How Does The Court Decide What Is Right?
The court follows the legal principles from legislation and case law in making its decision. Although each judge has discretion to do what they perceive to be appropriate on the evidence in each particular case. This means the precise outcome of financial court proceedings can be quite difficult to predict.
The statutory principles are set out in section 25 of the Matrimonial Causes Act 1973 and Schedule 5 to the Civil Partnership Act 2004. The court’s first consideration is the welfare of any children involved. Alongside that, when determining an appropriate division of resources, the court considers:
- each person’s income, earning capacity, property and other financial resources. Available now or in the foreseeable future, including earning capacity
- each person’s financial needs, obligations and responsibilities relevant now or in the foreseeable future
- the standard of living enjoyed by the family before the breakdown of the marriage
- each person’s age and the length of the marriage
- any physical or mental disability
- contributions made or likely in the foreseeable future to make to the welfare of the family. Including any non-economic contribution
- the conduct of each of the parties. If that conduct is such that it would in the opinion of the court be inequitable to disregard it (although it is rare for conduct to be taken into account and the reason for the marriage or civil partnership breakdown is very unlikely to be a conduct issue for the purposes of a financial application), and
- the value of each of the parties to the marriage of any benefit which that party will lose the chance of acquiring
Other principles have become part of the law through the decisions of senior judges in important cases. These dictate that the court must be fair, considering each party’s needs and any compensation payable to one party. Also the sharing of any wealth above that which fulfils each party’s reasonable needs.
When dividing assets, the court will measure the end result against a benchmark 50/50 asset split. To assess whether anything other than that is justified. It would be usual to expect that there would not be a 50/50 asset split. Where one person’s (or the children’s) needs require a higher proportion of the capital assets. For example for housing, or sometimes where one person came into the marriage with significantly greater assets than the other. A 50/50 split is actually quite unusual.
An agreement made before or during the marriage can also have a significant effect on what the court decides.
What Can The Court Do?
The tools that the court uses to divide up financial affairs apply to all property in which either or both of you have an interest. (Which may also, in certain circumstances, include assets in companies or trusts):
- it can order a sale of a property, a transfer to one person (or to a child) or put it into a trust
- The court can order a lump sum (whole or in instalments) or a series of lump sums
- it can order one party to pay maintenance to the other. Either for the rest of their joint lives/until the recipient remarries or enters into a subsequent civil partnership. Or for a fixed period (a non-extendable or extendable term). For example until retirement. The court can order money for educational expenses etc, but not usually for general child maintenance, except at higher income levels, and
- it can order that a pension be shared, or attached. Sharing is where funds are transferred or split between the parties. Attachment is like maintenance direct from a pension, but can also be a lump sum
How Can I Achieve The Right Resolution?
Every case is different and the appropriate resolution will always be dependant on the specific circumstances of the case.
Understanding the provisions of the law and how to put forward your case to achieve the best outcome is complicated. It requires a clear understanding of the law and knowledge of how best to apply the legal principles.
Our family team consists of qualified family law solicitors, lawyers and legal executives, all which have many years of relevant experience in family law and will be able to give you clear and specific advice on how to present your case, applying the law to your case, to achieve the best possible outcome for you.
Get in touch
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Author: Greg Saunders. Partner, FCILEx
Please note that this article does not constitute legal advice. You should always speak to a legal professional to discuss your circumstances and consider your options.