Marriage & Divorce: Benefits of Marriage | Are prenups worth it? | How to divorce cheaply| Splitting pensions, mortgages & more

25:07So loads and loads of options. That's for mediation. There are also other options such as arbitration. Maybe I'll go to Matthew on this. It sounds like there's a whole cornucopia of different things you can do. Where do you start if you don't know what to do? Where do you go and do your reading? Where would you point people in the first instance? Relatively amicable, not necessarily going to have a fight, but want to get divorced. Where would you send them? I mean, there's loads of free online information. So I'm going to plug my firm, Stowe Family Law. There's lots of free resources on there.

25:38I'll give you one plug. That's your one. Thank you. My marketing team made me get that in there. So there's free resources on there. There's loads of good books. There's a book called Almost Anything But the Family Court, which is a really good guide for people to keep things out of court. And Tamzin's not on that as well. Yeah, so it's a really good book by a lawyer who works exclusively in non-court dispute resolution. What I would say, though, is that I think lawyers have got this perception of always inflaming things and driving up the temperature. And I can't lie and say that doesn't happen sometimes.

26:08But the vast majority of lawyers will do their best to keep things out of court. Very rare we head off to court as a first blush. Very, very rare and only in extreme circumstances. We will normally encourage people to speak directly. How much can you sort directly with your spouse and then come back to us for the fiddly bits and do the legal drafting? If they're talking. If they're talking. And that's a big if. and not everyone can do that and sometimes you need to be that interface and sometimes there's abuse cases where it's just not appropriate to do that at all. Well, I'm going to move on to that.

26:35Josephine now, not her real name. Separated waiting for a divorce due to domestic violence. Being granted the right to divorce through the court but waiting for the partner to continue the application. Tried ringing to courts to see where this is but up to 60 minute wait time in the call queue. Not allowed contact. How do I make sure he does this? Can I do the divorce if he originally started it? It's obviously sounding quite a desperate situation there. Yeah, really tough. Really tough. If you're the respondent in divorce, then yes, you can push things along. It depends what stage this lady's up to and there's different options to do it.

27:05I would say that the court service is hugely overburdened, so trying to get a response out of them is going to be difficult. But there are timeframes where if it's not progressed beyond a certain point, a respondent can step in and push things forward. The system relies in general on a willing applicant or if it's a, you can make a joint application for divorce because we've moved away from the old rules of unreasonable behaviour and adultery and all that nonsense that we used to have to do. and you can do it civilly and both do it and then you drive it forward collectively. No fault divorce. So that makes the system a lot better but there's always going to be people who are difficult and it depends on what stage you're at but yes, you can drive it forward.

27:38One from Louisa, what if X refuses to sign the paperwork? It depends what paperwork it is. You can make certain applications to court for an order that someone signs a specific document and there is a provision under statute which allows an order that if they fail to sign that paperwork then a nominated person can sign that paperwork on their behalf. So a judge or a lawyer or someone, if they don't sign the requisite paperwork within 14 days, 28 days. I'm going to do one last question on sort of the process of divorce. Now, I've got Anne here who says, and I think, Tamsin, this may be for you.

28:12What can you do when you're desperate to divorce, currently separated but living in the same property as X won't move out, can't afford solicitors, X won't sell until child is 18, which is five years away, can't get mortgage on my own due to age shared debt. I think this is more a life choice than a legal situation issue. It's hard, isn't it? Yeah, it's very hard. I've got clients who have had to continue to live in the same property but are essentially separated. And in some cases, it's even down to one of them sleeping on the sofa. It's a really, really difficult situation. I guess a couple of things.

28:50one thing is is there any possibility of borrowing something from friends or family or going to stay with friends or family just as an interim solution because it's often really really difficult to stay in the same house and I would say that a lot of really brilliant family solicitors will offer you a brief half hour free consultation which might just help to have that information that you can gather from a legal family solicitor. And also to say that the Citizens Advice Bureau might be able to help with certain information. And if you're having to consider court proceedings and you can't afford a lawyer, there's a brilliant organisation called Support Through Court, which is a court-based charity.

29:32I would echo Support Through Court as a brilliant organisation. I should declare I'm a patron and funder of that charity. So I think they're very good. Well done. I'm glad you mentioned it because I couldn't. now we're going to move on to splitting assets which is where it starts to get a little bit tricky let's start with a conceptual one from flossy why is someone who came to the relationship in massive debt together 10 years married why are they entitled to half your savings why that's what she's asking i mean that's that's a good question so um i think that fundamentally the the system for dealing with finances on divorce is designed to achieve fairness and fairness is going to look at very different things to very different people.

