Last week we looked at the range of orders that the court can make when deciding a financial remedy claim on divorce. But how does the court decide what orders to make?
If all else is equal…
The starting-point in all cases is what is known as the ‘sharing principle’.
The sharing principle states that marriage is a partnership and that when the marriage ends each party is entitled to an equal share of the assets of the partnership, unless there is a good reason to the contrary.
The sharing principle will be the determining factor in many cases.
The next question, of course, is what is a ‘good reason to the contrary’?
The most common reason is the needs of the parties, especially in cases where resources are limited.
The court will try to ensure that the basic needs of both parties (in particular income and housing needs) are met, and if one party has greater financial needs than the other then it may be appropriate for them to have a greater than half share of the assets.
A typical example of this is where dependent children live with just one of the parties. That party will obviously need to have suitable accommodation for the children, and their housing needs will therefore be greater than the housing needs of the other party.
Needs will also of course have a bearing upon whether a maintenance order is appropriate, and what pension sharing order, if any, should be made.
Note that needs are ‘generously interpreted’, meaning that they are calculated by reference to the resources available, and the standard of living enjoyed by the parties during the marriage – the needs of a party are not always the same in every case.
Well, yes. In fact, potentially any relevant circumstance of the case could have a bearing upon the court’s decision.
That’s not particularly helpful, so here are a few examples:
□ The income, earning capacity, property and other financial resources of the parties – obviously!
□ The ages of the parties – could be relevant, especially if one or both of the parties are approaching pension age.
□ The duration of the marriage – for example, after a very short marriage it may simply be appropriate to return the parties to the same financial position they were in before the marriage.
□ Each party’s contributions – where, for example, one party brought significantly more wealth into the marriage, that they had accumulated prior to the marriage.
□ The conduct of the parties – but before you start counting how much you think you should get, bear in mind that only the most serious conduct, such as threats to kill, is likely to have any bearing upon the financial settlement.
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Once again, this is just a very brief introduction to a potentially very complex subject. If you are or may be involved in financial remedy proceedings then we would strongly recommend that you first obtain the advice of an expert family lawyer. We find you an expert that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.
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