Dividing assets on divorce – a review

One of the most difficult aspects of divorce for couples, aside from the emotional challenges, is the division of assets. 

It’s an intense process, beginning with each person disclosing financial information that paints an accurate picture of the things they own individually and jointly. Sometimes they’re able to agree between themselves how to deal with the family home, cash in the bank, investments, pensions, ongoing maintenance. Quite often, mediation offers a helpful way through. In other situations (and as a last resort), the court will be asked to get involved.

The law around the division of assets has come in for criticism. Established 50 years ago, The Matrimonial Causes Act 1973 (and the subsequent Civil Partnership Act 2004) is said to be outdated. It has also led to a situation in which it can be difficult to predict an outcome for clients because Judges interpret the law in their own ways. This discretion means that there’s a great deal of uncertainty around who is entitled to what. It can lead to couples turning to the courts when greater clarity in the law might have enabled them to avoid litigation altogether.

The law is set to be reviewed, with the Law Commission planning to focus on:

• ‘The discretionary powers given to Judges over the division of financial assets and whether there is a need for a clear set of principles, enshrined in law, to give more certainty to divorcing couples.

• Whether there should be wider powers given to the courts to make orders for children over the age of eighteen.

• How maintenance payments for an ex-spouse or civil partner should work.

• What consideration the courts should give to the behaviour of separating parties when making financial remedy orders.

• Orders relating to pensions and whether they are overlooked when dividing the divorcing parties’ assets.

• The structure of the system for making regular financial payments from one person to another after divorce.

• The factors Judges must consider when deciding which, if any, financial remedy orders to make.’

As family lawyers, we welcome a potential review and hope it leads to a clearer picture for couples embarking on divorce. Removing as much uncertainty from the process as possible has to be a good thing for all and while an element of judicial discretion is needed, a clearer picture of likely outcomes will bring significant benefits.

To speak to us about the financial aspects of divorce, or divorce more generally, contact us on 01264 353411 or at family@bsandi.co.uk.