Unfortunately, it is soon getting to the time of year when relationships become strained and as soon as the Christmas festivities are over and we enter a new year, couples make the difficult decision to divorce.
This means that we have an increase in enquiries for advice on splitting the marital assets. It is important to therefore remember some basics of financial remedy in divorce and negotiations.
Overriding Objective
The family procedure rules set out all expectations for both parties to follow when navigating through divorce and Rule 1.1 provides:
1.1
(1) These rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly,having regard to any welfare issues involved.
(2) Dealing with a case justly includes, so far as is practicable –
(a) ensuring that it is dealt with expeditiously and fairly;
(b) dealing with the case in ways which are proportionate to the nature, importance and complexity of the issues;
(c) ensuring that the parties are on an equal footing;
(d) saving expense; and
(e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.
It is expected by the Court that the parties ensure that they remain amicable, fair, and attempt to settle the split on an equal footing. The starting point for discussions would then be expected to be 50/50 split depending on the circumstances.
Variation from equal split
As mentioned above, it is usually the starting point of any discussions in financial remedy in a divorce to be sharing the assets equally. There are some circumstances where this may not be appropriate, such as children living with one party predominantly and needing the marital home to be retained for the sake of the children.
Another example is the issues around need and if there is a party which has a greater financial need than another. It could be due to disability or standard over years and an ability to work which differs from the other party. If a case goes from being a standard case to fairly split the marital assets to a ‘needs’ case, then this will usually trump all other arguments in the eyes of the Judge.
If there are no grounds to steer away from equal split, then a Judge will just have to consider property, savings, pensions, investments, business and other assets such as cars etc, and identify a way to split the assets fairly and equally.
Cost and proportionality
Throughout proceedings, the parties must always consider the cost of proceedings when engaging solicitors and barristers, against the total marital pool. Judges will expect the cost to be proportionate and will not shy away from giving the parties and legal representatives a ‘dressing down’ if the costs are too high.
It is therefore important that parties are mindful of the high costs in engaging solicitors to act on their behalf and if they can avoid this by attending mediation. An example is a recent case which saw the parties being in a messy divorce and incurring costs so high that it outweighed the asset pool, and in turn meant that they had to get a loan to pay all costs, leaving them with nothing – the Judge in that case was appalled that it had got so high.
Final note
It is crucial that the parties try and think of the bigger picture and if there are children involved, consider where they would rather the money going from the marital assets… to the children or paying legal fees.
If you wish to discuss this article or need further advice, please do not hesitate to call the office and ask for me.
