What will I stand to get out of the matrimonial assets?

With the United Kingdom on the cusp of a cost-of-living crisis and inflation at record highs, divorcing couples will likely face concerns now more than ever as to how finances are to be treated upon divorce. The biggest question on the minds of divorcing couples is often, ‘what will I stand to get out of the matrimonial assets?’ Here, Aaron Williams looks at what the court considers when looking at how to divide assets on divorce and how they aim to meet the ‘needs’ of each party involved.

So, what does the Court consider when looking at how to divide assets on divorce?

As with many things, there is no one size fits all answer to separating matrimonial assets. The principal aim of the court is to ensure that there is ‘fairness’. Unfortunately, fairness has a broad horizon in the context of family law, and it is largely left to the discretion of the judge as to the outcome of the matter.

The court has a duty to consider all circumstances of a case, this is done so using the principal piece of legislation in divorce; that of the Matrimonial Causes Act 1973, in particular the factors listed in section 25(2)(a) – (h) which can be found here: – https://www.legislation.gov.uk/ukpga/1973/18/section/25

The phrase ‘needs trumps all’ is often cited when assets are limited assets in matrimonial finance cases. The starting point in any matrimonial finance case is to consider an equal division of what has been built up by the parties during the marriage; however, an equal division of assets is not always appropriate in every case to achieve fairness.

So where does that leave separating couples? Well matters largely come down to the circumstances of the parties, the standard of living and the resources available to meet needs. What was enough to meet the needs of one household may not necessarily be enough to meet two.

When settling the matrimonial assets, there is no discrimination between separating couples regarding their respective roles in the relationship. For example, where one party has typically taken the breadwinner role, whilst the other party is the home maker, their roles are to be regarded as equal irrespective of what they have contributed financially.

So, how does the court implement section 25 of the matrimonial causes act?

When assessing how to separate who should have what proportion of the assets of the marriage, the first consideration of the court is that of the needs of any children.

The court then look to meeting the needs of both parties, principally looking to ensure that each person’s housing needs, and income needs are met.

Looking at the matter holistically the court will principally consider the financial needs, obligations, and responsibilities which each of the parties to the marriage have or is likely to have in the foreseeable future (s.25(2)(b) MCA 1973). The court will look at the general resources of the parties and will broadly separate the needs of parties into capital needs and income needs. Capital needs, is often that of significant single capital outlays, purchasing a property, furnishings, replacement car etc. Income needs is that of the day-to-day costs that parties require on a monthly basis to live.

When trying to determine whether the parties have the means to meet these needs, the court will consider 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. Commonly referred to as the financial disclosure process, the parties are expected to provide ‘full and frank’ financial disclosure. This includes determining through the assistance of expert evidence or agreeing by consent, the value of any assets owned by the parties, including property, businesses, trust assets, chattels, and pensions. The court will also need to ascertain the parties’ respective incomes, whether they have to capacity to increase their income, receive a bonus etc. The process ultimately aims to ensure that no stone is left unturned.

With all this in consideration the court has a great deal of flexibility to in their approach to financial settlement, which in turn allows the court to ensure (as far as possible) that an outcome reached is fair to both parties, and that neither party nor dependent children are left in need. However, this level of flexibility also carries its own disadvantages as it can be difficult for parties to envisage how a judge may determine the respective parties’ needs.

If you are affected by any of the issues raised here, please get in touch today. We are here to help.

After we’ve divorced, who gets the dog?

From puppies to parakeets, cats to chameleons and everything in between; we are a nation of animal lovers and often the family pet is a valued and beloved member of that family. But what happens to your pets after divorce? Here, Brigid O’Malley looks at PetNups and what the court could decide.

PDSA’s 2022 findings show that 52% of UK adults own a pet. There is an estimated population of 10.2 million pet dogs and 11.1 million pet cats[1] in the UK! So, what happens when your relationship or marriage breaks down… who gets the dog?

Despite millions of us owning pets and them likely being an extremely loved and important part of the family, a pet, in the eyes of the law in England and Wales, is treated in the same way as your jewellery, TV, car and sofas! They are personal belongings – “Chattels”.

This can be a really difficult issue to advise about as animals are a significant part of family life and today’s society. They are often adored by adults and children making disputes over their ownership a sensitive subject.

We can’t agree who keeps the pets – what do we do?

Like with other issues following your separation it is sensible to try and agree with your ex-partner who keeps specific items, pets included. This can, of course, be hard and at times confrontational, but at the end of the day if an agreement can be reached between you it will likely save you the stress, time and legal costs later down the line.

If you can’t agree between yourselves then you could attend mediation to engage in discussions with your ex-partner in a safe and controlled environment, with a qualified mediator to assist you.

Court proceedings are a last resort, but they remain an option. If an agreement cannot be reached it is possible to make a court application for financial remedy as part of your divorce. The Court will consider a set of factors (from s25 of the Matrimonial Causes Act 1973) to determine a fair division of matrimonial assets. The Court can be requested to determine ownership of pets within that but, in practice, this is rare unless the animal has a high monetary valuable such as a thoroughbred racehorse or a pedigree Crufts prize winning dog. Of course, if your pets are very valuable then their value may be considered in the asset pot for division.

The Court can order the transfer of ownership of a pet as part of the proceedings, even if they have no monetary value. The close bond between the parties, any children and their pet would be relevant if the Court was invited to determine the issue of ownership.

If you are not married, then it is likely the pet(s) will stay with whoever is the registered legal owner but it may be possible to make an application to determine ownership through the Small Claims Court – this would be a civil dispute rather than a family one.

When makings its decision, the Court is likely to consider factors such as who is the registered legal owner, who is named on the insurance policy, who is registered with the vet and who generally pays for the care of the animal. Courts in other countries are moving towards an approach where the animal’s welfare is at the heart of the decision making. The Courts in England & Wales may take this into account, but the best interest of the pet is not the primary factor here, the animal is treated as a chattel.

I’ve heard of a “PetNup” – Can I get one of those?

A “PetNup” is an agreement regarding the ownership of a pet and can detail who the pet will live with if the relationship breaks down. It can also cover things like who will pay the costs associated with the animal such as vets’ bills and insurance premiums. A PetNup is not legally binding in the Courts of England and Wales but its contents, if well drafted, carefully considered and entered into without duress could carry significant weight if there was a dispute later down the line.

It would be sensible to consider entering into a prenuptial agreement prior to marriage or a cohabitation agreement when you move in with someone to ensure the ownership of your pets has been discussed and agreed in the event of the relationship coming to an end. A prenuptial agreement or cohabitation agreement can also set out the arrangements for the family finances and child arrangements so it can be a really useful document.

If you are facing a dispute about your cherished pet and want some advice, then contact our team of family experts who can advise you further.

[1] https://www.pdsa.org.uk/what-we-do/pdsa-animal-wellbeing-report/uk-pet-populations-of-dogs-cats-and-rabbits#:~:text=Our%202022%20findings%20showed%20that,of%2010.2%20million%20pet%20dogs