By Helen Prins
When a married couple or civil partners separate or divorce/end their civil partnership, how are their assets and monies divided? Every case is different. The aim is to be 'fair'. In striving to achieve 'fairness', English law requires that 'all the circumstances of the case' be taken into account, 'first consideration being given to the welfare while a minor of any child of the family.....' and for the following factors to be especially regarded:-
a) the income, earning capacity and financial resources of the parties. So if, for example, one party's income and mortgage borrowing capacity greatly exceeds the other's, the difference will be taken into consideration.
b) the financial needs of the parties. This means, for example, the needs of the parties to be housed as well as their need to be able to 'make ends meet'.
c) the standard of living of the family before the parties' relationship broke down.
d) the ages of the parties and the duration of the relationship. For example, a short relationship will not be dealt with in the same way as a long relationship. Living together prior to marriage can be taken into account when determining the duration of the relationship.
e) any physical or mental disability of either party.
f) contributions made (or to be made) to the welfare of the family. So, for example, the wage-earning party cannot successfully claim an enhanced settlement as against the non wage-earner who has stayed at home to look after the children and the home.
g) conduct if 'inequitable to disregard it'. The conduct or misconduct of a party is very rarely relevant. It usually has to be related to the parties' finances. For example, a heavy gambler who has recklessly depleted family money on gambling or a party who has attacked his or her partner and caused an injury which has prevented them from working (and therefore earning an income).
h) the value of any benefit which a party will lose when the divorce/dissolution goes through. This commonly (but not exclusively) means pension benefits which can now be shared between divorcees or civil partners whose partnership has been dissolved.
The starting point for distribution is 50-50 but it will be obvious from all the above that in many cases, proper consideration of the above factors would result in a 50-50 division being unfair to one of the parties. Adjustments often therefore have to be made.
Happily, most cases do not 'go to court' (i.e. are not 'fought out' in front of a judge who determines the outcome). Over the last 45 years, following the introduction of the above statutory guidelines, there have however been very many cases which have had to be determined by the court and those decisions have put 'flesh on the bones' of the statutory guidelines. These cases also provide family lawyers with assistance when they endeavour to secure a fair outcome for their clients.
This article cannot be and is not more than a 'snapshot' of the law. There is much to consider. At Robert Barber Solicitors, we have experienced solicitors who will advise and guide you so the best outcome can be secured for you and your family.