This is the second of our three-part series examining divorce. In this article, the team at Warners looks at the financial implications of getting divorced, and in particular the division of assets and how the circumstances of each particular family are taken into account. You can read the first article in this series here.
It’s important to realise that there is no ‘one-size-fits-all’ solution. When it comes to dealing with matrimonial finances, what is appropriate for one family, may not be for another. A separating family will need to make two households out of one, which is never an easy thing to do. Understanding the application of the law and process behind the division of assets in a divorce can help you to work out what the best option may be for your own unique circumstances.
How are assets divided by the court?
The courts have heard thousands of cases regarding the division of matrimonial finances over the years, and a wealth of case law has been generated setting out how the laws governing the division of assets upon divorce should be applied and interpreted. The family team at Warners can advise you as to what a court might do in your particular case, to guide you to a resolution.
There are three main aspects of the family finances which commonly need to be taken into account: capital (property, savings, shares, etc); income and pensions. Those owned by each spouse will form the “matrimonial pot”. You will need to obtain a sound understanding of what your spouse holds in their name, as well and providing information regarding your own financial situation to your spouse. This is known as disclosure, a process which enables you to be confident that whatever outcome you do finally reach, is fair and reasonable in all the circumstances.
The court will look at what both parties need to be able to rehouse, taking into account their earning capacity, their mortgage capabilities and any other financial resources which are available to the family. Who gets the house in a divorce will depend upon: whether either party can afford to keep it; whether a joint mortgage be transferred into a sole name and; whether the party remaining in the house can raise enough money to effectively buy their spouses share (whatever that share may be). Sometimes there will be no other option but to sell the house and divide the proceeds in some proportion.
In addition, the primary concern of the court is always the welfare of any children concerned. They will need a stable home to live in, and their basic financial needs will need to be met. The court also has a duty to look at whether a “clean” break is achievable, so that each party may move on without being financially connected to the other. Things such as spouses remaining on a joint mortgage or owning property together are generally avoided where possible.
All the unique circumstances of your family will be taken into account, including your ages, the ages of any children, whether there are any physical or mental disabilities, whether you entered into a pre-nuptial agreement, the contributions made by both parties, and whether there has been any inheritances.
Alternative dispute resolutions
At Warners, we understand that getting divorced can be a very difficult time for the entire family and so we encourage alternative dispute resolution (ADR) where appropriate. Attending mediation or having a series of collaborative meetings with your spouse and their lawyer, can provide you with some guidance and advice, but will crucially allow you to continue to speak directly with your spouse to achieve a resolution. This means you both remain in control of the situation and can keep your relationship amicable, providing a faster resolution than making an application to court.
Another alternative is to agree with your spouse that you will exchange voluntary disclosure, allowing both parties to set out their exact financial situations. You can then work with your solicitor to negotiate a settlement without going to court.
Will the reason for the divorce change how our assets are divided?
It is extremely unlikely. Whether the divorce has resulted from adultery or being separated for a long period, the court are unlikely to take this into account when dividing the matrimonial finances. The behaviour of one spouse would have to be so bad that it would be inequitable to disregard it, and most often this test is not satisfied.
With so many factors at play during divorce proceedings, it is imperative to have an experienced lawyer working with you to ensure a smooth process. Contact our family law team today for guidance from an experienced family lawyer.
This article is for general information purposes only and does not constitute legal or professional advice. Please note that the law may have changed since the date this article was published.