Settling financial and property matters if you are married.

The law is dynamic and the impact of case law constantly refines legal interpretation of the Statute.

Each party to a marriage may claim:

• Maintenance during the divorce;
• Maintenance post divorce;
• A share in capital and property;
• A share in pensions.

When considering such claims a judge must consider the following:

• In long marriages, he/she must consider whether equal shares of capital, property and pensions are likely to present the fairest outcome.
• Where there are children he/she must always have due regard to the financial and other needs of the children and must be guided by those when making his award.

Subject to those above two caveats the law requires the judge to consider: 

• Each party’s needs (including the needs of children and their primary carer)
• Each party’s capacity to meet their needs from their own resources
• The length of the marriage and ages of the parties
• The standard of living enjoyed during the marriage
• The contributions made by each party
• Conduct
• What a party will lose as a result of the marriage break up
• Any other factor which would be inequitable to disregard.

For most couples, the judge’s thinking and decision making are likely to focus on what each party needs and what their personal capacities are for meeting those needs.  Based on that the judge can then assess what contribution the other party should make towards meeting the needs of their former spouse.

So far as the length of the marriage is concerned, the longer the marriage the more likely the court is to award:

• Equal shares in capital and pensions
• Spousal maintenance.

The courts generally assume that each party has made equal contributions to the marriage although, particularly in the case of inheritance, a judge may ring-fence or partly ring-fence some capital or pension so that it is not treated as a matrimonial asset in quite the same way as a matrimonial home or funds in a bank account might be regarded.  For example, assets or pensions acquired before marriage may also be distributed differently.

It is very rare for a court to consider misconduct when assessing the financial issues.  Misconduct which is of a financial nature - where one party has completed depleted matrimonial assets, has injured the other party so that he or she is unable to work or there is other conduct of a gross nature is likely to be taken into account but otherwise a court will generally avoid quantifying the impact of misconduct in financial terms.

Spousal Maintenance

Maintenance tends to be the most difficult issue to quantify. There is no rule about the amount of maintenance which should be paid and the court does not use the 50% starting point which it uses for capital and pensions. Judges have discretion and some Judges will attach more weight to certain factors than others. Depending on the individual facts of the case, Judges may interpret matters differently from case to case. This is why instructing a local solicitor who is familiar with the views of the local Judges can be important.

Child maintenance

The courts no longer (generally) deal with child maintenance. There are some exceptions to this rule. Generally, the parent who has day to day care of the children (or the parent who receives the Child Benefit) may apply to the Child Maintenance Service “CMS” (previously Child Support Agency) for maintenance payments.

The amount of maintenance payable depends on various elements such as the gross weekly income of the parent who must pay maintenance and the number of children.

There are five rates of maintenance. Which rate you have to pay depends on your circumstances. You can use the Gov.uk online calculator to work out the amount of child maintenance for your children.

Inheritance

When determining a claim the Courts will deal with the issue of a spouse or former spouse’s potential claims for a share in the Estate of a spouse or former spouse who passes away.