The division of assets in divorce proceedings
Headline cases over the last several years have caused ripples within the legal system and, to some, even waves. Jonathan Harvey sets out below some of the main points a Court will consider when deciding on the division of assets following a marriage breakdown.
Statute sets out a list of factors - the Court considers these first when deciding how the assets should be divided. The usual first consideration is securing where possible suitable accommodation for the children with the parent with whom they will live in the future. The points made below can then be considered, where relevant, if there is more than enough for distribution having first considered these basic factors.
Principles of fairness - these apply whatever the extent of the assets available for a distribution, large or small. However, fairness does not necessarily mean equality which is more likely where there is sufficient capital and income to meet both of the party's needs. If equality is not followed, the Court should state why this is.
Arguments against equality - a husband can successfully argue that his contribution to the marriage by building up a very successful business means that he can have a greater share to take into account an "exceptional" contribution. This may not happen as often as might at first be thought to be the case.
The wife's role - if this is predominantly the bringing up of children and looking after the family home, this contribution to the marriage can be equal even to a successful business built up by the husband.
Assets of a more usual size- rather than give, usually, a husband the smaller balance remaining after the wife has enough to secure suitable housing for herself and their children, it may be possible to argue that the husband's share could be wholly or partially deferred. This could mean that he receives a total share nearer to one half of the assets by the time the children have grown up and do not need a home.