#EmbraceEquity: What Does This Mean For Your Divorce?

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date published

2nd March 2023

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Emma Heptonstall

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date published

2nd March 2023

This year, the theme for International Women’s Day on 8 March is #EmbraceEquity. But what does this mean for your divorce? In this deep dive, we’ll look at what equity is, how it compares with equality, and how it can feature in your divorce journey.

What is equity?

Equity and equality are often used interchangeably, but they have different meanings and implications. Simply put, equality is everyone getting the same: the same resources, opportunities or treatment. Equity acknowledges that different people will have different needs. And so equity is concerned with people getting the resources, opportunities, or treatment they need to get an equal outcome.

To use an everyday example: at dinner time, equality would be the parent, the six-year-old, and the baby all getting the same amount of spaghetti bolognese. They have equality. But is the outcome equal? No: the parent would likely be left hungry, the six year old may have too much, and the toddler will likely have tipped their bowl onto the floor! It’s better for everyone if they have the amount and type of food that’s suitable for them.

So equity is about people getting what they need, which is not necessarily the same as everyone getting exactly the same. You can read more about equity here.

But how does equity feature in the divorce process?

No fault encourages equity, rather than blame

Another way of describing equity is that it aims to provide ‘wins for all’. Divorce law took a major progressive leap last year when the ‘no fault’ system was introduced. As well as simplifying much of the process and terminology, no fault represents a culture change in how our society views divorce. It used to be that one party was cited as responsible for the marriage breakdown through adultery, desertion, or unreasonable behaviour, unless you agreed to separate for two years and divorce after that (or after five years if one party refused to agree).

Now, the system has moved away from finding fault. This encourages a culture of looking forward, rather than appointing blame. While divorce was never about ‘punishing’ the ‘guilty party’ in the eyes of the law, this move to no fault helps to de-escalate tension and avoid pointing fingers. Which in turn leaves both parties free to consider their futures from a position of needs, rather than wrangle over the rights and wrongs of the past.

The s25 factors point towards equity

An important feature of divorce that remains the same is the concept of ‘fairness’. When the courts are asked to consider a divorce financial settlement, they will take into account the factors in section 25 of the Matrimonial Causes Act 1973.

These are:

    • The income, earning capacity, property and other financial resource which each of the parties to the marriage has, or is likely to have in the foreseeable future. This includes in the case of earning capacity, any increase in
    • That capacity which it would, in the opinion of the court, be reasonable to expect a party to the marriage to take steps to acquire
    • Financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future
    • The standard of living enjoyed by the family before the breakdown of the marriage
    • The age of each party to the marriage and the duration of the marriage
    • Any physical or mental disability of either of the parties to the marriage
    • The contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family
    • The conduct of each of the parties, whatever the nature of the conduct and whether it occurred during the marriage or after the separation of the parties or (as the case may be), dissolution or annulment of the marriage,
    • If that conduct is such that it would in the opinion of the court be inequitable to disregard it
    • In the case of proceedings for divorce or nullity of marriage, the value to each of the parties to the marriage of any benefit (for example, a pension) which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring

 

One size doesn’t fit all

In cases where there are young children, the Court’s first concern will always be the welfare of those young children and how their needs will be met. In reality, the decisive factor in the majority of cases is the reasonable needs of the parties and the children of the family. As you can see, these factors are all about getting into the details of the individual circumstances of a marriage. They are about the needs that each party, and any children, have – both now and in the future. This is the law attempting to apply equity. Of course, in reality, nothing’s perfect. Judges are human, and will have their own perspectives to bring. Legal professionals are trained to be advocates for their clients and are skilled at creating narratives that suit. Perhaps your soon-to-be-ex is similarly skilled in creating one-sided narratives. Perhaps you are too!

So how can you work towards reaching equity in your divorce?

What can you do to be equitable?

The absolutely crucial thing you must do, to have any shot at equity in divorce, is to consider your needs. And this is actually much harder to do than it first appears. One of the main reasons is that we can’t see our own ‘stuff’ clearly. What do I mean by that? Not that you can’t see your sofa or your table! But that we get so used to how we live, that we normalise it. We take it for granted.

