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How does the Court decide who gets what in a Divorce?

View profile for Danielle Dyer
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There is no strict formula for dividing assets in divorce, with the court having a duty to consider all the circumstances of the particular case. The court’s first and paramount consideration will be the welfare of any children of the family under the age of 18. The Court will then go on to consider the circumstances with reference to a variety of factors contained in Section 25(2) of the Matrimonial Causes Act 1973. The objective of the court is to achieve a fair outcome. It is important to recognise that what is constituted as fair, does not necessarily mean what is equal.

Overview of the Factors Which the Court will consider:

The Earning Capacity of the parties

The court will take in to account the parties’ income from all sources. This includes income from employment, self-employment, dividends, rental income, share income and any pension payments. As well as actual earnings, the court will consider potential earnings.

Future Prospects

The court is not limited to considering assets acquired jointly or during the marriage. For example, the court can consider a party’s interest under a settlement of inheritance (but generally only if the donor has died).

Non-Matrimonial Assets

The court is not confined to assets accumulated during the marriage. The court has power to deal with parties’ resources whenever and however acquired. This includes assets inherited or owned before the marriage, or which have been acquired after separation.

The Needs of the Parties

The court is obligated to consider the parties’ needs, obligations and responsibilities. The most basic of these needs is the need for the parties and any children to be housed, have food and clothing. In considering the parties obligations, the court must consider any liabilities the parties’ have, such as bank loans, hire purchase, private school fees etc. The courts are confined to such requirements that are reasonable. For example, flying first class for holidays rather than economy is likely to be seen as unreasonable.

Standard of Living

It is inevitable the parties’ standard of living enjoyed during the marriage will not be able to necessarily continue after separation. On separation, there will be increased costs of running two households. Therefore, the court will try to ensure the inevitable reduction in the parties’ standard of living is equal between the parties.

Ages of the Parties and Duration of the Marriage

The ages of the parties at the time of the divorce is important. By example, a party nearing retirement age whose role in the marriage was as housewife and the marriage was one of 25 years, is likely to have limited employment prospects and a limited, (if any) mortgage capacity. In contrast, a younger party without children ending a short marriage (e.g 5 years) is likely to have earning and borrowing capacity. This is material when deciding on a claim for maintenance and the needs of the parties.

Contributions to the Family

The court is required to consider how the parties have contributed to the welfare of the family, both financially and other wise. It has long been established and accepted that a party whose role is to care for the home and the family contributes as much to the family as the party who goes out to work.

Misconduct of the Parties

The court must have regard to the conduct of the parties. This generally falls in to two categories: (i) misconduct which will have a bearing on the financial provision ordered and (ii) litigation misconduct which usually involves one party being penalised in relation to the costs of the proceedings.  Adultery is not seen as misconduct and should not be relevant to the financial provision.  Cases are very rare, but one such case where a party’s misconduct did result in one party receiving a greater share of the matrimonial assets was when the Husband subjected the Wife to a vicious knife attack and was subsequently convicted of attempted murder.

If you are in the process of a divorce or are considering a divorce and you would like advice or assistance or to discuss the options open to you, please do not hesitate to contact Danielle Dyer, Wendy Armstrong or Paul Wild of our Family Law Department on 01252 733770.

This information is for guidance only and should not be regarded as a substitute for taking full legal advice on specific facts and circumstances.