Division of Assets in Divorce – what do the Courts look at?

In the event that you and your spouse are unable to agree on the way in which your marital assets should be split upon divorce, it might be necessary for the family court to intervene.

The outcome of such cases is often uncertain. This is mainly due to the fact that the law allows the Court a wide discretion when deciding such matters.

Judges are largely guided by a number of principles enshrined in legislation and previous cases.

If your family unit involves dependent children, the court MUST give them first consideration when considering how best to deal with the assets. This often results in a situation where the parent who has the main responsibility for caring for the children will retain the family home. Alternatively, they may be awarded a larger share of the asset ‘pot’ so that the children can be accommodated post-separation.

The court will always look to divide the assets fairly between you but this does not necessarily mean an equal split. Each of your current and future needs will be carefully scrutinised. e.g. if one party suffers from ill health which will impact on their future earning capacity, the court might decide to accommodate that person’s needs which may well result in an unequal division.

That said, once full consideration has been given to the individual circumstances of your case, the court will aim to divide the marital assets equally, if at all possible.

Section 25 of the Matrimonial Causes Act 1973 provides a short list of factors that the court may take into account when considering your case. These apply to both you and your spouse and include:

1) your income(s), earning capacity and possible future foreseeable financial resources
2) your financial needs, obligations and responsibilities
3) the standard of living enjoyed by your family before separation
4) your age(s) and the length of your marriage
5) any physical or mental disabilities
6) contributions you have made or are likely to make in the foreseeable future towards the welfare of the family
7) your financial conduct such as a gambling habit or excessive spending.

This is not by any means an exclusive list, and the factors are not listed in any number of priority. The Family Court is able to exercise its discretion when giving weight to each consideration and indeed can chose to disregard some factors entirely. The key element that the Court will have in mind when reaching a decision about your case is fairness. The Judge will need to be satisfied that, having had regard to all the circumstances of your case, the Order they make in relation to your finances is a fair one.

Individuals are often dissatisfied with the outcome of their case if matters proceed to a final hearing and the Judge is left with sole discretion as to how your assets are to be split.

It is therefore in all parties interests to try and agree on how the marital assets are best divided. The alternative involves a large element of uncertainty which inevitably comes at a financial and often emotional cost!

For tailored advice regarding your specific circumstances, please contact our family solicitor, Nia Thomas on 01267 237441.