Who gets what in a divorce?

04 Mar 2022

One gets what is necessary to meet ones needs in the vast majority of cases. It is that simple.

Therein lies the shortest and most straightforward lawyer’s answer perhaps in legal history.

The matter becomes more technical when people differ on what constitutes “needs”. Generally, the greater the number of children, the longer the marriage, and the greater the difference in earning capacity, then the greater the needs.

Before determining any of the foregoing, it is absolutely essential that there is – what lawyers will repeat as often as a broken record – “full and frank disclosure of your financial circumstances”.

For example, the word “equality” may mean two entirely separate things to two different people. The question is, equality of what? However, if there is full and frank disclosure, then before reaching a specific agreement, there would need to be an agreed schedule of assets that forms the basis of the negotiations. All too often people reach what they sometimes sincerely believe is an agreement, only to find that one party conveniently took the view that their pension didn’t form part of the equality because “it’s mine”. This isn’t the case.

It is essential to get those “basics” right and therefore, full and frank disclosure is an unavoidable and wholly compulsory part of the process – whether that process takes place in or out of court. Happily, the courts have devised their own document for each individual to fill out with prescribed sections of rather searching questions. Once these have been completed, we then have an agreed figure on which to base all future negotiations.

Equality (now that we are agreed as to what equality is) is only the starting point. An example of a typical “classic” case for equality might be where a young couple have two similar incomes, no children and have had a relatively short marriage. But then it might only be equality of capital growth of those assets that were acquired during the marriage and not equality of everything. However, where the marriage might have been seven plus years and/or where there are children, resulting in unequal earning capacity, then there will be a ready departure from the principle of “equality”.

Contrary to what you might read in the newspapers, there is complete logic to this. The courts are striving to ensure that individuals “needs” are met. They like settlements that are sensible and sustainable. We all might like to keep the family home and worry about the bills the following month. However, judges do not operate that way – they hate having people come back to court on appeal and indicate that they hadn’t budgeted properly. Sustainable may be “boring” but it is enduring, and when we are effectively dividing one home into two, there is an inescapable element of budgeting to be engaged in.

In summary, if we take anything from this article, just remember the two key points “full and frank disclosure” and “needs” – at least in the vast majority of cases.

But what about those that do not fall in to the “vast majority” category. The factors that are taken into account in all cases are known as the 'Section 25 Matrimonial Causes Act factors'. If you are one of the relatively lucky few whose needs can easily be met and have sufficient wealth to persuade the court that your “lifestyle” should be maintained to a particular standard, then that will also be a factor, if not indeed one of the overriding factors.

When considering Section 25 factors, you must also have regard to the fact that judges have considerable discretion, but they will take into account your income and earning capacity, as well as all your resources, your needs, standard of living, age, any disability, contributions, and in extreme cases, conduct.

Clearly, the courts have a considerable amount of freedom to tailor any order very much to your own personal circumstances.

It is very easy to take one element of this area of law out of context, particularly when creating a headline. However, the reality of court decisions are rather more nuanced.

For further advice and information, or if we can be of assistance regarding any other matrimonial or family matter, please contact our family team.
 

Further reading

Ganz v Petronz FZE & Goren – key decisions of the arbitration claim

Blog, Legal Updates
08/04/2024
The recent Judgment in the arbitration claim Mordchai Ganz v (1) Petronz FZE (2) Abraham Goren [2024] EWHC 635 has already received attention from legal pundits.  The DMH Stallard’s legal team (Tim Ashdown, Beatrice Bass and Patrick Murray) acted for the Claimant. DMH Stallard was supported by the legal team of Altshuler Law in Israel which is a collaboration enabled through their membership of LEInternational.
Read more Read

Reversal of changes to High Net Worth Individual and Self-certified Sophisticated Investor criteria implemented

Blog, Legal Updates
18/03/2024
As discussed in our recent update, the government announced in the Budget that the eligibility criteria for the exemptions, which allow shares and other financial instruments to be marketed to High Net Worth Individuals and Self-certified Sophisticated Investors without the regulatory protections
Read more Read

FCA to investigate personal guarantees in small business lending following a super complaint

Blog
12/03/2024
The FSB has raised concerns that the demand for personal guarantees by lenders has a detrimental impact on small businesses accessing borrowing to grow
Read more Read

ECCTA: Fundamental changes for companies and considerations for lenders: Practical points to note

Blog
08/03/2024
Tyne Harman outlines some of the key considerations for lenders and borrowers alike to be aware of.
Read more Read
  • Brighton - Jubilee St

    1 Jubilee Street

    Brighton

    East Sussex

    BN1 1GE

  • Brighton - Old Steine

    47 Old Steine

    Brighton

    East Sussex

    BN1 1NW

  • Gatwick

    Griffin House

    135 High Street

    Crawley

    West Sussex

    RH10 1DQ

  • Guildford

    Wonersh House

    The Guildway

    Old Portsmouth Road

    Guildford

    Surrey

    GU3 1LR

  • Hassocks

    32 Keymer Road

    Hassocks

    West Sussex

    BN6 8AL

  • Horsham

    3rd Floor

    Afon Building

    Worthing Road

    Horsham

    West Sussex

    RH12 1TL

  • London

    6 New Street Square

    New Fetter Lane

    London

    EC4A 3BF

  • Make an enquiry

    Make an enquiry

    Message

    Or head to our Contact us page