Historically, the courts have tended to leave the business owner with the business, and compensate the other spouse with a larger share of the assets and/or maintenance.
Very often, this coincided with what the couple themselves wanted – particularly the business owner.
The difficulty of this approach is knowing whether or not it is fair – it is difficult to value businesses, and they may or may not do well in the future.
More recently, since the case of Wells v Wells in 2002, the courts have been more alive to sharing risk:
- why should one person have all the business risk, and the other keep more of the property and liquid capital – which is not so risky;
- why should one person have assets which are easy to sell and liquid, and the other person have a business which is difficult to sell?
With this new approach, the courts are more willing to share the ownership of businesses after divorce – provided this is not a recipe for conflict. Much depends on all the other factors within the marriage and within the business itself.