An ode to typical people
‘We got married last year. After less than a year it is over. My husband promised to look after me when we married. I had and still have nothing. I could be homeless and I‘m terrified.’
Legal framework
As solicitors, our jobs at the coalface involve interpreting statute and judge made law. We then apply that to the circumstances of your case and explain it to you when you come in to see us.
We dig a bit deeper to get the overall picture of what assets are in your marriage. Money (capital assets, pensions, income) and children.
Then we apply those legal principles, try to find a solution for you, and wrap it up legally, without you having to step one foot in court. That is what solicitors worth their salt do their best to achieve for you.
Those judge made laws though are usually only handed down by very senior judges from the High Court and above who are expected to grapple with arguments and decisions that only the rich can afford to pursue.
Those decisions, which either confirm existing law or create precedent are then interpreted by us to apply to everyday cases that come through our doors throughout the year.
Recent caselaw
Recently though, (May 2020), a decision by a district judge in a provincial family court was published which mercifully addresses how the law should address the needs of most everyday clients that we humble solicitors see, get to know, and help as much as we are able.
This involved Mr & Mrs D. Married 10 months to one year at best. No dependants. Husband (H) was then 49, Wife (W) 51.
Background
You see the parties knew each other going back many years. H was stable, had a decent pension pot and a house net value of £530k. H got back in touch with W after various respective failed relationships and marriages elsewhere and told her he would look after her. She owned nothing. They got married, shouted at each other a lot and it all ended within a year.
Regardless, the court knew its objective. To achieve a fair outcome. Fairness between H and W to allow them both to move on differs in the circumstances of each case. ‘Fairness. Like beauty, lies in the eye of the beholder.’
Fairness and need
One of the most significant barometers for fairness applied is the law of need. What are your needs? In everyday cases, these are highly likely to prioritise housing. As a soon to be retiree? Primary carer of children? Limited income? Each case is different with different priorities that need to be applied when respective needs are assessed from the family dynamic.
Needs outweigh how property is acquired in the marriage or outside the marriage if one party’s needs cannot otherwise be met, because to say otherwise is discriminatory.
No definition of need is offered by the court here. It cannot be. Need is subjective. It depends on what the court considers reasonable need, taking into account the circumstances of your case.
This was, by any definition, a short marriage. However, what distinguished this case from, say, a healthier young couple without children and with their whole lives ahead of them, was the reasonable needs based on respective age and life circumstances.
Contributions
Neither could realistically achieve a hefty mortgage. W had basic work experience and mental health issues. H had all of the assets brought to the marriage and could comfortably rehouse. W had nothing and was offered a derisory amount to rent. No security, you see. Her aftercare was considered a justifiable need.
Length of marriage
There was no pre marriage cohabitation, which otherwise should be applied as an ‘add-on’ period to the marriage term. The marriage only lasted eight months. No children under eighteen.
These facts together with H’s contributions rendered this as a case where there should be a departure from equality. However, to ignore W’s ongoing needs would be discriminatory and unfair, which meant that H’s contributions must satisfy W’s reasonable needs that otherwise could not be met.
Conduct
Conduct was considered. W, regarding her personal conduct against H and H, against W for her litigation conduct by taking her claim to a final hearing that was argued had no merit.
Neither of these worked. W’s behaviour in the marriage did not warrant what would be required as ‘gross and obvious’ and her claim for housing had merit.
Clean break?
Courts are mandated to consider a clean break between H and W, and whether that preferred outcome for all concerned can be achieved or not, i.e., whether some ongoing obligation is required to meet the needs of the other, for example spousal maintenance for a given transitional period. Court discretion applies but hard evidence of financial need must be provided to the court if judicial discretion is to be exercised to cater for need.
Outcome
The upshot? Family home sold, £110k to W to re-house and £21k spousal maintenance to get her back on her feet, spread over two years. Balance to H and he kept his pension.
Elsewhere, you hear these horror stories. “I got shafted for over a hundred grand and we were only married for eight months.”
Harsh? You decide. But I recommend you get advice from us first.
Moral of the story
Life is tough and to meet it head on, we all have our needs. So do you.
Let’s do a deal.
For new clients, we are pleased to offer a free 30-minute consultation on all Family Law matters, including divorce and matrimonial finances. Whether you’re facing a difficult divorce or need guidance on asset division, our experienced team is here to help you understand your rights and navigate the legal process with confidence.
Contact us today to book your free consultation and get the expert advice you need.