Pensions and Divorce

Lucinda Connell silhouetteLeading Family Law Specialist, Lucinda Connell, of Major Family Law, the North and South East’s best leading family law specialists, comments:

We all know what a pension is. Many of us however, overlook the fact that pensions are assets which can be shared on divorce.  Indeed, pensions are often one of the most valuable assets in any marriage.  So what can be done with them if a marriage or civil partnership breaks down?

There are three main ways in which pensions can be dealt with on divorce, and these are (1) sharing or “splitting” a pension, (2) earmarking or “attachment” of a pension and (3) offsetting.

The first and most common option is pension sharing. This entails the splitting of a pension (or pensions) between the spouses in proportions agreed between them or as ordered by the court. A specified percentage is taken from one pension, and the recipient can then either form a new pension with it or add it to their existing pension fund, depending on the terms of the scheme.

Attachment is where there is an earmarking for the other spouse part of the lump sum and/or monthly payments the pension holder will receive on retirement. Pension attachment is less common than pension sharing, not least because it does not fully achieve a clean break between the parties and remarriage and death can bring payments to an end.

Offsetting is essentially where one party to the marriage keeps all or part of the pension provision whilst the other spouse has a larger share of other assets, often the family home.

In determining the appropriate size, or percentage, of the pension sharing order to be made, principles of family law apply just as they do to other assets: the proposed option of dealing with the pension pot needs to take into account fairness, sharing and checking against equality and meeting the needs of the parties.

Pensions are complex investments and particular factors special to them also must be addressed such as the contributions made to the pension pot by a party outside of the marriage and relationship (before and after). It is sometimes necessary for specialist pensions advice to be provided by an actuary within divorce proceedings but consulting a specialist family lawyer is the best place to start addressing any queries you may have in the event of a potential marital breakdown.

Most Separating Couples Head Straight to Court

EJYTF5 Central Family Court, First Avenue House, London, UK

Specialist Senior Solicitor, Lucinda Connell of the North East’s best leading Divorce and Family Law firm, Major Family Law, comments:

There appears to be evidence that government attempts at promoting mediation has not been successful when it comes to options on settling family law disputes. Since 22 April 2014 attendance at a Mediation Information and Assessment Meeting (MIAM) has been compulsory before a separating couple can apply for a court order in divorce proceedings.

However, figures obtained following a Freedom of Information request to the Ministry of Justice show that in 2014/15 only one in 20 applications in private law children proceedings to a family court followed the new ‘compulsory’ route – fewer than 5,000 MIAMs from over 112,000 private law applications.

The Chief Executive of National Family Mediation, Jane Robey, said:

“By requiring separating couples to attend a mediation awareness meeting, the government’s aim was to introduce a cheaper and less confrontational alternative to court. But with fewer than one in 20 of couples even attending the initial meeting, let alone following that route through to its conclusion, the law has failed.

“We genuinely welcomed the law change requiring couples to explore mediation as an alternative to combative court proceedings. We knew it could not transform the culture of divorce on its own, but these figures suggest even this small government step has flopped.

“National Family Mediation and the mediation community alone cannot change the entrenched culture of adversarial and expensive court proceedings in divorce cases. More government support is needed to inform, educate and publicise the fact that MIAMs are compulsory in order to ensure the law is properly enforced and much more mediation is delivered.

“It’s not just that this is a law, the truth is that settlements negotiated through mediation offer a brighter future for separating families up and down the land.

“And given the well-publicised crisis of the clogged up family courts, one would think judges would have welcomed the changes and exercised their powers to take best advantage of the changes. That does not appear to be the case.”

Court of Appeal Ban Child’s Name

Lucinda Connell profileLucinda Connell, Specialist Children’s Solicitor with Major Family Law, the best Divorce and Family Law specialists, comments:

In the case Re C (Children) [2016] EWCA Civ 364, heard last month, the Court of Appeal was asked to to determine whether there was power in this jurisdiction to prevent a parent with parental responsibility from registering a child with the forename of his or her choice and, if so, by what procedural route the court should exercise that power.

The first instance judge, sitting at Swansea Family Court declared that the Local Authority was permitted to restrict the extent to which the mother exercised her parental responsibility so as to prevent her registering the forenames ‘Preacher’ and ‘Cyanide’ and additionally made an injunction order prohibiting the mother from so registering the children or referring to either of them by those forenames in contact.

