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Divorce and Separation

a couple arguing over a piggybank

Spouse pension rights

By | Divorce and Separation

In a divorce, pension funds can often be the biggest asset after the family home, however, they are often overlooked. You will be entitled to part of your ex-partner’s pension, and vice versa so these can be split appropriately during the divorce procedures.

You may have accumulated a number of different pension investments during your working life, from personal pensions, workplace pensions and NEST pensions to name just a few. Your ex-partner may have a right to some or all of these schemes and this can raise feelings of contention.

Why does a spouse have a right to my pension?

When you have built up your own pension funds over the years, it can be difficult to accept splitting it in the event of a divorce – particularly if your ex-partner has been unable to build up a comparable pension pot. This is quite often the case, if a woman has, for example, had to take career breaks to raise a family.

swag bag labelled 'pension', with a measuring tape around it

Your ex-partner may have a stake in your pension funds, or you may have a stake in theirs. This is because pensions built up during the marriage are considered to be matrimonial assets and as such, should be available to be split. As a starting point, assets may be split on a 50:50 basis, however, this will probably alter based on the individual factors in each case, which may include:

  • Whether your partner has their own pension fund which needs adding to the pot before equalising
  • Whether the entirety of the pension was built up during the marriage (including prior cohabitation) or whether there is any pre-marriage or post-separation accrual
  • Whether the equalisation of the pensions will meet the parties’ needs
  • The age of the parties, including whether they are of a similar age and how far away they are from retirement.

However, there are many other factors that will be relevant and that may significantly affect how pensions are dealt with.

How are pensions split?

Pensions are divided via a court order, and whether the courts agree to split the pension will usually depend on the pension provisions of each party. If there’s a significant imbalance in pension provisions between the two of you, then the courts are more likely to try and balance this out by sharing one spouse’s pension with the spouse with little to no pension savings.

There are four common ways of splitting pensions; a pension sharing order, pension offsetting, pension attachment (or ‘earmarking’) or via an individual agreement.

alarm clock, with stacks of money

With a pension sharing order, one spouse is given a percentage of any one or more of the ex-spouse’s pension funds by court order. The sum is either transferred into a separate pension scheme or by joining the ex-spouse’s pension scheme and this percentage of the total fund is allocated to the receiving spouse. Either option will be dependent on the rules of the pension scheme.

Pension offsetting is when the value of any pensions is offset against other assets. For example, you might agree to keep the pension fund and your ex-partner might agree to keep the family home. It’s really important to have an accurate pension valuation in this instance to ensure that the divide is equal and fair. Pension offsetting does not necessarily require a court order.

Pension attachment or ‘earmarking’ is when some of your pension benefits at retirement are paid to the ex-partner. This can be done in either a lump sum or as part of the pension income – or both. This only comes into play once the pension holder has started taking their pension. In this instance, you would effectively be deferring the split of the asset until you reach retirement age. As with pension sharing, this arrangement will require a court order.

Lastly, you could come to an individual agreement between the two of you. You might decide to forgo any claims on pension assets in favour of a more balanced settlement of other divorce terms. One party might get better child access arrangements, or child maintenance if they agree not to claim against the other party’s pension assets. You can ask the court to approve an individual agreement and turn it into a court order to provide more protection, just in case a dispute arises at a later date.

Remember – seek legal advice when opting for any of these options. As with most divorce-related issues, it can be both a complex and emotionally charged area to navigate, and the costs of making the wrong decision or not having all the relevant information can be substantial.

How long after a divorce can you claim on a spouse’s pension?

So long as you haven’t achieved a legally-binding financial settlement, there’s no time limit after a divorce for making a claim on an ex-spouse’s finances. The divorce itself only means that you are no longer married – it does not always settle your financial affairs.

If you are looking to protect your pension against this happening, then it is highly advisable to seek a formal financial agreement whilst you go through the divorce process. Even if it all seems amicable now, this can change in the future. A legally-binding divorce financial order will separate your finances from your ex-partner for good, leaving you to both continue with your independent lives.

How to find out the value of your pensions

As part of the financial disclosure required in divorce negotiations, you will need to find out the up-to-date ‘cash equivalent transfer value’ of all pension investments you have. You can obtain these valuations from the pension scheme administrators, although there is sometimes a fee for this service. For work-based schemes, you may need to go through your employer’s HR or payroll department for this information.

Your divorce solicitor will be able to help you through the legal process, the negotiations with the other party and guide you on what you can and can’t claim for or how to respond to claims against your pension. They will also agree and draw up the final divorce agreement, as well as preparing the documents for final court approval to legally dissolve the relationship.

 

The financial side of a divorce can be really difficult and emotionally charged. Whether you are trying to protect your pension funds, or ensure that you are not left short – at Bromfield Legal we will always try and achieve the fairest outcome for you, doing what we can to make the process smooth and straightforward. For more information, or to arrange an initial discussion on how we can help you, please contact us.

how does the divorce process work

How does the divorce process work?

