Key legal considerations
Assets of the marriage and assets that are independent of the marriage.
Independent assets may be, for example, an inheritance that has been kept in one account and not mixed into the marriage assets. Additionally, another property held in your sole name only and acquired outside of the marriage.
You are, at first glance, ordinarily entitled to an equal division of the marital assets. That is the starting point, depending on respective needs that might exceed the net effect of equal distribution.
Non-marital assets (independent of the marriage) are, as a starting point, to be retained by the owner, unless there is a good reason to suggest otherwise.
In day to day practice, needs will generally be the only justification for a spouse pursuing a claim against non-marital assets.
The standard of living enjoyed by the family before the breakdown of the marriage
Lifestyle (i.e. “standard of living”), particularly after a longer marriage, that you had together should be reflected, as far as possible, in the sort of level of income and housing each of you should have as a single person afterwards.
So too it is generally accepted in family law that it is not appropriate for the divorce to result in a sudden and dramatic disparity between you in your respective lifestyles, but instead setting needs at a level as close as possible to the standard of living which you enjoyed during the marriage.
Age and health
Your respective ages and your health are also particularly relevant to factor into negotiations and determine respective needs and overall fairness.
Cohabitation before marriage
Where a relationship moves seamlessly from cohabitation to marriage without any major alteration in the way you live, it is wrong to treat the periods differently. Therefore your relationship length up to separation is the key driver determining the length of the marriage, to include the period of cohabitation.
On the other hand, if it is found that the cohabitation was on the basis of a trial period to see if there was any basis for later marriage then it would not necessarily be the Case that it would not be right to include it as part of the ‘duration of the marriage’
However, the facts in your individual case will speak for themselves. All our individual relationships are varied and complex; they do not easily lend themselves to pigeon holing.
The essential inquiry is whether the premarital relationship is of such a nature as to be treated as the same as the marriage.
Clean Break
Rather than one of you continuing to rely on the other, for example for spousal maintenance payments, there is an approach by the law to encourage a clean break between you, so that, where at all possible, you can each draw a line and move on.
So there you have it. These are the considerations that we face every day. That is why, when you are navigating matrimonial financial relief, it will always pay to have your friend-in-law by your side.
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.