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Share and share alike? Part 1 of 3: what is fair?

When you get divorced, there is inevitably a need to divide the assets that you formerly shared with your partner. Quite rightly, you expect that division to be fair. So will your partner. The tricky part is deciding what ‘fair’ means – by whose measurement is fairness calculated?

What assets might you have? There is likely to be a family or matrimonial home and its contents. There will be personal belongings. There could be financial assets in bank accounts and pension funds, and possibly also other investments. Any or all of these may have been brought to the marriage by one partner or the other. But unless the marriage has been extremely short-lived, most of the assets that you own are likely to have been built up during your time together.

Your idea of ‘fair’ may be coloured by how much you have contributed to those assets. Were you the sole wage-earner? The one who saved and invested? The homemaker, bringing up the children and contributing in ways that cannot be measured financially? The one who inherited the family heirloom?

Your partner’s assessment of the difference between your contribution and theirs may differ; predictably then, their idea of what’s ‘fair’ will not be the same as yours.

So how will a judge determine which is fairest distribution of your assets? The idea that matrimonial assets should be divided equally was introduced by the decision of the House of Lords in White v White [2000] 2 FLR 981 . But the first and over-riding principle will be that of need. What do you need? What does your partner need? If there are any children, what are their needs? How can those needs be met?

Only if there is a surplus to need will the judge take into account the origin and nature of the assets that you own, how they have been used during the marriage, and how long your marriage has lasted. Each case will be considered on its own merits (and I shall look in more detail at the differences between matrimonial property and non-matrimonial property in Parts two and three), but in the words of Lord Justice Ward, “Weighing the various factors and striking the balance of fairness is, after all, an art not a science”.

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