By | Divorce and Separation

You and/or your partner may decide to get a divorce in order to end your marriage. You can only get a divorce if you have been married for at least one year. In an ideal world, you will both agree to want the divorce and the reason why – in which case the divorce process is fairly straightforward. If you or your partner don’t agree to a divorce, it will take more time and cost more money.

There are four main stages to a divorce; filing the divorce petition, filing the response to the divorce petition, applying for the Decree Nisi, and applying for the Decree Absolute. In this article, we will talk through each of these stages.

The five facts of divorce

Before you apply for a divorce, you should try and agree on a reason for your divorce to show that your marriage has broken down. There are five reasons that you can choose from, and these five facts are:

  • Adultery
  • Unreasonable behaviour
  • Desertion
  • Separation for two years with agreement to divorce from your spouse
  • Separation for five years with or without agreement to divorce from your spouse

how does the divorce process work

Divorce in England and Wales is currently fault-based, meaning that you do need to choose one of these facts to support why your marriage has ended.

How to file the divorce petition

The petition can be filed with the court either online or by post. Once the petition has been prepared, it is sent to the nearest divorce centre. It is important that the petition is properly drafted to avoid problems and delays to the process. The marriage certificate needs to be sent with the petition (the original or an official certified copy), and there is a fee to pay of £550.

It is possible to apply for an order that your spouse pays the costs of the divorce proceedings, in which case the application is made in the petition. If the court agrees, it will make an order that your spouse pay you the costs back when your divorce has been finalised. You could also agree to split the costs equally between you.

how does the divorce process work

Either way, the person who makes the application to the Court for divorce is known as the Petitioner, and the other person is known as the Respondent. Once the divorce centre has reviewed the petition, they will send a copy to your spouse to give them a chance to respond.

Remember, whilst it is possible to manage your divorce yourself, the divorce petition alone can be a complex and lengthy form to fill out. If you are instructing a solicitor to represent you throughout your divorce proceedings, they will handle the completion of the petition. This means you’ll avoid any costly mistakes and delays.

Responding to a divorce petition

As a Respondent, you must send an Acknowledgement of Service form to the Court within 8 days of receiving the divorce petition. This lets the Court know that you’ve received the divorce petition and whether you agree with the divorce or whether you disagree.

If you do want to defend the divorce, you have 21 days after returning the Acknowledgement of Service divorce petition to send a defence to the Court. This will cost you £245. If you or your partner disagrees with the divorce, it is strongly advised that you seek legal advice from a qualified family law solicitor.

The Decree Nisi

If the divorce is not defended, as the Petitioner, you will then need to apply for a Decree Nisi. The Decree Nisi is the Court’s way of saying that they see no reason why a divorce cannot be granted. It also fixes the earliest date when the application can be made for the Decree Absolute, i.e. when your marriage will end.

how does the divorce process work

In order to apply for a Decree Nisi, it is necessary to file with the court an application, together with a statement in support that confirms that all of the information in the Petition is correct. If everything is in order and there are no concerns, the Court will fix a date for the pronouncement of the Decree Nisi.

The Decree Absolute

After the Decree Nisi has been pronounced, a minimum of six weeks and one day have to elapse before an application can be made for the Decree Absolute. The Decree Absolute ends your marriage. It does not, however, end the financial commitment between you and your spouse. It is open to either party to make claims in respect of financial matters either before or after the Decree Absolute, unless an order is made by the Court. This is where using a solicitor in your divorce is important. They will ensure that you get a fair settlement and that you get what you are entitled to.

how does the divorce process work

Once the Decree Absolute is made, the divorce process is complete and you are legally divorced. This entire process will usually take around 4-6 months, but it depends on whether the situation is contentious, whether you have child arrangements to consider and whether you run into any issues with splitting money or property.

Why use a solicitor when getting a divorce

A solicitor really can be invaluable when getting a divorce. They can help you decide on which of the five facts for divorce you want to use, and let you know what evidence you will need. They can also be the middle-man between you and your ex-partner so that you don’t have to communicate with them if you don’t want to.

If you can, it is best to use a solicitor – and one that specialises in divorce and separation, such as us here at Bromfield Legal Solicitors. We’re here to make the process simpler, smoother and quicker. We will always do what is right and fair to obtain the best outcomes for our client in a divorce. For more information on how we can help, please contact us.

a male and a female sat opposite each other but the female is looking away from him upset

Can you get a divorce if the other person refuses?

By | Divorce and Separation | No Comments

Even when a divorce has been agreed on by both spouses, the situation can often get contentious. When one party refuses the divorce, it can make things all the more difficult. Divorce isn’t a nice thing to go through, and you probably want it over and done with. When your spouse refuses, the process may stretch out much longer than expected.

