If you look at the finances section of divorce.co.uk we set out details of the factors the family courts take into account when deciding on the appropriate division of assets on divorce. If you are going through a separation and divorce, it would be dangerous to assume that a court will automatically order that you divide your assets equally with your husband/ wife. The family courts in England and Wales are proud of their ability to look at the specific facts and provide what are sometimes described as “bespoke” solutions for separating couples, rather than having a fixed/rigid formula – to continue the tailoring analogy, one size does not necessarily fit all.
Take for example a situation in which all that a couple have is a council house and a car. If the couple agree that, say, the mother should retain the car as she needs it to transport the children to school on a day to day basis, she would be keeping 100% of the assets. Would it be fair to either of the couple to be forced to sell the car and split the assets, simply to achieve an automatic 50/50 split?
Looking at the other end of the spectrum, take the example of a pop star getting divorced with a fortune of say £400m, but with most of the wealth having been built up prior to the (4 year) marriage. Would it be fair for the wife in that situation automatically to be entitled to 50% of the husband’s wealth?
So in most case fairness (and the approach of the family courts to this concept) has less to do with percentages than one might think.
This was reiterated again by the Court of Appeal in the recent case of B v B (Ancillary Relief) [2008] EWCA CIV 543. This is a case in which a rich heiress had married a penniless Kosovan who was significantly younger than her. The marriage lasted for 12 years and they had a child. At the outset, they lived off the wife’s money but then the wife set the husband up in a car wash business. By the time the parties separated and the matter came before the court, their assets were £1.37M.
The Court of Appeal reiterated the general principle that the aim is to achieve fairness between the parties, and the way the assets are distributed has to have regard to the parties’ needs (for income and accommodation), together with the concepts of compensation and sharing. In this case, the Court of Appeal felt that the fact that the wife had brought all the assets into the marriage from her inheritance was a good reason for there not to be a 50/50 split of the assets. Fairness did not therefore mean that the pot should be split equally.
So whilst the layman may think that a 50/50 split of their assets in the event of a divorce would be a fair outcome, and the family courts talk more and more about the objective of fairness and starting point of equal division of assets, the reality is that in most cases, the family courts find reasons to move away from a 50/50 division of the assets. Equal division is a cross-check against the outcome, but it cannot be a constraint. This may be because one person needs more of the assets to be able to look after the children appropriately, or, as in the case of B v B, because one of the parties brought the vast majority of assets into the marriage.
Caitlin Jenkins