3 minute read
Fair's Fair on Divorce
Clients ask what a court would consider to be a fair division of property and pensions on divorce. It can be difficult to give a straightforward answer to this simple question.
The rules that courts apply to the division of the assets (property, bank accounts, investments, pensions, cars, jewellery etc.) on divorce give a great deal of flexibility as to outcomes and, unlike most European countries (including Scotland), there are no set rules about shared property. Courts are obliged to look to the resources available to both parties (now and in the future), their needs, the needs of any children, contributions to the marriage, length of the marriage, the ages of the parties, incomes, and the conduct (bad behaviour) of the parties. The rules aim to provide flexibility, but flexibility can lead to uncertainty.
On the issue of ‘contributions’, which include nonfinancial contributions to the family, it is certainly not the case of parties getting back what they put into a marriage in terms of money. In most cases, contributions are seen as equal.
On the issue of ‘conduct’ the reason for the breakdown of the marriage is largely not relevant and conduct is only considered when it is either directly related to the couple’s finances or so serious that it would be impossible and unfair to ignore it.
The starting point is that matrimonial assets should be shared equally and in most marriages of any length ending in divorce, an equal division is often the fair outcome.
There are, however, factors that will give a different outcome. Take for example, a short marriage for a young couple with no children where one party provides most of the assets at the outset. Would it be fair to divide the assets equally?
Contrast that couple’s circumstances with a couple approaching retirement where there has been a long marriage with adult children and one of the parties contributed most of the assets when they met 30 years ago, but they have the same needs on retirement. Would it be fair to take account of the initial contribution?
The same rules apply to every marriage ending in divorce regardless of the ages of the parties and their financial circumstances and were written to provide ‘fair’ and flexible outcomes. The intention is to provide a bespoke financial resolution in early course.
To advise on achieving fair outcomes that meet current and future needs, there must be a disclosure of what is available for sharing, a complete and honest assessment of needs, and how those needs arise.
Advice from well-qualified family solicitors with a wealth of experience is invaluable.
If you would like further advice contact us at Widdows Pilling:
Email: enquiries@widdows-pilling.co.uk
Tel: 0161 790 1825