30:14Just to take a step back, the process that, broadly speaking, you go through is that there's two concepts in splitting finances. There's the sharing principle and there's the needs principle. And the starting point is that assets, not income, but assets should be divided equally if they are matrimonial. So they've arisen from the marriage or during the marriage. And then you might depart, so that's the add up and divide by two part. then you might depart from that equality for various criteria but the most common one is for needs so a party's reasonable needs for housing for capital for pension and the most important thing is the needs of any minor children so if you have a primary carer make sure that they've got a house for the children but equally if the children are spending time with both parties then both parties should have a similar sort of house that similar sort of house is bigger than it sounds isn't it so for example let well let's do it in the extreme because it makes it easy you've come from a huge family expensive family home therefore the the partner who's moving out if they have the children should have a similar level of home is that correct the first one how does that work yeah i mean what the way i describe it to clients is the court wouldn't want to and when i talk about the court it's the prism through which we look at things it's not saying that everything's going off to court but the court doesn't want to see mum in a castle dad in the shoebox that's not right for the kids they're not going to like that the kids have to be able to have a home with both.

31:33Even if they're only spending one night a week with the other parent, they've got to have a reasonable house. So is the need for a house that replicates the standard of living during the marriage? Well, look, most people can't do that. That's only the 1 % who've got sufficient money on a sharing case where there's surplus cash at the end and they can both have, one of them can keep the house and one of them can buy a similar house. So you're looking at how can you slice the pie, taking into account the assets and mortgage capacities of the people, to then allow both parties to rehouse so that a couple with two kids, a boy and a girl, can have a three-bedroom house each that they're going to need at.

32:06How do we do that? Can we do that? And if not, what's the best that we can do with those resources? So that's going to be the general approach. With Flossie's case, it will depend when the savings come up. If this pot of savings existed before the marriage, you may be able to argue that... With a lawyer? You'd need a lawyer to argue probably probably you yeah well because it's probably not going to be heard by the other party who's just going to say well it's 50 50 but it may be that you can say this is a non-matrimonial asset i had it before it's not been mingled not been mixed in with the matrimonial finances so therefore the importance of that is the sharing principle doesn't apply it can be invaded to meet needs so someone can have a part of it if they need it but they don't get a share of it automatically I can hear there's a big question mark in your voice.

32:53Yeah. That's when you would earn your money, isn't it? Well, it's so fact-specific. I'm sure you earn your money all the time. Thank you. Very kind. Very kind. But these are the cases where you need the lawyer advice because they're not clear. Let's move on to another one. We have a question from Twitter here, who I'm going to keep anonymous, who says, if I inherit, say,£200 ,000 from my late mother and father, is my marriage partner entitled to 50 %? If so, is there a legal way around this as my father scrimped and saved his whole life and doesn't like my partner, so doesn't want them to have a penny.

33:26Further on in the discussion, there's domestic abuse going on in this relationship. I need to note before people go on about the issue there. So let's take it on its principal core. Can an inheritance be protected from the matrimonial assets after marriage if the inheritance is coming after marriage? Is it a post-nop? Is that what a post-nop is? A post-nop would be really useful. So this is the exact circumstance where you want a post-nop. Now, the problem with a postnup is that you can't force it. And if someone says, I'm not signing a postnup, you're slightly up a creek. With the prenup, you can say, well, either you sign the prenup or we don't get married.

34:00But a postnup can be really useful. But it sounds like, let's say he or she is not doing it. Postnup's not happening. So what are the options? So there are some things you can do to help you. So there's no guarantees with this. But inheritance, the starting point is that inheritance is non-matrimonial. It's not been generated by the marriage. It's come from an external source. It's non-matrimonial. So therefore, the starting principle is, well, the sharing principle doesn't apply. However, if you then mingle it, so mingle it is when you mix it in with the finances of the marriage. So commonly, if someone receives an inheritance and then pays off the mortgage, it gets mingled in the family home, which is the most family assets.

