We appreciate that the process of getting a divorce can be a daunting task. This is why we offer a free 20-minute appointment so you have the opportunity to meet with a team member to demystify what is potentially a complex area of law where assets are involved, especially involving international assets and pensions. It can be difficult to also separate matrimonial from non-matrimonial assets as well. The Family Justice Council published a Guidance Note for parties to consider the financial implications of divorce.
The main areas of focus when looking at the division of assets are to consider the parties’ financial needs and objectives. This may seem fairly straightforward but we appreciate when clients are faced with detailing these needs in the forms this can become complex, especially given that there is no legal definition of ‘financial needs’.
The starting point is to explore:
• What are needs, and at what level should they be met looking at the ‘circumstances of the case’?
• The duration of provision for needs and the transition to independence.
We then need to break down these needs when looking at:
• Children’s welfare and needs (where applicable);
• Housing and other capital;
• Maintenance and income;
There are many topics that arise when considering such needs, which includes some ‘myth-busting’ of things that many people believe the law says which are not true. The above list is non-exhaustive as the ‘needs list’ ranges extensively, which includes the parties standard of living to contributions made to earning capacity.
The equality of sharing assets can be a contentious issue. Baroness Hale stated in Miller, McFarlane as follows:
“…equality of outcome is difficult both to define and to achieve. Giving half the present assets to the breadwinner achieves a very different outcome from giving half the assets to the homemaker with children”.
We also offer legal aid for this field and provide an initial free 20 minute consultation.
We understand that the objective is to gain the transition to independence, which is possible in all the circumstances. There are different orders that may fit the relevant circumstances.
Unmarried couples do not have the same legal obligations to one another as their married counterparts and a multitude of issues can arise over the ownership of property upon separation. An unmarried person’s rights in relation to property are significantly affected by whether or not there are children of the relationship. If there are, it is open to a parent to make an application under Schedule 1 of the Children Act 1989 for a lump sum, settlement or transfer of property order.
However, since the law is that the cohabitant herself (it is still usually the mother making the claim) has no claims in her own right, any capital which is awarded to purchase a property is likely to be held in trust until the child’s majority or the end of full-time education, whereupon the capital sum will revert to the payer.
Unmarried couples do not acquire the right to claim capital or maintenance against the other, irrespective of how long they cohabit. A separating unmarried couple will ordinarily divide any assets held jointly in accordance with their legal ownership.
In certain cases, however, one of the parties can argue that he or she should receive a larger share than the actual legal ownership of an asset. This argument will usually focus on the parties’ home. Typical examples are where one party has contributed substantial capital to the property that is not reflected in the legal ownership, or where one party has made a promise to the other that he or she will share ownership in the property but has then reneged on this promise to the other’s detriment.
Most unmarried couples in dispute over property must rely upon the provisions of the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA 1996), which deals with trusts of land whether express, implied, resulting or constructive.
The starting point for the court is always looking at the intentions of the parties which is best evidenced when there is a Deed of Trust or Cohabitation Agreement. If court proceedings commence, the TOLATA is a part 7 civil claim.
If you have any queries and just want some guidance to navigate through the process please do not hesitate to book an appointment with us.