What happens to my pension if I separate or divorce?

pension on divorce Liz Cowell

What happens to my pension if I separate or divorce?

When married couples separate, the divorce itself is intended to be a straight forward procedure, even more so when no fault divorce is made law. But with divorce comes the issue of resolving your financial arrangements. Partner Liz Cowell explains.

Everything relevant is considered: the assets of the marriage, which might be the matrimonial home and/or other properties – perhaps a holiday home – any business interests, savings, investments and, of course, pensions.

Pensions can be the most valuable asset on divorce, particularly if one or both of the parties are members of a Final Salary/Defined Benefit Pension Scheme, as these provide specific benefits based upon salary and service, as opposed to a Money Purchase arrangement, where a member will receive benefits retained in an invested “pot” to which contributions have been invested over time.

In fact there are a number of different types of pension, and they can include complicated investment schemes which are, frankly, outside most individuals’ understanding and as a result likely to cause a great deal of confusion. Those who don’t seek guidance from an expert can find themselves being given incorrect and misleading advice from the most well-meaning of friends and acquaintances. If you base your claim on this type of misinformation, you run the risk of grossly under-settling. Always, always get expert advice.

What is offsetting?

In fact, it is very important to get advice at an early stage – even if you and your spouse are broadly in agreement regarding other matters – about financial arrangements after divorce, including how the courts are likely to deal with the pensions as part of any overall financial settlement.  There are various options available to the non-pension member, who may benefit from their spouse’s pension fund built up during the relationship, including Pension Sharing or Attachment Orders, or offsetting against other assets, such as savings or equity in a family property.

Offsetting is fraught with potential difficulties and individuals can underestimate what a pension fund is worth, instead accepting a smaller cash sum now rather than a specific portion of the pension fund designed to provide a retirement income for the remainder of a recipient’s life.

In more complicated cases, particularly where the pension is already in payment due to retirement or ill health, it is common for us to advise that you seek advice from a pension expert – an actuary – who will provide a report about the different pension needs of both parties ,and the options within the court process. The conclusions of such reports are critical in informing the court about how issues in relation to pensions should be resolved.  Again, we must emphasise how very important it is, from the outset, that you have a lawyer who is confident in his or her knowledge of pension issues.  The correct questions must be, asked and it may be necessary to challenge, vigorously, any conclusion, making certain your interests are properly protected.

Pensions and assets: what does the Family Court consider?

Because of the various options available for the division of pension assets upon divorce or dissolution, there are many myths surrounding them.

For example, the recipient of a Pension Sharing Order does not receive an immediate lump sum equivalent to the “share” and will likely have to wait until their 60″ birthday or such other time defined by the scheme in which the benefits or held, or are transferred, to realise any benefits. Further, if the person having their pension deducted has already retired, they will experience an immediate deduction in any income they are already receiving, even if the recipient might not receive theirs for several years because of age conditions. This in turn has an impact on the extent to which other financial orders can be met, for example maintenance provision.

When deciding how to deal with your pension, and assets, the Family Court will consider several different criteria; it may be a Pension Sharing Order is not the best outcome based on the length of your marriage, the value of your pension, your length of service and the value of the other matrimonial assets. If a marriage is short, and pension funds limited, a court might prefer to “offset” any interest in pension funds generated during the marriage, against an interest in other assets. It is important to note that no two situations are the same and you should have a lawyer who understands these complexities and is able to put forward the best case to suit your own needs and circumstances.

If this is a situation currently affecting you, or you think you might need advice, please do get in touch.  We’re happy to help.

Robert De Niro’s paying…

De Niro

Robert De Niro’s paying…

Robert De Niro and Grace Hightower are engaged in a tortuous divorce battle; recently the couple clashed in a virtual hearing over Ms Hightower’s spending habits. Partner Liz Cowell takes a closer look at the issues involved in the split.

The facts

Robert De Niro was married to his wife Grace Hightower in 1997.  Their relationship would be classified as a long marriage in our jurisdiction; this is despite the fact that they separated in 1999 and started divorce proceedings, because the divorce never went through, and they renewed their vows in 2004.

When the couple renewed those vows, they also entered into some sort of nuptial agreement.

The agreement would provide Ms Hightower with a $4.7m house and a further lump sum equivalent to approximately half a million dollars, plus an income of $1m per annum, providing that De Niro was earning at least $15m a year.

Now that the couple have separated again and divorced in 2018, Ms Hightower is seeking 50% of De Niro’s total wealth, which she estimates to be $500m.

Defending his position, De Niro claims that his ex-wife is a spendthrift and he has been forced to continue acting and taking part in films which he describes as “dreadful” to maintain the parties’ lifestyles.  He also claims that he has substantial indebtedness for unpaid taxes which he intends to pay off using the income earned from his next two films.

