The Divorce Court's Approach to Division of Assets in Divorce
One of the main difficulties for couples going through a divorce is trying to establish independent households, each funded by a single income, whereas formerly they had combined income and assets to maintain just one property.
It is therefore helpful that you are aware of what will be considered and the powers of Courts in making their decisions regarding money and assets.
Although it is the role of the Child Support Agency (CSA) to consider residency of any children, the primary concern for a Court are the best interests of the children. Parents can now come to their own financial arrangement. The Courts will then, in every case, also bear in mind the following circumstances, as set out in The Matrimonial Causes Act 1973:
1) On one hand ANY income, earning capacity, property and other financial resources available and, on the other hand, the financial needs, obligations and responsibilities, which each of the parties to the marriage has or might have in the immediate future;
2) The standard of living enjoyed by the family prior to the marriage ending;
3) Each party's age and health and the duration of the marriage;
4) The contributions each has made or is likely to make in the foreseeable future to the welfare of the family - that includes caring for the family or maintaining the home;
5) The value to each of the parties of any benefit (eg a pension) which a party will lose the chance of acquiring by reason of the dissolution or annulment of the marriage.
These are the issue that will be looked at when assets of couple getting divorced are being shared out. By recording all the sources of income or assets, the Court can then set about dividing the total as fairly and reasonably as possible.
Powers of the Court to make orders dividing assets are practically infinite, and they will use any number of the orders below, known as ancillary relief orders:
- orders for maintenance pending suit.
- periodical payments orders.
- secured provision orders.
- property adjustment orders.
- lump sum orders.
- pension sharing/attachment orders (only for spouses).
Courts have to consider how they can affect a 'clean break' for the divorcing couple as soon as they can; this is what happens in many cases.
Changes have been brought about recently following cases in which dividing the assets has been approached differently by the Courts. The general principle is that assets or income generated for the duration of the marriage are considered 'matrimonial property' and therefore require more or less equal division. 'Non matrimonial property' (created or introduced after the marriage comes to an end) is considered to belong to the person whom has generated it.
A common misconception by parties to a divorce is that Courts will take behaviour of the parties into consideration, whereas they will only do that in particularly extreme circumstances where it would be unfair to disregard it. In normal circumstances however the Courts are predominantly involved in the practical financial matters.
Sadly however, arguments over money following marriage breakdown can be protracted, expensive and highly emotionally damaging. Any sensible and responsible Divorce Solicitors will always explain the options available to divorcing couples are Family Mediation and Collaborative Law - both of which highly successful approaches stress the need to seek agreement rather than treating divorce as a battle to be won.
About the Author
Bonallack & Bishop (http://www.bishopslaw.co.uk ) are a firm of specialist Divorce Solicitors with experience in Collaborative Law. Senior partner Tim Bishop has grown the firm by 1000% in 13 years and is responsible for all major strategic decisions. He sees himself as a businessman who owns a law firm and has plans to expand further.
Tell others about
this page:
Comments? Questions? Email Here