Maintenance and Clean Break on Divorce

Maintenance and Clean Break on Divorce

Maintenance and Clean Break on Divorce

  • Who’s entitled to Spousal Maintenance? How’s it calculated?
  • What’s a Clean Break, and is it the answer?
  • And what about Nominal, Capitalised, or Secured Maintenance?
  • And what on earth is a Duxbury Calculation?

Here’s a quick answer to all these questions and more, and I hope you’ll find it helpful. If anything’s not clear, please leave a comment, or get in touch. And right at the end I mention some of the topics I’ll be covering in my next blog about Child Maintenance.

Can I Claim Maintenance (aka Periodical Payments)?

It depends on your financial circumstances. The Court used to make lifelong Maintenance orders as a matter of course. But now a “Clean Break” is much more likely.

What’s a “Clean Break”?

It’s when the Matrimonial assets are shared out and you call it a day, you have no continuing right to Maintenance. But people do still sometimes avoid a Clean Break and get a Maintenance order, so read on.

What are the Options for Maintenance?

Maintenance can be:

  • Open ended
  • For a fixed period of time
  • Capitalised (see below)
  • Secured (see below)
  • Dismissed (see below)
  • Not dismissed but not in payment – a “Nominal Periodical Payments” order (see below)

How is Maintenance Worked Out?

It’s usually a question of need. What does the lesser earner, usually the parent with whom the children live, need in order to pay all the outgoings?

It’s only in exceptional cases that entitlement goes beyond needs, and this is where there’s an excess of income. There’s no set formula but the Courts say the concepts of “sharing” and “compensation” should be applied.

How Do “Sharing” and “Compensation” Differ from “Needs”

“Sharing” is, briefly, the idea of sharing in the “fruits of the marriage”. So it’s an attempt at fairness rather than just covering needs. “Compensation” refers to big money divorces where Maintenance is likely to go far beyond needs. These complex areas are discussed in the cases of Miller and McFarlane.

If there’s high income in your divorce, you’d be wise to seek advice from an expert Family Solicitor to make sure you don’t miss out. Most offer initial free advice. We certainly do.

What is Capitalised Maintenance?

The payer pays a lump sum upfront representing a certain amount of Maintenance over a certain period of time. Family lawyers use a Duxbury Calculation to work out the appropriate figure. This can result in a “Clean Break” (see above).

What’s a Duxbury Calculation?

Tables to work out a lump sum which represents the appropriate level and duration of Maintenance. They are contained in At A Glance, Essential Tables for Financial Remedies published by the Family Law Bar Association. The 2018-2019 edition comes out in April and can be preordered here for £70.

What is Secured Maintenance?

Are you worried your Maintenance won’t be paid? If so you can either agree, or the Court can make, a Secured Maintenance order. But this is only appropriate if the payer has sufficient assets to cover the payments.

What Happens When Entitlement to Maintenance is Dismissed?

You lose your entitlement to Maintenance. If you have the slightest doubt, seek advice from a Family Law solicitor.

What are Nominal Periodical Payments?

It’s when you’re not receiving Maintenance, but your entitlement is not dismissed. You might be able to go back for a second bite of the cherry if your circumstances change. These Maintenance orders are often worded as “five pence a year”.

Why are Nominal Periodical Payment Orders Important?

They protect the lesser earner, typically the parent who has the children living with them. So for example if the parent suffers a catastrophic injury and is unable to work, the order could be a safety net.

Can Maintenance Be Agreed?

Yes, of course. If you need a little guidance, “Pay As You Go” divorce costs can be helpful.  Otherwise you can try negotiation, collaborative law, or mediation. The last resort is an application to the Court which of course is expensive and stressful, but sometimes necessary.

Is a Court Order Necessary?

Even if there’s full agreement it’s wise to have a Consent Order. This prevents misunderstandings. A good Family Solicitor can draw up a Consent Order for a fixed fee.

Can Maintenance be Varied?

An application to the Court can be made by either of you if there’s been a change in circumstances. This could be for example illness or redundancy. Or perhaps one of you has landed a well paid job, or there’s been an inheritance.

What Happens If I Remarry?

