Divorcees must act fast to protect pension earmarking order

The front page of today’s Daily Telegraph warns that those with pension earmarking orders should take urgent advice to ensure that any financial order obtained in divorce or judicial separation proceedings adequately protects their interests.

An unexpected consequence of the recent pension legislation reforms is that those with earmarking orders could potentially be at risk of losing benefits unless their orders are drafted properly.

Earmarking orders typically provide for a percentage of the lump sum to be paid or a percentage of the income at the time of retirement. As the pension remained in the sole name of the individual, the control of when such benefits were taken were out of the hands of the individual with the benefit of the order.

At the time most pensions provided for a cash lump sum to be taken and for the remaining fund to be used to purchase an annuity. But the new reforms mean that individuals can now take out the whole fund subject to a relevant tax charge.

This could mean that an embittered spouse could seek to deprive the other by withdrawing the fund as capital so that no fund remains to purchase an annuity or income stream. This may seem extreme, given the tax consequences that may follow. But unfortunately some spouses will go to considerable lengths to prevent the other getting assets.

Earmarking orders were introduced in 1996 and at the time provided a way for spouses to secure an interest in the other’s pension benefits. These orders were replaced from 1 December 2000 with the introduction of pension sharing.

However, for those who divorced after 1 July 1996 but before 1 December 2000, or for those with a judicial separation after 1 July 1996 who secured an earmarking order, it is worth checking the terms of the order. This is to ensure that the pension benefits to be shared are adequately protected in light of the new pension freedoms, which were clearly not considered possible 20 years ago.

Please contact me on 0333 00 60847 or by email mark.sage@tltsolicitors.com with a copy of your order to ensure that the appropriate safeguards are in place.

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Enforcement of Family Financial Orders

On 11th March 2015, the Law Commission published a consultation paper on the enforcement of family financial orders in England and Wales. The Commission had been told that the current enforcement proceedings were “hopelessly complex and procedurally tortuous”. The laws were found in various statutes and rules of court which meant that their efficiency and effectiveness was limited against debtors who choose not to pay.

With the significant changes taking place in family law with the introduction of the single Family Court, but the reduction of availability of legal aid in private family proceedings this has placed an onus upon Government to ensure that there is a reform of the law which could offer a clear set of rules and hopefully the opportunity for individuals to access a full range of enforcement options without the need for multiple court hearings.

It is hoped that such reform would enable the court to consider enforcement against a wide range of assets. It could also allow the enforcement regime to work effectively when small amounts are owed so that parties are not forced to wait until large arrears are due before enforcing orders in their favour.

It should be noted that the consultation does not include the enforcement of child maintenance calculated by the Child Maintenance Service where additional remedies such as “disqualification of driving” already exist as a potential remedy of last resort.

The Commission is looking at the enforcement of spousal maintenance arrears, payment of lump sums, property transfers and orders for the sale of properties. The impact of non-payment of family financial orders is different to that of most civil debts. Most orders are designed to support the recipient and quite often children within a home. The non-payment can lead to other tensions within the family sparking off other litigation such as injunction proceedings for domestic violence and or Children Act proceedings.

The project which opened on 11th March will remain open until July 2015 after which the Law Commission estimates publishing a report with final recommendations to Government by Summer 2017.

To respond to the consultation you can download a copy of the consultation paper here

http://lawcommission.justice.gov.uk/consultations/enforcement_family_financial_orders.htm

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THE 3 STEP DIY UNDEFENDED DIVORCE FLOWCHART

With Legal Aid going many individuals may seek to undertake the divorce themselves, here is a very basic guide where couples have agreed. If in any doubt then please contact me.

STEP 1

Warning: If you are not domiciled or habitually resident in England or Wales then please seek legal advice.

The only ground for a divorce is that the marriage has irretrievably broken down.

To demonstrate this, the Petitioner (person issuing the petition) must prove one of the following five facts:
a) the Respondent has committed adultery and that the Petitioner finds it intolerable to live with the Respondent
b) The Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent
c) The Respondent has deserted the Petitioner for a continuous period of at least two years immediately preceding the presentation of the petition
d) The parties have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the Respondent consents to a decree being granted
e) The parties have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition.

Warning: The parties must have been married for at least one year before commencing divorce proceedings.

Petition is prepared setting out basic details and background information upon the fact relied upon.  For more info click on the Guidance notes  

Once the papers have been completed they will need to be filed at a Regional Divorce Centre. You need to send:

1. The Petition in triplicate
2. Original marriage certificate – Warning: a photocopy will not be acceptable
3. Fee currently £410 made payable to HMCTS – If you are on a low-income you could be exempt from paying the fee. You will need to complete the Fee Exemption form

The court will issue the Petition by sealing the documents and adding a case number. It will:-

1. Post a copy to the Respondent enclosing an Acknowledgement of Service Form
2. Post a copy of the sealed documents back to you for your records
3. Retain a set for the court’s records.

The Respondent should within 8 days return the Acknowledgement of Service to the court, who will forward a copy to you.