The matter has reached a preliminary stage in which the judge has pointed out to both parties that their expenses are extraordinary, which is an early indication that Ms Hightower’s demands to maintain her lifestyle spending circa $375,000.00 per month is unlikely to be supported by the court.

What would happen here?

Would Ms Hightower be bound by the nuptial settlement entered into when the parties renewed their vows?

In this jurisdiction there have been a series of decisions by the High Court that where the parties have given full disclosure of their financial position and have had proper legal advice, whilst not binding the court such an agreement will be used as evidence and will influence how the court approaches its duty of fairness.

From the information available in the media, it appears that Ms Hightower is now protesting that she was misled as to the extend of her husband’s wealth at the time of the agreement.  Given her status and financial acumen, such protestations would be easily rebutted if she was given full legal advice at the time, particularly as she had already been living with De Niro for several years and was unlikely at that stage to be ignorant of her husband’s earnings and wealth.

The matter of the extent to which the nuptial settlement should be considered would probably be dealt with at a preliminary hearing.

Division of assets

That said, after a long marriage the starting point for the division of assets is 50/50, taking into account pre-acquired wealth and after the deduction of each parties’ debts, which means that any financial settlement would be derived from the amount De Niro would have after his tax bills were paid.

It seems that De Niro’s legal team are complaining that he is being ordered to provide disclosure – however, in our jurisdiction disclosure is mandatory for all parties going back at least 12 months, and he would be required to provide the same, as would Ms Hightower.  Ms Hightower has been accused of hiding the purchase of expensive jewellery: this would have to be disclosed and valued.

Allegations

Sadly, it would seem that unpleasant allegations are being made about Ms Hightower who is accused of being a spendthrift, one who had started life as a waitress from a poor background.  It is implied that she married De Niro simply for his earning capacity.

Would this be relevant in our jurisdiction?

The answer to allegations about Ms Hightower’s background is that it would be utterly irrelevant, albeit the court would look at Mr De Niro’s pre-acquired wealth as well.

The allegations regarding her spending habits are relevant however; not because she is a spendthrift, but because the court needs to look at the parties’ resources, status quo and what are her reasonable needs.

Our courts would be minded of the fact that Mr De Niro is already 77 years old and cannot be expected to continue working indefinitely.

A challenge for the court brokering a financial settlement between the parties either here, or in the United States, is to try and achieve fairness and that is done here in England by applying a yardstick of equality. It is also mandatory upon the courts in England to achieve a fair, clean break where possible, and this can be done by dividing capital and working out how much income would be available from the capital to meet needs and if there was a shortfall, adding a further capital sum.

The court would be using the facts available to look at the nuptial settlement and maybe capitalise the maintenance payable, but given Mr De Niro’s age it is unlikely he would be expected to continue working for more than two or three years.

If Mr De Niro was before the English courts he would need to be more generous if he wanted settle matters, and he would be encouraged to stop making allegations about his wife, who is the mother of his child and to whom he has been married for more than 20 years. At the same time, Ms Hightower clearly needs to curtail her spending and put forward a reasonable proposal for settlement.

 

If you are are considering separation or divorce and require specialist legal advice, please get in touch today.  We are here to help you.

The Villiers’ divorce

Charles Villiers divorce

The Villiers’ divorce

There has been a lot of coverage in the press recently regarding the divorce of Mr and Mrs Villiers. It is a complex case, legally, which has involved many court hearings, both in England and in Scotland. The case highlights the issues that can arise when a couple are able to issue divorce proceedings in more than one legal jurisdiction, in this case in England and in Scotland. It also highlights the fact that the law is open to interpretation by judges and therefore it is not always easy to predict the outcome of court proceedings and that a negotiated settlement is preferable where possible.

 Partner Fiona Wood examines the issues.

The couple married in1994, moved to Scotland in 1995 and lived there throughout their married life. They separated in 2012, with Mr Villiers remaining in Scotland and Mrs Villiers returning to live in England.

Issuing divorce proceedings

The couple then both issued divorce proceedings, Mr Villiers in Scotland and his wife in England. There were court hearings regarding which country should deal with the divorce. Mrs Villiers would receive a greater financial settlement if the divorce was dealt with by the English rather than the Scottish courts, so both were keen to divorce in their country of choice.

Both countries’ courts agreed that the divorce should be dealt with in Scotland, as that was where the couple had last lived together. However, whilst the divorce proceeded in Scotland, Mrs Villiers was able to apply in England for maintenance under s27 Matrimonial Causes Act 1973, as Mr Villiers’ application in Scotland did not include an application for spousal maintenance. S27 allows one spouse (where still married) to apply for maintenance if the other spouse has failed to provide them with reasonable maintenance. An order was made that Mr Villiers pay his wife maintenance, until their financial settlement was dealt with, of £2500 per month plus £3,000 per month to fund her legal costs. Mr Villiers appealed this decision.

