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What factors will the Courts consider when dividing Matrimonial Assets?


When divorcing your spouse, the finances will also need to be considered and an agreement reached.

The matrimonial assets will be considered by solicitors or the courts when resolving the finances. It is therefore important to know about matrimonial assets before looking at the factors considered when dividing them.

So, what are matrimonial assets?

Matrimonial assets are assets that have been acquired during the marriage and include assets such as the family marital home, pensions and savings. It does not matter who brings them into the marriage, these assets will be seen as being held jointly, by both parties to the marriage.

The law surrounding matrimonial assets

The Courts have a wide discretion when considering assets. The current law is found at Section 25 of the Matrimonial Causes Act 1973, which sets out the factors the courts will consider when dividing matrimonial assets and what orders can be made by the courts.

Section 25 Factors

These are:

(a)   the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future, including in the case of earning capacity any increase in that capacity which it would in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire;

(b)   the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;

(c)   the standard of living enjoyed by the family before the breakdown of the marriage;

(d)   the age of each party to the marriage and the duration of the marriage;

(e)   any physical or mental disability of either of the parties to the marriage;

(f)   the contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family;

(g)   the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it;

The Welfare of the Children

The courts will have regards to all of the circumstances of the case, but the first consideration will be the welfare of any children under the age of 18. Their bests interests will be paramount when considering the distribution of matrimonial assets. The main aim will be to ensure the children are provided with a home.  The court will then consider the factors found at Section 25 of the Matrimonial Causes Act 1973.

(a)   Income, earning capacity and assets

The parties will need to disclose financial evidence on each other so the court and the parties can consider the total assets before deciding what is a fair and reasonable distribution. Future earning capacity will be taken into consideration as well as current income.

(b)   The parties’ financial needs, obligations and responsibilities

The needs of both parties will be taken into consideration and this includes both income and capital needs including rehousing needs. The main carer of the children will be taken into consideration as well as mortgage capacity and the cost of alternative housing.

(c)   Standard of living before breakdown of the marriage

The standard of living the parties enjoyed before the breakdown of the marriage is a factor taken into account when deciding what financial order should be made by the Court. This is usually done by balancing the needs of the parties including children against the available assets.

It is not guaranteed that the parties will enjoy the same standard of living that they would have enjoyed had they still been married. Usually there is not enough assets for this to be achievable.

(d)   Duration of the marriage and the age of each party

When considering the duration of the marriage the Courts usually include cohabitation before the marriage as a starting point.

For a long marriage, usually 15 years or more the courts will normally split the assets 50/50 unless some of the other factors in Section 25 are important to ensure fairness.

For a short marriage, the aim is usually to put parties back into the position they were in prior to the marriage.

Age is also important when dividing the matrimonial assets as age can affect pensions upon retirement, future income and mortgage capacity.

(e)   Physical or mental disability of either party

The physical or mental disability of a party to the marriage will be a significant factor when deciding how the marital assets are divided. Evidence from a medical expert will usually be required.

(f)   Parties contributions

The contributions to the marriage that are taken into consideration are not just financial contributions. They can be non-financial contributions for example, if a party to the marriage carried out works on their property which enhanced the value of the property. The contributions to the care of the family are just as important. For example, where one party has looked after the children during the marriage whilst the other party has worked. The financial and care contributions are treated as equal contributions.

(g)   Conduct

Conduct will be considered but only if the conduct is so serious that it would create unfairness if it was disregarded. The type of conduct taken into consideration is usually in relation to financial misconduct such as gambling or concealing assets.  The court would consider adding back to the marital assets any money or assets as if that party to the marriage still had them.

Orders that can be made by the Court

The court has the power to make various orders when considering the finances in financial proceedings either by a consent order agreed by the parties or by the Court’s making the decision.

These include;

  1. Lump sum orders – a lump sum payment from one party of the marriage to the other.
  2. Sale or transfer of property – the court can order the sale of a property with sale proceeds to be divided a certain way or order for one party to transfer their share of the property to the other party.
  3. Orders in relation to pension sharing – where one party shares a percentage of all their pension with the other party.
  4. Spousal maintenance – where one party pays the other party maintenance, usually for a fixed period. This is less usual as a clean break is more appropriate for most parties.

If you require legal assistance with your finances on the breakdown of your marriage, then Andrew Isaacs Law are here to help. Please contact us by email family@andrewisaacs.co.uk or telephone 01302 349 480.

Nicola Magrath    Family Law Solicitor 23.02.2022


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