We are separating. If we cannot agree the arrangements for the division of financial assets, how will the court decide?
The head of the family law team analyses the current considerations when the court is required to look at the division of financial assets in the event of divorce or dissolution of civil partnership.
If a court is asked to resolve the division of your financial assets, the judge will decide what the fairest way to divide things up is. If you have children then the childrens’ interests come first, such as their housing needs. The judge has the ability to be completely discretionary, but in doing so has to consider certain statutory considerations:
- How much income you have, or can earn
- The property you each have, or may have in the foreseeable future
- Your financial needs and responsibilities you have now, or in the foreseeable future
- Your ages and length of the marriage
- The standard of living that you had during the marriage
- Any physical or mental disability of you, or any child
- Any contribution that you have made, or will be making to the welfare of the family
- Any extreme behaviour, only in exceptional circumstances
- The value of any loss that will be incurred as a result of the divorce or dissolution
- Additionally, the court has a yardstick to apply, such that the starting point is to try to equalise the division of assets built up together during the relationship. Yet a 50:50 is not the usual outcome. This is because the housing needs for the children or many other reasons may justify a departure from that ratio, and quite often there is simply not enough to go around.
Sometimes, it is possible that the person who is the main carer for the children will remain in the house until the children have grown up, and delay the division of your share till then, and this would achieve fairness.
A judge is always required to consider whether a financial clean break should be achieved now, or at a defined point in time in future. A clean break means the dismissal of financial claims between you.
This may be possible if you do not have children, but it is unlikely where there are children, because the person with the higher income may need to pay the other some financial provision each month to expenditure, for example where the person has a reduced earning capacity whilst they care for the children.
All of these factors, together with the discretionary role of the judge, means that it is important for you to get advice on your specific circumstances. There are usually various possible solutions to achieve the best possible outcome for you.
Please contact our team of specialist family law solicitors, to discuss this issue, or any other issue of family law or relationship breakdown.