EU law

The appeal went to the Supreme Court. Mr Villiers argued that it was not appropriate for a divorce to take place in one part of the UK, whilst the issue of maintenance is dealt with by another part. Much of the legal argument dealt with EU law, as the hearing took place before Brexit. The husband lost his appeal, with two Supreme Court Judges agreeing with him and three agreeing with his wife. The issue was not clear cut.

There was a further hearing in England last month, where Mr Justice Mostyn concluded that Mr Villiers should not have to pay maintenance to his wife, due to Mr Villiers’ financial position. Mr Villiers is now hopeful that they will return to court in Scotland and finalise their divorce and financial settlement there.

Brexit

Now that Brexit has occurred, the law governing the issue of maintenance, which was considered by the Supreme Court, has changed in England as EU law is no longer relevant. Now the English court has the power to impose a stay of proceedings issued in England, if there are other proceedings concerning a marriage in another country, if it considers it is in the balance of fairness to do so. Had Brexit taken place earlier the outcome of the appeal to the Supreme Court may have been different. Certainly, Mr Justice Mostyn is of the view that the Scottish court should have dealt with the couple’s financial claims.

If you are affected by any of the issues raised here, it is important that you take specialist legal advice. Please get in touch today. We are here to help.

Divorce is not your only option

divorce is not your only option Louise Redknapp

Divorce is not your only option

Louise Redknapp has been reported this weekend as saying she has regrets about divorcing her husband Jamie: “I should have paused for a minute and thought about other people and had just a bit more time to work out why I felt I couldn’t do it anymore. All I know is, I wish I’d tried [to save the marriage].”

She added: “I want to say to anybody who is thinking of running: ‘Just slow down. Don’t run.’ Because once you run too fast, you can’t make up the ground you’ve lost.”

People make decisions that they believe are right at the time, and nobody is criticising Ms Redknapp for taking the path she did. However, it is sobering to think that perhaps the Redknapp’s marriage might still be going strong today had decisions not been made so quickly. Divorce is not your only option.

Our managing partner, Amanda McAlister, explains there is another option available to those unsure as to whether or not they want press the divorce button.

“As a family lawyer of many years’ experience, and someone who has herself been divorced, I can say with certainty that although you will have heard stories of acrimony and bitterness, it doesn’t have to be that way. Being transparent about your emotions, and managing your expectations are two key areas to focus on.

“But for those couples not ready to bring an end to their marriage through a divorce or dissolution of their civil partnership, or who want to allow a period of reflection, there is the option of a Legal Separation.”

What is a Separation Agreement?

A separation agreement, entered into by both parties, is an agreement setting out how the couple’s assets should be divided and whether there should be any ongoing financial support – it can be tailor-made to the couple’s individual circumstances.  Within the document the parties commit to commencing divorce proceedings after they have been separated for two years.

Is a Separation Agreement legally binding?

In a word, no. But if it has been properly drawn up with full financial disclosure, and various safeguards have been met, then the court could hold the parties to it, unless their circumstances have changed substantially since the agreement was signed.

What are the advantages?

It can provide a sound basis for the ultimate financial consent order that should be presented to the court once the divorce or dissolution has reached the appropriate stage. And entering into a separation agreement is far less uncertain that simply deferring the question of the financial settlement until the divorce proceedings are initiated.

And the disadvantages?

In brief, a divorce brings closure, a separation agreement doesn’t. And closure can be extremely important, particularly for children who need certainty, and for the wider family who will then be able to accept that the marriage ending is final.

Remember that although the No-Fault Divorce Act received Royal Assent in June 2020, the reforms have not yet come into force. This means that your divorce petition must prove the marriage has irretrievably broken down by evidencing one of five, specific, statutory facts:

  • adultery
  • unreasonable behaviour
  • desertion (in practice, this is rare, and difficult to prove)
  • two years’ separation, with agreement by both that there should be a divorce (and it’s worth considering that this two years of separation in itself provides a “cooling-off” period – a time for reflection)
  • five years’ separation (the consent of the Respondent is not needed)

“To summarise, whist the prospect of commencing a divorce is incredibly stressful and upsetting, it does provide closure not only to the adults but also children, allowing the whole family to move on. A divorce also allows a binding financial settlement to be achieved ensuring that both parties are provided with financial certainty and security for the future.”

 

We are here to support families, whether they are making up, or breaking up. Nobody knows what the future holds, but we want to assure you that you are not alone. Come to us with your questions and our expert team of family lawyers are on hand to give you the assistance you need. We’re here to help.

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