Deciding the Division of Assets in Divorce
The Court has wide powers on divorce, to redistribute the parties’ property to either spouse, in deciding how to exercise its powers, the Court must consider all the circumstances of the case and section 25 of the Matrimonial Causes Act 1973.
The Court has wide powers on divorce, to redistribute the parties’ property to either spouse, in deciding how to exercise its powers, the Court must consider all the circumstances of the case and section 25 of the Matrimonial Causes Act 1973. The overriding objective in all cases is to achieve fairness.
Section 25, summarised below, sets out the basic guidelines, which the English Courts shall have regard to when deciding financial claims:
The welfare of any minor children:
Children are the first and most important consideration of the Court when deciding how to divide matrimonial assets. A Court will consider for example, a child’s financial needs, income, earning capacity, financial resources, property and disability.
The spouse’s financial resources:
A Court will take into account the parties’ capital (e.g. properties, savings and other assets), income and future income that a spouse is likely to need. The aim is to divide any assets fairly. Fairness does not necessarily mean an equal division.
The needs, obligations and responsibilities of the parties:
The Court will consider ensuring that there is enough money to meet the spouse’s needs (e.g. housing). Any debts and/or legal responsibilities will also be examined, and any burden of liability.
The standard of living enjoyed by the family before the breakdown of the marriage:
This factor tends to be more pertinent to wealthy couples.
The age of each party and duration of the marriage:
Generally, the longer the marriage the more likely for a 50/50 split of matrimonial assets. The Court considers age as it will affect pensions, potential future earnings and mortgage capacity.
Any physical or mental disability of either parties to the marriage:
If a spouse has an impairment, which means they need more financial remuneration than the other, then this factor will be considered by the Court.
The Court will have in regard the efforts each spouse has made to the success of the marriage. For example, a Court may decide that both parties should be treated equally, even if one of the parties has been the homemaker whilst the other has been the breadwinner.
Behaviour is rarely taken into account, unless it is of an exceptional nature. The Court will only consider conduct if the conduct is so serious that it would be unfair for the Court to disregard it (e.g. attempted murder).
Loss of benefits:
This factor usually relates to pensions. The Court has the authority to make a pension sharing order which enables this asset to be shared.
In most cases the decision of the Court will be dominated by the needs of the parties, and especially those of any minor children. Where the parties means are considered modest, the primary objective would be to ensure parties housing needs are met. Further, once the section 25 factors have been considered, the Court may decide that both parties should receive an unequal division of the assets, but this very much depends on the particular facts of the case.
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