Whilst the new no-fault divorce procedure appears straightforward, it is important to consider that the Final Divorce Order will only bring the marriage to an end. It will not bring an end to each party’s right to claim against the other party’s assets. It is therefore essential for parties to obtain a clean break financial order that will record the agreement they have reached and dismiss other financial claims.
Joint ownership or sole ownership?
Recent case law has demonstrated that the assets acquired during the marriage are available to be shared but not necessarily equally between the parties. It does not matter whether the asset is owned jointly or whether it is owned in the sole name of the other party as they can still be considered by the court.
Since 2000, the income received from one parties pension can be shared with the other party through a pension sharing order. The Pension Advisory Group Report in 2017 stated that a pension should not be compared with the equity in a family home. It is therefore essential that you obtain specialist advice before agreeing to ‘offset’ i.e. not claim on a pension so that the family home can be transferred into your sole name. Both short term and long term income needs are considered by a court.
Financial needs
Whilst there are assets that might be considered as being ‘non-matrimonial’ i.e. those assets acquired by one party before they got married or acquired as inheritance during the marriage, they could still be used to meet the needs of the family. It is important to fully consider what your housing and income needs are before entering into negotiations.
Parties should consider providing voluntary disclosure of their assets and income before reaching an agreement on the finances. Financial advice may need to be obtained on how to share a pension or on what tax would become payable on the sale/transfer of a property.
Pre-nuptial agreements
Prior to being married, it is possible to protect a ‘non-matrimonial asset’, by the parties willingly entering into a Pre-nuptial agreement. Although these agreements are not binding, they are considered of importance by the court and could make a substantial difference to the outcome of your case.
If you are seeking assistance on how to separate your assets post-divorce or on how to protect your assets before getting married, Sally Corringan and Craig McKnight of the Beeston Family Department would be happy to give you further advice. As a highly regarded and well-known local law firm with a team of dedicated, approachable family lawyers, we are on hand to assist you with any family law queries. Working alongside our Conveyancing and Wills & Probate team, we can also assist you in implementing your Financial Order.
Please contact Sally Corringan or Craig McKnight by telephone or by email [email protected] or [email protected].
A version of this article was published in print and online in NG Magazine.
