It is important to remember that court proceedings are one of several options when deciding the “forum” to be used to reach a financial settlement, and other options including voluntary discussions via solicitors, mediation, arbitration and the collaborative process (ie round table meetings with your spouse and your respective solicitors) should be considered before an application is made to the court. Regardless of the forum used, it is sensible to use the likely outcome at court as a “benchmark”.
In reaching a decision, the court is obliged to take into account “all the circumstances of the case” and the first consideration must be given to the needs of any children of the family. The court will also take the following factors into account:
- The income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future
- The financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future
- The standard of living enjoyed by the family before the breakdown of the marriage
- The age of each party to the marriage and the duration of the marriage
- Any physical or mental disability of either of the parties to the marriage
- The contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contributions by looking after the home or caring for the family
- The conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it
- The value to each of the parties to the marriage of any benefit which, by reason of the divorce, that party will lose the chance of acquiring
Each of the above factors are considered equally important by the court, but the court will endeavour to ensure that each parties’ needs (ie housing and income) are met.
In some cases, there are surplus assets and income to meet the parties’ needs, and the court will then need to consider whether it is appropriate to equally share the “fruits of the marriage” (bearing in mind the factors above). In some cases, parties have successfully argued that they should receive “compensation” over and above an amount required to meet their needs, in respect of, for example, giving up a well-paid job in order to raise children.
If you wish to discuss your financial entitlement on divorce, please contact Karen Pritchard or any member of our Family Team on 01279 755777.