Deciding the financial outcome of a matrimonial split
What is taken into account when considering who gets what on divorce? The answer lies in the provisions of Section 25 of the Matrimonial Causes Act 1973. The section provides that it shall be the duty of the court to have regard to all the circumstances of the case, first consideration being given to the welfare of any minor children. It must have particular regard to the following:
• the income, earning capacity, property and other financial resource which each of the parties to the marriage has, or is likely to have, in the foreseeable future. This includes in the case of earning capacity, any increase in that capacity which it would, in the opinion of the court, be reasonable to expect a party to the marriage to take steps to acquire;
• the financial needs, obligations and responsibilities which each of the parties to the marriage has, or is likely to have, in the foreseeable future;
• the standard of living enjoyed by the family before the breakdown of the marriage;
• the age of each party to the marriage and the duration of the marriage;
• any physical or mental disability of either of the parties to the marriage;
• the contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family;
• the conduct of each of the parties, whatever the nature of the conduct and whether it occurred during the marriage or after the separation of the parties or (as the case may be), dissolution or annulment of the marriage, if that conduct is such that it would in the opinion of the court be inequitable to disregard it;
• in the case of proceedings for divorce or nullity of marriage, the value to each of the parties to the marriage of any benefit (for example, a pension) which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring.
The case of White v White provided that there was no room for discrimination towards the homemaker whose contribution should be seen as equivalent to that of the breadwinner. It held that when considering approving an order or imposing a settlement a judge should have in mind “the yardstick of equality” and only depart from equality if there was good reason to do so.
In the cases of Miller & MacFarlane the House of Lords agreed that the objective of fairness would be achieved, beyond consideration for the welfare of the children of the marriage, by reference to the following elements: (1) consideration for the present and foreseeable financial needs of the parties; (2) compensation aimed at redressing any significant prospective economic disparity between the parties arising from the way they conducted their marriage; and (3) the principle of 'equal sharing', although it was emphasised that the 'yardstick of equality' was to be applied as an aid and not a rule.
Considering your case against all these provisions and looking to achieve the best settlement for you is our job. So talk to us.