We understand that going through a divorce can be an emotional and difficult time. Our expert family law solicitors can help you through this process and give you expert legal advice, to ensure you get the best outcome for you and your family.
When a court considers resolution of financial issues, the starting point is usually an equal division of the capital assets of the marriage. Consideration will be given to a number of factors under section 25 of the Matrimonial Causes Act 1973, which may justify a departure from equality.
The court will consider whether it is possible to achieve a "clean break" financial settlement, which will prevent either party from making any further future financial claim against the other.
The most important and paramount consideration is the welfare of any child of the family under the age of 18. The needs of any child will be considered, especially when it comes to providing suitable accommodation for the child/ren and primary carer.
In practice, this means that the appropriate outcome will be one which balances the financial needs of each parent, whilst at the same time making appropriate arrangements for the children’s financial needs.
What factors are considered when dividing assets on divorce?
The court will consider several factors including:
- Income and financial assets: The income, earning capacity, property and other financial resources which each party has, or is likely to have in the foreseeable future. In the case of earning capacity, it would also be relevant to examine whether it was reasonable to expect one party to take steps to acquire an earning capacity.
- Financial responsibilities: The financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future.
- Standard of living: The standard of living enjoyed by the family before the breakdown of the marriage.
- Age and length of marriage: The respective ages of the parties and the length of the marriage.
- Disabilities: Any physical or mental disability of either party to the marriage.
- Contributions: The contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family.
- Behaviour or conduct: The conduct of each of the parties is considered in rare and exceptional cases.
- Additional values: The value to each of the parties to the marriage of any benefit which, by reason of the divorce, that party will lose the chance of acquiring.
A spouse will not be penalised for remaining in the home and looking after the children whilst the other spouse goes out to work. The court will treat a spouse's contribution to the family and home life as equal, albeit that one spouse's contribution was an economic and the other a homemaking contribution.
Sometimes, it is not practical for the parties to achieve financial independence immediately, and in those cases, it may be appropriate for there to be a maintenance order in favour of the spouse. Even a short marriage may create financial dependence.
What powers does the court have?
The court has wide-ranging powers to order:
- An immediate or delayed sale of a property;
- A transfer of a property;
- A payment of a lump sum;
- Maintenance pending suit to assist a spouse in funding expenses pending a financial settlement;
- A legal services order to assist a spouse in funding legal fees;
- Interim and continued spousal maintenance payments;
- Child maintenance payments in limited circumstances; and
- Pension Sharing or Attachment Orders
Matrimonial vs non-matrimonial assets
The court will adopt a different approach to "matrimonial" assets and "non-matrimonial" assets. Matrimonial assets mean assets built up by the parties during the marriage, such as the family home. Matrimonial assets are generally divided to meet the reasonable needs of the parties.
"Non-matrimonial" assets are assets built up prior to or subsequent to the breakdown of the marriage, or assets acquired through an independent source. This could include:
- inherited wealth;
- personal wealth generated prior to or after the breakdown of the marriage;
- personal injury compensation;
- interest in a trust.
These assets may not be shared between the two parties, save to achieve a fair outcome. The courts retain a wide discretion to treat each case differently, depending on the facts.
Business assets on divorce
At Myerson, we work extensively for business owners or their spouses in arranging the valuation of business assets to determine liquidity or to determine the extent to which a party can provide income to meet future maintenance payments.
Our expert family solicitors have significant experience of working for those whose assets comprise commercial and residential property portfolios or inherited wealth. Our family lawyers work closely with other in-house private client, commercial property and corporate lawyers to make sure our clients receive a bespoke service to protect their interests.