The court has a great deal of discretion and flexibility when deciding on the appropriate division of assets, income and pensions upon divorce or the dissolution of a civil partnership.
The law states that the court must have regard to all the circumstances of the case, giving first consideration to the welfare of any child under the age of 18. The court must then consider the following:-
- the income, earning capacity, property and financial resources which the parties have now and could have in the foreseeable future;
- the financial needs, obligations and responsibilities of both of parties now and in the foreseeable future;
- the length of the marriage;
- the standard of living enjoyed by the parties prior to breakdown of the relationship;
- the ages of the parties;
- any physical or mental disabilities of either party;
- the contributions which each party has made or is likely to make in the foreseeable future to the welfare of the family including a contribution to looking after the home and caring for the family;
- the conduct of each of the parties, which it would, in the opinion of the court, be inequitable to disregard;
- the value of any benefit that a party may lose on the dissolution of the marriage;
The ultimate objective of the court is to achieve an outcome that is “fair” in all the circumstances of the case.
In most cases, the “sharing principal” is applied where assets are divided equally between the parties. That is unless there are justifiable reasons why there should be a departure from equality, such as the “need” of one party over the other.
There is also a duty upon the court to consider the appropriateness of a clean break, the object of which is to sever, once and for all, the parties’ financial responsibilities towards one another.
When dealing with such assets as inheritances, trusts, windfalls, family businesses and assets acquired before the marriage, special consideration needs to be given as these assets may be exempt from the sharing exercise.
