estate agent’s appraisal of your family home or to speak to a mortgage advisor to look at your mortgage options.
Even if you do not want to sell the family home or get a new mortgage, it is important that you do the homework. If you do not your ex-partner may get frustrated by the mediation process and start court proceedings. You will then lose the chance to try to reach a mediation agreement.
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Talk to your family law solicitor
Mediation should not be carried out in isolation from legal advice. It is a common misconception that the mediator will give legal advice. They cannot do that. Their job is to act as an impartial mediator to facilitate an agreement. They therefore will not take sides or advise you.
Mediation works best if you have mediation support. That involves:
Talking about what mediation entails, looking at the alternatives and deciding if mediation is right for you. If there has been domestic violence or a power imbalance then an alternative to mediation may be better for you. If you have reached a broad agreement a one-lawyer amicable divorce service may meet your needs
Getting legal information and advice about your separation and divorce and the timing of the no-fault divorce
Getting advice about your financial claims, for example, you need to know if you have a pension claim and the legal answer will depend on whether you are or were married to your ex-partner or not
Explain why you need financial paperwork to help you reach decisions in mediation and, if necessary, review your spouse’s paperwork with you
Getting advice on the types of orders that a court might make if you or your ex-partner were to start court proceedings so you can make an informed decision about any financial or parenting agreement discussed in mediation
If an agreement is reached, prepare a draft financial court order or child arrangement order for a judge to then approve
All our family lawyers can support you on your mediation journey to help you reach an agreement on childcare arrangements or a financial settlement after a separation or divorce.
For expert family law advice call our team or complete our online enquiry form.
Robin Charrot
Jan 18, 2024
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7 minute read
Can My Ex-Wife Make a Claim on My Estate?
Many people assume that once they get their final order of divorce their ex-spouse has no further claims against them or their estate. Family lawyers and Will solicitors say that is not correct.
In this article, our lawyers look at when an ex-wife can make a claim against an estate and what you can do about it to protect your estate and your beneficiaries.
For expert family law and Will advice call our team or complete our online enquiry form.
Financial claims after a separation or divorce
When you separate or divorce your ex-partner their financial claims remain intact until you reach an enforceable agreement or the court makes a financial court order.
Even if you reach an agreement or the court makes a financial court order your ex-spouse may still retain all or some of their financial claims. That is why it is essential to use a family law solicitor to help you negotiate a financial settlement or to draw up your financial court order. It is equally important that your solicitor explains what the wording of the order means.
The only way you can achieve finality with no risk of further financial claims is if the court makes a clean break financial court order.
What is a clean break financial order?
A clean break financial court order can be made by agreement ( you and your ex-spouse ask a family judge to convert your agreement into a binding court order) or after a contested court hearing. Clean break orders can be confusing as there are 2 types:
Immediate – as soon as the court order is made your ex-spouse cannot make any further claims or they cannot do so once the order is implemented. For example, an order will be implemented after the sale of a family home, the agreed division of equity, and the pronouncement of your final order of divorce
Deferred – the clean break comes into effect when an event occurs. For example, if you are ordered to pay time-limited spousal maintenance the clean break may come into force when the spousal maintenance payments end. A deferred clean break can be confusing as the court order may allow the person receiving the spousal maintenance to apply to the court to extend the length of the spousal maintenance order or the person receiving the spousal maintenance may ask the court to make a lump sum payment or pension sharing order in their favour instead of them continuing to receive ongoing spousal maintenance. Some court orders do not allow the person receiving spousal maintenance to apply to court to extend the maintenance term
As clean breaks are complicated it is best to take legal advice on your financial settlement to see if you are likely to be able to achieve one and whether it is in your interests to do so. For example, if your ex-wife is in a new relationship and you think she will remarry you may not want to give your ex-wife more money to buy off her spousal maintenance claims. Why? Spousal maintenance automatically stops on re-marriage and it cannot be revived if the ex-wife’s second marriage breaks down. However, if an ex-wife cohabits rather than remarries you will only achieve a clean break if the spousal maintenance order provides for this.
