29 Oct 2019
What is a variation of spousal maintenance? Solicitor Jonathan Casey explains.Read more
Partner Fiona Wood has been featured in the Daily Mail This Is Money supplement this week, discussing a far-from-straightforward case covering the issues surrounding divorce and pensions. Below, we reproduce her advice in full:
I was married for 19 years to a very violent controlling man. After two years fighting for a divorce, I got one on the grounds of unreasonable behavior.
I would like to know if I am entitled to half his pensions from the time I was married to him.
He had no solicitor in court as he threatened him. I was divorced in 2000. How do I go about finding out what to do?
It must have been very difficult being married to your ex-husband.
Given how difficult he was regarding you obtaining a divorce, I can understand why you are only now considering what financial claims you may have against him.
The good news is that as long as a financial order has not been made within your divorce proceedings, which is completely separate to the divorce itself, you still have financial claims that you can pursue, including a claim against your ex-husband's pensions.
If there is no financial order in place, you potentially can make a full range of financial claims against your ex-husband, which include claims against his assets (including his business assets), against his pensions and against his income.
Please be aware that your ex-husband can also potentially make financial claims against your assets, pensions and income'
You and your husband were married for 19 years, which is a long marriage when looking at what a fair financial settlement is.
If you had obtained a divorce settlement at the time that you divorced, the starting point would have been an equal division of the assets, including pensions, with there being an adjustment from this if required to meet both your and your ex-husband's needs - which basically means that you both have somewhere to live and enough money to live on.
You may also have received spousal maintenance at that point, although you appear to have managed without this since you separated, so this may not be relevant.
If a judge were asked to consider a financial settlement now, they would also have to factor in that you have been separated for 20 years and that assets may well have been acquired by either or both of you after separation.
A judge will want to know the value of the assets at the time of separation, including your ex-husband's pensions, although this will not be the only factor that they take into account when considering what a fair settlement would be.
They will take into account the length of the marriage, your respective ages, both your assets, your respective earning capacities and most importantly both your financial needs.
You need to be aware that whilst you do have a potential claim upon your ex-husband's pensions, you do not appear to be able to obtain a pension sharing order.
Pension sharing orders can only be made when the divorce petition was issued after 1 December 2000. It would appear that your divorce petition was issued in 1998.
If this is the case, you can still make a claim against his pensions, but this would result in a pension attachment order, which means you would receive a percentage of his monthly pension payments when he retires.
If you have remarried you will not be able to claim a pension attachment order.
Alternatively, you can receive a capital sum in lieu of a pension attachment order as you can get this even if you have remarried.
I am afraid that legal aid is unlikely to be available to you to enable you to make this application.
Legal aid is only available to make financial claims in divorce proceedings if there has been recent domestic violence and if your income and capital are sufficiently low for you to qualify.
It may be possible for you to obtain a loan from a company that specialises in litigation funding, which means it would pay your costs in exchange for a share of or a fee taken from the proceeds of your claim.
This liability can be taken into account by a judge when considering what a fair settlement is.
Firstly, you need to take advice from a specialist family lawyer in order to make sure that it is in your financial interests to make a financial claim against your ex-husband, given your current financial circumstances and what you know about his.
Remember whilst you can make financial claims against him, he can make financial claims against you.
If you want to start the process you should instruct your solicitor to write to your ex-husband to advise him that you are making a financial claim against him and invite him to provide details of his finances.
You will need to provide the same.
Only your solicitor's address would be revealed to your ex-husband, not your current address.
You may be able to agree a financial settlement without having to attend court.
If a settlement is agreed, the agreement can be sent to court for a judge's approval, with neither you or your ex-husband having to attend court.
If it becomes necessary to issue court proceedings in order to progress matters, there is a process by which you can keep your address off court documents, if a judge is satisfied that your ex-husband poses a potential threat towards you, given his behaviour towards you in the past.
Your ex-husband does not have to instruct a solicitor. He can deal with the matter himself if that is what he chooses to do.
Your solicitor and the judge should make sure that he behaves appropriately towards you during any court proceedings.
"The good news is that as long as a financial order has not been made within your divorce proceedings, which is completely separate to the divorce itself, you still have financial claims that you can pursue, including a claim against your ex-husband's pension."
Fiona Wood, partner
10 Oct 2019
We are delighted to announce that McAlister Family Law has been ranked in the prestigious Chambers and Partners, issued today.Read more
12 Sep 2019
Why is September such a busy month for divorce lawyers, and what actions should those wishing to divorce take? Aaron Williams, assistant solicitor, explains.Read more
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