Have you missed out on a financial settlement on divorce?

missed financial settlement on divorce
Image by alex_barnes04 from Pixabay
Jane Tenquist
Partner and Head of the Family Law Team
Myerson Solicitors

Many people do not pursue their financial claims following a marriage breakdown because they feel ashamed or guilty about their behaviour.

Others do not resolve financial matters due to the volatility in temper of the party who has been left behind. They believe that, in time, the spouse who they have left behind will “forgive” them and that it may be easier to resolve matters financially further down the line.

Unfortunately, this can often turn out to be a false assumption. Continuing to pay household bills and maintenance can lead to a precedent being fixed that this level of financial support will continue into the long term.

It can be quite common that one party may feel a huge sense of guilt if they have left their spouse or civil partner.

The marriage may have broken down due to:

  • One party announcing they are homosexual.
  • One party wishing to undergo gender reassignment surgery.
  • One party committing adultery.
  • One party having relationships with prostitutes and watching pornographic material.
  • One party leaving the other due to the other party’s inability to have children.
  • One party leaving the other due to the other party’s sickness.
  • Addiction issues.

People often assume that there will be a financial impact if one party has had an affair or left the marriage but, this will rarely make any difference to the overall division of assets.

The family court is not concerned about why the marriage ended. The court’s aim is to distribute the available assets fairly between the parties.

The starting point for the court is the checklist set out in Section 25 of the Matrimonial Causes Act 1975, otherwise known as the section 25 factors which are:

  • The income, earning capacity, property, and other financial resources which each party has or is likely to have in the future.
  • The financial needs and responsibilities that each of the parties to the marriage has or is likely to have in the future.
  • The standard of living enjoyed by the family before separation
  • Any physical or mental disability of the parties.
  • The age of the parties and the length of the marriage.
  • The contributions made by each party to the welfare of the family (which means the contributions made towards looking after the home and the children are regarded as equal to the contributions made by the “breadwinner” of the family).
  • The conduct of each of the parties, if inequitable to disregard.
  • The value to each party to the marriage of any benefit which by reason of the divorce a party will lose the chance of acquiring.

It can be tempting for parties to want to list the details of each other’s bad behaviour, but it is rarely the case that conduct will be relevant in financial order proceedings. Although conduct is one of the section 25 factors, it will only be considered in very exceptional circumstances.

In the case of OG v AG, Mr Justice Mostyn said ‘times have changed, the financial remedy court is no longer a court of morals. Conduct should be taken into account not only where it is inequitable to disregard but only where its impact is financially measurable. It is unprincipled for the court to stick a finger in the air and arbitrarily to fine a party for what it regards as immoral conduct.’

If you have divorced but not sorted out the financial arrangements, then it is still possible to make a claim, provided that you have not remarried. Remarriage prevents a party from making a claim for spousal maintenance, a lump sum or property adjustment order.

There is no time limit for making a claim. If you are concerned that you have walked away from your marriage or civil partnership without a fair financial settlement, then please get in touch with a member of the family team.

About Jane Tenquist

Jane Tenquist is a Partner and Head of the Family Law Team at Myerson Solicitors.  She set up the Family department at Myerson in September 2012.

Jane’s work focus is in matrimonial finance, particularly involving complex issues relating to trusts and offshore assets.  Jane has enjoyed success in tracing hidden assets and obtaining freezing orders to prevent assets being diverted during matrimonial proceedings.

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