Key legal considerations
Having embarked on the journey that will hopefully allow you to move on independently from your marriage, the range of key legal principles that we consider are summarised below, and also in the next article (Part 3), to help you navigate your own direction of travel during the divorce process that leads you to consider how to divide your assets between you.
Objective of the law
To achieve an outcome which ought to be as fair as possible in all the circumstances.
Discrimination is forbidden
There is no place for discrimination between married couples and their respective roles. The traditional model of one breadwinner and one primary carer of the children are deemed to be of equal value to the marriage.
Children
In an evaluation of respective needs and fairness between you, the relevant statutory law is considered, namely s.25 of the Matrimonial Causes Act 1973, and to have regard to the s25 criteria. The first consideration is given to any child of the family.
Calculation of assets
There is a two-stage approach here, when determining how the financial value of the marriage is to be addressed;
- Calculating the value of the capital, respective incomes and pension values first, and then;
- how distribution is to be considered and agreed or at the last resort, determined by a judge in court.
Principles used when considering distribution of assets
The three essential principles at play are;
- Needs first, then
- ‘compensation’ and
- ‘sharing’ from the surplus.
In the vast majority of cases that we deal with for you, the enquiry will begin and end with your respective needs. It is only in those cases where there is a surplus of assets over needs that the sharing principle is engaged.
‘Compensation’ cases are very rare indeed. They might apply when, for example, it is suggested that one of you have lost out on a lucrative career as a result of the marriage. Very difficult to prove of course, and one that the law approaches with extreme caution when determining fairness.
So, in reality, we are looking at ‘needs’ first, then ‘sharing’ the surplus if there is any, ordinarily reserved for higher value matrimonial assets where the financial requirement for needs are met, and then there is some left.
Needs will of course be where the enquiry will be focussed.
When we consider your needs, what is required is consideration of your ongoing financial needs, obligations and responsibilities.
The next article addresses the remainder of the specific key legal considerations of what we are talking about in this article and can be found next to this on the website.
To talk with us, you can take advantage of our free initial half hour consultations with one of our experts here, completely confidential of course, and with no obligation to us. We’re just here to help.
If you found this helpful, read Part 3 here for more information.