Your priorities and goals
It is important that your family law solicitor takes their time to understand your priorities and goals. Some people are adamant that they want a clean break. There may be reasons for this, such as a bad experience in a first divorce, the future anticipated sale of a business, or wanting to protect your children from your ex-wife making a claim against your estate. Other people may be more sanguine about negotiating a clean break order. For example, if you do not have children and are not worried if your ex-wife tries to make a claim against your estate as you are leaving most of your money and property to charity and know that your executors can fight the claims in the unlikely event that your ex-wife brings a claim against your estate.
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Can your ex-wife make a claim against your estate?
Whether your ex-wife can make a claim against your estate will depend on whether you have a financial court order, its precise terms, and whether your ex-wife has remarried.
If you are concerned that your ex-wife may have a claim against your estate under the Inheritance Act then talk to a Will solicitor. She will still have a potential claim even if you make a Will and cut her out. That is because under the Inheritance (Provision for Family and Dependents) Act 1975 anyone who falls into one of these categories of people has a potential claim against your estate:
A wife, husband, or civil partner
A former wife, husband, or civil partner (provided they have not remarried)
A child or someone treated as a child by the deceased
Someone who was living with the deceased for the 2 years before the deceased’s death
Anyone who immediately before the deceased’s death was financially dependent on them
A private client solicitor can provide you with estate planning advice and draw up a Will that reduces the risk of your ex-wife bringing a 1975 Act claim. They can also work with a specialist family law solicitor so you can explore whether it is worth asking the court to make your existing financial court order into a clean break order. This may be possible if, for example, the court left spousal maintenance open-ended because your ex-wife might need spousal maintenance in the future but she has been in a long-term cohabiting relationship so you think the time is right to secure a clean break.
At Evolve Family Law our family law solicitors work closely with our private client and Will lawyers and recommend that when you separate you think about making a Will or changing the terms of your existing Will.
For expert family law and Will advice call our team or complete our online enquiry form.
Robin Charrot
Dec 28, 2023
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6 minute read
Can a Separated Spouse Inherit?
Our private client and Will solicitors are asked the question ‘Can a separated spouse inherit?’ The quick answer is yes or maybe. That’s why if you are thinking about a separation or divorce you need to talk to a Will and estate planning solicitor as well as to a family lawyer.
In this article, our Will solicitors explain why you need a Will or a new Will if you are going through a family separation. Our specialist lawyers can help you with all your private client needs, including writing a Will for you or checking if your existing Will needs amending, because of your new family circumstances.
For expert Will and estate planning advice call our team or complete our online enquiry form.
Who inherits if you are separated
If you are separated from your husband, wife, or civil partner then you are still in a legal relationship with them until the relationship is dissolved by your securing a final order of divorce or the dissolution of your civil partnership.
A gift in a Will to a separated spouse or civil partner is valid despite your separation.
If you have not made a Will your separated husband, wife, or civil partner is one of your next of kin and they will be entitled to a share of your estate under the intestacy rules.
The intestacy rules set out who inherits your estate where there is no Will. The rules say:
If there are surviving children or grandchildren or great-grandchildren and the estate has a value over £322,000, the spouse or civil partner will inherit:
All the personal property and belongings of the deceased and
The first £322,000 of the estate and
Half of the remaining estate
2.If there are no surviving children, grandchildren or great-grandchildren, the spouse or civil partner will inherit:
All the personal property and belongings of the deceased and
The rest of the estate
Whether there is a Will or if the intestacy rules decide who gets an estate, some people can challenge the provisions in a Will or the intestacy rules distribution. They can do this if they do not think that the Will or the intestacy rules make reasonable financial provision for them by making a claim against the estate.
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Joint property and separated spouses
Many married couples jointly own their family home. If a house is owned as joint tenants the surviving partner automatically inherits the deceased’s share of the house. That is the case even if the deceased was separated from their husband or wife or even if the deceased made a Will leaving their estate to their children or charity.
If you do not want your husband or wife to inherit under the joint tenancy survivorship rule then your family law solicitor can check to see if you own your family home as joint tenants. If you do own the property as joint tenants then you can sever the joint tenancy. That means the property continues to be jointly owned but you own it with your spouse as tenants in common. If you predecease your spouse your share of the property will pass under the terms of your Will. It is important to check the terms of any existing Will and to change it if necessary. That’s because most married couples have Wills that leave most of their estate to their spouse so severing the joint tenancy will only work if you also change your Will.