34:36And I would say that's now family assets. I mean, you would say that as natural usage, wouldn't you? You would, you would. And therefore, your ability to claim that that should be ring fenced and kept separate is very, very difficult. If, however, you receive it, you put it in investment, you don't touch it, maybe you draw off the income, but you're not using it in general, and there's a real clear paper trail which says it's never been part of the marriage, you can then run an argument which says, well, it's not available for sharing because it's not matrimonial. They might still get a bit of it to meet their needs if there's not other resources, or they might get more of the matrimonial resources.

35:06Would a letter in the expression of wishes form in the will have any bearing or not at all? Not really, not really. The family court's got quite extensive jurisdiction. to overreach that sort of intention. I don't think it would necessarily hurt if it came down to a real constructed argument about intentions on mingling, but it's not going to be determinative. So it sounds to me like this is quite a heavy legal issue if you're going to try and do this. You're going to need meaty lawyers to have a go. I think so. I mean, I don't want to overstate it in terms of the meatiness. It's a fairly common issue that comes up and it's something that I'll often talk about in an initial meeting before having to wade into huge instructions and people getting terrified about spending huge amounts of money on lawyers, you should get a guide from an early stage from your lawyer about whether it's worth spending the money to fight this because we'd be able to advise on that.

35:55Tamsin, could you use a trust of some variety as part of the inheritance element? Could the inheritance go into trust to protect it? Yeah, absolutely. So the parents would be the people who would arrange this as part of their wills. It could go into a discretionary trust. It was always thought by financial advisors, going back many years, it was what I was always taught, was that discretionary trust would be able to keep assets out of marital assets and protect them in divorce. More recently, having started doing this work, I've discovered that's not entirely the case. So I probably want to bring Matthew in at this stage to let us know what the score is.

36:37Yeah, I mean, as ever, the answer is sort of it depends and the huge caveats that everyone would expect from a lawyer. But when you're dealing with trusts, without going into too much detail. If it's a nuptial trust, so something that has been created for the benefit of the marriage, that's a shareable resource. If it's not a nuptial trust and it's something created separately, you're less likely to be able to invade it and attack it subject to certain principles applying. What I'd say is that's quite a niche specific area and that you should certainly ensure that you instruct a really good lawyer to draft the trust, but also run it by a family lawyer just in case there's an issue.

37:11Sometimes use trust at the same time as post-nuts and prenups. as double protection. Rachel, are there any differences in Scotland to what we've just been talking about on both the trust and the inheritance and separating matrimonial assets? Yes, there are some differences. I mean, I think it's interesting when Matthew talks about sort of it depends. For us as Scottish lawyers, we don't have as much of that sort of it depends because we have a much more structured approach. And so if you inherit something during your marriage and you still have it when you separate, that is not matrimonial property and the other party will not have any claim on the value.

37:50There is an extent to which, when Matthew talked about mingling things, so if you take an inheritance and use some of that to pay off the mortgage, I suspect you're not going to end up in a very different position in Scotland than in England. But if you get something and you keep it, it is not matrimonial property and there is no claim on its value. And Ciarán, how about in Northern Ireland? How does that work? The position would be broadly similar in England and Wales to Northern Ireland. I think there may be some discrepancy between Northern Ireland and Scotland. My understanding is that perhaps the issue of pensions in Northern Ireland is somewhat different than the other nations.

38:25We're going to come on to that pension section. So we're sort of seeing a division here between Scotland and the rest of the United Kingdom in the law. Another question here from Twitter. When it comes to splitting a business, how do you ensure that it is based on potential earnings? is being asked. So there's basically two ways to value a business when you're dealing with a divorce. You've got a net asset value or an earnings basis. Net asset value is effectively what would happen if you sold everything, paid off any debts and what the cash is that would be left. And you would commonly use that for a property holding company, something where you're generating the income from the assets.

38:59For any kind of trading company, the preferred approach is for the earnings basis. And the way that works is you need to get a forensic accountant normally who will value the business. It will calculate the EBITDA, so earnings before interest, tax, depreciation and amortisation. And then what it does is applies a multiple, and that multiple is sector specific. So it might be three, it might be four, it might be eight, it might be nine, to work out based on the industry what the total value of the business is projecting in income of the following few years. Then there's a few little tweaks. And that's what multiples do.

39:33Multiples are about future valuations rather than current valuations by definition, aren't they? Exactly. So you're looking at the snapshot value now and then the multiple based on the likelihood, which is based on a history of deals in that sector. You might need to then adjust for tax and liquidity and all these sort of things, minority shareholding discounts. But generally, the court would always prefer an earnings valuation on a trading company unless it's something like a property holding business where a net asset value is absolutely fine. This one from Michelle. What are the capital gains tax implications after divorce years ago, but no financial settlement?

