Wilsons Solicitors

How is the money of the married parties split up on a divorce? By of course money, we also mean the house, the shares, the savings accounts, the pension funds, the yacht, the private jet and all the rest of it.

Fundamentally, the way it works is this: The only rule about splitting up the money after a divorce is that there are no rules. If you cannot agree, the judge decides how he wants to split things up. Its all up to him.

(Strictly speaking the legislation says the judge does not have a completely free hand but has to take account of certain things, but the last of these is along the lines of 'anything else', which more or less takes away the point of having this list in the first place).

The judge needs to know first of all precisely what there is, and sometimes there can be arguments about this, if one or other of the parties is alleging that the other is hiding assets, for example. Also, if either party believes that the other party has either deliberately disposed of or is hiding or about to dispose of assets, specifically to try and avoid a court order, then there are actions that can be taken to deal with that situation.

But once a judge has decided he knows what there is, it's then his job to split it between the parties in the way that he thinks is best. There are no rules of law written down anywhere that say how he has got to do this. It is fundamentally down to his discretion, but good lawyers who have experience in this field do tend to know what it is that judges tend to look for and tend to do in situations that come before them.

For this reason it is possible to predict what a judge might do in any given situation, and it's that sort of experience which makes lawyers worth consulting.

Judges can make various orders splitting up the assets of the parties, ordering maintenance to be paid, and lump sums, and pensions and houses to be split and such like. There are also legal provisions for some of these orders to be varied from time to time in appropriate circumstances.

In deciding what to do judges are required to try to achieve what has become to be known as a clean break, i.e. that neither party has any continuing obligations towards the other by way of maintenance, etc. They split up the dosh once and for all and that's that.

In trying to achieve this they have to have regard to all the circumstances of the case, but put the needs of any children first. So the Judge will take into account the financial resources of the spouses, their needs (now and for the future), the standard of living that they enjoyed during the marriage, their age, how long the marriage has lasted, any disability or health problems of either party to the marriage, and any losses that either of the spouses might have incurred as a result of the divorce (which usually means a reduction in pension rights in most cases).

The judges are also not generally supposed to take into account the conduct of the parties. Conduct, good bad or indifferent is not something that normally has a high priority in splitting up the marital assets, even if it is extreme, and if it isn't extreme it will probably be ignored altogether. The idea behind this rule is that divorcing parties will quite naturally feel aggrieved at each other, but that it is not for the court system to throw petrol on the flames, as it were.

That's all well and good of course, but many people argue that the court system is there to provide vindication for people and to champion the right and condemn the wrong.

In any event, nobody really wants to go to court to sort out who gets what out of the family assets, not least because if they do so, chances are the lawyers will get a huge chunk of it, rather than anybody in the marriage. So it's always a good idea to try and agree these things if you possibly can, through your legal representatives, and provided that full disclosure of all financial matters is given in the course of those negotiations, so that no wool is pulled over anybody's eyes.

When a conclusion is reached to the money issues, either by a judgment by a judge or by agreement, a judge will make an order to that effect. That order cannot come into effect until decree absolute, although most of these arguments usually take until after then anyway, so that is not usually a problem. If there is a more urgent need for financial assistance by either party to the other, there are some interim financial orders that can be applied for.

For unmarried parties the approach is very different to the one adopted in divorce. Fundamentally property that is owned by two or more people is treated exactly the same way irrespective of whether or not those people happen to have a sexual or emotional relationship. In the eyes of the law if they are not married then they are treated just the same whether they are co-habitants or business people. What the court looks for is what the proper property rights of the parties are in relation to the house or whatever it is and very little other than that. The wider entitlement that the court has in divorce proceedings to alter the legal rights of the parties rather than just enforce them does not exist outside divorce proceedings. The court's only function in these circumstances is to hear the evidence and decide who owns what and then make sure that they get it. The wider considerations that come in in divorce proceedings simply do not apply and if the Judge happens to think that the result that he has reached is unfair it does not matter, that result still stands anyway.

Whether married or un-married, divorcing or not, it is always better to try and agree a financial split rather than have to go to court and get a Judge to make an Order about it. If you do reach an agreement then it is important that it be put in writing and that that be properly legally drafted so that there can be no possible ambiguity.

Also, if you are married or in the process of getting divorced, the law says any such agreement will be in principle not binding on either party unless it has been approved by a Judge, so a lawyer can assist you in reaching the agreement in the first place and then getting the Judge's approval to the agreement.