The answer to this question is often ‘with great difficulty’. However it does not have to be difficult but it is often a very complex task made more difficult by several factors such as the amount of wealth, high, medium or low, the complexity of the marital assets and by the respective positions adopted by the divorcing couple as to how their assets are to be shared.
In matters where the Court is asked to decide the division of assets between divorcing couples, a complicating factor is the wide discretion that a Judge has in deciding the extent of the division. ‘Marital assets’ are the property that has been built up during the marriage and have been described as being ‘the financial product of the parties’ common endeavour’. More often than not the assets are the former matrimonial home and pensions, however they can also include more complex assets such as business interests and family trusts.
The starting point for dividing marital assets in divorce is one of equality. However the division of marital assets is often different in each case because it is specific to the individuals circumstances and depends on the needs of the parties and any children of the marriage. When considering and dividing marital assets it is possible that one spouse will receive a greater share.
Section 25 of the Matrimonial Courses Act 1973 provides the framework which the Courts of England and Wales apply when deciding financial claims involving property, savings, pensions and maintenance. It should be noted that section 25 also provides that ‘it shall be the duty of the Court in deciding how to exercise its powers to have regard to all the circumstances of the case with the first consideration being given to the welfare and needs of the dependent children’. It therefore follows that the presence of minor and dependant children in a marriage will influence how the Court exercises its discretion on the division of assets. This does not mean however, that the needs of the non resident parent will be ignored.
In dividing assets, the Court will have regard to the following s.25 ‘factors’:
In the event that divorcing spouses are unable to agree a division of their assets between them then the Court has the power to make a number of different orders:
In situations where divorcing couples are unable to agree the division of their marital assets either between themselves, through mediation or via Solicitor negotiations, the last resort will be to make an application to the Court for financial remedy. Whilst Court is often classed as the last resort it should not be viewed as a hostile tactic. Often in these situations parties could have been separated for a considerable period of time and the process of trying to agree a division of their assets has taken many months. It can often be the case that making an application to the Court is actually beneficial because it provides them with a timetable for concluding the matter and focuses minds on their being an end point to their divorce. Furthermore, making an application to the Court does not mean that the parties hand over control to the Court. In actual fact the parties retain complete control up to the second hearing in the process and the Court will actively encourage both spouses to try to reach agreement. The Court does not want to impose a decision on spouses dividing their assets unless it is asked to or there is no prospect whatsoever of the parties reaching agreement.
Due to the complexity and importance of dividing marital assets it is vital that you obtain expert legal advice. For more information or general Family Law advice please contact our award winning Family Law team on 0345 20 73 72 8 or firstname.lastname@example.org.
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