40:04is it on the 50 % of the increase or can there be a lower percentage split once one party has a new home as the second person hasn't contributed anything in the meantime? In effect, paying on 50 % would leave the first party with not enough for a new home as the second party share would have to increase to cover CGT. So basically, what I'm gathering is they've split up. One's got a new home, but they're both still liable for the original home, but the other person is the only one who's been contributing in the meantime. Is that taken into account for the capital gains tax? So it depends. Sorry.

40:37That's the big phrase, isn't it? It's the phrase of the pod, it depends, yeah. Absolutely. And it's the one thing that I learned when I started doing divorce work was that all family lawyers are going to say it depends to everything. But in this case, it depends on which house the person who's got a new home has designated as their principal primary residence. that's the really important bit have they designated their new home as the principal primary residence or has it remained with the original home and that's how we decide as to whether there's capital gains tax or not in terms of the 50 or the split of the family home again that depends on what the what the agreement is going to be between the two of them so they probably need legal advice or mediation or some sort of discussion between the two of them as to how that property is going to be split.

41:27Now, if one of them's remained in the home, paid all the bills, continued paying all of the mortgage... Since divorce. Since divorce. I would suspect there would be an argument to send more of the capital equity from the original family home to the person who's remained in it. And I presume that since divorce is a crucial factor, Matthew, that they're now divorced, so it's not matrimonial assets anymore. Possibly, probably, maybe. As ever. I think it depends on the ongoing contributions. I've had cases where a departing party has continued to pay to the mortgage and there's no departure from equality.

42:02If someone is making sole and match contributions, it seems right that that would be factored in, in terms of the CGT. Yes, that's going to depend on the circumstances at the time. If there is going to be, however... And of course, HMRC's decision may be totally different to a family court's decision. Yes, although there was a change in the CGT regulations on divorce in April 2023, which means that as of that date, any transfers between couples within three years of the date of separation, now that's not divorce, that is separation, so leaving the family home or sometimes even separated in the family home, within three years or on a nil gain, nil loss basis for CGT.

42:38Then on top of that, any consent order that includes a transfer of a property is at a nil gain, nil loss basis, no matter when it's done. It's nil gain, nil loss, you don't pay capital gains. Well, you don't pay capital gains tax at the time, but someone on a transfer would then inherit the other party's CGT share and at a later point of liquidation would have to pay that. So that's why it's important that you do the sums, you get the accountancy advice on what the CGT is, and then you factor that in, even if it's not immediately payable, which obviously helps people on a transfer because there's no cash being realised to pay a CGT bill, but it kicks the can down the road somewhat.

43:13Now, my last one on this section, I think, is almost definitely, and it depends, but I think it's worth talking about. It's a fairly safe bet on most of these questions. It's worth talking about on principle because I can hear the fear. This is coming from Sharon. My husband and I are separated, not legally, but he moved out 18 months ago, still on great terms. Good. Nice to hear. We still pay both of our bills through a joint account, but our family home, which I live in with our two adult sons, is still in both names. If we divorce, will I have to sell it? I mean, by definition, you wouldn't, would you?

43:44I'd say no. I mean, that's a clear you don't have to sell it. You might decide that that's the best course of option and that could be ordered if there's a dispute. But a lot of cases will be settled by someone retaining the family home and giving up other assets, whether it's cash, whether it's investments, whether it's pensions, which has its own question marks about whether you should do that. But the sale of the family home, it often has to be the case, but it doesn't always. I'm going to do a quick question on mortgages, then we'll move on to pensions, which has been coming up a lot and I think is one of the biggest, most complicated areas here.

44:15So probably for Tamsin, this one is from Bali. How do I get someone off a mortgage? You need to apply to your mortgage company. So whoever the company is that provided the mortgage to you, you need to apply to them for what's called a transfer of equity. That essentially is saying there were two of us on this mortgage. Now there's only going to be one. the mortgage company will fully underwrite that mortgage to ensure that you can afford it on their affordability criteria. It won't necessarily mean a change of product so you can probably keep the product that you're on but you will need to be able to afford that mortgage on your own in order to remove the other person.