Your Spousal Maintenance will end.

Next Week’s Blog – “Maintenance for Children”

Following on from this blog about “Maintenance and Clean Break on Divorce” I will be posting a blog to cover the following questions:

  • Can I get Maintenance for the Children?
  • How much will it be?
  • Is there Maintenance for Children over 16 but not in full time education?
  • What about school fees?
  • Is it different if the absent parent is a very high earner?

Maintenance and Clean Break on Divorce

Contact  Joanne Houston on 01962 217640 for free advice on Maintenance and Clean Break on divorce. In this 20 minute session we will review your situation and how you can achieve your objectives.

See my blog about how to get the best financial settlement on divorce.

Did you know there are different rules for Short Marriages?


JUST FAMILY LAW are specialist divorce and family law solicitors offering personalised legal solutions. We offer collaborative law which is especially relevant in providing solutions tailored to your family’s needs. This includes same sex couples and their families. Visit our website just-family-law.com The topics covered in this blog post are complex and are provided for general guidance only. Therefore if any of the circumstances mentioned in this blog have application to you, seek expert legal advice.

image Happy Family by Joy Coffman on Wikimedia

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Pensions on Divorce – What Can You Expect?

Pensions On Divorce

Worried about pensions on divorce? Make sure you know how to get your fair share, and how to protect a pension which shouldn’t be included.

Valuing Pensions on Divorce

Ask your pension provider for the Cash Equivalent Transfer Value of your pension. This will give you an idea of the value of the pension but it can be inaccurate.

If you’re making a claim over a valuable pension you should consider obtaining a valuation from an actuary.

Pension Actuarial Reports

This will help you get a fair share of a valuable pension. An actuary will work out the realistic value. He or she will advise how best to divide the pension to provide equality of income in retirement. This will for example take into consideration your different life expectancies. If you’re a woman, you will need more than half as you’re likely to live longer.

State Pension after Divorce

Find out your entitlement to a State Pension when working out your financial settlement. Here’s a link to a form you can complete to obtain a forecast. Or you can phone, or emailYou can obtain an online forecast if you have an HMRC account

Family Home or a Share of Ex’s Pension?

It’s a hard decision. But in the long run you could face a difficult retirement with a limited income whilst your ex is reaping the benefit of a valuable pension pot. Make sure you get expert legal adviceMost Divorce Solicitors offer free initial advice – we certainly do.

What is Offsetting?

This is where one of you keeps their pension and the other gets more property or savings etc instead. But there’s always the risk the pension will ultimately provide more security in retirement than the alternative assets.

Can I Keep My Pension out of the Divorce?

Try arguing it’s a non matrimonial asset. Can you say some or all of it accrued before the marriage? Or can you offer a greater share of other assets to compensate? But the only fool proof method is to enter into a Prenuptial Agreement before the marriage, or a Postnuptial Agreement during the marriage.

See my blog Ring Fence & Protect Assets On Divorce.

Pension Sharing on Divorce after Retirement

One approach is to equalise your incomes with a pension sharing order or a maintenance order. This is a complex area and you should seek expert advice from a family law solicitor.

Getting Married?

If you don’t want to risk your pension (or other assets), consider a Prenuptial Agreement. Here’s a helpful factsheet on the subject.

What is a Pension Sharing Order?

It gives away a share of a pension by transferring a percentage of it into another scheme. The Order can be made by consent so you don’t have to go to Court. It’s served on the pension provider. Bear in mind pension providers charge fees for sharing pensions. Here’s a link to the form that needs to be filled in. It’s annexed to a Consent Order. (Read here how a Consent Order will protect you).

Can I get my Ex’s State Pension?

You may be able to use your ex’s National Insurance Contributions to boost your State Pension. The Additional State Pension can also be shared on divorce. Here’s a helpful link to the Pensions Advisory Service

Pensions on Divorce

Contact  Joanne Houston on 01962 217640 for free advice on Pensions on Divorce. In this 20 minute session we will review your situation and how you can achieve your objectives.

See my blog about how to get the best financial settlement on divorce.

Did you know there are different rules for Short Marriages?


