Re – Divorce and Financial Settlement
To know what a fair split of assets is and to reach a financial settlement divorcing parties need to know what the assets of the marriage are, and what each asset is worth.
Full and frank disclosure is a legal requirement.
What does full and frank disclosure look like?
Look at a Form E - A long document in which each party sets out their assets, income, and financial needs. You can see in it the assets that are taken into consideration upon divorce and financial settlement, for example property (the former marital home), pensions, savings, stocks and shares etc.
It also lists the documents needed that show the value of assets, for example CETVs (cash equivalent transfer values of pensions - which can be requested from pension providers). Form Es are exchanged – both parties fill them out, attach the required documentary evidence, and send them to each other.
What are the assets worth?
To find out what some assets are worth an independent expert can be used. Property can be valued by an expert - estate agents, pensions by CETV and / or a pension on divorce expert (PODE) report and so on.
It is important to decide what needs a valuation by an independent expert and factor in the costs of these.
An actuary can do an in depth report on pension sharing (using CETVs and other information from the pension providers). The actuary gathers all the data, and can then report what capital and income would be for each party if split 50/50 or a percentage of choice. They can be instructed to factor in retirement ages of the parties etc. Joint instructions are given to the actuary, and they walk parties through the process.
Pensions can be very valuable – equivalent or more than the value of the former martial home in some cases. Divorcing parties might hold different types of pensions (not like-for-like, so difficult to compare without an expert). Circumstances might be complex, for example an age difference or pensions in payment. One party may have stayed at home to look after children.
Who gets what?
When deciding how to distribute a couple’s assets and income the court must apply a checklist of factors set by statute.
The relevant statute is section 25 of the Matrimonial Causes Act 1973. These factors will need to be applied in every case, regardless of whether you are engaged in court proceedings or negotiating your own settlement. These are often called the Section 25 factors, which the court will consider when deciding how to distribute assets upon divorce or dissolution.
Section 25 Factors
www.legislation.gov.uk/ukpga/1973/18/section/25
images.ctfassets.net/o8luwa28k6k2/2cpp2mEMwBJWJLuzTiTruB/b5397e7459154fad8927826a2c99acdd/section-25-expert-guide.pdf
The income, earning capacity, property, and other financial resource which each of the parties to the marriage has or is likely to have in the foreseeable future is considered.
First consideration is given to the welfare (while a minor) of any child of the family who has not yet attained the age of eighteen.
The needs of each divorcing party are considered and as I understand it 50 / 50 is the starting point – so unequal shares based on circumstances and needs is possible, for example 60 / 40.
Not getting full and frank disclosure?
It is vital to get all the assets “on the table” so that informed financial decision can be made and a fair/just settlement negotiated.
Full and frank financial disclosure is required and usually provided when Form E is exchanged.
If after Form E there is missing information / documentary evidence ‘Questionnaires’ may be exchanged to retrieve it – a list of questions and a list of any missing documentary evidence required which is served on each party.
If still missing after that, ‘Deficiencies’ are exchanged – questions can be asked to clarify and a list of required documentary evidence still missing sent.
A solicitor’s letter can be sent to retrieve financial information / documentary evidence.
A Court Order can also be applied for to gain financial information / documentary evidence / valuations that are missing / essential.
Advice and info
These offer a free advice session about pensions on divorce and separation www.moneyhelper.org.uk/en/family-and-care/divorce-and-separation/divorce-or-dissolution-how-we-can-help-with-your-pension
Free advice line (busy so keep trying) rightsofwomen.org.uk
Guides on divorce and financial settlement
www.advicenow.org.uk/divorce-and-separation
www.advicenow.org.uk/guides/how-apply-financial-order-without-help-lawyer
Pensions on divorce
www.sharingpensions.co.uk/penaudit3.htm
www.mediateuk.co.uk/the-ultimate-guide-to-pensions-on-divorce/
www.nuffieldfoundation.org/news/new-good-practice-guide-addresses-shortfall-in-understanding-of-how-to-treat-pensions-on-divorce
Valuation of pensions – pensions on divorce expert report (actuary)
www.collinspensionactuaries.co.uk no relation – useful website
www.collinspensionactuaries.co.uk/pension-data-collection/ templates for information required.
Mediation
Mediation can be used to reach agreements.
www.gov.uk/money-property-when-relationship-ends/mediation
resolution.org.uk/looking-for-help/splitting-up/your-process-options-for-divorce-and-dissolution/family-mediation/
The First Meeting with a Mediator – The MIAM
www.familymediationcouncil.org.uk/family-mediation/assessment-meeting-miam/
“The mediator will tell you whether your case is suitable for mediation, and you can decide whether you want to proceed with mediation or explore another option for resolving issues. The mediator can also give you information about other services which provide help and support.”
Some cases are not suitable for mediation e.g., domestic abuse/bullying/coercive control. (see below re domestic abuse)
Legal advice
This link gives you an indication of hourly rate for solicitors
www.gov.uk/guidance/solicitors-guideline-hourly-rates
Some barristers can be directly instructed e.g., via Clerksroom Direct
Mumsnet suggest www.advicenow.org.uk/tags/separation-divorce-and-dissolution-civil-partnerships
Some organisations offer free advice from solicitors and barristers rightsofwomen.org.uk/get-advice/ On their FAQs page…”Our Legal Officers and Volunteer legal advisors are all solicitors and barristers”.
Some family solicitors offer an in initial free consultation and some a fixed fee rather than hourly.
If applicable and for general info to pass on to anyone who needs it...
Domestic Abuse
www.gov.uk/guidance/domestic-abuse-how-to-get-help
In danger?
Call 999. Teach children how to do this.
How to call the police when you can’t speak
www.policeconduct.gov.uk/sites/default/files/Documents/research-learning/Silent_solution_guide.pdf
Leaving the relationship safely
www.womensaid.org.uk/information-support/the-survivors-handbook/i-want-to-leave-my-relationship-safely/
Legal Aid
www.gov.uk/legal-aid/domestic-abuse-or-violence)
In divorce and financial settlement, look after the old(er) woman you will become, financially :)