If you do not have a Will then intestacy rules will apply to your estate so it is important to get a Will solicitor to prepare a Will for you if you do decide to sever the joint tenancy.
One point to note is that if your separated spouse predeceases you after you sever the joint tenancy then you will not automatically inherit their share of the property under the survivorship rules. Instead, your estranged spouse’s share of the property will pass under their Will or intestacy rules.
Making a Will if you are separated
If you are separated from your husband, wife, or civil partner it is best to change your Will straight away rather than wait until after your divorce comes through. That’s the case even if your separation is amicable. For example, you may want to change your Will to leave your estate in trust for your young children. If the separation is amicable, you could appoint your estranged wife as one of the trustees of your estate. If your estate is left to your wife directly and she remarries then her second husband could inherit her estate (including the money and assets she inherited from you) and your children could lose out.
A Will solicitor can help you write a Will that reflects your new family circumstances and reduces the risk of a person making a claim against your estate. For example, they may recommend that your Will includes a discretionary trust. There are lots of options and estate planning choices that a specialist Will solicitor can talk you through.
For expert Will and estate planning advice complete our online enquiry form.
Robin Charrot
Dec 12, 2023
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5 minute read
Islamic Marriage and Divorce in the UK
If you got married in an Islamic wedding ceremony in the UK or overseas, are you treated as legally married in England? Can you get divorced in the UK?
The divorce solicitors at Evolve Family Law answer your questions on Islamic marriage and divorce in the UK.
For expert family law advice call our team or complete our online enquiry form.
Islamic marriage in the UK
Whether your Nikah is classed as a legal marriage and recognised in English family law depends on where and how the marriage took place.
A Nikah that took place in the UK is not treated as a legal marriage unless there was also a valid UK civil ceremony. If you had a Nikah in the UK without a civil ceremony it is best to check with a family law solicitor to see if you are legally married or not under English law. It is important to check this out and, if necessary, get married legally under UK law. That’s because if you are not legally married under English family law you do not have the financial rights and claims of a husband or wife but of an unmarried partner.
If your Nikah took place overseas you are treated as legally married in the UK provided the country where you got married treats Islamic marriages or Nikahs as legally valid. That means you do not need to have a civil wedding ceremony in the UK as you are already legally married.
Family law solicitors acknowledge that the UK family law on the validity of Islamic marriages can be confusing. The English court does have the power to declare that you are legally married if there is a dispute but it is best to avoid declaration proceedings unless there is no alternative. For example, if your spouse is denying your marriage and your financial claims as a spouse.
Divorce in the UK
If you are legally married and you want to get divorced you can apply for a no-fault divorce. If your wedding was a Nikah under Sharia law and it took place in England without a civil marriage then you won't need to apply for a no-fault divorce as you are not treated in English law as legally married. You may want to get divorced under Sharia law.
If you thought you were married then it may be worth checking out if you can get a declaration of marriage. That is because:
Under Sharia law your financial claims may be limited
In English law, if you are not legally married, your financial claims as an unmarried husband or wife are limited to property rights and claims under trust law. Instead of being able to claim half the assets you may be able to claim nothing or very little in comparison to the sort of financial settlement a husband or wife might expect the family court to order as a financial court order
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The financial claims of an unmarried partner
If your marriage is not legally recognised in the UK, you can potentially make 2 types of claims, depending on whether you have children with your partner.
Under Schedule 1 of the Children Act, you can bring court proceedings for an order to provide your children with a home to live in whilst they are of school age. The ownership of the house will then revert to your partner. You can also ask the court for a lump sum to meet the financial needs of your children and to make a top-up child support order if your partner is a high earner. The Child Maintenance Service may also be able to award you child support.
Whether or not you have children you may be able to make a claim under The Trusts of Land and Appointment of Trustees Act 1996 (TOLATA). You can bring a TOLTA claim if your partner owns a property jointly with you or if they own a property in their sole name but you can evidence that you have what is referred to as a beneficial interest in the property owned by your partner.
Get expert family law legal advice
It is essential that you take expert legal advice on the status of your marriage from specialist family law solicitors. That’s because if your Nikah is a valid marriage (or you can secure a declaration of marriage) you may be able to secure a financial settlement including spousal maintenance, a share in property, savings, a family business or a pension sharing order.
For expert family law advice complete our online enquiry form.
Robin Charrot
Dec 07, 2023
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4 minute read
The Autumn Budget Statement and Pensions for Life and Divorce
On 22 November 2023 the chancellor, Jeremy Hunt, unveiled plans that could eventually give pension holders one pension pot for life.
Accountants and independent financial advisors are all questioning how easy it will be to bring in the scheme for UK workers. However, family law solicitors at Evolve Family Law are delighted by the news because if the proposals are implemented it will make it easier and cheaper for divorcing couples to share pensions as part of their financial settlement.
For expert family law advice call our team or complete our online enquiry form.
Pensions – the forgotten asset in divorce proceedings
When you separate or start divorce proceedings you also need to reach a fair financial settlement with your estranged husband or wife to divide and share your assets.
You will not forget the existence of the family home or a shareholding in the family business but you may forget to disclose an old pension and your husband or wife may not realise that you have 2 or more pensions.
The Pensions Policy Institute estimates that the total value of lost pension pots was almost £27 billion in 2022. That is not surprising with so many people moving jobs and homes and not keeping records. It is also equally unsurprising that pensions get forgotten in divorce proceedings.
The Fair Shares project, funded by the Nuffield Foundation, provided information and data on divorcing couples. Their recent research highlights that about a third of divorcees did not know the value of their pension fund and only a tenth of pension pots that were not in payment were made the subject of pension sharing orders.
The research information from the Fair Share Project emphasises the need for divorcing couples to understand the value of pension pots and how they should not be ignored in divorce financial settlements.
Pension pots and financial disclosure in financial settlement negotiations
If you do not disclose an asset when providing divorce financial disclosure, including a pension, your husband or wife may be able to ask the court to review the terms of a financial court order years later because of the non-disclosure.
It is therefore essential to provide full financial disclosure even if you have several small pension pots from employment prior to your marriage.
Think how much easier it would be for divorcing couples and their family law solicitors if a husband and wife each only had one pension fund. Now a husband and wife can each have 5 or more pensions, all of which need to be disclosed and valued as part of the financial settlement negotiations.
The portable pension pot
The chancellor is proposing one pension pot that an employee takes with them when they change their employment. Whilst employers and pension providers are already flagging up the complexities of portable pension funds family law solicitors can only see the advantages.
With numerous small pension pots, it takes time for pensions to be disclosed and valued as part of divorce financial settlement negotiations. When pension pots are small a husband or wife can be encouraged to ignore their value because the pensions are ‘’not worth the hassle’’. That is often not the case but spouses can be persuaded to ignore them.
Even if a small pension is disclosed and valued a husband or wife may be told that it is uneconomic to share the pension because the pension administrators will charge to implement a pension sharing order.
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The lifetime pension pot
The Treasury will be asking for evidence on the “lifetime provider” pension model rather than adopting a policy of portable pensions straight away. It is likely to be some time before the consultation starts and even longer before further pension reforms are made.
Until we get to the age of the lifetime pension pot it is essential to disclose all your pension pots when getting divorced and to understand your pension options when negotiating a divorce financial settlement.
Pension sharing orders
The family court can make a financial court order that includes a pension sharing order. The pension administrator will need to implement the pension sharing order once they are served with the financial court order, pension sharing annex and the final order of divorce.
If the value of a pension is small then it may be uneconomic to share all the pensions. Instead, your family law solicitor may suggest that you get a 100% share of one pension pot rather than pay a pension admin fee to share each pension. That may work for you provided that the pensions are valued correctly. For example, the transfer value of a private pension pot may be the same as a final salary scheme pension but the eventual pension returns may be very different. That’s why you need specialist input from a divorce solicitor and pension actuary or advisor.
A pension sharing order is not your only option. You could agree to offset the value of pensions so you get more from the equity in the family home or you get to keep all your pensions but your spouse gets to keep their savings.
Get help with your divorce financial settlement
Evolve Family Law provides a fixed fee no-fault divorce service and offers a relationship breakdown consultation for a fixed fee to discuss your relationship breakdown and offer initial guidance.
Our ‘relationship breakdown comprehensive initial review’ is priced at £300 inclusive of VAT. It covers one meeting with a qualified lawyer and an assessment of the best routes to resolving your situation.
If you want to know where to start with your separation or divorce or your divorce financial settlement our specialist divorce solicitors can help.
For information on our fixed fees and pricing have a look at Our Prices | Standard Fixed Fees.
For friendly expert family law advice call our team or complete our online enquiry form.
Robin Charrot
Nov 23, 2023
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5 minute read
Research Shows Women Lose Out When They Divorce ‘On The Cheap’
As specialist North West family law solicitors we were interested to read the report from the Fair Shares Project.
The Fair Shares project was funded by the Nuffield Foundation. It aims to provide information and data on divorcing couples so lawyers and legislative reformers understand how the current family law system is operating.
Divorce solicitor, Robin Charrot, looks at the key research findings and outlines the options to reach a fair divorce financial settlement.
For expert family law advice call our team or complete our online enquiry form.
The Fair Shares Project research highlights
The Fair Shares Project aimed to discover information about the financial and property arrangements made by divorcing couples. The 5 key statistical takeouts from the report are:
One in 10 couples in England and Wales did not take advice with their divorce
Only 2 out of 5 divorcees made use of family lawyers for advice and support. (That means 60% of divorcees didn’t have the help of a family law solicitor)
Around a third of divorcees did not know the value of their pension fund. (If they did not know the value of their own pension asset it is unlikely that they discovered the value of their spouse’s pension pot)
Only one in 10 divorcees with a pension fund that was not paying a pension at the time of the financial settlement agreed to a pension-sharing order as part of the divorce financial settlement. (In most families the value of the pension pot of the husband or wife can be the asset with the most significant value. It all depends on the amount of equity in the family home and whether a spouse has a final salary pension).
Only around a third of those getting divorced with assets to share with each other split their assets equally. (The family court starts from the premise that assets should be shared equally unless there are cogent reasons to depart from equality. For example, it may be appropriate that a husband or wife gets less than half if it is a short marriage or where the husband and wife signed a prenuptial agreement before their marriage)
The research information from the Fair Share Project will concern divorce financial settlement solicitors as it appears to show that financial settlements are being made without the benefit of legal advice and that they are not fair and potentially do not meet a spouse’s reasonable needs. It is normally the wife who suffers by not getting expert legal advice or through not obtaining financial disclosure from her husband as statistically the wife is often the financially weaker spouse in comparison to the husband. Often that’s because she is the one working part-time because of childcare responsibilities or the one who took a career break to prioritise the children’s needs.
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How to reach a fair divorce financial settlement
People can be wary of calling a divorce solicitor for a variety of reasons, such as:
Worry about the costs
Concern that a divorce solicitor will suck you into contested financial court proceedings and you would be better off negotiating your own divorce financial settlement
Does it make financial sense to talk to a divorce solicitor?
Would you buy a family home without a survey? Would you rewire your home if you do not have any training as an electrician? If the answer to either of those questions is no then you get the picture. It can be equally dangerous, from a financial point of view, to agree a divorce financial settlement without first taking legal advice.
At Evolve Family Law we offer some fixed-fee services and we are always upfront about costs.
As well as providing a fixed fee no-fault divorce service we also offer a relationship breakdown consultation for a fixed fee to discuss your relationship breakdown and offer guidance.
Our ‘relationship breakdown comprehensive initial review’ is priced at £300 inclusive of VAT and it covers one meeting with a qualified lawyer regarding all the legal and practical aspects of your situation and an assessment of the best routes to resolving your situation.
The consultation fee excludes follow-up work, such as starting no-fault divorce proceedings or writing to your husband or wife to seek financial disclosure or to explore their financial proposals. We can talk to you about potential additional costs when we meet so you can make an informed decision on the best way forward for you.
Occasionally we may need to charge a higher fixed fee for an initial consultation. For example, if you want us to read a lot of complex paperwork before the meeting. If that is the case, we will tell you before the initial consultation.
The objective of our initial consultation is to look at your options so you get preliminary information and support to help you on the path of negotiating a fair divorce financial settlement that meets your short-term and long-term needs.
If you want us to check out a proposed divorce financial settlement and convert your agreement into a binding financial court order then we can do that for you for an additional fixed fee.
For more information on our pricing look at Our Prices | Standard Fixed Fees.
For information on amicable divorce using our one-lawyer service have a look at Amicable Divorce - One Lawyer Divorce.