This has an impact in all sorts of ways. In material terms, it’s easy to underestimate what your financial needs are. If you have a guess at what your annual financial costs are, and then actually went to your current account and took a look: including all the insurances, holidays, house repairs, etc, I bet the figures would be dramatically different! This is one of the reasons I tell you never to negotiate without knowing your numbers!

It’s also easy to underestimate what your emotional needs are. In times of crisis, which divorce is, adrenaline shoots up to get us through the struggle. And we can survive like that for a decent stretch of time. It’s helpful. But it’s not sustainable long-term. Eventually you’ll burn out. I see so many women who are close to walking away with nothing because they just don’t want the stress anymore. And they are coping for now: they are managing the children’s worries, the school logistics, the divorce admin, the household juggle. But that won’t last forever. You don’t want to be exhausted and impoverished in five years’ time because you underestimated your needs.

Consider your resources

If the resources are available within the marriage, you should not be left worse off because of divorce. Of course, if there were very limited resources in the first place, it’s a moot point. But I see so many women who, for example, think they will have to adapt to taking their kids on a camping holiday in Wales rather than the chalet in the Dordogne that they usually go to each summer. Not to knock camping holidays! The point I’m making is that you don’t need to put yourself in a position of scraping by, just because you are getting divorced, if there are funds in the marriage. One of the s25 factors deals specifically with ‘the standard of living enjoyed by the family before the breakdown of the marriage’.

My top tips for seeking equity for yourself

I strongly encourage you to do these three things to help you agree an equitable settlement:

    1. Step into CEO mode and look at the details of your life coolly. As I said, it’s easy to underestimate the financial and emotional costs of keeping your particular show on the road. So don’t guess. Get researching.
    2. Consider your future self – really spend some time thinking about her needs. Again, this is included in the s25 factors, so you are entirely within your rights to think about what you and your children will need from life in 10 or 20 years time. It’s likely costs will rise. If you or your children have health issues, you may have ongoing or increasing costs relating to those. Factor them into your negotiations. This is where it’s a mistake to forego your rights to your ex-spouse’s pension if they were the main breadwinner.
    3. Remind yourself of your self worth. Despite the move to no fault divorce, it can be an emotionally painful process. Even if you have the most low-conflict legal team (Resolution maintains an excellent database of legal professionals committed to resolving issues constructively), and the most reasonable ex, it is still stressful. There will be days you’ll just want to crawl into a cave. There will be days when you’ll wonder what you’ve done and feel like a useless person. So, for when that happens, do this: write a letter from your future self, thanking you for taking this leap now. Imagine what that future self is able to do, because of the bravery you are showing now. Put yourself in her shoes. And let her offer you both reassurance and wisdom.

 

A note on your soon-to-be-ex’s-needs

As I said earlier: divorce was never intended to be about having your day in court and taking your ex-spouse to the cleaners. Despite what Hollywood likes to show us. I absolutely urge you to be your own self-advocate, but don’t do this at the expense of others. Needs are not wants.

Your hurt ego might want your soon-to-be-ex to be left destitute, as punishment for how they treated you. That’s understandable and human. But that doesn’t make it right, or fair. So, try to get some distance from how you’re feeling when you consider your needs. This is about you and your future life, not derailing someone else’s in the name of revenge. And, ultimately, if your soon-to-be-ex is at the heart of your decision-making, rather than yourself, you’re keeping yourself stuck.

Want some help seeing your own stuff?

When you’re deep in divorce, it’s almost impossible to see the wood for the trees. You’re caught up with panic over the future, confusion over what to do for the best, and that lonely sense that no-one can help.

I am here to help with all of it. I can help you:

    • See your situation clearly (and fairly: I am kind but honest!)
    • Understand what you need from the future
    • Know your rights and your responsibilities
    • Make a plan that works for you
    • Communicate effectively with your soon-to-be-ex and legal professionals, reducing cost and conflict

You have every right to an equitable future. Let me help you get there. Book in your call today.

 

About Emma

Emma Heptonstall, the Divorce Alchemist is the author of the Amazon best-selling book How to be a Lady Who Leaves, the Ultimate Guide to Getting Divorce Ready. A former lawyer, Emma is a family mediator and founder of Get Divorce Ready the online self-study and group programmes. Emma has been featured on BBC Radio, The Telegraph, the iPaper and in Marie Claire Magazine. Emma is also the host of  The Six Minute Divorce Podcast. To find out more visit www.emmaheptonstall.com

 

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