Last Updated on 14.7.16 by Nicola Fraser
You may have built up a good pension provision over many years, perhaps in a company or public sector pension. Possibly the value of that exceeds the equity in the family home. Sometimes keeping your pension in lieu of equity in the house may be an appropriate resolution to a divorce case, but not always. The law sets out a number of factors the court will apply when deciding how the assets of a marriage should be divided on divorce.
- Length of the marriage
- Needs of any minor children
- The assets and financial resources available to both parties
- The income and earning capacity of both
- Ages of the parties
- Financial needs ( such as housing needs) for both
- Previous standard of living
- Any physical or mental disability
The court can give such weight to each factor as it thinks fit in the individual circumstances of each case, so one factor may be particularly relevant in one case but not at all in another. (Which is why, how someone else’s divorce was resolved is not necessarily how your case would be dealt with). Whilst the starting point for the court in looking at how the assets should be divided is an equal division, that is by no means the end point after the factors above are considered. The court can consider these factors even when the parties agree a settlement and want the court to approve a consent order (agreement made as a court order).
Things can get more complicated when weighing up the value of a house against a pension. Has the pension accrued during the relationship or did some of it accrue prior to the relationship and if so should some of it be ‘ring-fenced’ from division? Should more weight be given to the value of the house as being a cash asset available now, unlike a pension? What if you are on the brink of retiring and can draw down some of your pension?
There are always practical considerations too. Where are you going to live when you separate – if you are not staying at the family home are you going to buy another property and do you need equity from the family home to fund this?
Sorting out what happens on divorce is not always easy and the family team at Gorvins have many years of experience in successfully resolving these issues, and can give you advice tailored to your individual circumstances.