Terry & Co.

Marriage Breakdown - the Various Property Issues Involved

 


 

 

 

 

 


In the event of divorce disputes over matrimonial property can be very bitter and, if there are significant assets involved, it is vitally important to take professional advice. Even if matters can be resolved quite amicably (and that is best if at all possible) it is still sensible to take legal advice before coming to any final agreement because one can only negotiate meaningfully if one knows what one's rights are. It has to be said that many people do not feel that the present rules are fair at all.

 

Basically, when a couple divorce a court can, and very often does, divide up the matrimonial assets, his, hers and theirs, in any way it sees fit. Within the context of a divorce the process of resolving financial issues between the parties (transfers of property, maintenance etc) is referred to as "ancillary relief". Regardless of whose name the property is in a court may order it to be transferred to the other and this applies to all property owned either by husband or wife as well as that which may be owned jointly. The rules for unmarried couples are quite different and it is important to be quite clear about this. It is divorce (or judicial separation) which gives the courts jurisdiction to make these orders and they are not applicable to couples who are not married (whether of different sexes or not). The widespread notion of the "rights" of a "common law wife" is a myth.

 

People also often talk about "pre-nuptial agreements" and presumably these have crept into the common consciousness because of US influence in the media. It is certainly true that they are often valid in the US but they do not have binding force in UK law although unmarried couples can make binding agreements which are effective so long as they remain unmarried. In England and Wales the courts have the last word in the division of all the matrimonial property on divorce and they would not hesitate to ignore any pre-nuptial agreement.

 

The rules which a court applies in dividing the matrimonial assets are set out in Section 25 of the Matrimonial Causes Act 1973 which enumerates the factors which should be taken into account and Parliament has recently passed the Family Law Act 1996 which will amend the law in some respects but that Act is due to be brought into effect in stages. In point of fact what the court does in the vast majority of cases is look at the financial needs of the parties (including those of any children of the marriage) and divide the assets up as it perceives those needs. Indeed, so far as property division in divorce is concerned the family courts can almost be regarded as applying the maxim "from each according to his ability to each according to his needs".

 

It is important to be aware that decisions affecting the division of matrimonial property after divorce are made by the courts (except in extremely unusual circumstances) quite independently of the reason for the divorce itself. The latter only very rarely has any impact whatever. Similarly, decisions affecting the children (residence, contact, access etc) are made using quite different criteria. The matrimonial property issue (known technically as "ancillary relief") stands on its own and needs to be dealt with as an issue quite independently from the other two.

 

Finally there are specific issues about divorce of concern to men in particular to which great attention needs to be paid if the man is not to come out of the process feeling aggrieved and embittered. It is very important that the husband understands the legal framework if he wants to utilise the rules instead of becoming their victim. Most divorce petitions are, in fact, presented by wives and it is very easy for the husband to be taken completely by surprise.

 

Individual financial circumstances are almost always different in each case and the decision does not rely upon the mechanical interpretation of rules. To assess what the likely outcome would be in a given case requires a "feel" for the decisions of the courts and it is for this reason that most divorcing couples need professional advice about these financial matters. Please contact David Terry at David_Terry@dterry.demon.co.uk if you need any more information.