44:55You also will need a conveyancing solicitor to remove the other person from the deed of the property because if they're on the mortgage they will also be a part owner as well and you will need the other person's permission. You can't just do it without them knowing. OK, going to move on to pensions. I think it's probably worth getting Matthew, England and Wales, Rachel, Scotland and Kieran, Northern Ireland, to answer in turn. Now, I'm hoping that the term pension sharing order is common in all of them, but let's talk about splitting pensions and a pension sharing order. We'll start with Matthew again.

45:34We'll lead that way. OK, so pensions are an asset of the marriage like any other. If they've been accrued during the marriage, they are matrimonial and they are available for sharing. I think psychologically, pensions are quite difficult for people to handle. It's pretty clear that the family home is a family asset because you live in it. Your pension is attached to your payslip and often people don't think about it or ignore it and it's in the future. And think, well, why should that be? I've been working. Why should that be shareable? Obviously, in most cases, there's some sort of salary sacrifice which would otherwise be coming into the marriage.

46:05So that's the sort of the genesis behind it. Pensions are dealt with commonly by pension sharing orders, which effectively means that one party can have a percentage of the other person's pension to provide them with a pension. So if one party has£200 ,000 in capital value in a pension and the other party has nothing, it might be a 50 % share, so they both end up with£100 ,000 in the world's most straightforward example. There are all sorts of complexities with it. You can trade off pensions against other assets. The way in which pensions are valued is really a big, big point and something that really needs advice and people slip up on all the time.

46:42So it's a lot easier. If you've got a money purchase pension, which is where you've got a pot of cash saved up in your pension, I think valuing that is relatively straightforward. Yeah. Yes, so we work on... Although Tamsin's about to make it less straightforward. I am. Only because there is a caveat. that some money purchase pensions have guaranteed annuity rates, some have protected tax-free cash, so more than the 25%. So both of those two, what you mean, they've got extra booms on top of just the straight cash, so they would be valued higher because of that. Absolutely. And then you've got defined benefits, but we'll call them final salary pensions, which are more commonly known by, which are a nightmare to value in any case, because really difficult to output.

47:23And that's, I presume, where it gets really complicated. That's where it gets really complicated. And the values that we rely on in divorce are called CETVs or CEs, cash equivalent transfer values. And the valuation of a, to put it in simple terms, if you've got a money purchase scheme with£100 ,000 in it and you've got an NHS scheme with£100 ,000 in it, you can be as sure as you can be that at retirement you will receive a greater income from the NHS scheme than you would from your money purchase scheme. So the actual, it's for comparing apples and oranges. So that's when you need actuarial advice to advise on how they can be split, how they can be separated, to arrive at a percentage where the person with the lesser pension provision can receive a percentage from the greater party.

48:04And what that means is that at the point of divorce or when it's implemented following the divorce is you receive. So if Tamsin was taking 25 % of my pension, she should be so lucky. You just married without me knowing. I know. Well, we thought we'd crack on with things. I feel like a gooseberry in this room. Next example, I'll involve you if you like. Thank you. We can be married. That's fine. Yeah. So if Tamsin takes 25 % of my pension, what it means is she gets that 25 % into a scheme of her own under her own name. And that then operates according to the rules of that scheme. It can be an internal transfer in the same scheme.

48:38It might be able to be an external transfer elsewhere. She can pay into it. She can take it at 55, 67. And I can carry on paying into mine without inflating Tamsin's in the future. So how would that work just to push on? And then we're going to come to Scotland and Northern Ireland here. How would that work in a final salary pension that Tamsin has never been an employee at? Could she be in that scheme or would she just, how would you give up the portion of your pension from your pension? It depends. But yeah, most of the final salary schemes, most of the big public sector schemes will kind of force internal sharing.

49:12So it means that Tamsin is effectively working for the NHS or the armed forces or the police. So you could have, if you were a doctor, Tamsin could then have an NHS scheme, and though she's never worked for the NHS. Yeah, caveat, again, sorry. It depends. Non-public sector, so private sector DB schemes, which are becoming fewer and further between. But it's very rare that you can become a shadow member, so you would have to do an external transfer into a personal pension of your own. So you're then going, one party would have a DB scheme, a final salary scheme. The other party would then have a money purchase scheme.

49:52Which have different balances of risk. But hey, nothing's perfect. No. And that's the next we can do. Let me, I really want to go to Scotland here. Rachel, does pension splitting, if you like, work differently in Scotland? Of course it does. Of course it does. No, well, but we're back to the same point, which is that we don't like to overcomplicate things. And we give priority to certainty, which does sometimes mean that you get outcomes which English lawyers don't feel are as fair. And pensions is a good example of this. So we have differences in valuation. So we also use the CETV cash flow transfer value.

