Who gets what in a divorce settlement?

who gets what in a divorce
Nigel Winter
Nigel C Winter
DMH Stallard

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.

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Nigel C Winter is a partner in the Family Department of DMH Stallard solicitors, based in London and the South East of England. He has been practicing family law for over two decades, is a collaborative lawyer and a regular contributor to a wide variety of publications on Divorce and Family Law.

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