The mother appealed. The Court of Appeal heard that the mother had a long standing diagnosis of a psychotic disorder and of schizophrenia and her parenting capacity was further impaired by drug and alcohol misuse, chaotic home conditions, abusive male relationships and an inability to work with professionals in an ‘open, honest and consistent manner’.

Lady Justice King, giving the judgment of the Court of Appeal, said that she was satisfied that the court had the power to prevent a parent giving their a child a specific name but that it should be exercised only in the most extreme cases and only with the sanction of a High Court Judge. In this case the Court decided that the name ‘Cyanide’ was capable, without more, of giving the court reasonable cause to believe that the girl would be likely to suffer significant emotional harm.

After reviewing the possible routes available to the court, Lady Justice King said:

“I have reached the conclusion that there is a small category of cases where, notwithstanding the local authority’s powers under section 33(3)(b) CA 1989, the consequences of the exercise of a particular act of parental responsibility are so profound and have such an impact on either the child his or herself, and/or the Article 8 rights of those other parties who share parental responsibility with a local authority that the matter must come before the court for its consideration and determination.”

She continued:

“In my judgment this is one of those rare cases where the court, in the exercise of its inherent jurisdiction, should intervene to protect the girl twin from the emotional harm that I am satisfied she would suffer if called ‘Cyanide’.”

With regard to her brother, the Court decided that, whilst being called ‘Preacher’ would not of itself be likely to cause the child significant harm:

“It is not unusual for a child, with even the most commonplace name, to ask how his or her name was chosen. This is made more likely in the case of an unusual name, such as ‘Preacher’ and in circumstances where the children concerned are not living with their natural parents. The only possible response that his carers would be able to make in response to such a question, would be to tell the boy twin that it was the name that his birth mother had chosen for him. This would lead to the inevitable question from the girl twin as to whether her name had also been chosen for her by her mother and, if not why not? She would undoubtedly ask what name her mother had given to her and why it had been changed. The outcome of such a predictable conversation would be to expose the girl twin to a significant part of the very harm the court seeks to prevent; she would know not only that her mother had chosen to call her ‘Cyanide’, but also to have to come to terms with the fact that she was to have been named after a notorious poison, whilst her twin brother was to be given the name of a respected member of society, ‘Preacher’.”

 

Pension Tracing Service Website Launched

Lucinda Connell silhouetteLucinda Connell, Senior Solicitor with Major Family Law, North East and South East top divorce and family law specialists, comments:  Family lawyers and members of the public alike will welcome the news that the the Pension Tracing Service has launched a new DWP website to help people more easily and quickly locate any lost pension savings.

It is estimated that there is currently £400 million in unclaimed pension savings. This is money people have previously saved for their retirement, and the new website should better help people to locate their retirement savings. Pension savings may, and often are, a key asset for consideration on divorce and this service will assist in ensuring that full information is to hand when considering the pension provision both parties to the marriage have respectively accrued.

If anyone thinks they may be missing out on any savings, they may wish to use the online service at www.gov.uk/find-pension-contact-details which is free of charge.

“Murder!” he wrote

Profile bRead what our Surrey consultant solicitor, Lewis Hulatt, of Major Family Law, the divorce and family law specialists says: Regular readers of this blog might say that I have ‘murdered’ the English language from time to time, but such violence is a serious business.  Not living in Midsomer, from recollection, I can only think of two people that I have known who have been murdered.  The brother of a school-friend was blown up by the IRA, his only crime being in the wrong place at the wrong time and the other, Milly Dowler, was killed by a very nasty piece of work who seems to hate women.

Which brings me on to this week’s blog – domestic violence and abuse.

When the legislators announced that they planned to make domestic abuse a crime, my initial reaction was not to praise them for recognising the harm of systematically degrading somebody to the point that they cannot function independently. Instead, I worried that the definition would be so badly worded that ‘domestic abuse’ would be meaningless. People confide in me about the shame they feel for allowing themselves to be treated badly and when Legal Aid was freely available, as a newly-qualified solicitor I would regularly appear before the Magistrates and District Judges to urge protection for the abused.  It was almost always granted as the protection amounted to a court order that for the most part threatened the abuser with punishment if he (more often ‘he’) continued with criminal behaviour.  Whoopee.

