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Divorce is rarely a cause for celebration. The breakdown of a marriage and the final severance of the legal bond between husband and wife can extract a huge emotional toll from the parties involved. Thankfully, in the U.K., most divorces are at least amicable. More often than not, a fair settlement will be reached out-of-court, especially when the unhappy couple follows the advice of their respective divorce solicitors. However, on occasions it’s simply not possible to resolve the fine details of a divorce through negotiation alone. For example, one side might claim a larger portion of the matrimonial assets than the other party believes is reasonable. In the event that the issue of the division of property is not resolved by a voluntary settlement, it is likely that the matter will be put before a court for a judge to decide.

When assessing the division of the matrimonial estate, a number of factors will be considered. These include the length of the marriage, the living needs of both parties, the needs of children (if any), the financial position of both parties before marriage, the origins of matrimonial property and the impact married life had on either party’s ability to contribute to the acquisition of assets. It is the first and last of these considerations that is likely to hold the most relevance when it comes to dealing with pensions.

Pensions tend to be the second most valuable asset held by married couples, beaten only by the family home. As such, they often represent a very significant slice of the matrimonial property pie. In certain circumstances, a spouse will have an award made to them in recognition of this, either in the form of other assets (off-setting) or by ordering the division of the value of pension policy (at the time of divorce) between the two parties.

English Civil Law is obsessed with ensuring “fair, just and reasonable” solutions. This is especially the case when it comes to divorce law. The reasoning behind the inclusion of pensions in divorce settlements is evidence of this obsession. If for example, a husband and wife had been married for 15 years, during which time the husband had pursued a lucrative career as a doctor, whilst the wife stayed at home to undertake the essential role of mother to the couple’s children, then it could be argued that the wife had sacrificed her career opportunities for the sake of maintaining the family unit. Furthermore, if the husband had acquired additional wealth during the period of marriage via a lucrative occupational pension, it seems only reasonable that this additional wealth be treated as a matrimonial asset and subject to any divorce settlement. The court would almost certainly construe a kind of bargain between husband and wife; the bargain being that the husband would create the wealth, whilst the wife created the home. A divorce ends this bargain, but a fair division of assets ensures the contributions and sacrifices of both parties are respected and recognised.

It is always preferable to attempt to reach an out-of-court agreement when it comes to divorce. Most people want to be fair in their approach, but sometimes other emotive issues will colour the judgement of those involved. The best thing anyone can do when facing divorce proceedings is to seek the advice of a good divorce lawyer. The second best thing they can do is make sure they listen to them. Lawyers are compelled to act in the best interest of their clients, which means they will always push to get the most favourable outcome, but they are also well schooled in the realities of divorce hearings. As such, they know that the most favorable outcome will invariably mean that both parties get treated in a “fair, just and reasonable” manner.

Post by Simon from Coulson Read Lewis – specialist family law, divorce and criminal law solicitors.