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Jeremy Aldermartin
Jeremy Aldermartin, Solicitor
Category: Law
Satisfied Customers: 2243
Experience:  Dual qualified Solicitor and Attorney
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I am in the process of divorcing my husband. I am 55 and

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Hi, I am in the process of divorcing my husband. I am 55 and have been retired for 4 years through redundancy and receive a pension sufficient for my needs. My husband is still working and is younger than me and is 12 years from his normal retirement age. He earns substantially more than me, over double, and has both personal and company pension contributions. We have had actuarial valuation of our pensions at 65 and I have more pension than him. The valuation differed by over £100k whether it was calculated by the Duxbury method ( lower amount) or by pension sharing, so why the big difference? My husband’s settlement offer is that he wants his share of pension by pension sharing, half of the other assets and as it is my choice not to earn a living that he keeps all of his income. He is also not willing to negotiate on this. This does not sound a fair settlement particularly as I was already retired for two years before we separated. How would a court view my position given that I have an income and am of pensionable age? Would I be expected to change my lifestyle and go to work so he could keep all of his income as well as having a substantial part of my pension that is currently not in payment?
JA: Where are you? It matters because laws vary by location.
Customer: Uk
JA: What steps have you taken so far?
Customer: I haven’t got a solicitor but am using Wikivorce who have been excellent, I haven’t had their advice yet on this matter. I made an initial offer which was a 50% split of everything, so equalisation of existing incomes and assets taking into account that he is still contributing to his pension and I am not able to. Clearly his offer is a long way from this and has refused this. He also states that if his offer is unacceptable then he will apply to the court for financial remedy. I think we will end in court and am trying to get some views as to whether I am likely to get a fairer outcome if we do.
JA: Anything else you want the lawyer to know before I connect you?
Customer: I believe his solicitor tried to get a different deal because it took 6 weeks to get a response. He obviously failed.

Hi thank you for your message, as you have indicated the starting position of the court would be that any matrimonial assets would be split 50/50. Matrimonial assets are financial assets that you and/or your spouse acquire during the course of your marriage. This differs to non-matrimonial assets, which are financial assets acquired either before or after your marriage. However, matrimonial assets typically include things such as the family home, pensions and savings. It doesn’t really matter who put the money forward or who accumulated the wealth. When you’re married, the law in England and Wales considers that any assets you acquire also belong to your husband or wife. The court can deviate from the 50/50 split however, where the court considers this is needed to create a fair distribution between the parties. Thus, in your case, it is likely that the court will determine that you retain a greater share of your pension than 50% on the basis that your husband can continue to contribute to his, they might even decide that rather than granting you a share of his and vice versa, you will both keep your respective pensions because whilst yours is currently valued higher he is contributing to his so it will gain in value before he retires. In relation to your husband's income the courts will generally only award maintenance where a spouse would suffer a substantial and serious fall in living standards were there not to be a maintenance award, from the sounds of your circumstances this seems unlikely in this case if you were to retain the entirety of your pension. I hope this helps - if you can please accept the answer and give me a 5 star rating (there should be the option to do this in the top right of your screen) and Just Answer will credit me for helping you today.

Customer: replied 3 months ago.
Thanks for this. My understanding is that it should be equality of assets, pensions and income, after all the pensions are valued so that we get equal incomes on retirement. As such the way I made my offer was that we each keep our pensions as he is able to make up the difference between now and retirement. That would still leave him a net income of around £13,000 a year above my income, so I asked for 12 years (time to his retirement) x £6,500 = £75,000 more of the cash assets rather than a maintenance order to equal incomes out and then just split the rest of the assets, keeping our respective incomes. How would the courts view the difference in income, would I be able to claim more of the assets ( investments, house) or would they say tough luck you can always go back to work as his solicitor is suggesting even though I had retired before we separated and would now see that as a drop in my living standards? Also, he has used the highest figure in terms of pension valuation which is the sharing order of £203,000 instead of the Duxbury value of £93,000. What is the difference between these and which one is applicable?

Hi thank you for your message, in relation to the incomes, the court would not expect you to go back to work so they may therefore award you a greater share of the cash to reflect this. In relation to the pensions. In terms of the pensions, this is ultimately a matter of discretion for the court but the case law has indicated that the Duxbury calculation is merely a starting point or guide to one component of an overall award and the other factors I have discussed above also come into play. I hope this helps - if you can please accept the answer and give me a 5 star rating (there should be a button on your screen to do this) and Just Answer will credit me for helping you today.

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Customer: replied 3 months ago.
Sorry, another question. The pensions actuary only valued the pensions at my husband’s normal retirement age of 65. We did ask for other ages as low as 62 but the actuary was unable to obtain the reducing factors so couldn’t do the calculations. The argument that my husband’s solicitor has made against my equalisation of income and using it to offset the pension difference is that he may want to retire early. I know he has penalties on his pension if he does this and in addition requires company permission before 60. How would the court view this in relation to sharing out the assets between us? Would the court deem this to be his choice so he takes the hit? Would I lose the argument to equalise incomes to 65, which means he may not be able to offset the pension difference?

Hi thank you for your message, if he chooses to retire early then he takes the consequences of that. As a consequence the court would likely equalise the pension to 65 as a result.