The division of assets accrued in a marriage is a matter that, not surprisingly, comes up time and again in divorce proceedings. Here at rhw it is usually one of the first questions the family team get asked when we receive a new enquiry. Should one party or the other have rights to a larger division of the assets?  In the past the main ‘breadwinner’ (of which there tended to be one obvious candidate, normally the husband) was usually favoured in this regard. Obviously, times and attitudes have thankfully changed.

These days, the view tends to be that marriage is a joint venture between equals. The non-financial contribution of the ‘homemaker’, if that’s not an out of date expression, is considered to be equal to the contribution of the ‘breadwinner’. This is because without the ‘homemakers’ contribution the individual who goes out and earns the money would not be able to do so. It is, of course, increasingly likely for the main earner in a relationship to be the wife. There are also same sex marriages where similar discussions over contributions to the marriage are likely to occur.

When it comes down to an assessment of the actual financial value of the assets accrued in a marriage, there is often a large discrepancy between the actual value of assets contributed by each party (apart from marriages of very short duration). This is putting aside the wider ‘contribution’ to the marriage from the different roles that both sides have taken on.

What becomes obvious to anyone involved in the process of assessing what is ‘fair’ in the distribution of assets, is that ‘fairness’ is an arbitrary term. What one side considers to be fair can be viewed by others as outrageously unfair. You may be asking where does that leave the legal process in regard to making a reasonable judgment on all of this?

The Courts have the benefits of basing their decisions on the clear guidance provided in the Matrimonial Causes Act 1973, Section 25. Here the priorities for how assets should be distributed are laid out with regard to such factors as the needs of children involved (including disabilities etc), 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 living standards enjoyed before the divorce, age of those involved, the length of the marriage and the contributions made and likely to be made moving forward. There are many other factors that are too lengthy to list here.

This all helps the Court overcome the challenges faced where even reasonable couples can have widely different assessments of what ‘fair’ means. Some people will always view their ‘breadwinning’ activities as far more important to the success of a relationship then that contributed by those who stay at home and some will view it the other way round. The Courts can and will run a line through all of this by the use of the section 25 criteria if a simple solution that pleases both sides can’t be found independently.

Elizabeth Leah – rhw Solicitors llp 

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