Whilst obtaining a divorce is no doubt a very difficult experience from an emotional perspective, it is actually a very straightforward process procedurally. It is essentially a paper exercise – a divorce petition is issued and ultimately (irrespective of who issues the petition, or which “fact” is relied upon) the end result is that there is a divorce.
The more complex issue following a separation is that of the division of assets. There are three types of asset to consider – namely capital, pensions and income. The court has both wide powers and broad discretion in terms of dealing with these assets.
All of the financial resources of a separating couple will be considered at the time of separation. The starting point for the court is to divide capital and pension assets equally, but there may be reasons to depart from equality in one party’s favour – most commonly for the purposes of meeting needs. There is no presumption that income will be shared, but spousal maintenance claims can arise in circumstances where there is an income need; i.e. where one party has a monthly income surplus and the other has a deficit.
When the court looks at meeting needs post-separation, it is not looking at providing either party with the bare minimum – “need” is a subjective concept which is dictated by the marital standard of living. Whilst usually both parties can expect a reduction in their standard of living following a separation (on the basis that one home is divided in to two), the court’s approach is that neither party should feel this reduction more keenly than the other.
If you require detailed advice regarding the division of assets following a separation then please contact myself, or a member of our Family Team.