A resisting spouse may refuse to sign the necessary divorce papers, or may simply fail to respond to a request for divorce or hide away and bury their head in the sand. When this happens, it can seem impossible to progress the divorce, however, this is not the case. You do have options.

Can I get a divorce?

In England and Wales, you can get a divorce if:

  • You and your spouse have been married for over a year
  • Your marriage is legally recognised in the UK
  • The UK is your permanent home or at least the permanent home of your spouse
  • Your relationship has broken down irretrievably

can you get a divorce if the other person refuses

When it comes to proving that your relationship has broken down irretrievably and cannot be saved, you’ll have to give one of the following reasons to back up your claim:

  • Your spouse committed adultery (note that you cannot use this as your reason if you have then since lived together as a couple for over six months after you found out)
  • They behaved unreasonably, which could include being physically violent, using verbal abuse and/or taking drugs, but could be an accumulation of less serious behaviour
  • They deserted you for two years or more
  • You and your spouse have been separated for two years or more, and they agree to the divorce

You will need to cite your reason/s in your divorce application. Once submitted, if it is all correct and legal you will be given a notice that your application has been sent. You’ll also receive a copy of your application stamped by the UK divorce centre, and be given a specific case number.

What if my spouse refuses?

What you can do if your spouse refuses to get a divorce will depend on your circumstances. There are a few instances where you do not need your spouse’s cooperation in order to advance with the divorce – for instance if you have been separated and living apart for five years or more, as mentioned above. You also do not need their cooperation if you are basing the divorce on your spouse’s unreasonable behaviour. In other cases, it can be a little trickier.

can you get a divorce if the other person refuses

When you file for divorce, your spouse will be sent an Acknowledgement of Service form alongside the divorce papers. This form will give your spouse the opportunity to agree with the divorce, or detail their intent to try and prevent it from happening. The Acknowledgement of Service form must be completed in order to confirm that they have received the divorce papers, and they have eight days to respond.

If they do not respond to the form, this could be their way of refusing the divorce. This can be very frustrating, and not to mention expensive and time-consuming in the long-run. You can progress with the divorce, but you will need to satisfy the court that your spouse has received the divorce papers. You have a few options here.

What are my options?

You can pay an additional fee and instruct the Court Bailiff to re-serve the divorce papers to your spouse. This will serve as enough proof to the court that your spouse has received them and you can progress. Alternatively, you can use a Process Server. This is very similar to instructing a Court Bailiff, however, the Process Server will often go to greater lengths to effect service, and therefore your prospects of success will be better. Once the Process Server has delivered the papers, they provide you with a certificate service which you must present to the court. This is usually the quickest way of proceeding, if your spouse is being difficult.

Perhaps you have hard evidence such as a letter, text, or email from your spouse in which they confirm that they have received the divorce papers. In this case, you can make a separate application for what is referred to as Deemed Service. In this instance, you won’t need to arrange for your papers to be re-served through a Court Bailiff or Process Server. The decision to grant Deemed Service is made at the judge’s discretion, so if you apply for it, it does not necessarily mean that you’ll be granted it.

can you get a divorce if the other person refuses

Your last resort is usually Dispensed Service. You can only apply for this if you have tried all of the above three options without success and it is the only means to progress with the divorce without your spouse’s Acknowledgement of Service form. This is only allowed if the court is completely satisfied that you’ve done absolutely everything you can to find your spouse and serve them with the divorce papers.

Once you have utilised one of the above options (or all of them), you should be able to progress to the next stage – the Decree Nisi stage. The Decree Nisi is a document that says the court sees no reason for you not to divorce. At this stage, you will not need any further reference to your spouse. You will not need them to attend to any other documents in order to secure the Decree Absolute, which is what will complete your divorce.

What if my spouse tries to defend the divorce?

It is not always the refusal to acknowledge a divorce that can complicate proceedings. Your spouse may actively try to defend and prevent it. Perhaps they do not accept that the relationship has broken down, or they do not agree that the grounds stated in the divorce papers are correct. In the event of a spouse defending the divorce, they must file with the court an Answer to Divorce form that allows them to state why they disagree with it. They have 28 days to submit this.

can you get a divorce if the other person refuses

If they do not submit this form, then you can go ahead and apply for the Decree Nisi. If they do submit it in time, you may have to go to court to discuss the case and the ultimate decision will be left to a judge. Defended divorces are very rare. It’s a costly and often futile process, with the court usually being reluctant to force couples to remain married.

If you and your spouse really can’t come to an agreement, then always seek legal advice from a solicitor that specialises in family law, such as us here at Bromfield Legal. We can help you decide on the best route to take, and we’ll contact your spouse and their solicitor so that you don’t have to. We can also represent you in court if necessary, in order to get the issues dealt with as smoothly and professionally as possible. Contact us today and let us guide you through this difficult time.