When spouses divorce or separate they should always try to agree financial matters between themselves so as to obtain a consent order from the court . Asking a judge to divide up the family assets must always be a last resort. However, when reaching an agreement themselves, they must have in mind the legal principles which will be applied by the court if they are to be called upon to make an order. These are explained fully in our e-book on Divorce Law and Procedure. This, together with our book on Divorce Without Court are available for download.
The starting point in dividing up the matrimonial assets will usually be 50/50. This will, however, be varied depending upon the individual circumstances, the needs of the parties and in particular the needs of children.
The consequence of this is that there is no defined formula, and therefore there can never be certainty about what a court will order. The courts have a very wide discretion as to the orders which can be made when making financial orders in divorce proceedings. It is usually quite irrelevant whose name matrimonial property is in, and if it is a long marriage it will matter little how property was acquired. It is also quite irrelevant who presented the divorce petition. The court is, however, required to take certain matters into consideration, and these are set out in Section 25 of the Matrimonial Causes Act 1973. This important section requires that:
“It shall be the duty of the court in deciding whether to exercise its powers…. to have regard to all the circumstances of the case, including the following matters:
- the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future;
- the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;
- the standard of living enjoyed by the family before the breakdown of the marriage;
- the age of each party to the marriage and the duration of the marriage;
- any physical or mental disability of either of the parties to the marriage;
- the contributions made by each of the parties to the welfare of the family, including any contribution made by looking after the home or caring for the family;
- the value to either of the parties to the marriage of any benefit (for example, a pension) which … (by reason of the divorce) ..that party will lose the chance of acquiring.”
An important principle is that in matrimonial financial proceedings there must always be full disclosure by both parties of their assets. This will be the first step so as to calculate what is in the ‘pot’ for division.
Where there are children, proper provision, and in particular providing a suitable home for them, will be a prime objective. However, unlike cases concerning children brought under the Children Act, the children’s welfare is not the overriding objective in matrimonial financial proceedings. The conduct of the parties will have little place, unless it is gross and extreme.
Marriage brings with it mutual obligations to maintain, which can continue after the marriage is dissolved, unless brought to an end by an order of the court. This can create unfairness, and will often be a barrier to the parties re-building their lives. The court is therefore required to consider making a clean break order, severing all financial ties, whenever this is possible. A clean break can never apply however to children and the obligation to maintain (and the parental responsibility) for children is unaffected by the parents’ divorce.
Disputes over the division of the family assets on divorce used to be referred to as ancillary financial proceedings. That is because money matters are ancillary to and dealt with separately from the actual divorce action which is only concerned with dissolving the marriage. They are now just referred to as financial proceedings.
We own our house jointly. Is there anything I should be considering doing if our relationship has broken down?
Most married couples will own their matrimonial home in equal shares as joint tenants. This means that on the death of the first joint tenant their share will pass automatically to the other joint tenant, irrespective of any will or other intention. This may well be not what you would wish, if your relationship has broken down. The answer is to sever the joint tenancy, so that you hold the home as beneficial joint tenants. You may then leave your share in the property to whoever you wish by making a will.
Do we have to attend mediation before we divorce as I think it would be a waste of time?
You cannot be made to attend mediation, although in most cases you will be required to attend a MIAM or mediation information and assessment meeting. At the meeting you will be given full information about the possible advantages of mediation and will be able to discuss your doubts and reservations with a trained mediator. You should not close your mind to the possibilities of reaching an agreement over all matters through mediation..
What do I need to think about if our relationship is over and it looks like we are going to split up?
Before deciding finally that your relationship is over, you should discuss this with family and friends and consider very carefully what life will be like as a single person. It may not be as rosy as you’d think, especially as a single parent. If having taken your time and thought things through carefully your decision is final, it will be time to tell your partner and children. How you tell particularly the children is most important. You will need to explain the practical arrangements to the children and whenever possible this should be done together by both parents.
What is collaborative law?
This is an alternative to mediation or applying to the court to decide family issues. You and your partner together with each of your lawyers will meet and try to hammer out an agreement. It is fully explained in our article which you can read here.