When it comes to divorce, the division of the assets and finances is often the most contentious issue. Negotiating who gets what, how much, and for how long isn’t always straightforward, particularly if there’s a family home, a business, or complex pensions to consider.
Sometimes, it’s not possible to reach an agreement without the intervention and guidance of the family court. Here we’re discussing how the courts approach the division of assets, and answer some of the questions you might have.
Is it always a 50/50 split?
In short, no. Whilst it’s true that a 50/50 split of any assets is the courts starting point, this doesn’t mean it’s appropriate in every circumstance. The family courts in England and Wales have a fair amount of discretion here. The law was designed to ensure that each case could be assessed on its merit, and the appropriate outcome reached.
It’s worth noting that the Divorce (Financial Provision) Bill is currently on its second reading in the House of Lords, and proposes radical changes to the way assets and finances are dealt with. This includes limiting judicial discretion during divorce proceedings, and it will be interesting to see what the future holds here.
Does the conduct of myself or my ex spouse matter?
The conduct of the parties will only be considered by the court in extremely rare circumstances, namely where the behaviour is extremely serious. Whilst it can often be a difficult concept to accept (particularly in cases of adultery), the reality is that conduct is unlikely to have any impact on your financial settlement.
What things will the court consider?
The court will consider all the circumstances of your case, as well as the provisions contained in section 25 of the Matrimonial Causes Act 1973. Below you’ll find a few examples of the things that could potentially affect the decision of the judge hearing your case.
If you have children under the age of 18, they will be the court’s first consideration. The court will look at the needs of the children, and take into account (amongst other things) how they’re currently being raised and educated, whether they have any physical or mental disabilities, and their general financial needs.
Current employment and earning capacity of the parties
Whether you’ve been the sole breadwinner within the marriage, worked part-time or stayed at home to raise the children, the court will treat you and your soon-to-be ex spouse as equals in this regard.
For example, if you were previously employed, but then took time out from your job or career during your marriage, the court might consider that you need a level of financial support from your ex spouse until such time as you could be expected to increase your earning capacity.
The needs of you and your spouse
Ultimately, the court’s aim is to divide the assets in such a way that will meet the needs of everyone involved. When we talk about ‘needs’, this means that the court will at the very least try to ensure that you both have a place to live and an income that’s enough for you to live on.
Where there’s enough, or more than enough matrimonial assets (those acquired during the course of the marriage) in the proverbial ‘pot’, these will be used to meet the needs of the parties, with anything leftover divided accordingly.
In many cases however, the assets aren’t sufficient, in which case non-matrimonial assets (those assets acquired outside of the marriage – an inheritance, or property purchased prior to the relationship for example) will need to be utilised in order to ensure that needs are met. You can read more about this here.
What about prenuptial agreements?
Prenuptial agreements are growing in popularity. Whilst they’re not yet legally binding, if they’re entered into properly with the right legal advice, they’re very persuasive. Entering into a pre or postnuptial agreement is always worth considering, as they can significantly reduce the need for drawn out negotiations or court proceedings.
If you’re about to proceed with a divorce, and there are assets to be divided, seeking expert legal advice is very important to ensure that you get a settlement that works for you both now, and in the future too. If you’d like to discuss your options, all you need to do is contact Harrogate Family Law today.