There was a great deal of fuss last week when an English Court refused a wife a share of her ex-husband’s future earnings on the basis that the couple had built up enough assets during the marriage to meet the wife’s future needs.
It was suggested that this meant that wives were going to receive less in future.
Frankly this is nonsense.
In the case of McFarlane v McFarlane the couple had a relatively small pot of £3 million, and it was agreed that there was insufficient capital to either compensate or provide for needs for the wife. It was on that basis that she received a share of future earnings, particularly as they were disproportionate to the previous earnings during the period in which both husband and wife had invested their time to building the husband’s career.
However in the recent case there was a much larger financial pot and the wife was able to receive a sum of £13 million in cash and assets. It was felt that this would definitely provide for her needs.
This is hardly surprising, and I suggest that it does no more than confirm that in big money cases, as in life, if you have got enough cash to pay up front you can do so, otherwise you will have to pay on the instalment method!
Thursday 26 April 2007
SPAIN AND PENSION SHARING
In a recent case the Court has accepted that a wife should be able to have her financial claims dealt with in England, although the divorce had originally taken place in Spain.
The wife particularly wanted this because of the difference between the law on pensions in the UK and Spain here, after a long marriage, an equal division of pensions is the norm on a pension sharing basis. Such an arrangement is not possible in Spain.
The Court allowed the wife’s application, but got it wrong entirely on the application of English law in the Spanish Courts. The Judge dealing with the case believed that the Spanish Courts would apply English law and therefore automatically the wife would receive a pension share.
On the basis of recent discussions with an English barrister colleague practicing in the Malaga area of Spain, I can confirm that this is completely untrue. In the first place although the Spanish Courts have to take law into account, many Spanish Judges simply refuse to make an order in respect of pensions.
In the second place, where they do make a pension sharing order, it can be almost impossible to enforce because it does not technically comply with the requirements of UK pension sharing legalisation.
This is an extremely important issue for couples who retire to Spain, where their only assets may well be the property in which they reside and the pension on which both of them live. If upon separation only the capital is divided and the pension remains in the hands of the husband, this can be a complete disaster for the wife.
It is worrying that the English Courts believe the propaganda of the Spanish legal system that they apply our law absolutely. It is difficult to see how they would do that, but in truth as ever it is down to the discretion of the Spanish Judge. As they are not used to any interference with pensions they are unwilling to make pension sharing orders even when an English Judge would probably do so.
The moral of the story is if you want a pension share – apply in England!
The wife particularly wanted this because of the difference between the law on pensions in the UK and Spain here, after a long marriage, an equal division of pensions is the norm on a pension sharing basis. Such an arrangement is not possible in Spain.
The Court allowed the wife’s application, but got it wrong entirely on the application of English law in the Spanish Courts. The Judge dealing with the case believed that the Spanish Courts would apply English law and therefore automatically the wife would receive a pension share.
On the basis of recent discussions with an English barrister colleague practicing in the Malaga area of Spain, I can confirm that this is completely untrue. In the first place although the Spanish Courts have to take law into account, many Spanish Judges simply refuse to make an order in respect of pensions.
In the second place, where they do make a pension sharing order, it can be almost impossible to enforce because it does not technically comply with the requirements of UK pension sharing legalisation.
This is an extremely important issue for couples who retire to Spain, where their only assets may well be the property in which they reside and the pension on which both of them live. If upon separation only the capital is divided and the pension remains in the hands of the husband, this can be a complete disaster for the wife.
It is worrying that the English Courts believe the propaganda of the Spanish legal system that they apply our law absolutely. It is difficult to see how they would do that, but in truth as ever it is down to the discretion of the Spanish Judge. As they are not used to any interference with pensions they are unwilling to make pension sharing orders even when an English Judge would probably do so.
The moral of the story is if you want a pension share – apply in England!
Friday 6 April 2007
be careful what you wish for!
What would happen if we expected equal parenting?
Not just after separation as a matter of law, but during relationships as a matter of social norm?
What if the demands for Fathers 4 Justice actually came through – fifty percent care each – ALL THE TIME.
How many fathers would feel quite so free to skip off into the sunset with a new woman if they knew that they faced fifty percent care of their children – or a penalty of, say, twice times child support?
How many men would become a father in the first place?!
For this would have to relate to all parenting – not just committed relationships, but one night stands too? (only exceptions to be rape and incest – and they would have to pay four times child support).
What effect would this have on the divorce/separation/birth rate?
Answers and comments please.
Not just after separation as a matter of law, but during relationships as a matter of social norm?
What if the demands for Fathers 4 Justice actually came through – fifty percent care each – ALL THE TIME.
How many fathers would feel quite so free to skip off into the sunset with a new woman if they knew that they faced fifty percent care of their children – or a penalty of, say, twice times child support?
How many men would become a father in the first place?!
For this would have to relate to all parenting – not just committed relationships, but one night stands too? (only exceptions to be rape and incest – and they would have to pay four times child support).
What effect would this have on the divorce/separation/birth rate?
Answers and comments please.
Subscribe to:
Posts (Atom)
