Separating couples face the unenviable task of working out what assets they have and how these will be divided. This is no easy task. Where the court is charged with making the decision, the Parties must make a full disclosure to each other of their finances and assets. The assets may include any of the following:
- Savings and investments
- Pensions
- Property (jointly or individually owned and including the family home)
- Business interests (stocks and shares or equity)
Consideration needs to be given to your current and future needs and you can use professionals for neutral support to help you decide how everything will be divided. If you cannot decide, you will need to apply for a Financial Remedy Order and the Court will review and decide. If you have reached an agreement, you may also need to seek a Financial Remedy Order which is a Consent Order and is enforceable by the Court, although it is not obligatory.
Does the Court divide our assets on an equal 50/50 basis?
The court usually takes the view that an equal split is best practice where both Parties are catered for and a 50/50 split works for them. However, there may be a reason to depart from this general principle, such as where some of the assets were inherited or they fall outside the bounds of the marriage or civil partnership. In addition, one party may need more financial support to bring up the children.
If the source of income for either or both parties is a business, the Court may take the value of the business and future earning potential into consideration too.
Factors such as a jointly owned family home and mortgage will be reviewed. Parties have options to deal with dividing the family home such as selling it, keeping it, transferring ownership etc.. You might need specialist advice as to your specific options and the Court may direct that you seek this advice ahead of the Hearing and as part of your preparation.
The Court will consider basic principles to help it determine how to divide assets, such as:
- The welfare of any children involved
- Earning capacity
- Standard of Living
- Your ages
- Length of your marriage or civil partnership
- Any specific needs for your health or living arrangements
The Courts will refer to the principles recently emphasised in Miller v Miller: McFarlane v McFarlane [2006] UKHL 24 which was a dual hearing of two different applications in the House of Lords. Miller v Miller was a short marriage and McFarlane was a 16-year marriage. Both matters concerned the accumulation of wealth during their relationship and the division of the assets to cater for current and future needs. The decision for these cases highlights the scope and range of outcomes that a Court can apply such as lump sum payments and periodical payments which enable them to deal with the wider considerations of the parties current and future needs.
If you need assistance with any of the above issues or require support with your Financial Remedy Proceedings, please contact Sima directly by calling 02073531746 or via email: clerks@simanajma.com.