Clients frequently say to me that they just want what they are entitled to – and therein lies the problem. As the law currently stands, there is no such thing as strict entitlement in family law and no legal adviser can tell you exactly what the outcome of an application for financial remedies, within divorce proceedings, will be.
Instead, the Judge must act fairly between the parties and take account of the checklist of factors set out in Section 25 of the Matrimonial Causes Act 1973. These are as follows:-
the income, earning capacity, property and other financial resources of each of the parties;
the financial needs, obligations and responsibilities of each party;
the standard of living enjoyed by the family before the breakdown of the marriage;
the age of the parties and the length of the marriage;
the contributions of each party (both financial and other contributions, such as caring for children);
any benefits that will be lost by a party as a result of the divorce;
The Judge must also take into consideration the principles which have been established through previously decided cases (known as precedents). The two main principles are “equality/sharing” and “need”. The principle of equality/sharing means that in the vast majority of marriages which have lasted for more than around five years, or any marriage where there are children, the starting point will be an equal division of the matrimonial assets. The principle of need means that in cases where a party (particularly a party who has the care of minor children) is able to demonstrate that half of the matrimonial assets will not be sufficient to meet their reasonable needs and/or the needs of the minor children, that party may be able to persuade the Court that they should receive more than half of the matrimonial assets.
Aside from this, the Judge has a very wide discretion as to the orders s/he deems to be appropriate.
An experienced solicitor will be able to give their client a good idea of the range of likely outcomes of an application but will not be able to give their client a definitive answer as to outcome.
This uncertainty causes difficulties for clients and lawyers alike. Clients are not able to plan for their future with any sense of security and lawyers are not able to meet their clients’ expectations with regard to clear and firm advice.
There are calls from many quarters, including Resolution (the leading organisation of family law solicitors in England and Wales) for the law to be made more clear.
If you would like further guidance regarding property and financial settlements upon divorce, it is recommended that you contact Head of Family Law, Joanna Toloczko at Meaby&Co for timely advice: firstname.lastname@example.org or call 0207 703 5034.
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