Is it always 50/50 when a marriage breaks down ?

Often the most pressing concern for anyone embarking upon divorce proceedings is what the financial impact will be of the separation and divorce.  The family finances can often become an extremely divisive issue, which can take its toll on the separating couple.

Unfortunately, there is no standardised way to work out easily how the assets of the marriage should be divided. The current matrimonial legislation in England & Wales operates on a discretionary basis with the primary focus of the court being upon ensuring that the needs of the parties are met.

This means that each case is different as all of the circumstances and differentials of each case need to be considered on a case by case basis and on their own merits.

That being said, the starting point is equality and it is for each of the parties to the marriage to, if appropriate, put forward their case as to why there should be a departure from equality.

In some cases an equal division of the assets will be appropriate and in others it will not.

How is this achieved?

The court is seeking to achieve an outcome which is fair and this may result in one of the parties being awarded a greater share than the other.

In order for the legal representatives of the parties and the court to achieve an outcome that is fair, it is important that both parties have entered into full and frank disclosure of the financial assets and resources.

Transparency as to each other’s financial needs and commitments can assist greatly when negotiating a division of the matrimonial assets.

What factors can affect the division?

The court will consider the following when applying their wide discretion to the division of the matrimonial assets:

• The welfare of any children of the family
• The available capital , income and other resources of each of the parties
• The parties financial needs and obligations
• The age of the parties and the length of the marriage
• Any physical or mental disability of either party
• The contributions made by each party to the welfare of the family, this can include looking after the home or caring for the family

Every marriage is different and as such every matrimonial financial settlement is also different.

How can we help?

It is extremely important to ensure that you take legal advice regarding the financial matters relating to your divorce to ensure that you are advised and assisted in achieving a fair outcome.

In circumstances where you have reached an agreement directly with your estranged spouse, it is highly recommended that you still seek legal advice on a potential financial agreement. The agreement should then be incorporated into a consent order for approval by the court to make it legally binding and enforceable. Legal advice prior to presenting it to the court can ensure that it is both fair and likely to be approved by the court.

At Browell Smith & Co we aim to provide clear and tailored advice and assistance in respect of your specific family circumstances. Our family law solicitors are highly experienced in this area and able to advise and assist you in negotiating and/or making an application and representing you in the Family Court should it become necessary.