JUST FAMILY LAW are specialist divorce and family law solicitors offering personalised legal solutions. We offer collaborative law which is especially relevant in providing solutions tailored to your family’s needs. This includes same sex couples and their families. Visit our website just-family-law.com The topics covered in this blog post are complex and are provided for general guidance only. Therefore if any of the circumstances mentioned in this blog have application to you, seek expert legal advice.

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Brexit, Family Law & Divorce – March 2018 Update

Brexit, Family Law And Divorce

 

See February 2019 update, What Does Brexit No Deal Mean For Family Law 

Brexit, family law and divorce – do you think this might have relevance to you? Well, yes, if you’re part of an International Family, and you’re involved in a family law dispute.

Are You In An International Family?

If you or your ex were:

  • born in another EU country but live in the UK
  • born in the UK but live in another EU country

you’re part of an International Family.

How Do EU Rules Help Family Law?

They say:

  • Where to start Court cases. Otherwise there can be cases going on in two different countries at the same time
  • Court Orders made in this country can be enforced in other EU countries and vice versa

Do EU Rules Help Children In Family Law Disputes?

Yes.

  • They say where to start Court cases. This is the country where the children live. Otherwise there could be cases going on in two different countries at the same time
  • They tighten up the Hague Convention in child abduction cases:
    • A stricter timetable
    • The children’s home country must make the final decision
    • The Court will hear evidence from the child (a benefit shortly to be added)

What Difference Will Brexit Make?

The European Union (Withdrawal) Bill will bring all EU family law rules onto our books. But we need new agreements with the remaining EU countries to ensure these rules remain reciprocal. In other words, both we and the remaining EU countries must agree to be bound by them. Because otherwise there will be confusion, delay and extra expense for families.

Why Is Reciprocity Vital?

The Government must knit our family law system and the EU family law system together

Will These Vital Reciprocal Agreements Be Made?

It’s uncertain. The Government is concentrating on trade and other important agreements.

What Will Happen Without Reciprocal Agreements?

We will lose the straightforward enforceability of orders in EU countries concerning maintenance and children.  And the question of where to start divorce cases or cases about the children will be complicated.

Is The Court Of Justice Of The European Union (CJEU) Important?

Yes. It updates and interprets EU family law rules. But the Government wants to end all links with it.

What Happens If We End All Links With The CJEU?

Changes in the interpretation of EU rules, and amendments to these rules, will apply to all the remaining EU countries, but not to us. So our rules and the remaining EU countries’ rules will not knit together.

What Should Happen?

Family law organisations such as Resolution are lobbying Parliament about Brexit, family law and divorce. They’re saying in particular we should maintain links with the CJEU. This means we’d have a say in EU family law procedure and interpretation, and keep our laws and rules up to date.

Has The Lobbying Of Parliament Had Any Effect?

Yes. Amendments have been tabled to The European Union (Withdrawal) Bill currently going through the House of Lords. These are the amendments:

  • A requirement on the Government to report every six months on the progress of negotiating new reciprocal arrangements in family law, and a specific requirement to seek ongoing reciprocal arrangements;
  • Allowing UK Courts to refer family law matters to the CJEU for eight years and, where a referral has been made, to be bound by that decision. In addition, for the English Court to have regard to other CJEU decisions; and
  • Ensuring the Hague Conventions are ratified by the UK.

Is There Anything You Can Do To Help?

But Please Remember …

If you are keen to divorce in a particular country for financial reasons you should seek legal advice without delay

Brexit, Family Law And Divorce

Contact  Joanne Houston on 01962 217640 for free advice on Brexit, Family Law and Divorce. In this 20 minute session we will review your situation and how you can achieve your objectives.

JUST FAMILY LAW are specialist divorce and family law solicitors offering personalised legal solutions. We offer collaborative law which is especially relevant in providing solutions tailored to your family’s needs. This includes same sex couples and their families. Visit our website just-family-law.com The topics covered in this blog post are complex and are provided for general guidance only. Therefore if any of the circumstances mentioned in this blog have application to you, seek expert legal advice.

 

image Happy Family by Vera Kratochvil on Wikimedia Commons

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