And therein lies the problem: most domestic abuse amounts to criminal behaviour whether or not there is an injunction – assault, battery, ABH, wounding, GBH, blackmail, threats to kill, behaviour likely to cause a breach of the peace – it was all criminal behaviour under existing law, so why pay a lawyer to persuade a Judge to tell somebody not to commit a crime? I have never been enthusiastic about that, but sometimes a warning from the Domestic Violence Unit of the local police service is not enough.  Personally, I favour bail conditions as a means to discourage bad behaviour, but some people say that I have a defective money-making gene.

“Men Who Hate Women and the Women Who Love Them” by Dr Susan Forward was helpful to me in understanding the pattern of abuse.

Remember the saying “Where there is life, there is hope” as once recognised, domestic abuse can become a bad memory instead of an everyday fear.

The solicitors at MFL understand such problems.

I Will Survive

p131940-(2)Our Surrey Consultant, Lewis Hulatt, of Major Family Law, divorce and family law specialists, comments: Imagine Sam Allardyce belting out Gloria Gaynor’s hit at a players’ party. I admit that it is not a pretty sight.  Resembling a hippo daddy-dancing, it would have considerably less pathos than Rafa Benitez performing Jimmy Ruffin’s “What becomes of the broken hearted?” Contrasting moods, but timing is everything.

When somebody realises that a relationship is going seriously wrong, the time to act on is upon them.   Had NUFC been more decisive, the action they took in bringing in a lauded manager could realistically have preserved Premiership status and offered the opportunity to build on survival and improve, but left too late, Newcastle and the Premiership are now officially separated.

In football, each season is a known period of time, but even so, putting things right can be left too late – there are factors that can take things outside a club’s control. In relationships, one partner may have an unspoken deadline for the other to have ‘tried’ or circumstances may become such that taking remedial action is much more difficult.

Sometimes, to the other it is ‘too little, too late’ and they have given up.

I recall advising a couple who wanted to talk through a proposed financial settlement. As we went through the legal mechanisms and principles to be applied, the wife became very angry indeed and so with their agreement, I spoke to each separately for a few minutes.  The wife was angry that the husband ‘just didn’t seem to care’, yet when I then spoke to the husband, he gave the impression of caring a great deal – through tears, he told me that he had been broken-hearted about the breakdown 18 months earlier, but that he had got used to the idea and now needed to sort out the practicalities. The wife hadn’t known of his earlier distress and by the time she realised that he had cared a great deal, all that was left was to sort out the practicalities in a cooperative way. Timing.

At MFL in addition to the solicitors being Resolution members and understanding what we do in context, we also have a consultant who is a relationship counsellor – Graeme Armstrong.

http://www.majorfamilylaw.co.uk/meet-the-team/graeme-armstrong/

Maybe speaking to Graeme or somebody like him can make it ‘a stich in time’.

Timing is everything.

8% Drop in Marriages

Lucinda Connell silhouetteOur specialist divorce senior lawyer, Lucinda Connell, of Major Family Law, the best divorce and family law specialists in the North and South East, comments:

The Office for National Statistics has released statistics relating to marriages in England and Wales in 2013 and the figures reveal the first annual decline since 2009. In 2013, there were 240,854 marriages which is a decrease of 8.6% compared with 2012.

Civil ceremonies accounted for 72% of all marriages in 2013. Religious ceremonies decreased by 14% while civil ceremonies declined by 6% in 2013, compared with figures in 2012.

More than 75% of brides and grooms marrying in 2013 were marrying for their first (and hopefully last) time. Those aged 65 and over were more likely to marry in 2013 compared with 2003, with the greatest increase among women. The mean average age at marriage was 36.7 years for men and 34.3 years for women in 2013, a small increase compared with 2012.

Elizabeth McLaren, at the Vital Statistics Outputs Branch of ONS, said:

“The fall could indicate the continuation of the long-term decline in marriages since 1972 or could be due to couples choosing to postpone their marriage to avoid the number 13 which is perceived as unlucky by many cultures.”

