This article was published on January 13th, 2017
This is one of the most frequently asked questions for family lawyers when a client contemplating divorce. Like most urban myths, there is a grain of truth in it, but like almost every other legal question the answer is “it depends”.
The law about sorting out the money on divorce goes back to the early 1970s and is probably well overdue for reform. The law simply says that the job of the Judge when deciding a financial case upon divorce is to come up with a settlement which is fair for the particular couple whose case is being decided. Lawyers call it a “discretionary jurisdiction” – which basically means that the Judge has to do what he or she thinks is appropriate in the case. The difficultly is that whilst most Judges will probably have broadly similar ideas about the appropriate result, no two will agree exactly – so a different Judge hearing the case on a different day might come up with a different outcome.
When giving advice to divorcing clients about financial settlements, family lawyers are trying to predict what would happen if the couple were not able to agree and took the case to Court. Like the Judges, we take into account the factors set out in the law –the length of the marriage, contributions, financial needs etc. Inevitably financial settlements have to be a compromise because there is no right answer. The only certainty in the process is that if the couple do not reach agreement, the process of having the Court decide is both stressful an expensive – and for most ordinary couples it will eat significantly into the value of the estate, meaning that each of them will receive less then if they reach a compromise. It is for that reason that family lawyers encourage separating couples to be constructive and realistic with each other.
Thorneycrofts’ family lawyer Chris Bowen comments “The uncertainty of the law about family finance is one of the main reasons why we advise our clients to avoid the Court process and instead to enter into a sensible dialogue. I also undertake work on a collaborative basis where the couple and the lawyers sign a commitment to a problem solving approach outside the Court process. This produces an outcome that the couple feel they have reached together, and doing it in a collaborative way reduces conflict and the risk of their relationship being so damaged that they cannot communicate – especially important if the couple have children.”
For an informal chat and to find out about divorce, cohabitation agreements and declaration trusts, please contact our family law team on FREEPHONE 0800 1979 345.
Thorneycroft specialist solicitors offer expert help and advice on the legal and financial implications of a relationship breakdown.
If you live in Macclesfield, Buxton, Holmes Chapel or surrounding areas and require family law advice or to discuss your separation in more detail please call one of our specialist solicitors or complete our simple online enquiry form.