50:33We calculate that at what we call the relevant date, which is the date that the couple separate. And the critical difference here at a practical level is that we very rarely use actuaries and we don't go behind the CETV figures that are given. We have a statutory basis for those and we get that figure and that's what we use. The other difference that we see... So just so I understand. So effectively, in Scotland, there's a formula and in England, it's arguable due to actuarial estimation. So one may be beneficial to one party or the other. And one is more obviously transparent in Scotland. It's more obviously transparent at start.

51:16OK, exactly. Exactly. And then the other main difference that we see at a practical level is in Scotland, you can have pension sharing either by way of percentage, as has been mentioned by Matthew, but much more commonly, we use a fixed share, so a specific amount. And we can do that contractually, you don't need a court order, you don't get a court order, you have a contract, which is effectively a post-snop, and where you agree that a particular amount of money will come from someone's pension fund and go to another fund to the other person. And again, the reason we do that is because we have a much more formulaic approach to things and we are simply offsetting the value of one asset against another.

52:00Now, that does bring real challenges because, as was touched on a moment ago, the real value to somebody of a pension, it may feel very different from you can get the same figure in a money purchase and the same figure in a, you know, if it's an army pension, for example, whereas we simplify things and we take that figure. So when we're doing that offsetting with a fixed amount, you really want to get good advice about what that is going to look like in the long run for you. Does that not also cause issues that, you know, if you split the pension, then both parties can decide when they take that money, when they take that pension.

52:38But if in the system where you're just getting a set amount of money from the pension, how does it work if they have different timing priorities of when they want the pension money? Well, again, the Scottish approach is very much about a clean break. You are separated, you then go on to divorce and you do what you want to do. And that's where you need to be taking advice about, do you stay in the scheme? Is it an internal or external transfer? That's the same. But then what does that look like for you in terms of your own particular profile then? What other income you've got? What tax you do to pay?

53:12What age you're working at? And so on. The basic position in Scotland is it's much less paternalistic. It's much more party autonomy. You have freedom to contract as you want. It's on you to check that you're not getting a bad bargain. And Ciarán, I feel like I should say, and Ciarán, have you got the results of the Northern Irish jury? No point. So pension splitting in Northern Ireland for us, please. Yes, well, my understanding is that pension splitting in Northern Ireland is much more common than perhaps in England and Wales. Perhaps one of the large contributions towards that is because we've got a quite a high percentage of people working in the public service in Northern Ireland.

53:50In fact, my understanding is this is the biggest region for public service work, maybe something in the region of 27, 28 percent of our population work in public service. And so on divorce, it's always a big question, is there a pension? So what we quite often look to here is equalizing pensions during a marriage. We look to accruing the pension that was looked to the figure that was accrued during the marriage period. So if we have someone who's been working in the public service for 20 years, say, for example, and they have been married for 10, then we look to that 10 years where they have been married and try and see if there's an equalisation between them and their spouse in those circumstances.

54:29It does get quite complex. We quite often involve the use of actuaries to carry out calculations, especially because quite often those pensions can be worth more than£100 ,000. So we then look to pension sharing orders on many occasions and then also look towards pension offsetting. So it's actually sounding to me a bit more similar to the English system, the Scottish system. Scotland seems to be an outlier on quite a few of these different areas or an outlier. It seems to be setting the trend, whichever position you want to look at. Thank you very much to both of you on that. I'm aware I'm running out of time and I want to do some issues regarding children.

55:05So I'm going to do them in here and then we'll just come and see if there's any Scotland, Northern Ireland issues at the end. What if you make a settlement based on a child custody agreement? This is coming from Twitter, Anonymous, i.e. 50 % split time, but then the custody ratio changes. What happens there, Matthew? Capital agreements are not capable of variation other than in fairly extreme situations. So if you've decided to split the equity in the House 60-40, that's it. You're stuck with it if things change. in terms of there are two possible ongoing payments spousal maintenance and child maintenance both of those remain variable and can adapt to meet the situation either through the formula of child maintenance or through the court process in terms of spousal maintenance.

