Jeetesh Patel, a partner at Hodge Jones & Allen, is normally asked this question straight away. Unfortunately a definite answer cannot be given without receiving detailed financial information from both parties to a marriage. The courts approach in England and Wales is to divide the assets in a marriage on the basis of “fairness” and “reasonableness”. These can come across as woolly phrases to a client, writes Patel.
It is important to understand from the outset that parties to a divorce cannot oust the jurisdiction of the court in financial matters even if they reach terms of settlement between them. It is the court that decides if terms of settlement are “fair” and “reasonable”.
In deciding if a settlement is “fair” and “reasonable” the court adopts a number of factors that are set out at section 25 of the Matrimonial Causes Act 1973. This is known as the section 25 checklist. Even if a settlement is reached by alternative dispute resolution methods the factors set out in this checklist will underpin any negotiations.
The court must have regard to ‘all the circumstances of the case’. This means that the court must look at all of the relevant issues in every case. The court must give first consideration to the welfare of children of the family who have not attained the age of 18. In practical terms, that often means a settlement that is “fair” and “reasonable” will be one that meets the housing and income needs of the children of the divorcing family.
In addition, the court must consider the following factors. They are not set out in any particular order. However, subject to the unique facts of the divorcing family some of the factors may be given more weight than others. The factors are:
In order to achieve a divorce settlement the divorcing family should bear in mind the following: