What Does Intestacy Mean
Intestacy or dying intestate means a person has passed away without a valid Will. The person’s estate is therefore distributed under the intestacy rules.
In this article, Will and probate solicitor, Chris Strogen, looks at what intestacy might mean for you or your family.
If you need help with making a Will or with probate and estate administration call our team or complete our online enquiry form.
Passing away without a Will
If you die without a Will your family will not have the guidance you could have given in a Will. A Will does not just say who should inherit your estate. A Will can also:
1. Appoint executors to administer your estate
In a Will, you can choose the best person for the job of executor. That might be your husband or wife, a friend, an adult child, your Will solicitor or a combination of these people. You may know that asking your spouse and your children to work together as executors will not work in your family circumstances and in your Will you can appoint your executors with care
2.Set out when your chosen beneficiaries will inherit
You may not want your children to come into their inheritance until they are 21, 25 or 30 so they are a bit more mature when they receive a life changing amount of money
3.Protect your minor children by appointing a testamentary guardian in your Will
4.Ringfence assets in a trust so your trustees can distribute the income or capital in your estate to the discretionary trust beneficiaries
after considering their circumstances and making distributions in a tax-efficient manner. A trust can be very helpful in a blended family or where there are concerns that if a gift is left outright to a family member it will be wasted or end up being used to fund the beneficiary’s divorce settlement
5.Make small bequests so friends or grandchildren are not forgotten as they are left an item of sentimental value or a gift of money
A Will is a very powerful document as it sets out the testator’s wishes. All of us should have a Will to protect our loved ones. That is particularly important if your estate would not pass following your preferences under the intestacy rules. For example, a much-loved unmarried partner of 20 years inherits nothing under the intestacy rules. For example, depending on the size of your estate, a spouse you married 6 months before your death may inherit everything leaving nothing to your 4 children from your first marriage.
The rules of intestacy explained
If there is no Will your estate passes under the rules of intestacy. There is no discretion – the rules apply whether or not they are what you would have wanted to happen to your estate.
As the intestacy rules are rigid, they can create family upset. For example, if your cohabitee will not receive anything or if the family heirloom you verbally promised to your grandson is inherited by your new spouse.
The intestacy rules say:
If the person who died was married or in a civil partnership and had no children, all their estate goes to their husband, wife or civil partner
If the person who died was married or in a civil relationship and has children, the first £322,000 of their estate goes to their spouse or civil partner, together with all the deceased’s personal possessions. If the estate is worth more than £322,000 then the spouse or civil partner gets half the balance and the deceased’s children split the remaining half between them
If the person who died was not married or in a civil partnership, but has children, the estate goes to the children. If there are no biological or adopted children, the estate goes to the parents and the intestacy rules continue with a list of more distant relatives in order of preference.
[related_posts]
If the intestacy rules create unfairness
If the intestacy rules create unfairness, then there is the potential to sort things out by the beneficiaries under the intestacy rules agreeing to forgo their inheritance or share their inheritance. That does not always happen as an unmarried partner of 20 years may not get on with the deceased’s adult child from a previous relationship or with the deceased’s parents so the family is unable to negotiate a compromise on how to share the estate.
If the family cannot sort out the difficulties created by the lack of Will and the intestacy rules then a disappointed unmarried partner or other relative could make a court application to claim a share of the estate because the intestacy rules did not make reasonable financial provision for them. The court must look at each case on its facts. For example, if the unmarried partner is a successful business owner with a good income and a property owner, the court may decide that they do not need a share of the estate. The ruling might be different if the unmarried partner was living on a state pension and the deceased’s adult children were all homeowners and doing well for themselves.
The problem with challenging the intestacy rules is that it can create ill will within a family and it costs both time and money. It is a lot simpler and cheaper to make a Will.
Avoiding intestacy
Avoiding intestacy is easy. All you must do is make sure that you and your loved ones have a Will. It is also important to review your Will and make sure it is up to date. If your Will is not up to date you may end up with a partial intestacy. For example, if you leave half your estate to your brother but your brother passes away before you do so. A partial intestacy can be avoided by updating your Will to name a new beneficiary. In any new Will, it is a good idea to include a ‘what if’ clause. For example, you leave half your estate to your nephew but if he passes away before you then the legacy is shared between his children.
Our solicitors can help you with all your Will and estate administration needs, including if you are unsure about what to do if a relative has passed away without leaving a Will.
If you need help with making a Will or with probate and estate administration call our team or complete our online enquiry form.
Chris Strogen
Jan 03, 2024
·
6 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.
[related_posts]
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
·
6 minute read
What is Inheritance Tax
Nowadays inheritance tax is a bit of a political hot potato with some politicians calling for the ‘death tax’ to be scrapped. Many people are not sure about how inheritance tax works and if inheritance tax would affect their family. Some people stress about the tax and others take the attitude that as it is a death tax it isn’t something that is a big priority.
Our Will solicitors spend their days talking about IHT. They explain what it is, how much your estate could end up paying in tax, and the steps you can take to reduce the IHT payable by your estate. Will solicitors say it is in the best interests of your family and loved ones that you carry out some estate planning. By taking what are often simple steps you will leave more of your estate to your chosen beneficiaries rather than to the tax man. To most people that is a ‘no-brainer.’
For expert Will and estate planning advice complete our online enquiry form.
Who pays inheritance tax?
Inheritance tax (IHT) is payable on a deceased’s estate if the estate is not inheritance tax exempt. Whilst IHT is not a tax that you need to pay during your lifetime there are steps you can take to reduce the IHT liability on your estate. Will solicitors refer to this as estate planning or IHT mitigation.
If you do not engage in estate planning your estate may have to pay a tax bill of 40% of the net value of your estate after considering 2 thresholds:
The IHT threshold of £325,000 - all estates only pay IHT if the estate is valued at more than £325,000. The first £325,000 of an estate is referred to as the nil rate band or NRB
The residence nil rate band of £175,000 – your estate may qualify for an additional £175,000 in nil rate band if you own a property and you are passing it on to your child or grandchildren. If the residence NRB applies to your estate then your net estate will only pay IHT on anything over the first £500,000 ( the £325,000 is added onto the £175,000)
The rate of IHT can be reduced to 36% if you leave at least 10% of your estate to charity.
Calculating the value of your estate
Will solicitors say that you should not assume that your estate will not need to pay IHT if your estate is currently worth less than £325,000 or £500,000. That is because the value of your assets may go up at a faster rate than the government IHT thresholds or the thresholds could even be scrapped.
There can also be confusion about what assets are included in your estate to calculate your estate’s IHT liability. For example:
An insurance policy payment may fall outside your estate because of the wording of the policy
A gift given to a family member may have a percentage of its value added back into your estate if you died within 7 years of making the gift
When a probate solicitor is dealing with an estate administration, they will advise you on IHT liabilities and when any inheritance tax is payable.
Exempt estates
Some estates are exempt from paying IHT. This can be down to one of several factors:
The estate is valued at less than £325,000 (or £500,000 if the estate qualifies for the residence nil rate band of £175,000 on top of the standard IHT threshold of £325,000). The value of the estate could be less than £325,000 because the deceased made lifetime gifts to friends and family and survived for 7 years after making the gift
The estate is left to charity
The estate is left to a husband, wife, or civil partner. This is referred to as the spouse exemption. When the second spouse passes away their estate can use the first spouse’s nil rate band of £325,000 as well as their own so their estate only pays IHT on the value of the estate over £650,000 .
[related_posts]
Reducing your inheritance tax bill
There are several ways that you can legitimately reduce the potential inheritance tax bill that your estate may end up paying.
One of the more radical IHT suggestions is to get married if you are living with a partner in an unmarried relationship. If you leave your estate in your Will to your new husband or wife then the spouse exemption will apply so no inheritance tax is payable. For an estate worth 1 million, with a nil rate band of £325,000, that is a potential tax saving of £270,000. Before you marry you could decide to sign a prenuptial agreement to safeguard your family money in case of separation or divorce during your lifetime.
Other less radical options include leaving a percentage of your estate to charity to reduce the tax rate from 40% to 36% or using your annual allowance to make gifts to family members.
There are other ways you can reduce your inheritance tax bill. A Will solicitor can explore them with you and work out which ones are suitable for your financial and family circumstances. At the same time, they can review your existing Will to make sure it remains fit for purpose and is tax efficient. If you don’t have a Will then one can be prepared for you.
For expert Will and estate planning advice complete our online enquiry form.
Chris Strogen
Dec 18, 2023
·
5 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.
[related_posts]
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
·
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
[related_posts]
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
·
4 minute read
Family Law Solicitors and the Resolution Annual Awareness Week
At Evolve Family Law our family law specialists are members of Resolution, an organization of family justice professionals in the UK.
This week is Resolution’s Awareness Week.
For expert advice on family law call our team of specialist lawyers or complete our online enquiry form.
Resolution Awareness Week
In recent years, the Resolution dialogue surrounding divorce has shifted from a conventional narrative of separation to a more nuanced exploration of relationships and their legal underpinnings.
Once known as Good Divorce Week, an initiative spearheaded by Resolution, the annual event traditionally aimed to promote amicable separations. However, this year the Resolution Awareness Week marks a significant pivot, redirecting attention toward cohabitation and its intersection with UK family law.
A focus on all relationships
Resolution has long been at the forefront of advocating for constructive approaches to divorce. However, recognizing the evolving landscape of relationships in the UK, the focus has expanded beyond divorce to encompass the dynamics of cohabitation.
The renaming of the awareness raising event from Good Divorce Week to a more encompassing theme signifies a broader perspective that goes beyond divorce itself. This shift acknowledges that relationships come in various forms and that understanding the legal implications of cohabitation or the nuances of LGBTQI+ relationships is just as crucial as navigating the complexities of divorce.
Cohabiting relationships
Cohabitation, while increasingly prevalent, lacks the legal structure and statutory protections that marriage or civil partnership offers. This change in focus by Resolution during what was once Good Divorce Week represents a pivotal moment in acknowledging the need for clarity and legal recognition for individuals in cohabiting and non-traditional relationships.
The Resolution awareness campaign aims to dispel misconceptions surrounding cohabitation and educate individuals about their legal rights and responsibilities.
Central to this initiative is the spotlight on the absence of automatic legal protection for cohabiting couples in the event of separation. Resolution wants to highlight the importance of seeking legal advice and making sure cohabiting couples enter into cohabitation agreements.
[related_posts]
The call for cohabitation reform
Resolution's initiative aligns with ongoing discussions within legal circles advocating for reforms that bridge the gap between marriage and cohabitation in terms of legal rights. The goal is to ensure that individuals in cohabiting relationships have access to legal protections and equitable resolutions, akin to those in marital unions. That is becoming increasingly important with the rise in cohabitation. In 2021 there were reportedly 3.6 million cohabiting couples.
By extending its focus beyond divorce, Resolution's initiative reflects a holistic approach to relationships and family law. It serves as a platform to address the evolving nature of partnerships and strives to create a more informed, fair, and supportive legal landscape for all individuals, irrespective of their relationship status.
Evolving family law
In essence, the evolution of Good Divorce Week into a broader exploration of cohabitation within UK family law signifies a progressive step toward acknowledging the diverse forms of relationships. Through education, advocacy, and potential legal reforms, this initiative aims to ensure that individuals in cohabiting relationships are empowered and protected within the legal framework, fostering a culture of understanding and fairness in modern relationships.
How Evolve Family Law can help you
At Evolve Family Law our specialist family lawyers can assist you with all your family law needs if you are in a cohabiting relationship, including:
Cohabitation agreements
Declarations of trust
Children law and parental responsibility advice
Cohabiting relationships and claims on separation
Financial and property claims
Children financial claims for child support, school fees or assistance with housing dependent children
Wills for cohabiting couples
Lasting Powers of Attorney
Estate claims and inheritance disputes advice if you are a cohabitee who was not included in your partner’s Will or need to make a claim because you are not classed as a relative of your loved one under intestacy rules
It is best to talk to one of our solicitors about your cohabitation rights before you find yourself really needing an expert lawyer. For example, understanding property ownership and your rights under a cohabitation agreement could avoid expensive court proceedings if you split up from your cohabitee. For example, understanding that if your partner does not make a Will, you will not inherit anything under intestacy rules may encourage both you and your cohabitee to sign Wills and do some estate planning to protect your family.
We can help you resolve property-related or children focussed cohabitation disputes through:
Solicitor negotiations
Roundtable meetings
Collaborative law
Arbitration
The Evolve Family Law One Lawyer service
For expert advice on family law complete our online enquiry form.
Ellie Stokes
Nov 30, 2023
·
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.
[related_posts]
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
·
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.
[related_posts]
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
·
5 minute read
Are We Married? Why it matters if you are married or not
You would think that people would know if they are married or not. It is however surprisingly common for either a husband or wife to ask the question ‘Are we married?’ Often the query crops up when a couple is separating or contemplating divorce proceedings.
For expert family law advice call our team or complete our online enquiry form.
Are you married?
Most people would think that a quick look at the wedding photo album would be sufficient to answer the question of whether the couple is married or not but that isn’t necessarily right.
One of the first questions for a family solicitor to ask is where the couple got married. If the ‘marriage’ took place in the UK the husband and wife may think that their ceremony of marriage means that they are legally wed. However, if the ceremony didn’t take place at a licensed venue or if the couple didn’t subsequently participate in a civil ceremony of marriage they may not be legally married in the UK.
The scenario isn’t that uncommon as often the focus is on the religious marriage ceremony, which has the real meaning for the couple and their family and friends. That can leave those, for example, who have enjoyed a Muslim religious ceremony of marriage or those who married in a Wiccan ceremony not legally married.
[related_posts]
Marriages in unlicensed venues
Most people won’t be surprised to hear that the law can step in and decide if a couple is married even if they didn’t comply with the UK legal requirements at the time of their marriage ceremony. A husband or wife can ask the court to declare that they are married if certain criteria are met. Invariably if declaration of marriage proceedings are started then either the husband or the wife is arguing that they aren’t legally married. That means there is a risk that the court will decide that the couple is not married.
Why marriage matters
If the court decides the couple isn’t married then there is no need for divorce proceedings. Importantly financial claims on separation will be limited as the husband and the wife won't be able to make claims against the other’s income or pension.
The type of ‘marriage’ ceremony can therefore affect whether a couple is treated as married in the eyes of the law or legally viewed as cohabitees. In some cases that can mean the difference between getting half the house and the pension and maintenance and getting nothing as a cohabitee.
Marriages that take place overseas
If the ‘marriage’ took place abroad there is often an assumption that the couple aren’t legally married in the UK. That is often an incorrect assumption as provided that the marriage was recognised as legally valid in the country in which it took place it is normally accepted in the UK as a marriage. That means that if the couple is settled in the UK they can get divorced in the UK and the English court will decide on how their assets are divided, even though they got married at a chapel in Las Vegas, a beach in the Caribbean, or a religious ceremony in their country of origin or choice.
These rules can throw up surprising results as the quickie marriage in the Las Vegas chapel may be a legally valid marriage in the UK whereas the well-photographed religious ceremony at an unlicensed venue may not be, even if attended by all of the couple’s family and friends.
If you are contemplating marriage then there is no reason why you can’t have the wedding of your choice in either the UK or abroad, but if you are planning a religious ceremony or a wedding at an unusual venue or abroad it is sensible to check the status of the ceremony so both bride and groom know where they stand.
For expert family law advice call our team or complete our online enquiry form.
Louise Halford
Oct 25, 2023
·
4 minute read
Can't find what you're looking for?
Getting in contact with Evolve Family Law could not be easier.
We put a lot of legal information on our website and if you have a single question about your situation, you should find an answer in our blog here.
If you need a greater level of help, please use this form and one of our team will call you to make an appointment. Please note that we cannot offer Legal aid.
Unfortunately due to the level of single question enquiries we receive, we cannot guarantee to provide written answers to individual questions posted via this enquiry form.
1
Call us on 0345 222 8 222
2
Email us at info@evolvefamilylaw.co.uk