Family Law Myths – Asset Division

Last month we discussed some of the myths when it comes to getting a divorce. 

If you’re about to begin with the divorce process and find yourself wondering whether you’re going to be able to keep the Aston Martin, you’ll want to read on. 

Distribution of financial assets during a divorce can feel like a bit of a minefield.

Here’s some of the most commonly asked questions on the subject demystified:

Q. Although I have divorced him on the no-fault basis, the real reason was his behaviour/adultery. Will the court give me more of the assets?

The reason why the marriage broke down is usually irrelevant to how much each side receives. The court is not interested in punishing either party in the divorce, it’s concerned with finding a fair solution that meets people’s needs. 

Q.  I contributed to my pensions while I was working so it isn’t part of the matrimonial assets

When the court considers pensions on the breakdown of a marriage, they try to equalise the pension contributions. 

Often the husband will have the larger pension because the wife may not have worked during the course of the marriage to care for the children. Or the wife may have worked part-time, so her pension would not be as much the husband’s.

The court considers the wife’s contribution to the family and children of the relationship equal to the financial contributions traditionally made by the husband.

Q.  I was the main bread winner. Why shouldn’t I get the lion’s share of the marital assets? I earned them! 

As mentioned, the court’s position on financial contributions to the marital pot during the course of the marriage is that the wife’s contribution to the family and children is equal to the husband’s financial contribution to the family. 

Therefore, any assets which were built up during the course of the marriage, whether in one party’s name or the other, should form part of the marital estate and be taken into consideration during financial settlement on divorce.

Q. My wife is going to get everything

Men often believe that women get everything. Often I hear men complaining that their wife got everything and I have to gently point out that while the wife might have got more, the husband also received a fair share.

It is fair to say that women often receive more of the assets than the man and that it is rare for a woman to be ordered to pay spousal maintenance to a husband. However, that probably is just a reflection of the world in which we live. Even now, men tend to earn more than women and children tend to stay with their mothers when their parent’s divorce. As a result, women tend to have a greater need for a larger share of the assets and for maintenance.

However, it is a very rare case where a husband receives nothing. A careful balancing exercise between meeting both parties and the children’s needs has to be carried out.

Q. If you get divorced you are automatically entitled to half of all the matrimonial assets (assets which have been accrued during the marriage)

Although a 50/50 split is often the starting point when considering how the matrimonial assets should be divided, there is no hard and fast rule.

There are many factors which are taken into consideration which include: the length of the marriage; each party’s needs; the contributions made by each party, each party’s earning capacity and who will have care of the children.

It is therefore possible for either party of the marriage to argue for a higher than 50% share.

Q. If I transfer assets to a third party the Court will ignore them

This is not the case and the Court can either make an order for these to be transferred back to the spouse or ‘add them back in’ to the pot so that any order reflects the fact that the transferor of that asset has already had that money.

The transfers are likely to become common knowledge as both parties will have to provide the other with full disclosure of their financial documentation, which includes bank statements, and solicitors will pick up on unusual transactions in this documentation.

The Court is likely to take a dim view of a party that has tried to conceal assets.

Q. Business assets are not taken into account by the Court

The Court will consider the value of business assets in the same way they consider other assets i.e. savings, investments, property pensions and income.

Q. Mediation is all about saving the marriage

Don’t confuse mediation with marriage guidance counselling. The purpose of mediation is not to save your marriage, it’s to provide you with a means of finding a solution to your dispute. 

Most people who mediate their disputes have come to the conclusion (or soon will) that their marriage is over. The whole point of mediation is that it helps a couple resolve their differences with the minimum of discord, and one advantage of mediation is that it prevents the relationship from being damaged any further. This can be valuable because you may need to maintain the ability to work together for years to come if you have children. Couples sometimes do reconcile during the mediation process, but that is not its primary purpose.

Q. Lawyers always want to go to court

Court is necessary in some cases if agreement cannot be reached or if one side is not prepared to co-operate.

However, only a minority of cases lead to actual court applications, and usually only a tiny number of those cases go all the way to a contested trial as the court process encourages the parties to negotiate.

Most cases are sorted out by negotiations between solicitors, most of whom are members of Resolution and abide by its Code of Practice which encourages them to adopt a non-confrontational approach.

Mediation is increasingly common and provides an ideal method of dispute resolution for some people.

We hope you found this helpful!

Next month we’ll explore some of the questions often asked about parental responsibility in divorce, division of assets when it comes to cohabitation and the value of pre-nups.