The English Courts’ Approach to Financial Issues on Divorce or Civil Partnership Dissolution

On divorce or same-sex civil partnership dissolution there are no rules in English law that proscribe a mathematical formula on how to divide assets or how much maintenance a spouse or civil partner has to pay to the other. The court has a discretion on what to do, but it is guided by a number of factors:

It has to give first consideration to the welfare of any children under 18.
It has to consider all the circumstances of the case.
It has to look at whether a clean break without ongoing maintenance would be appropriate.
The outcome should be fair and in a lot of cases this means equality

The law sets out a list of items that the court needs to take into account as part of all the circumstances of the case. These are just examples and this is not a complete list:

financial means
financial needs
standard of living
ages of the parties and duration of the marriage or civil partnership
disability
contributions
gross and obvious misconduct
pensions

Financial means

This includes the income, earning capacity, property and other financial resources which each spouse or civil partner has or is likely to have in the foreseeable future including, in the case of earning capacity, any reasonable possible increase in it. So it is no good to say for someone that they do not work and earn money if there is no reason why they should not do so.

Financial needs

Financial needs include obligations and responsibilities which each spouse or civil partner has or is likely to have in the foreseeable future.

Standard of living

This means the standard of living enjoyed by the family before the breakdown of the marriage or civil partnership. So the budget for food, holidays and leisure activities in cases where maintenance is payable will vary depending on the standard of living previously enjoyed.

Ages of the parties and Duration of the Marriage or Civil Partnership

The court takes into account the ages of each spouse or civil partner. Younger people are more able to build up their own career and pension provision than older people.

The duration of the marriage or civil partnership is also relevant. In most cases, if the marriage or civil partnership has been long, the court tends to look less on what the parties contributed or what the situation was at the day of the wedding or civil partnership registration and more towards an equal division of assets.

Since same-sex couples have only been able to register a civil partnership since 2005, but may have been living together for many years or decades before that, it is not entirely clear how the court would regard the length of such a civil partnership as compared to case law of short and long marriages. The case law about married couples who cohabited for a long time before they got married indicates that the court would probably take into account the long cohabitation and put as much weight on this as if the couple has been married or civil partners for the entire period.

Disability

Under this heading the court considers any physical or mental disability of each spouse or civil partner.

Contributions

The court will consider such contribution which each spouse or civil partner has made or is likely to make in the foreseeable future to the welfare of the family, including any contribution by looking after the home or caring for the family. This interrelates with the duration of the marriage or civil partnership. For example the court will not put much weight on who paid the deposit to the house of £1,000 in 1978 after 30 years of marriage when the couple brought up two children, went through career development and a change of jobs.

Conduct

This can only be taken into account if “it would in the opinion of the court be inequitable to disregard.” It is rare that a court puts great weight on this unless it is gross and obvious misconduct, mostly of a financial nature, such as siphoning off of funds on a large scale, or financial deception, especially in the course of the financial negotiation and proceedings in connection with the divorce or civil partnership dissolution. An “affair” is not conduct.

Pensions

The court will consider dependants’ pensions which stop on divorce or the dissolution of a civil partnership.

Both spouses or civil partners must provide full disclosure of their financial position so that a proper financial arrangement can be made.

Both spouses or civil partners should obtain independent advice from a specialist English family solicitor to ensure that they know where the court order may lie in their case. Even if the parties have reached an agreement, they should discuss this with a family lawyer to ensure that there are no pitfalls, such as that one party takes on a tax liability that will only become apparent at a later stage.

Even if an agreement is reached, the court should approve the agreement in the form of a consent order so that there can be no come-back if one party changes their mind or circumstances change. There is no provision in English law for binding pre-nuptial agreements, pre-registration agreements or separation agreements between parties and although courts will put greater or lesser weight on an agreement that the parties have reached depending on the circumstances, it is still better to ask the court to approve a consent order.

For orders the court can make, please see Financial Orders on Divorce and Civil Partnership Dissolution.

For advice on your specific circumstances contact Andrea Woelke at Alternative Family Law: ring or email us.

April 2009

Alternative Family Law

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