Courts have a wide discretion to depart from sharing assets equally. Matters are made more difficult as there are different types of assets including capital assets, income based assets and pension assets. There may be significant tax issues or problems of liquidity. These assets are considered in different ways by Courts.
Judges have a wide discretion to depart from equality in every case. Courts try to achieve fairness in each matter and will do so by considering a number of factors including the following:-
1. The welfare of the child or children is the first consideration.
2. Both parties needs.
3. Both parties contributions to the marriage. This can relate to the origin of assets or a “special contribution” by either party.
4. Age.
5. Duration of the marriage.
6. Health of both parties.
7. All of the resources of the marriage including income and earning capacity.
8. The standard of living enjoyed by the parties.
9. Conduct in a limited number of cases.
These factors are all set out in Section 25 of the Matrimonial Causes Act 1973. Alongside the Law made in 1973, “Judge made Law” is a fast moving area. Three further strands make up the exercise that Judge’s need to apply on top of the above criteria which includes the sharing principle, compensation and needs.
The reality is that there is no single correct answer in any financial divorce case. Put simply there are three aspects to sorting finances:-
1. What assets are there?
2. What are the assets worth? This is normally undertaken through various valuations of the matrimonial assets.
3. How do we divide them? In this case we look at the above considerations and the tests which should be applied.
It is to be hoped that there will be sufficient assets to satisfy both parties needs. Some of the most difficult cases are those where the assets are very limited.
In conclusion, whilst an equal division may be a reasonable starting point in some cases, there are relatively few where an exactly equal division is the end result.
To speak with Mark Day, in York, please contact 01904 683166 or send him an
email or Kate Saunders, in Lincoln, on 01522 508816 or send her an
email.