 

Children of Mother Trying to Move Family to Syria Taken Into Care

Lucinda Connell profileLucinda Connell, the North East’s best family and children lawyer, of Major Family Law, divorce and children law specialists, comments: The High Court has ruled in Leicester City Council v T [2016] EWFC 20 that the 3 children of a Leicester woman who tried to take them to Isis-controlled territory must live with their grandmother. The mother was arrested at Birmingham Airport having checked in 9 suitcases on a flight to Munich. The mother’s initial account had been that she and the children were taking a holiday to see their father in Munich from where they were to travel on to France.  Information located in the mother’s luggage however showed an itinerary which contradicted this and revealed onward travel from Munich to Istanbul where she had booked accommodation with the children and her husband for 3 nights. Her husband is believed to be in Chechnya with a terrorist group.  Following examination of electronic devices and mobile phones at the family’s home, there was an indication that the mother had been in conversation with a large number of people known to be linked to Islamic State. One particular individual is known to be a prominent member of Islamic State.

Mr Justice Keehan said that returning to the mother’s care would not be in the best interests of the children, aged between 4 and 12 years. Instead, he ordered that they remain in the care of their maternal grandparents. No specific order was made in respect of contact.

Child Maintenance Service Caseload Up By 21%

Family-lawLucinda Connell, Senior Specialist Family Law with Major Family Law, the top divorce and children law specialists, says: The number of cases managed by the Child Maintenance Service (CMS) clearly continues to increase following the introduction of application and collection charging. The CMS caseload stood at 227,000 cases as at the end of February 2016, an increase of some 21% when compared to November 2015.

Figures released by the Department for Work and Pensions, for the three monthly period to February 2016, show that 87% of Case Groups (ie. all of the cases associated to a paying parent) were contributing towards their current liability, with 88% of cash due having been paid. There has been a slight change to service levels; although the proportion of calls answered was at 98%, those answered within 30 seconds decreased from 94% in November 2015 to 86% in February 2016. Accuracy levels increased from 92% in November 2015 to 93% in February 2016. The DWP publication contains information on cases being processed on the 2012 statutory child maintenance scheme, delivered by the CMS. The 2012 Scheme was introduced to support families who are unable to make arrangements themselves. The 2012 Scheme will replace the 1993 and 2003 Schemes (administered by the Child Support Agency) over the next few years as 1993 and 2003 cases are closed.

Virtual Unreality

p131940-(2)Our Surrey Consultant Solicitor, Lewis Hulatt of Major Family Law, the niche specialist divorce and family law solicitors, says:

You will not be surprised to hear that I saw Jethro Tull perform “Living in the Past”: after all, if I was “too old to rock n roll, too young to die(t)” it almost goes without saying. The ‘t’ came later.   As a guy who saw Lindisfarne, back with Alan Hull, you might expect me to be a bit ‘retro’ were it not that I am a consultant for Major Family Law.   The past is what the present was after it stopped being the future.

Which brings me to this week’s thought.

How much do couples live in the present? Obviously, ‘100%’ is the technical answer, but I can remember being somewhat outraged when my wife and I sat in a restaurant and seemed the only people either interested in either the food or having a conversation with each other.   It is not that I am a luddite – during that trip I had an email from the Pope confirming that I could visit the Vatican Museum – you may doubt that, but ‘Frankie’ seems truly humble and who is to say that he did not press ‘send’ when I emailed seeking tickets using hotel wi-fi that evening?  Does he seem too proud to have been putting in a shift dealing with museum tickets?  I don’t think so!  Anyhow, possessed of Papal-blessed e-tickets or not, I really felt for the chef.  He was new and working hard to impress the diners, yet looking round the room almost nobody was paying attention to the food – they were all engrossed in their phones, tablets and laptops.   When I saw couples exclusively attending to their electronica rather than each other, I was disappointed.

Divorces have moved on from having their roots in the dormant baggage that ‘Friends Reunited’ enabled them to unzip, to having problems on Facebook, but that is not the limit of the damage that can be caused by undisciplined IT use.   It does not need somebody to be ‘sexting’ for IT to be a problem – a couple of years ago, I did a divorce where the main problem had been that the guy cared more about ‘levelling up’ in his game than his wife moving on to giving another guy unscreened ‘face-time’.  They remained buddies, just not…

At MFL, we understand if the wife is an ‘Angry Bird’ or the husband merely a ‘Max Payne’.