what would my spouse be entitled to if we divorce?

Discussion in 'Divorce FAQ - Frequently Asked Question' started by James43, Mar 5, 2013.

  1. James43

    James43 New Member

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    I am looking to start Divorce proceedings and my only worry is what my spouse would be entitled to?

    I have a business, house and assets that were all mine prior to marriage and a considerable pension would she be able to claim any?

    Is there any guidance on this?

    Any advice would be great thanks?

    Thanks

    Jim
     
  2. KirstyB

    KirstyB Administrator

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    Dear John

    The laws are very general in this area of the law in that they merely provide a list of what may be taken into account.

    This list is derived from Section 25 of The Matrimonial Causes Act 1973. Also precedents set in previous case law can sometimes be helpful in showing how the Courts have dealt with particular circumstances.

    It has to be remembered though that each case is considered with its own unique set of circumstances and will be considered with the factors of the 1973 Act in mind.

    The reality is that there are very few hard and fast rules in deciding who gets what in divorce.

    The upside of this is that the Courts are flexible to enable them to make whatever order is deemed to be fair on the particular facts of each case.

    Wherever practical, the court will seek to achieve a financial separation between the parties. This is called a clean break and is obtained through the courts by applying for a clean break order.

    This means that there will be no ongoing financial ties between the parties, except for child maintenance, if relevant.

    The courts generally will consider an equal split and case law supports this, as a result of the House of Lord's decision in the case of White v White [2001] 1 AC 596, the starting position for the division of assets is an equal division in cases of a long marriage.

    The House of Lords highlighted that the Courts should consider the division of assets against a 'yardstick of equality'.

    Furthermore, In the recent case of Charman v Charman [2007] EWCA Civ 503, the Court confirmed that the starting point in calculating the division of assets in long marriage cases is equality between the parties.

    The Section 25 factors below are then considered, which may alter the position.

    In practice, this has resulted in an equal division being used as a starting point, before the Section 25 considerations are subsequently applied.

    Under Section 25, the Court has a general duty to take into account "… all the circumstances of the case".

    This phrase "all the circumstances" enables the Court to take into account whatever factors it deems to be relevant even if they are not specifically referred to in Section 25.

    Section 25 says that the Court must focus specifically on the following, where relevant:

    • Welfare of the children.
    • Financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future.
    • Income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future.
    • The standard of living enjoyed by the family before the breakdown of the marriage.
    • The age of each party to the marriage and the duration of the marriage.
    • Any physical or mental disability of either of the parties to the marriage.
    • The contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family including any contribution by looking after the home or caring for the family.
    • The value to each of the parties to the marriage of any benefit which by reason of the dissolution of the marriage that party will lose any chance of acquiring.
    • The conduct of each of the parties if that conduct is such that in the opinion of the Court it would be inequitable to disregard it.

    In summary, on divorce, the aim is to divide the assets fairly. Fairness does not necessarily mean an equal division.

    The Court is under a duty to consider all the circumstances of the case and in particular the Section 25 Factors and apply these to the particular case.

    Having considered the Section 25 Factors, the Court may order an unequal division of the assets but this very much depends on the particular facts of the case.

    The general rule is that assets should be divided equally unless there is a good reason not to.
    First consideration must always been given to the needs of the dependent children. Practically this means accommodation must be provided for the children and the custodial parent.

    This could mean one party may retain the marital home to house the children until they reach a certain age.

    Generally, the Court will always look to meet the needs of each party. If no agreement can be reached between the parties by way of a consent order then the Court may go on to consider dividing the remaining assets taking into account how they were created.

    This requires dividing the assets into matrimonial and non-matrimonial. Matrimonial property comprises those assets that have been acquired during the marriage and non-matrimonial assets are those assets that have accrued outside the marriage (i.e. assets brought into the marriage by either party at the outset, or Inheritance or gifts.)

    Once the needs of each party have been met, then anything over may be divided further.

    Also in regards to pensions, the courts have the power to take pensions into account in dividing up the matrimonial assets.

    In a lot of cases the husband might have a substantial pension provision and the wife might have none or limited pension provision because, for example, she has given up her job in order to look after the children.

    Such a wife is very likely to wish to be "compensated" for her lack of pension entitlement.

    If you can come to an agreement with your spouse we can help you draw up a consent order to finalise the division of assets, if not, you will need to seek advice from a solicitor who will be able to help you calculate what would be considered a fair division of assets during your marriage.

    If you are able to reach agreement then we can deal with your divorce and the creation of a financial consent order by our solicitors to put your agreement into legal effect.

    This currently costs £299 (incl vat) plus £50 court fee. Call us on 01793 384 029 or go to
    https://www.divorce-online.co.uk/divorce-services/managed-divorce-services/managed-divorce-and-clean-break

    Kirsty
     
    Last edited by a moderator: Apr 23, 2018
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