Legal Principles
The court has a great deal of discretion when deciding how assets, income and pensions should be divided after a 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.
It must then consider:
- Ages of the parties
- Any physical or mental disabilities of either person
- Conduct of each person, which it would be unfair to ignore
- Contributions that each person made or is likely to make in the foreseeable future to the welfare of the family, including looking after the home and caring for the family
- Financial needs, obligations and responsibilities now and in the foreseeable future
- Income, earning capacity, property and financial resources both now and in the foreseeable future
- Length of the marriage
- Standard of living enjoyed before the breakdown of the relationship
- Value of any benefit that may be lost on the dissolution of the marriage
The ultimate objective of the court is to achieve an outcome that is ‘fair’.
In most cases, the ‘sharing principal’ is applied and the assets are divided equally between both 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.
Assets like inheritances, trusts, windfalls, family businesses and assets acquired before the marriage, may be exempt from the sharing exercise. The court also has a duty to consider whether a ‘clean break’ is appropriate, to sever, once and for all, the parties’ financial responsibilities towards one another.
 | Richard Barge Partner & Head of Family Law |
 | Lorraine Saunders Family Law Partner |