I am getting a divorce and earn more than my husband, what can I keep? by Hardeep Dhillon - The Law House Family Law Solicitors, London & Peterborough

I am getting a divorce and earn more than my husband, what can I keep? by Hardeep Dhillon

By in All Blogs, Family Law Category on August 1st, 2016

Whether it’s a man or woman who maintains the position as the breadwinner of the family, the factors to be considered remain the same however those factors can impact the outcome of each case differently.

A lot is said for the lack of uncertainty when it comes to financial settlements; however the fact there is not a formulaic approach allows the parties flexibility to agree a settlement which would provide a fair and reasonable settlement and is tailored for their family situation.

The first consideration is always the needs of any children under the age of 18.  Therefore the key priority shall be to ensure that the children are adequately housed. This can therefore impact who keeps the house and on what terms.

The courts start with the view that there ought to be equal division of the assets however whether this takes place is entirely dependent on what is known as ‘Section 25 factors’ The courts will therefore consider all the circumstances of the case and consider each factor independently.

The parties and court can only divide what the parties have; the court cannot place an onerous burden on a party if the financial recourses do not support the position.  The financial disclosure stage is very important to ensure that all the assets have been accounted for to ascertain what shall be the ‘matrimonial pot’ which shall be considered for division. Consideration of this factor will also impact how the needs shall be met. For example whether a party can afford mortgage repayments or outgoings on a property.

Whilst considering this factor the courts will try to determine what is a matrimonial asset and what is a non matrimonial asset. All the assets will be valued at the date of proceedings.

  • Financial Needs, Obligations & Responsibilities

The matrimonial assets will be first used to meet the needs of the parties. Therefore you will often hear it cited ‘needs trump all other considerations’. In most cases this shall be housing and any surplus assets will be considered in respect of other needs. The manner in which surplus assets are divided will depend upon their origin as to whether they were acquired before or after the marriage, post separation or whether they were a gift/loan or inherited.

  • The standard of living enjoyed by the family before the breakdown of the marriage.

This applies in particular to high value cases where standard of living includes holidays, shopping and various other luxury allowances

Age of each party to the marriage and the duration of the marriage

Consideration of age is crucial to determine parties earning capacity and ability to obtain financial independence.

Duration of marriage is very important to determine to what extent one spouse should be supported by the other. In short marriages (no children) the court will try to return the parties to the financial position as it was at the time of the marriage. However a short marriage with children will be treated completed different. The courts will have regard for any cohabitation prior to the marriage.

  • Any physical or mental disability of either of the parties to the marriage
  • The contributions which each of the parties has made or 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

This factor often causes the most issues in the disclosure stage as parties will have different version of events. If the assets are limited then the case will be determined by needs.  However if there are further assets then contribution will be considered so that fairness can be achieved.

  • Conduct of each of the parties if the conduct is such that in the opinion of the court it would be inequitable to disregard it Conduct t would need to be exceptional to be considered and often relates to litigation conduct or financial conduct where monies have been depleted or hidden.

The courts will look to the future but will also look to the past history and the present financial position of the parties

For each of the factors there is a lot of case law therefore the question as to what can I keep? can only be answered once all the circumstances of your case have been considered.

If you want expert advice when it comes to divorce and what factors will be relevant in your case to determine how the finances may be divided, please contact me, Hardeep Dhillon, at The Law House Solicitors on 020 8899 6620 . Alternatively, please email me at hdhillon@thelawhouse.com