Posted by Jonathan Madge on 26th October 2015

The Cornish Pasty is in the news again. There was uproar in the press in June 2014 when it was asserted that the Cornish Pasty was “invented” in Plymouth following the discovery in one of the Plymouth Borough account books of possibly the world’s earliest pasty recipe dates from 1509.

Now a leading food historian is apparently claiming that traditional pasties were developed by the urban middle classes in London where cookery teachers first coined the term “Cornish Pasty”.

But why does it matter where they were invented or what we call them now and what does this all have to do with family law?

Well, it is all about the drive we all have to protect our assets. In the case of the pasty, the desire is commercially driven by pasty-makers in the Duchy trying to stop outside producers being able to call their wares “Cornish Pasties”. They consider protecting the name gives them a competitive advantage which others outside the county should not be able to share.

In the field of family law, those going through a divorce can have a strong desire to protect their personal assets and want control over the extent to which they share what they have. It is often particularly noticeable when dealing with pensions. They often say that they started the pension before they married and they earned it through their own hard graft sometimes in unpleasant and strenuous workplaces where their long term health was put at risk, or worse.

They often accept that other assets such as the equity in homes and other savings and investments should be fairly divided. They almost always accept that they should pay a fair amount for the financial support of their children. But they do not see their pension in the same light.

The news they want from us is that their pension is effectively “ring fenced” so that it does not come into play when working out a fair financial division. That can sometimes be the case for example in some shorter marriages with younger parties and where a pension does not form a very substantial part of the value of the overall financial “pot” we are dividing.

The longer a marriage lasts, the older the parties are and the greater the value of the pension, then the less likely we are to be able to indicate that they may be able to fully protect their pension.

However, it is not all bad news. A Court also recognises a pension is a different form of asset from others and the claim of the former spouse of a pension holder is often reduced. If, for instance, the pension payments began significantly before the parties began living together or they have already been separated for a number of years, or the former spouse has their own retirement provision or enough of his or her own working life left to build up their own pension provision.

So whereas the Cornish Pasty producers have been successful in their bid not to have to “share” the name “Cornish Pasty” with producers outside the Duchy under the EU designated Protected Geographical Indication status, divorcing parties do not automatically have the same ability to absolutely protect any assets on divorce, not even their pensions.

However, parties can bring some protection to their assets if they act early enough by means of Pre-Nuptial Agreements. This will be the subject of another blog in the weeks to come.

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