In family cases, there is often a point at which outside expertise needs to be brought in. This could be to value the family home, to value a business or to advise on how to value and share the parties’ pension funds. What are the steps to achieve this and what do you need to think about?
The most important point to make is that the court wants, indeed directs, to use a single joint expert. This means one individual who is given instructions from both the parties, often via their solicitors. The importance of it being a joint instruction is that it is usually binding on both parties.
If one party wants to disagree with the view of the joint expert then that party needs permission from the court (not easily given) to instruct someone else and that new expert will then have to discuss with the joint expert where their views differ and try to narrow any area of dispute. The court would then be obliged to hear evidence from both the jointly instructed expert and the second expert to make a decision as to whose opinion it was going to rely upon. This would be an expensive exercise.
A joint expert can be involved before the issue of court proceedings and can often be essential to reaching a negotiated settlement, by fixing a value for the family home or other property or by advising on how to share pension in such a way to give both parties the same income in retirement. They can be used in mediation, collaborative law and in arbitration.
A joint instruction can usually mean a joint and equal cost between the parties, but it can be the case that the court will order the cost to be paid by one party or in unequal shares at the outset and then revisit that, depending on whether the expert’s opinion did actually assist the court and the parties in coming to a conclusion.
What help does the joint expert give?
- Property matters – usually a chartered surveyor (rather than an estate agent) they can provide a valuation which everyone can then use in their calculations to work out whether an interest can be bought out or if the property has to be sold, or what each party should be allocated to enable then to rehouse. He can also advise on planning potential, what that might add to the pot but also how that might affect the value of the existing property.
- Businesses – the issue here can often be not only what the person’s interest in the business is worth but how could any part of that be extracted from the company. There are issues of liquidity, tax and the inter-relation with other third parties, such as directors or shareholders.
- Pensions – in July 2019 a report was published that said in almost every case involving pensions, there should be a report from an appropriately trained pensions actuary to advise on the fair market value of any non money purchase schemes, how different types of pensions can be shared to achieve certain outcomes and in particular if pensions are to be traded (offset) against other assets such as a house. There is no room to hide here. In terms of pensions, it should become rare not to have a report from a joint expert.
How to choose the right expert?
Having a solicitor you trust is key. They will have worked with different experts before and will know who can produce accurate and clear reports that assist the parties and the courts. Solicitors share this type of information and may suggest to each other new or different firms that they have come across or been recommended to. Solicitors do not and cannot receive commission for sending work to an expert so there is no benefit to them other than to get the best result for their client.