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If you are going through a divorce, there may be complicating factors involved, such as pensions, Trusts and business arrangements which need to be addressed. In some cases, a prenuptial or postnuptial agreement may exist which will indicate what should happen. In any event, our Family team can help you to find practical solutions to these issues.
As with all aspects of a divorce, we encourage making amicable arrangements to deal with finances (Financial Remedy Provision), formalised in a legal document. If this cannot be done, a Judge will make the decision for you.
What will a Judge take into account?
- Your income, earning capacity, property and any other financial resources you both have
- Your financial needs, commitments and responsibilities now and in the future.
- The standard of living you enjoyed before the breakdown of the marriage
- Any physical or mental disability of each spouse
- Any financial contributions which each spouse has made or is likely to make
- The value of any benefits, such as pensions, which one spouse may lose as a result of the divorce
- In very exceptional circumstances, conduct
You must provide comprehensive details about your financial circumstances, including documents outlining your finances. Once an agreement is made, the details are added to a draft Consent Order. This is then sent to the District Judge following the pronouncement of the Decree Nisi (the certificate granted when a court is satisfied that the petitioner is entitled to a divorce). If the Judge is satisfied that the financial agreement is fair, he will make the Order.
For more information on dealing with financial arrangements in a divorce, please read our blog on the issue.
When dealing with pensions, it’s important to establish what type of fund is involved and the rules related to accessing the capital and income contained within it. Options available may include offsetting or sharing orders.
Pension rights must be considered when you are splitting marital assets. There are several ways this can be done. Generally, it will depend on what you decide, otherwise it is determined by the court, possibly with the assistance of financial expert intervention. Ask your pension provider for a valuation of your pension fund before making these decisions.
There are three methods of taking pension rights into account in a divorce settlement – pension offsetting, pension attachment and pension sharing. We recommend that you take independent financial advice in order to fully understand the process and get the most favoured outcome.
This is a complex part of the divorce process and we are happy to spend time with you explaining the options available to you.
Trusts, of which you or your spouse are the beneficiary, may also be in place. Again, it’s important to identify the nature of the Trust. The Court may have the power to vary the terms of a Trust and make binding orders. It will take into account how the Trust has been previously accessed when making its decision.
You may have a family business which needs to be dealt with in the course of a divorce process. This could include providing a valuation of its market value and deciding how the funds should be split if the decision is made to sell the business.
Decisions surrounding the liquidity of the business, sustainable drawings, and the impact of any Court Order on third parties must all be assessed.
Alternatively, if the decision is made to continue running the business, we can help with any mediation process required to plan a way forward.