If you are attending family mediation sessions and would like information on your legal rights and options or on how to convert your mediated agreement into a binding financial court order our page on Mediation Support Solicitors may be of interest to you.
For friendly expert family law advice call our team or complete our online enquiry form.
Robin Charrot
Nov 09, 2023
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5 minute read
What is a Cohabitation Dispute?
Family law disputes come in all shapes and sizes. It may be a dispute between a divorcing couple trying to reach a financial settlement or grandparents seeking a child arrangement order so they can get to see their grandchild or a parent terrified that their ex-partner intends to leave the UK with their son or daughter.
Increasingly, family law disputes involve cohabiting couples. The couple may be heterosexual or LGBTQI+ and they may or may not have children with disagreements bubbling away over what parenting arrangements are in the child’s best interests.
As a specialist firm of Northwest family law solicitors, we can advise you on how best to resolve a cohabitation dispute and help you understand your legal rights and options.
For expert family law advice call our team or complete our online enquiry form.
What is a cohabitation dispute?
To a family lawyer, a cohabitation dispute can be many things as it encompasses any falling out between a couple who are not married and who are not in a civil partnership.
A cohabitation dispute can be limited to the arrangements for the children or relate to money and property or both.
Cohabitation disputes over children law issues can involve:
Disputes over the parent the children will live with after the separation
Contact arrangements
Applications for child arrangement orders to sort out residence and contact
Disputes over whether both parents have parental responsibility for their children
Disputes over the exercise of parental responsibility, such as choice of school
International family issues, such as one parent wanting to move overseas with the children and the other parent objecting
Child support payments
Top-up child support through a court order (where the parent paying child support is a high earner)
School fee orders to pay for private school fees
Requests for lump sum orders to meet the needs of dependent children
Requests for housing for children whilst the children are still at school or university
Non-children cohabitation disputes normally centre on property, such as ownership of property. This could be the family home or a buy-to-let property portfolio or a family business.
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How do you resolve a cohabitation dispute?
The first step in resolving a cohabitation dispute is to check and see if a cohabitation agreement was signed. If an agreement was prepared, it may set out the parties’ rights to property and what should happen if there is a dispute. For example, the agreement may say that one partner will keep the property and the other must leave the property if the relationship ends.
A cohabitation agreement can save you a lot of time and money as it records your agreement. If you did not sign a cohabitation agreement then you may still be able to resolve and agree on the financial and practical issues relating to your separation. You may be able to do this by:
Solicitor negotiations
Roundtable meetings
Collaborative law
Arbitration
The Evolve Family Law One Lawyer service
How does a court resolve a cohabitation dispute?
If you cannot reach an agreement you may need to start or respond to court proceedings. Unlike a divorce, a court decides a money or property related cohabitation dispute based on property and trust law. Therefore, the court has less discretion to do what is ‘right’. In divorce financial settlement proceedings the court looks at fairness rather than strict legal and property rights.
Talk to a family solicitor about your cohabitation rights
If you are in a cohabiting relationship, it’s important to speak to a family law solicitor so you understand your rights. Many people assume that the rights of a cohabitee are the same as a husband or wife or civil partner. They are not.
A cohabitee has the same rights as a married person if they are subject to domestic violence in a family relationship and a cohabitee has similar rights if there is a children law dispute over the arrangements for the children.
Property law rights between cohabiting and married couples are very different. A cohabitee can't claim spousal maintenance or a share of their partner’s pension. Nor can they claim a share in property or other assets unless they have a legal or beneficial interest in it or they can make a claim based on the needs of a dependent child for housing. This is a complicated area of law. For example, your partner may legally own the family home but the other partner may have a financial claim through property or trust law. That claim gives them a beneficial interest in the property. The court could order the sale or transfer of the property to the non-legal owner.
That’s why it’s important to understand your legal rights as a cohabitee. Unfortunately, many people assume they are entitled to nothing as they weren’t married or their name wasn’t on the title deeds to the family home. Whatever your circumstances it is best to speak to a family law solicitor if you are leaving a cohabiting relationship and you want to understand your rights and options.
For expert family law advice call our team for an appointment or complete our online enquiry form.
Robin Charrot
Oct 19, 2023
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5 minute read
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