Warning: this flowchart is for undefended divorces only and assumes cooperation by the Respondent. If there is no cooperation then seek legal advice. It can sometimes take the court a number of days to send the completed Acknowledgement of Service to you.

STEP 2

The Petitioner then exhibits a copy of the Acknowledgement of Service to a Statement in support of the Application for Decree Nisi and files it with the court – Warning there are 5 different forms depending upon which fact is relied upon, you will need to choose the one relevant to your petition.

Adultery

Behaviour

Desertion

2 Years separation

5 years separation

Once filed with the court it will consider the papers and if in order the District Judge will certify that the marriage has irretrievably broken down by issuing a certificate and will set a date for pronouncement of Decree Nisi. 

There is no need to attend court for pronouncement which will take place in open court. If costs have been claimed then attendance may be necessary if this has not been agreed.

Warning: Take advice regarding financial matters before obtaining the Decree Absolute as certain pension and other spousal benefits can be lost.

STEP 3

6 weeks and a day after pronouncement of the Decree Nisi – complete and send the Application for Decree Absolute form to the court requesting the decree nisi to be made Absolute.

The vast majority of divorces are undefended and require no attendance at court. An estimated timescale from start to finish will be 3-4 months depending on which area you live in the country.

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Should spousal maintenance cease on permanent cohabitation?

That was the topic of debate last night chaired by the Honourable Mr Justice Coleridge before an audience of family lawyers in Bristol. The Proposer of the motion was Christopher Sharp QC who was seconded by Andrew Commins both of St Johns Chambers and it was opposed by Charles Hyde QC of QEB who was seconded by Daniel Leafe of Albion Chambers.

A vote was taken at the start of the evening with a broadly equal division between the audience.

Christopher Sharp QC took us through the statute and case-law how the courts were looking toward creating autonomy and independence. He emphasised how Society had changed significantly since the Matrimonial Causes Act 1973 came into force and that 40 years after the legislation was passed it was now out of date. The concept of a couple  “living in sin” was no longer frowned upon but accepted as a normal part of an adult relationship.

He expressed that the majority of individuals expected maintenance to stop upon cohabitation, with Society considering that a permanent relationship would involve a financial committment toward each other. He emphasised that individuals should be free to make their own choices and by cohabiting a spouse had made that choice and should accept the consequences of their actions.

He outlined that many jurisdictions limited spousal maintenance to a term and some did not provide at all. He proposed that legislation be changed to end spousal maintenance on permanent cohabitation.

Charles Hyde QC opposed the motion in entertaining style and some humourous power point slides. He said that the argument was fundamentally flawed, that cohabitation was not marriage, there was no financial commitment imposed upon a cohabitant and to end an obligation upon a former spouse would lead to extreme unfairness in certain cases.

He sought to challenge how one would define permanent cohabitation and how it would lead to a collapse of the legal system as many self representing individuals would bring secret filming and evidence of spouses cohabiting to try to end an obligation and the receiving spouse also self representing now that legal aid had disappeared explaining that whilst she had a boyfriend he refused to pay anything or get married.

As each case was fact and evidence specific the current legislation provided adequately so that fairness and protection could be achieved. A spouse could reasonably expect her maintenance to stop upon cohabitation but to have it dismissed would be a step too far where following a lengthy marriage she had sought to start afresh in a new relationship only to find that may break down after a short period of time. The payer was protected he could vary downwards upon cohabitation, after all he had made the committment to pay for life upon marriage.

Andrew Commins then took up the baton taking us through the legal definitions of cohabitation as set out by the DWP, how the benefits system considered cohabitation a part of Society which contained financial consequences and that family law needed to catch up.

He went through some of the international jurisdictions which had already enshrined the cessation of maintenance upon divorce let alone cohabitation.

Daniel Leafe then responded to bring matters to a conclusion stating that to do so would be a further victimisation of women who were the usual recipients, that the definition of permanent cohabitation would be class it as the same as marriage was fundamentally wrong given that cohabitation does not create legal obligations upon an individual.

Marriage had been defined and creates an obligation for life, cohabitation whilst having a definition does not create those obligations.

Observations were taken from the floor and Mr Justice Coleridge emphasised the need for reform of the law which was now almost 50 years old and further how the law relating to cohibitants needs to be addressed but put the matter to the final vote.

The broadly even spilt before the debate had shifted slightly (5%) to rejecting the proposed motion of ending maintenance upon permanent cohabitation.

Mr Justice Coleridge summed up by saying how difficult the issue was with such fine margins between those gathered and it is no wonder that the politicians didn’t want to address the issue through legislation. However legislation was needed for the law surrounding cohabitation as recommended by the Law Commission but clearly this is not seen as a priority outside of those of us dealing with family law.

An excellent debate which continued for a number of hours afterwards with thanks to Irwin Mitchell for organising.

It would be good to hear from others perhaps in other jurisdictions and or parts of the UK as to their thoughts.

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State pensions – A warning for stay at home mums and ex wives!

The Government have recently announced the new State Pension changes introducing the new single tier pension for those reaching state pension age on or after 6.4.2017. This scheme is based upon National Insurance contributions over a 35 year working life period.

