So, how does the court determine how to divide the family assets between a divorcing couple?
Well, a starting point is the checklist of factors laid down by s.25 of the Matrimonial Causes Act 1973.
Section 25 MCA 1973 directs the Court, in particular, to have regard to the following matters when dealing with an application for financial remedy (ancillary relief) for a party to the marriage:-
- The income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future, including 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, 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 which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring (e.g. a right to your husband’s pensions).
It is, however, a dangerous checklist to a degree, and should not be literally interpreted. There are thousands of case decisions which have interpreted the words of the checklist, given guidance on how the checklist should be applied, and set out new considerations not envisaged by the original list, to the extent that when an application is made to Court there can be no guaranteed outcome.
At best, a lawyer will only be able to give you an estimate of what may be the outcome. If there was a simple formula then the Appeal Courts would have nothing to do. There is no such formula, and the Appeal Courts are plenty busy! Each case turns on it’s own facts, and the best outcome in the eyes of one judge may be different from that of another. But that does not stop people from seeking to resolve their affairs, and the criteria are a useful reminder of the issues which should be considered when determining what is a fair and proper outcome for all. The case decisions set out guidelines which themselves should be “applied”, and which are aimed at assisting the Courts, or those negotiating, be it through mediation, collaborative practice, or in the pub to measure whether the proposals of each party are close to what is a fair outcome, or way off line. Ultimately, the aim is to achieve what is fair and reasonable in all of the circumstances. Sadly, what that means can be, in itself, something of a contentious issue…