55:45Next question Joe says what if any financial obligation can be sought on a parent for university aged children when loans etc aren't enough to cover living costs e.g. I have two kids at uni that I'm trying to support their dad won't help I can answer that one actually Under the law, the maintenance loan that is assessed when you go to university or maintenance loan and grant when you're outside of England in other parts of the country is an assessment that is effectively based on a parental contribution because it's on household income. But the government says it can be funded in any other ways, including the child working.

56:18So the student cannot force you to make up the gap in the amount that they have lowered on the loan. So the concept that you're asking their dad won't help, well, you don't have to help legally either. It is a hidden parental contribution. It's only in the last two years they've said that there is a parental contribution because I lobbied on it for a decade. And we finally got them to admit that it is effectively, as it's based on household income, the amount you get on the loan has an implicit parental contribution. But it's implicit. It's not explicit. It's not legal. You can't force it. There is one possible claim, not by the parent against the non-resident parent, but by the child themselves.

56:52Under Schedule 1 to the Children Act, a child who's over the age of 18 can make a claim against a parent for provision for university fees if there wasn't a child maintenance order in force prior to that child turning 16. It's pretty niche, but the child can make a claim himself. University fees or university maintenance? I think the court could construe that relatively widely, include some general capital, or it can be constructed as a capital payment or as ongoing maintenance. So you could construct it on the basis of support while at uni in addition to fees. OK, so under the university element that I'm looking at, there is no way a child can mandate a parent to contribute, even though it is based on a household assessment of income and the means testing.

57:35But you may be able to do it in divorce. May be able to do it. Well, that wouldn't be divorce. That would be for you don't have to be married. It's on the Schedule 1, the Children Act, so it can apply to anyone who is a parent. It's for the child themselves to make the claim when they're over the age of 18. I would love to see a test case on that. Do you know if there's been one? There is some case law. They don't come up very often. If you fancy forwarding me some more information on that. I will. I will dig out some case law and send it on to you. Boy, I think that's going to rattle Middle Britain.

58:02Rachel, does that happen in Scotland? Is it different in Scotland? I mean, the maintenance situation in Scotland is there's a smaller parental contribution because you get a mix of a loan and grant. So the total amount you receive compared to the full loan, that the difference is smaller than it is in England. Are there any differences in the law in Scotland on maintenance support? Yeah, I mean, the main one is in Scotland, individuals can make a claim after they're 16. So we become adults at 16 in Scotland. And as a young person between 16 and 25, you can make a claim against not just a parent, but also anybody who accepted you as a child of their family, so a step-parent.

58:42And that's not uncommon in Scotland, and we've done that for quite a long time. And you could do it for university age children, 18 plus. Yes, 18 to 25. And it's not uncommon. It's really not uncommon. I would love to see these cases. Very exciting. I'm going to move on to James now, which is a changed name. How is it allowed for a mother to turn the children against the father and the mother to refuse to allow contract or even pass photos of them onto the father? How can a court rule this is acceptable just because they are in their teens and too scared to go against their mother? Now, I've chosen that question because we had quite a few of a similar vein, generally from angry fathers who have been denied access to their children.

59:25And we know that this is a societal issue and the way people feel about it. Matthew, just give us the court's general view, not your view. It's for how you interpret what the courts do. Sure. It's an incredibly difficult issue. So what we're talking about here is alienation, parental alienation, which is where one party ends up alienating the children from another party. They're incredibly difficult. It's an argument that's run fairly frequently and actually it's kind of found fairly rarely. And there's some difference as opinion as to whether the courts are dealing with it properly or whether it's a slightly exaggerated issue and actually it's a real rarity that alienation exists.

1:00:03What I'd say is the court doesn't endorse it and I don't think the framing of that question is quite right. The court is never going to say that's acceptable. It's OK for a parent to do that. What the court has said in a couple of very extreme cases is yes, there has been alienation, but when the court's looking at children, its paramount concern is the welfare of the individual child. Not the parents. Doesn't care about mum, doesn't care about dad, just cares about the children. And if the impact of breaking that alienation, if a child genuinely believes that their parent has been abusive towards them, forcing that child to have contact with that parent would be a continuation of that perceived abuse.

1:00:39So that wouldn't be in the child's best interest. So that's a really, really, really rare case. The flip side to the alienation argument is quite a lot of people, quite a lot of parents will argue there's alienation when actually sometimes the children just are resistant to contact for a very good reason, often when there's abuse in the background. It's an incredibly thorny and knotty area. And I think it's one where the court's still developing in a lot of ways. It's very fact specific, but it's really difficult for the court to get behind it and often to find out the genuine truth of these allegations.

