Divorce is a challenging time for couples, and one of the most complex aspects is the division of assets.
This process can either leave both parties satisfied or result in feelings of being shortchanged. To make matters more complicated, each divorce case is unique, with different circumstances and expectations.
When disputes arise, they often end up in court, where a family judge steps in to make the final decision. In this article, we’ll explore how the courts decide on asset division during divorce and shed light on the key factors they consider.
The Court’s Discretion
Family court judges are granted broad discretion when it comes to splitting assets during divorce proceedings.
This discretion exists because divorcing couples often have contrasting views on what constitutes a fair division of assets.
Since every case is distinctive, determining who gets what can be particularly challenging. Nonetheless, there’s a general process that the courts follow to decide on asset division.
Step #1: Assessing All Circumstances
The court begins by evaluating all the circumstances surrounding the case. They also take into account the factors outlined in section 25 of the Matrimonial Causes Act 1973, a crucial piece of legislation that governs financial settlements following divorce. The parties would have to file a Form E which gives the court details of all of their income, assets and liabilities. This is a lengthy document which must be completed carefully and the supporting evidence such as bank statements must be attached
Step #2: Starting with a 50/50 Split
There is case law which suggests that as a starting point, the court usually considers an equal 50/50 split of matrimonial assets. However, this equal division may not always be deemed fair or appropriate. There are many reasons for this and a solicitor with expertise in this area will be able to explain the circumstances where this may not be appropriate.
Step #3: Departing from Equality:
If a 50/50 split is not in the best interest of fairness, the court has the discretion to deviate from this equal division.
In such cases, the court can issue a different order for asset division based on the specific circumstances and needs of the parties involved.
Key Factors Influencing Asset Division
While the court follows this general process, several factors can significantly impact the judge’s decision. These factors include:
Roles in the Relationship
The court must not discriminate based on the roles played by each party in the relationship. Whether one partner was the primary breadwinner while the other focused on homemaking, both roles should be considered equal by the court.
Dependent Children
If the court’s ruling affects dependent children, their needs will always be the top priority during asset division.
Meeting Both Parties’ Needs
The court aims to meet the housing and income needs of both parties, ensuring that both are adequately provided for.
If available assets can cover these needs with a surplus, the court considers the origin of certain assets when making the division.
Matrimonial and Non-Matrimonial Assets
The court sometimes distinguishes between matrimonial assets (acquired jointly during marriage) and non-matrimonial assets (acquired outside of the marriage, such as gifts or inheritances).
If unequal contributions to the matrimonial assets occurred before marriage, the court may take this into account, although it’s relatively rare.
Clean Break Order
In cases where a clean break is feasible, the court is obliged to consider it. However, if one party still has unmet needs, the court may issue a Spousal Maintenance Order for a fixed or, in rare cases, an indefinite period.
Spousal Maintenance can be subject to change based on future circumstances and does not affect child maintenance.
How can we help
Dividing assets during divorce is a complex process that requires careful consideration of various factors.
With the right legal support, you can turn to Fountain Solicitors, the leading family law experts with offices across the United Kingdom.
With our commitment to fairness and transparency, we’re here to ensure you receive the best advice and support. Don’t face this challenging process alone—reach out to Fountain Solicitors today.
Call us at 01922 645 429 or use our contact form to get the guidance you need.
