CRYPTOCURRENCY IN DIVORCE PROCEEDINGS….a tangled web… Cryptocurrency, like any other asset in a Divorce, must be disclosed and of course, can be shared. Both parties have a duty to provide full and frank disclosure of all matrimonial assets. In the absence of full disclosure, and one party potentially trying to hide an asset, it is impossible to ascertain exactly what is “in the pot,” and consequently, what would be a fair division of that pot. How is cryptocurrency different to other assets? Cryptocurrency is a decentralised digital currency. A digital asset, held in an online wallet or exchange which stores the public and private keys to the currency, in what seems like another world. Because of the other worldliness of this type of asset, those who own it can attempt to hide its existence by failing to disclose it. This may be relatively easy to do if the other party is not aware of its existence. Issues with disclosure If you believe that your partner may have failed to disclose cryptocurrency then the starting point is a thorough analysis of their Bank statements. Payments to trading platforms/exchanges are a giveaway as to the existence of cryptocurrency. In the absence of disclosure of cryptocurrency, then payments of this nature can be brought to the attention of the Court and inferences thereafter drawn. Where Cryptocurrency has been disclosed, then a screenshot of an online wallet is not sufficient disclosure. A full transaction history of the ledger should be requested to ascertain a value, whether a party has been attempting to move the asset or, dissipate it during the post-separation negotiations or proceedings. If you believe that your partner is hiding or dissipating cryptocurrency then an application to the Court can be made under section 37 of the Matrimonial Causes Act 1973 for an order preventing disposition or a freezing Order. Both such applications can be made in respect of other assets you believe are being hidden or dissipated within divorce proceedings, not only cryptocurrency. The purpose of such interim orders is to preserve the assets until a judgement can be enforced. Such applications can be complex in respect of cryptocurrency due to the very nature of the asset and indeed jurisdictional issues. It is highly recommended that you seek advice early on in a divorce where crypto assets are involved or where you believe any other assets are being hidden or dissipated. At Browell Smith and Co we provide clear and tailored advice and assistance in respect of your specific family circumstances. Our Team are highly experienced in this area and able to advise and assist you in negotiating an agreement and / or making an application to the Court should such a step become necessary.
Do we still need a court order in respect of finances if we have agreed everything ourselves? This is a question we are regularly asked at Browell Smith and Co solicitors. The answer is quite simply… YES. Even where you and your spouse or Civil partner have reached an amicable agreement in respect of the division of assets on divorce or dissolution, we would strongly recommend that you have the agreement drafted into a Financial Remedy Order to ensure that it is legally binding. We strongly recommend you seek legal advice in respect of any agreement reached. It is important that you understand the scope of the available assets and of course, that any agreement reached is fair. Whilst the final order in divorce or dissolution ends your marriage or civil partnership, it does not end the financial claims that either you or your former partner have as a result of your marriage or civil partnership. The financial claims will remain live and could be pursued by either party in the future, even many years after the final Order of Divorce or Dissolution in the absence of a Financial Remedy Order. In order to protect yourself from any future financial claims, however amicable the separation may be, a Financial Remedy Order is required and should include, where appropriate, a ‘Clean Break’ clause. A ‘Clean Break’ clause will dismiss any future capital and income claims that you have against each other and, can dismiss any respective claims on each other’s Estates in the event of death. It is also worth noting that, without a Financial Remedy Order, a pension provider will be unable to implement any agreed pension share, even after the Final Order of Divorce or Dissolution has been granted. Speak to our experienced Family Law solicitors The Family Team Browell Smith and Co have vast experience advising on finances following the breakdown of a relationship. If you require advice and assistance then please contact us today to see how we can help.
I paid into that Pension – It’s mine! One of the most divisive issues a divorcing couple face is the division of their pension assets. Pensions and Divorce – what you need to know… Pensions are inherently a matrimonial asset. This is a commonly misunderstood area, with many believing that a pension is a single asset for the sole benefit of the person who accrued the entitlement. This is in fact untrue. When a couple enter a marriage pensions become matrimonial assets. On separation, the Family Court as a starting point, particularly for long marriages, must have regard to the “yardstick of equality”. This is a rebuttable presumption that means there should be an equal division of all matrimonial assets, including pensions wherever possible. How are pensions dealt with in divorce? The best method in nearly all cases is that the divorcing parties come to an agreement regarding how the assets are to be divided and enter into a Financial Remedy Order by consent. This includes pensions. Pensions have different values and the interests accrue at different rates depending on the type of scheme. This means it is not a rudimentary exercise of simply taking a Cash Equivalence Valuation (method of valuing pensions) and dividing the figure by two. Indeed, in some situations, it may be possible to “ring-fence” or “keep” certain parts of the pension if they were accrued pre-marriage. This is a complex process and can involve technical negotiations. Aside from the family home, pensions are generally the second most valuable asset from the marriage. Expert advice needs to be taken at the outset and indeed, throughout the negotiations, as to how any pension is to be shared. Often, this may involve expert advice from a specialist pension expert referred to as an ‘Actuary’. Expert Divorce Solicitors The Family Law Team at Browell Smith and Co have a wealth of experience negotiating the division of pension assets. We have cemented great connections with pension experts who can provide expert support on how to achieve a settlement within the marriage. If you require advice and assistance then please contact us for an initial consultation to see how we can help.