On most marriage breakdowns, unless the parties are affluent, the greatest concern is whether both parties and any children will continue to be adequately housed and will have enough income to live on.
If there is enough capital, it is reasonable for both parties to receive sufficient funds, whether from the proceeds of sale of a matrimonial home or from savings or investments, to purchase another property, with mortgage funding where necessary. If there are children, both parties will need to purchase a property large enough to accommodate them, whether this is for the majority of the time (this parent having what is known as “residence” ) or whether it is part-time (this parent will usually have what is known as “contact”). In some cases there will be insufficient capital for both parents to accommodate the children in this way. In those cases, the needs of the party with residence of the children will take priority, although that party may only have the use of the capital for a limited period-typically until the youngest child reaches the age of 18 or finishes their education.
Clients frequently ask whether a contribution of capital, for example from a property owned before the marriage or from an inheritance, can be repaid to them as part of a settlement on divorce. The starting point is that they are entitled to recover “non-matrimonial assets” such as these. However, if the needs of the other party are such that these non-matrimonial assets cannot be ring-fenced in this way, they will not be.
Another commonly asked question is what level of maintenance the party with the greater income should pay the other, if any. Again this is generally dictated by needs, albeit in some cases these are generously assessed. As far as maintenance for children is concerned, this is usually assessed according to the formula used by what used to be known as the Child Support Agency. If there remains a significant discrepancy between the parties’ incomes, with the party with the lower income unable to meet their outgoings, the other party will probably have to pay spousal maintenance.
This then raises the question of how long spousal maintenance should be paid. When dealing with this, courts are required to consider whether it should be limited to such term as would be sufficient for the recipient to adjust without undue hardship at the end of the term. If the parties are older and theirs has been a long marriage, it may be that the recipient of maintenance prior to retirement will be receiving a share of the paying party’s pension. In that instance, it will probably be reasonable for spousal maintenance to cease on the recipient’s retirement.
For more information on all matrimonial and family related matters please contact Deborah Prance on firstname.lastname@example.org, Paul Lindsell on email@example.com, Andrew Kingston on firstname.lastname@example.org or Amanda Dodge on email@example.com