How Does The Court Consider Fairness When You Divorce?

On the blog last week we looked at how to be fair to yourself when you divorce. Getting this piece in place is critical. It means you have a firm place to stand as the divorce storms rage around you. Of course, though, you will need to encounter the legal system at some point. Divorce is a legal process; it’s important to know what the courts take into account. So today we will look at how the court considers fairness when you divorce.

Fairness is subjective

It’s important to remember that fairness is something that is constantly debated  – between friends, in the media, at the school gates. Often there is no single correct answer to questions of fairness. In many divorces, both spouses could make a case that an impartial third party could empathise with. 

And the court process is run by humans – different judges may well reach different decisions about the same case. So the system isn’t perfect. That’s why the ideal situation is to reach agreements between yourselves – preferably with the help of a mediator. A mediator can help take the heat out of your discussions and come up with solutions that work for both of you.

Unless you are exempt (for example if you are the victim of domestic abuse) the court will want to see that you have attended a Mediation and Information Assessment Meeting (MIAM). You can read more about mediation and MIAMS on the blog here. 

The reason for the court wanting you to try mediation first is because this is usually the most straightforward way to reach agreement. It’s usually less combative and less expensive than making decisions through the courts. And it has a greater chance of both you and your soon-to-be-ex feeling satisfied with the result. So you receive emotional closure too.

The factors in making a decision

If you do need help from the courts in reaching a decision about finances or child arrangements, the courts will abide by factors in Section 25 of the Matrimonial Causes Act 1973. The s25 factors help the court decide issues of fairness in divorce. Here is a list of the factors, along with a common-sense explanation of what they mean:

The welfare of any minor children of the family.

This is the priority of the courts. The wellbeing of children is always the first consideration. But not the paramount consideration as it is in Children Act proceedings.

The income, earning capacity, property and other financial resources which each spouse has – or is likely to have – in the foreseeable future.

This relates to the money each of you can bring in – either through income or assets – and fringe benefits such as company cars. It can be complicated if new partners arrive on the scene, as their income will be factored in too. This factor also takes into account the potential future earning capacity of each party. So, for example, you may have been an accountant or teacher in the past, and let your credentials slide. The court may consider that it would be reasonable for you to reacquire those skills and credentials, and thus boost your earning capacity.  

The financial needs, obligations and responsibilities which each spouse has or is likely to have in the foreseeable future.

And now we turn to the money you need to spend. This will include the basics of living for you and any dependents, as well as any other financial commitments you have. It is the priority of the court to ensure both parties and any children have their needs met. 

The standard of living enjoyed by the family before the breakdown of the marriage.


This factor builds on the previous one. The court doesn’t assume either of you needs to live the rest of your life scraping by. If you once had a comfortable financial existence the court will look at this although both of you may need to readjust your expectations. 

 

The ages of each spouse and the duration of the marriage.


Age is important as it will have financial implications – to do with earning capacity or ability to get a mortgage, for example. Usually, the longer a marriage has been, the longer the spouses have been interdependent, and the court will take this into account. With a shorter marriage, it is usually easier to for each party to return to a financial state similar to their life pre-marriage. 

Any physical or mental disability of each spouse

A disability may impact on any number of financial or wider life factors: ability to earn money, life span, equipment or other accommodation needs, for example. These will all be factored in. 

 

The contributions which each spouse has made or is likely to make in the foreseeable future to the welfare of the family, including any contribution by looking after the home or caring for the family.


Happily, the courts factor in the work of being the main homemaker and childcare provider, even though this work is unpaid. This work is often seen as equal to the work of the main breadwinner. 

 

The conduct of each spouse, if that conduct is such that it would in the opinion of the court be inequitable to disregard.

The courts only take into account exceptionally bad behaviour when considering this factor. So this is an area where you and the courts may well disagree – your soon-to-be-ex may have behaved abominably, but this wouldn’t necessarily be factored in by the court.  

The value to each spouse of any benefit which one spouse because of the divorce will lose the chance of acquiring.

This factor is rather wordy, but it’s getting at situations whereby loss of the marital status will have a meaningful impact on your financial future. It’s most often considered in relation to pensions.

How it works in reality

As I explained earlier, there’s no strict formula by which each of these factors are applied. Fairness in divorce will likely look different depending on how you are looking at it.  Every case is considered independently. Each judge will bring their own thoughts, assumptions and history to the table too. And there’s case law precedent to consider. So just because your friend received a particular decision on their divorce, it does not mean you will. 

Remember the courts aren’t there to act as a moral barometer. Fairness in divorce is not about blame and punishment. You might think it fair that you receive a greater share of any assets because your spouse treated you appallingly while you were together. And, while this is a perfectly understandable wish, the legal system just does not work like that. They are not there to arbitrate over the rights and wrongs of your marriage. They are there to ensure, as far as possible, your needs are met in the future.

I can help you get a fair outcome

Whether decisions about your financial and parenting future are made by the courts or made collaboratively with your soon-to-be-ex, I can help. I can help you get clear on your own financial needs and capacities, so you can look to the future and make your case with more confidence. I can help you understand the process, and look for ‘red flags’ that your soon-to-be-ex may not be playing fair. Fairness in divorce starts with you understanding the asset base and what’s possible for you. And I can be at your side as you experience the ups and downs of it all. 

If you want a team around you as you divorce, come and join us in The Absolute Academy. I answer your questions every week. You can access all my checklists and resources. And you have a ready-made community there to cheer you on. At £197 per month it costs about the same as ONE HOUR with a solicitor. So you’re likely to save hundreds, if not thousands too. Come and join us! 

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. To find out more visit www.emmaheptonstall.com

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