Under current legislation where a husband has accumulated the relevant number of years NI contributions (30 years), a wife upon divorce has been able to substitute her own contributions record to that of her husband’s to claim an enhanced pension upon reaching retirement age.

This is will now change from 6.4.17 when the individual will not be able to substitute contribution records and the pension entitlement will be based upon that individuals contribution history. Whilst there are still campaign groups seeking to reinstate the old rules permitting the substitution of the contribution records of those who have recently divorced but will not retire for a number of years, as it stands there is no provision for substitution beyond April 2017.

This could mean that those carefully calculated settlements in divorce proceedings which provided for equality of income at retirement may now be unequal by as much as £144 a week where a wife has no contribution record of her own, perhaps a forces spouse who has lived overseas etc.

Where a wife (usually the case) has stayed at home and cared for the children she will be able to claim a contribution record for the time when she was in receipt of child benefit but to receive the full £144 a week she will need to have a contribution record of 35 years! If not they faced a reduced state pension.

A pension forecast can be obtained by individuals worried about their position by going to the Government website

With the link for National Insurance contribution records and the child benefit payments, a further warning is given that those higher income couples where one partner earns more than £60,000 per annum will not be eligible for child benefit and many will opt out as opposed to completing a self assessment form. Accountants are advising to maintain the claim for child benefit and elect not to receive it  or have the benefit recouped through the tax charge imposed upon the wage earner as this will preserve the NI contribution record for the future.

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Enforcement of orders – Judge gets tough!

For years one of the most frustrating parts of being a family lawyer is the role of enforcement. This could be enforcement of a contact order, a maintenance order or sale of a property, there are many other types but perhaps the one which winds up a disputing couple the most is often “non disclosure”.

When couples are together or married they are often aware of accounts or details of financial transactions that the other has an interest in. It may be part and parcel of daily life for a period of time, particularly during happy times within the relationship. But then it all turns sour and the accounts are hidden, the documents disappear and the burden of proof increases and us lawyers get the blame for the high levels of costs.

We have a process known as “disclosure” in financial proceedings arising from a divorce. This is to ensure that all parties including lawyers know what is in the “pot” and available for distribution. It covers incomes, capital, pensions, business interests and trusts. A complete financial picture for each party.

It is required for all of the dispute resolution methods such as mediation, collaborative law, arbitration and court litigation. With some of thee methods the requirements may be a little more relaxed with the agreement of the parties.

For some individuals the stakes may be high and the way in which the evidence is presented to the other party or the court can influence negotiations, such as a low business or property valuation and there may be a reluctance for some to disclose their resources.

Whilst this strategy may have perceived advantages in delaying proceedings or succeeding in hiding assets or making it too costly for the other to pursue, it can be high risk as Judges can make inferences against the individual if there is sufficient evidence.

However the recent case of Young v Young [2013] EWHC 34 (Fam) saw Mr Justice Moor send Mr Young to prison for 6 months for not providing disclosure. Mr Young had been given ample opportunity by the courts over a number of years to supply the disclosure but when it was not produced or that which was produced was described as “next to useless”, Mr Justice Moor decided that he was in contempt of court.

This is an extreme case where Mr Young claims that he was penniless and a bankrupt, whereas Mrs Young said he was a wealthy man with assets of up to £400m. The Judge said that there had been a “flagrant and deliberate contempt over a very long period” Mr Young had failed to provide basic information such as income details between 2006-2012.

Usually the judges will make other often more effective enforcement sanctions such as costs orders or third-party disclosure orders but this case is a reminder the court will not tolerate contempt.

Posted in Courts, Disclosure, Divorce, Enforcement | Tagged , , , , | 2 Comments

30 years together for nothing!

Once again a woman falls foul of the law relating to cohabitants. Miss Curran who had been with her partner Mr Collins since they were both teenagers in the 1970s, has recently lost her case to a share of the wealth they had created in the family home and business worth an estimated £750,000.

As the assets were all held in Mr Collins name, the court has found that she has no interest. Whilst many would believe that she would be classed as a “common law wife” no such term exists in law and so the Judge hearing the case had to consider the facts and upon investigation and hearing evidence concluded that she had no legal or beneficial right to any of the assets including the business.

In my blog earlier this month Cohabitation and Self protection I set out the law as it currently stands and sadly for Miss Curran she was unable to satisfy any of these requirements. Her evidence that she “trusted” that Mr Collins would look after her if they split and that she would get a fair share has sadly been misplaced.

However there may be a chink of light for her as in the Court of Appeal Lord Justice Toulson has granted her permission to appeal. He also made the comment “that the law of property can be harsh on people usually women in that situation. Bluntly the law remains unfair to people in the appellant’s position”

Despite a consultation process being undertaken in 2011 the Government has shelved plans to reform the law relating to cohabitants. If in any doubt as to your position please contact me now.

Be aware it is easier to change the position whilst matters are amicable and you are still together than at a later date where individuals will always look to protect themselves.

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