I am normally asked this question straight away. Unfortunately a definite answer cannot be given without receiving detailed financial information from both parties to a marriage. The courts approach in England and Wales is to divide the assets in a marriage on the basis of “fairness” and “reasonableness”. These can come across as woolly phrases to a client.
It is important to understand from the outset that parties to a divorce cannot oust the jurisdiction of the court in financial matters even if they reach terms of settlement between them. It is the court that decides if terms of settlement are “fair” and “reasonable”.
In deciding if a settlement is “fair” and “reasonable” the court adopts a number of factors that are set out at section 25 of the Matrimonial Causes Act 1973. This is known as the section 25 checklist. Even if a settlement is reached by alternative dispute resolution methods the factors set out in this checklist will underpin any negotiations.
The section 25 checklist
The court must have regard to ‘all the circumstances of the case’. This means that the court must look at all of the relevant issues in every case. The court must give first consideration to the welfare of children of the family who have not attained the age of 18. In practical terms, that often means a settlement that is “fair” and “reasonable” will be one that meets the housing and income needs of the children of the divorcing family.
In addition, the court must consider the following factors. They are not set out in any particular order. However, subject to the unique facts of the divorcing family some of the factors may be given more weight than others. The factors are:
- The income, earning capacity, property and other financial resources that each of the parties has or is likely to have in the foreseeable future, including in the case of earning capacity any increase in that capacity that it would, in the opinion of the court, be reasonable to expect a party to take steps to acquire.
- The financial needs, obligations and responsibilities that each of the parties 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 and the duration of the marriage.
- Any physical or mental disability of either of the parties.
- The contributions that 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, if that conduct is such that it would in the opinion of the court be inequitable to disregard it.
- The value to each of the parties of any benefit that, by reason of the divorce, that party will lose the chance of acquiring.
This to consider in a divorce settlement
In order to achieve a divorce settlement the divorcing family should bear in mind the following:
- Both parties are under a duty to provide full and frank financial disclosure of their financial positions.
- Using the section 25 checklist, most divorce settlements will be decided or negotiated on a needs basis and given the uniqueness of the divorcing family some of the factors in the checklist may not apply. The court will have to divide what is financially available to meet the needs of both of the parties. This is the starting point and this is extremely difficult in those cases where what is available financially is limited.
If you would like to get advice it is always best to seek this as early as possible. There is no commitment to start any process but just to make sure you understand the options available to you. You can contact one of our family solicitors on 0808 252 5231 or request that someone calls you back with our online form.