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Your divorce questions

Sandra Davis, Mishcon de Reya
Sandra Davis answers your divorce queries
Your divorce queries are answered by Sandra Davis, Head of Family Law at the law firm Mishcon de Reya.

Theresa writes: My husband and I are starting divorce proceeding after three and a half years separation. He is living in the main house, mortgage is paid. He's taking a pension and also has two part-time jobs. I only have a small pension but also have a full-time job. It has been agreed that I have half the house value but am I entitled to any of his pension?

The objective of resolving financial issues is to find a fair outcome. The Courts have said that fairness has three strands: needs, compensation and sharing.

What this means in practice will always depend on the particular facts.

Generally though, where a pension has been accumulated during the course of a marriage and is needed to meet each spouses' income needs, like other matrimonial assets, it will be shared between them.

Sanjeeve writes: I have been married for three years and want to know that if I get a divorce, will I have to give my husband 50% of my savings? We do not have any joint accounts or a mortgage and the savings are in my name only.

Where a marriage is short and both of the spouses are financially independent, only assets built up during the marriage will be shared. If the savings existed before the marriage there is an argument for saying they should be kept separate.

A viewer has been divorced for about 15 years. The decree Nisi was issued, but no financial settlement was attempted or reached. He's got a couple of questions. Is there a time limit regarding the financial side?

No, provided the party who wishes to apply has not remarried in the meantime; if they have they are barred from bringing a financial claim arising from the divorce.

However, delay in bringing proceedings will be an important factor that will be borne in mind particularly where assets have been accumulated after the breakdown of the marriage took place.

If a divorce took place in 1995 would the division of the assets be guided by the rules then or by current rules?

The law as it stands at the date the application is made will apply to the division of the assets, even if there has been a long delay since separation.

What happens if one of the parties dies?

In that case, any jointly owned property will pass to the surviving spouse who will also have claims against the deceased's estate to meet their needs. Increasingly, the probate courts are dealing with these cases on the same basis as the divorce courts deal with the division of assets following marriage breakdown.

Meera: got divorced Jan 2008 and is concerned her solicitor may have advised her incorrectly. She was married for just 14 months. Her ex-husband was still seeing his ex-girlfriend so she divorced him on grounds of 'unreasonable behaviour'. Her solicitor told her because he bought the house - off his mother - a year before they married and because it was a short marriage, she's not entitled to 50%. Is this correct? Her name was never on the house. Her ex-husband has offered her 2,000.

This question raises an interesting point that few people contemplating marriage are aware of. The House of Lords have said that a marital home, however, whenever and by whomever it was acquired, is always subject to the sharing principle. I'd suggest Meera takes a second opinion before settling for her ex-husband's offer.

The opinions expressed are Sandra's, not the programme's. The answers are not intended to be definitive and should be used for guidance only. Always seek professional advice for your own particular situation.




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