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Balancing Sharing and Need: Fairness

Divorce and Finance

In the case of A v L [2011], The Family Division heard an appeal by the husband against a decision to award his former wife a 70/30 share of their capital assets.

The couple married in 1986, at which time the wife was securely housed.  They separated in 2000 and divorced in 2002.  However neither party sought to have a ruling on the financial aspects of their relationship.

The wife was a housewife and mother while the husband worked part-time.  Even with his medical condition he was capable of earning much more than his wife.   The couple had two children aged 18 and 21.  The matrimonial home was occupied by the wife and one of the children – the other child coming home during university holidays.  The husband owned a property in Egypt.

The wife allowed the husband to cash in an endowment policy on the understanding he would use it to reduce the mortgage and discharge debts.  He failed to do this.

In the financial remedy hearing in June 2011 the judge ruled that the wife was allowed to stay in the matrimonial home for a short while to adjust. As there was no reasonable alternative she was allowed to stay for two years after which the property was to be sold.  The proceeds were to be divided 70/30 in favour of the wife and the husband was also ordered to make periodical payments.

The husband appealed.

The principal issue was whether there should be a departure from equality when dividing the couple’s assets.

There is an obligation to be fair to both parties in all cases.  However in this case the couple did not have enough capital and income to fairly provide for the needs of both of them.

The appeal criticised the judgement for not providing the reason for the departing from the principal of equality.  The judgement had also failed to explain how it would fairly meet the needs of both parties and balance the periodical payments and the capital awarded.

Having ruled that the judge was wrong the court would implement its own solution based on the facts from the financial remedy hearing.

The appeal concluded that there were good reasons to rule in favour of the wife.  These reasons included the difference between the parties income; the wife’s continuing responsibility to the children; the husband’s property in Egypt; the fact the wife had her own house before the marriage and the fact the husband had the money from the endowment policy.

These factors therefore justified a significant departure from equality.  The 70/30 split would not be changed however there would be a clean break on the sale of the matrimonial home which would be sold as soon as possible.

If you would like more information on divorce and separation and the financial implications please contact our Family Law Department on Eastbourne 01323 727321 or Hailsham 01323 841481.

Nicholas Dennis
Nicholas Dennis
Alexandra Funnell
Alexandra Funnell
Guy Brown
Guy Brown
Carolyn Richards
Carolyn Richards