The sharing principle in divorce financial settlement

8th March 2015 by

 

Whether you ask a divorce solicitor in Brighton, London or anywhere else in England or Wales, you are unlikely to receive an exact answer when you pose the question, “What is a fair financial settlement on divorce?” This is because there is no hard and fast equation for ancillary relief and family courts have discretionary powers to order settlements as they see fit.

Divorce law for financial settlements

English and Welsh family law provides guidelines under Section 25 of the Matrimonial Causes Act 1973 for financial settlements on divorce. The Court, however, has broad powers in divorce and civil-partnership dissolution ancillary relief proceedings and is guided by significant case law.

There are a number of financial orders the Court can make and any ruling will be made only after careful assessment of the financial situation of the individual parties and their dependents. The Court is obliged to consider, first and foremost, the welfare of any children who have yet to reach the age of 18, and any financial settlement will be determined largely with their wellbeing and security in mind.

High-value divorce settlements and White v White

White v White, 2000 was a “big money” divorce settlement, ruled upon in the House of Lords, which set significant precedent for divorce lawyers and family law practitioners.

Lord Nicholls of Birkenhead presiding, with Lord Hoffmann, Lord Cooke of Thorndon, Lord Hope of Craighead and Lord Hutton, ruled that in order to achieve a fair outcome for a divorcing couple, there should be no place for discrimination between husband and wife when assessing their respective roles with regard to division of wealth.  This basically means that, in principal, when a married or civil partnered couple ends their marriage, the split should be 50/50.

They stated that the Court’s aim should be, as far as was reasonably practicable, to achieve a fair result and, when making a ruling on the division of assets, should always do so in the view of equality of the partners.

For example, where a wife has not worked during a marriage, but has looked after the home and children, her contribution should be regarded as equal to the husband or main earner, whether she has been unemployed for a few years or for the duration of the marriage.

Since the ruling on White v White many other judgements, including notably Miller v McFarlane, 2006, have added further guidance for family lawyers and divorce solicitors and are useful in all ancillary relief cases, not just those of high value.

The sharing principle in divorce financial settlements

One of the major principles upon which a court will base its ruling is derived from the concept that when a couple join themselves in marriage, or civil partnership, they agree to share their lives and when the relationship ends, each should receive an equal share of the family’s wealth, unless there is a specific and valid reason why this should not happen.

Yet, this does not always equate to the 50/50 split, as mentioned above. For instance, where a husband has the potential to earn a significant income, and his wife or partner has given up their own career in order to raise children and/or keep a home, the “stay-at-home” spouse will find their potential to earn sufficient income to run a new home, following separation, may have been severely hindered. The financial settlement should reflect this.

The Court’s ultimate aim will be to give the couple an equal start in their independent lives, but when sharing the assets the court will give necessary consideration to what constitutes matrimonial property, i.e that which is acquired during the marriage or civil-partnership, and non-matrimonial property, i.e those assets brought to the marriage, such as inheritances and gifts made during the marriage.

Healys divorce solicitors in Brighton and London can help

Whatever your circumstances, if you are seeking a divorce financial settlement it is likely you will need some help and advice from an experienced family lawyer who can help you understand what assets can be shared between you and your spouse or civil-partner, and what division it would be fair and reasonable to request.

Healys family law team is also experienced in defending financial claims on divorce and will strive to ensure that during all ancillary relief proceedings, our clients’ best interests are robustly upheld.

To find out more about financial settlements on divorce or dissolution of a civil partnership please call our team of divorce solicitors in Brighton or London.

In our Brighton office you can speak directly to Catherine Taylor on 01273 669 124 or e-mail on catherine.taylor@healys.com

For London enquiries please contact Jane Sanders on 020 7822 4107 or email jane.sanders@healys.com