1:01:10Thank you very much for that. Yes, it is difficult. And just to say to the listeners, I'm aware we haven't talked about the Child Support Agency. I know we've got some questions because we're focusing primarily on divorce, and that is a slightly different issue, which would need a different panel to do it. So I haven't done it in this programme. I have it in my notes as something I may well do in the future. Before we finish, just to give the panel the warning, I'm going to ask all four of you for your one 30-second tip on marriage or divorce that you would like to get across. Anything we've missed is really what I'm looking to cover here.

1:01:40Let's start in Scotland with Rachel. Just be nice. Is that about me as a presenter? Not very legal. I appreciate it. No, I think my top tip would be to talk about money before you move in with each other and or get married. We have rights for cohabitants in Scotland that you don't have in other parts of the UK, for example. But what we see over and over again as lawyers is that people have not talked about money and their attitudes to money. and a bit of that before you get swept away with everything else would not be a bad thing. And let's do Tamsin now. Okay, so being the money person, mine's going to be related to pensions.

1:02:21So there is a fabulous guide. It's available at advicenow.org.uk forward slash pensions. It's called the Survival Guide to Pensions on Divorce. it is essential reading for anybody going through divorce it will explain pensions to you will explain what your options are relating to your pensions and hopefully help you to understand a little bit about pensions when you're getting divorced. Matthew? I think my advice is that if you are divorcing if you are separating you need to be aware that it's a zero-sum game is that the money is not going to inflate it is not going to increase and the more that you spend on lawyers The more that you instruct your lawyer to write correspondence on issues that you're unhappy about with your spouse, the less there is in the pot to split.

1:03:07So much of it comes down to attitude. So much of it comes down to the final answer in most cases is something that both parties don't love but can live with. And it's an element of pragmatism and being sensible and trying to retain your dignity is the best way to deal with it on a human level. But also to ensure that you retain as much of the family finances as possible without putting them in lawyers' pockets. And we'll go to Ciarán, who I believe you're actually at the Titanic centre in Northern Ireland is where you're calling us from, which is arguably slightly relevant if we're talking about divorce, isn't it?

1:03:35So what's yours, Ciarán? Well, my advice is very simple. The process itself is incredibly simple, but made difficult by the personalities involved. Once you agree that you're going to go your separate ways, the process of discovery, discover all your assets, agree what there is, agree the split and get on with it. that advice probably is to the financial detriment of the lawyers, but the process is simple. And I think if you can take the nastiness out of it, then it'll lead to a much easier process for everyone. I was going to give a sort of a big, nice Jerry Springer summing up about marriage and being nice, but as that's been done so beautifully by our four contributors already, my tip will be, once you do get divorced, go and check your expression of wishes or your nomination form on your pension.

1:04:20Remember, pensions don't go in your will. So if you have nominated your ex to be the recipient of your pension, unless that's changed, that will be what the pension company is looking at when you pass away. So it's not binding, but it is what they'll look at. It's a lot easier if you go onto your pension firm's website or go and talk to them and say, I want to change my expression of wishes, also called a nomination form, and change it that way. I'd like to thank, I've really, really found this interesting and educational. So thank you so much to divorce lawyer Matthew Taylor from Stowe Family Law, independent financial advisor Tamsin Kane from Smart Financial Planning, Rachel Kelsey, president of the International Academy of Family Lawyers, and Kieran Quinn, co-director at PA Duffy Solicitors.

1:05:07I hope you've all found it really useful. Thank you. That's it. I hope you enjoyed this special edition of the Not the Martin Lewis podcast. If you did, please tell your friends. And remember, my normal The Martin Lewis podcast is out every Wednesday, so do hit subscribe. And if you want to listen to more of the Not The Martin Lewis podcast, well, there's lots of them that we've done. Renters' Rights, Can You Challenge a Rent Hike? Will You Pay Inheritance Tax? Pension Needs To Knows, How To Get Money Out Of Your Pension, and What You Need To Know About Tax Itself. Have a listen back to some of those.

1:05:42You might just find them useful. Martin Lewis is the founder of MoneySavingExpert.com, but other consumer and price comparison websites are available. You can get in touch with Martin's podcast team by emailing martinlewispodcast at bbc.co.uk. The offers and rates mentioned in the podcast are correct at the time of recording. However, if you're listening on demand, it's worth double checking as the details can date.

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