Divorce or Dissolution is one of the most emotionally challenging experiences that anyone encounters, a step that is generally taken after considerable thought. However, the actual break-up of the relationship is in the forefront of the minds of most people. The practicalities and the consequences of divorce are not always fully recognised. As a result of the Divorce, Dissolution and Separation Act 2020 there is no longer a requirement to present reasons for divorce to the court, removing the need for blame and reducing the potential for acrimony and lengthy divorce proceedings where each party attempts to paint the other's behaviour as the cause of the breakdown of the marriage. Only very serious conduct issues may be taken into account in relation to the financial arrangements in very limited circumstances.
There is no change in the way the child and financial arrangements are dealt with and unfortunately, the ensuing division of the matrimonial assets can cause equal hostility, particularly if one party has brought considerably more in the way of earnings, wealth and tangible assets into the marriage and the couple did not address this issue at the beginning of their marriage by way of a pre-nuptial or post-nuptial agreement. The lawyers at Giambrone & Partners' family law department urge couples to avoid making rash decisions that may impact on the rest of their lives and strongly advise on the importance of expert legal advice.
If the couple cannot agree as to the division of assets and all attempts to negotiate a settlement fail, the court will decide. There are a number of factors that are considered including but not limited to, the proportionate wealth of both parties, the length of the marriage, the needs of each party and the needs of any children. Assets built up during the course of a marriage are considered matrimonial or marital assets and are generally divided equally between the couple. The family home bought during the course of the marriage is often in joint names, but nevertheless will be taken into account. Difficulties arise when there is a short marriage or one party had significant pre-marital wealth or received a substantial inheritance.
Daniel Theron, a partner, commented "non-matrimonial assets are generally those assets acquired before the marriage, or assets received during the marriage by one party, for example, a gift or inheritance. Non-matrimonial assets are not automatically excluded from a financial settlement in divorce. The court will take into consideration several factors including need and fairness." Daniel pointed out "if part of the non-matrimonial assets are sold during the course of the marriage, for example, artwork, and the funds are used to buy a holiday home or used in some other way within the marriage, then the non-matrimonial assets will be far harder to exclude from the financial arrangements of the marriage. All cases are considered on their facts"
All assets must be declared, both matrimonial and non-matrimonial. Matrimonial assets will be taken into account in financial proceedings. Where there is need on the part of one party that cannot be met, it is likely that the non-matrimonial assets will also be divided as need is a key element. Most cases are needs-based unless the parties have a significant amount of matrimonial assets which can be divided on a fair and equal basis.
There are ways to protect non-matrimonial assets, for example, with either a pre-nuptial or post-nuptial agreement. Whilst such agreements are still not completely legally binding, in the case of Radmacher –v- Granatino, the court determined that fair prenuptial agreements entered into by the free will of the parties, without undue influence and in the full knowledge of all the legal and financial implications, and where both parties received independent legal advice, had legal weight. A property placed into a trust may also be protected.
The courts of England & Wales are popular as divorce and family law is considered fair, unlike some jurisdictions that seem to display bias. Whilst it is demoralising to consider the breakdown of a marriage before it has been embarked upon, individuals that hold more assets than their proposed spouse should seriously consider a prenuptial agreement before marriage. It is important to discuss such matters openly and frankly with a prospective spouse or civil partner so that both parties are aware of the terms and implications of any arrangement. It is also important not to leave such discussions to the last minute but to embark on the discussions several months before the anticipated wedding day.
Daniel Theron advises on litigation in family law, employment, cross-border debt recovery and defamation. Daniel has considerable expertise in contentious cross-border family law, including complex financial arrangements and enjoys a high level of success in both debt recovery and employment law.
Daniel enjoys a reputation of being meticulous in his analysis of the merits of a matter and tenacious in his pursuit of a successful outcome for clients. He frequently impressively navigates challenging situations culminating in an excellent level of achievement, in excess of all expectations.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
