So you are divorcing? Inevitably you are going to want to know who gets what. The guiding rule is that matrimonial assets such as property, savings and pensions built up as a result of the joint efforts of the parties during the marriage must be applied to satisfy, as far as possible, each parties ‘reasonable needs’. Any balance is shared between the parties in such sums as the Court orders, usually, though not always equally. The interests of minor children, and that includes step children will be the foremost consideration. Length of the marriage is also relevant and this can, in some cases include pre-marital cohabitation if it is ‘seamless’.
But what of inherited money, accident compensation or even a lottery win? These generally fall outside the definition of “matrimonial assets” and will only be brought in if necessary to provide for those needs if there is not enough otherwise.
What of inheritance prospects? Unless the inheritance prospect is immediate and certain, these are usually disregarded. However what about “Bank of Mum and Dad?” The Courts will weigh up the extent to which family wealth should feature but will not expect members of a parties family to step in to bail them out where the assets are otherwise insufficient. In the words of Mr Justice Mostyn the Court will not “judiciously encourage” a parties’ family to provide funds to ensure compliance with a Court order even where there has been historical financial support.
The size of an award will also be tempered by whether or not there is an ongoing liability for maintenance for a spouse. Child maintenance is an absolute liability and cannot be bartered.
Notwithstanding the complexities, most cases do settle without a contested hearing, although it is usually necessary to at least commence proceedings to ensure full disclosure has taken place – only the Court can compel this.
Although not easy,try to keep the channels of communication open with your spouse, especially if there are children. Even if you cannot see eye to eye as husband and wife, it is vital to try to do so as Mum and Dad.
To speak to an expert regarding any of the matters mentioned in this article, please contact a member of our family law department:
Nicholas Clough: firstname.lastname@example.org