It is a common myth that matrimonial assets are always divided equally upon divorce, however this simply is not correct. Unfortunately, it is not as straightforward as both parties receiving their 50% and walking away. There are many factors which the Court will take into consideration before deciding whether an equal division of the assets is suitable.
The presumption of equality
Whilst an equal division of the assets is not always appropriate, it is true that equality is always the starting point. Any departure from equality must be justified, and there are several factors which will be considered by the Court when deciding how the assets should be divided. These factors are as follows:
- The welfare of any minor children involved
- The income, earning capacity, property and resources of each party
- The standard of living enjoyed by the family before the divorce
- The age of each party and the duration of the marriage
- Contributions made to the marriage by each party, including non-financial contributions like caring for children and running the home
- Any physical or mental disability
- The conduct of each party
- The value of any benefit that each of the parties to the marriage will lose the chance of acquiring
Departure from Equality
Each case is different and not all of these factors will apply in every case, and more weight may be attached to certain factors dependent on the individual circumstances of the case. Any of the above factors may justify a departure from equality in the correct circumstances. However, in most cases the reason for a departure from equality is the needs of the parties. A common example of this is where one party cares for minor children most of the time, their housing needs are likely to be higher than that of the other party. Conversely their ability to generate income and therefore their borrowing capacity is likely to be lower. Due to these factors, they may receive a larger share of the capital assets so that they can rehouse with the children. Each case turns on it’s individual circumstances and there is no one size fits all approach.
Clean Break
The Court is obliged to consider the possibility of a clean break in all cases. This means a financial settlement whereby the parties have no ongoing financial obligations towards one another. This is not always possible, but the Court generally prefer a clean break as it allows all involved to move on with no further financial ties.
Offsetting
In order to achieve a clean break, or sometimes for other reasons, one party may offset their claims for things like spousal maintenance or Pension sharing and seek a higher percentage of the capital assets. This reflects the fact that they have relinquished their other claim(s) to receive a higher share of the capital instead.
Further advice
If you are divorcing and are unsure of your legal position when considering the division of matrimonial assets, then please get in touch. One of our family team would be more than happy to help!
01702 348 384
