Will my husband/wife pay me maintenance following divorce?
Where parties have been married and are looking to get divorced, there may be spousal maintenance that would need to be paid by the higher earning spouse to the lower earning spouse.
The amount of spousal maintenance to be paid would need to be negotiated between the parties, either through solicitors, in mediation, or through other alternative dispute resolution options, as well as for how long the maintenance is paid. There is no law set down to suggest how much spousal maintenance should be paid or for how long, such as there is in child maintenance calculations.
Generally, the Court will consider whether it is possible for the spouses to obtain a clean break which means that neither of them will claim any spousal maintenance against the other. Recent case law has suggested that future earnings are not matrimonial assets and therefore not available for distribution between spouses on a separation and divorce. However, we are able to erode this principle where it is necessary to ensure that one person’s income needs can be met. Therefore if a spouse does not have enough income of their own from all available sources to ensure they are able to meet their reasonable income needs, they can then seek to look to receive spousal maintenance from the higher earning spouse to top up their own income to ensure that they can meet those needs.
Generally, however, the Courts will still expect a spouse receiving maintenance to maximise their income capacity and move forward to financial independence within a reasonable timeframe to achieve an eventual clean break.
Does my husband/wife’s behaviour mean that I will get more money in a divorce?
Behaviour, often referred to as conduct, can be taken into account when looking at the division of the assets and money on a divorce. However, conduct is only taken into account in very rare circumstances that will usually include conduct relating to financial conduct that has meant the behaviour has had a direct impact on the finances available for distribution between the parties, for example where one party has sought to dissipate or spend certain assets or money but has meant that they are not available for sharing with the other party and that they have done that deliberately.
Extreme cases of violence that have resulted in the victim’s earning capacity being affected, due to injuries they have received, can also be taken into account.
However, bad behaviour or conduct is not generally taken into account when looking at the division of the assets on a separation, particularly bad behaviour that has led to the breakdown of the marriage.
Therefore, generally where a spouse has behaved badly towards another spouse, that spouse is not going to receive more money, simply due to the behaviour, unless there has been a financial element to the behaviour.
Is my husband/wife entitled to half my pension when divorcing?
When people divorce they will often need to consider financial matters following their divorce. Financial claims break into three areas which are:
Your solicitor will need to consider with you all three areas and consider an appropriate split across the areas to ensure that you are able to live separately and apart and independently from each other as possible.
In relation to pensions, a spouse is not automatically entitled to half of your pension, however, pension assets will be considered as part of a matrimonial settlement. Pensions can be dealt with in a number of ways including offsetting which means that a spouse can maintain their pension in its entirety on the basis that the other spouse receives a higher proportion of the capital for example.
Alternatively there can be a Pension Sharing Order which would provide for the larger pension to be shared with the spouse who has the smaller pension to provide equality of incomes on retirement or equality of the capital values of the pensions whichever is considered the most appropriate. It may be appropriate in some cases for each spouse to retain their own pension provisions but much will depend on the age of the parties, the amount of pension accrued and the length of the marriage, as well as other factors that will be taken into account when looking at whether it is appropriate for there to be a share of the pensions between the spouses.
Will a prenuptial agreement protect my assets?
Prenuptial agreements are not 100% binding in England and Wales and therefore the Court retains ultimate discretion when looking at the matrimonial finances following a divorce.
However following a case known as Radmacher in 2010, the Courts are becoming increasingly willing to hold people to prenuptial agreements that have been entered into appropriately and with certain requirements being met. The Courts consider that couples should have the power to decide their own financial arrangements but are not able to contract out of their responsibilities to meet each other’s financial needs or the children.
The Law Commission also produced a report, Matrimonial Property Needs and Agreements, that set out their recommendations in relation to qualifying nuptial agreements and provided they adhere to certain criteria they could be enforceable as a contract under English law.
In order for a prenuptial agreement to be considered a qualifying nuptial agreement it must:
- be contractually valid on traditional principles so it must be free of any undue influence or misrepresentation.
- be made by deed.
- contain a statement signed by both parties confirming that they understand the agreement is a qualifying nuptial agreement and they understand the implications of entering into the agreement and the impact that would have on the Court’s discretion.
- not be made within 28 days immediately before the wedding or civil partnership.
In addition, the Law Commission recommended that anyone entering into a qualifying nuptial agreement should have received financial disclosure in relation to each other’s financial situation and independent legal advice.
Prenuptial agreements that do adhere to this criteria and are considered qualifying nuptial agreements are a sensible way to seek to protect your assets in the event of any divorce or separation. It allows people to contract with each other as to what they consider would be non matrimonial assets and therefore outside the scope of sharing if they were to separate. However it would never be considered fair or reasonable for the outcome of any prenuptial agreement to leave one person unable to meet their basic needs or the needs of any child.