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FAQ – Seperation through Mediation

I have recently separated after a 30 year marriage. I am worried about my retirement income and my husband has told me that I will not be able to share in his Pension provision. Is this right?

Within Divorce Proceedings there will need to be an exchange of financial information between the parties. This will include the transfer value of any Pension Schemes accumulated by you personally. This asset will form part of the matrimonial pot and will be considered for division in a similar way to the other assets. In relation to Pension provisions, the parties can agree or the Court can order that there should be a Pension Sharing or Pension Attachment Order. A Pension Sharing Order transfers a share of one party's Pension Scheme to the other, either retaining this within the existing Scheme or transferring this out as a Pension Credit into a new Personal Pension Scheme. This means that the Pension becomes part of that receiving person's assets and becomes payable to them under the terms of their new Pension Scheme. Pension Attachment Orders are slightly different in that the party holding the original Pension retains that Pension Fund and the Pension Trustees are directed by the Court to pay a percentage of the Pension income or lump sum to the other party upon retirement. The ownership of the proportion of the Pension Scheme does not pass across to the recipient. Pensions are part of a complicated type of asset that needs to be considered properly within a divorce settlement and Expert advice should always be sought when Pensions form part of a party's assets on separation. Very often the Solicitors instructed to assist parties in dividing their assets will also refer Clients to Pensions Advisors or Pensions Actuaries for advice.

I have lived with my partner for more than 3 years. I am told that after 6 months we became common law husband and wife. Is this right?

This is a very popular myth. There is no automatic timetable which creates this relationship. Very often when cohabiting couples separate there is a dispute in relation to whether one party has acquired an interest in the other party's assets, particularly their home by making contributions to utility bills and their general living expenses. There is no automatic acquisition of an interest in another's property. If there is a dispute in relation to this, strict rules of property trusts are applied and proving an interest in a property can be extremely difficult. At the outset of cohabitation it is helpful for parties to enter into a Cohabitation Agreement which clearly sets out whether it is intended that one party should acquire a monetary interest in the other party's property and if so, what that should be. This is often complicated further by cohabiting couples having children within their relationship. Generally if you are in a situation of cohabiting and facing separation, it is essential that you seek legal advice in relation to what can be an extremely complex area of Law.

I intend to separate from my wife and we both agree that we want to resolve issues around the children and finances as amicably as possible and without going to Court. Can we do this?

Yes absolutely. There are a number of ways of resolving the issues that arise on separation without the need for hostility or Court action. You might wish to consider a referral to a Solicitor Mediator or instructing collaboratively trained Solicitors to assist you. A Mediator is a single neutral person who will act as a Mediator to help you reach an agreement. A Mediator does not give individual legal advice and any agreement reached would then be taken to a Solicitor to put into the format of a legally binding agreement

Collaborative Practice is slightly different in that each of you will retain your own trained Collaborative Lawyer who will assist and advise you in negotiating an agreement on all issues. The negotiations take place in a series of four-way settlement meetings that both parties and both Solicitors attend. The Solicitors cannot go to Court to threaten to go to Court within the negotiations. Settlement of the issues between you is the only agenda and during the meetings you both have the benefit of legal advice and guidance. At Band Hatton Button LLP's Family Department there are three collaboratively trained Solicitors and a Family Law Mediator who are able to work with you in a constructive and non-confrontational manner.

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