{"id":15809,"date":"2020-03-09T06:53:23","date_gmt":"2020-03-09T06:53:23","guid":{"rendered":"https:\/\/www.emmaheptonstall.com\/divorce-coaching\/?p=15809"},"modified":"2023-05-18T14:35:04","modified_gmt":"2023-05-18T13:35:04","slug":"financial-needs-in-divorce-your-questions-answered","status":"publish","type":"post","link":"https:\/\/www.emmaheptonstall.com\/divorce-coaching\/financial-needs-in-divorce-your-questions-answered\/","title":{"rendered":"Financial needs in divorce: your questions answered"},"content":{"rendered":"<p>[et_pb_section fb_built=&#8221;1&#8243; _builder_version=&#8221;4.16&#8243; global_colors_info=&#8221;{}&#8221;][et_pb_row _builder_version=&#8221;4.16&#8243; background_size=&#8221;initial&#8221; background_position=&#8221;top_left&#8221; background_repeat=&#8221;repeat&#8221; global_colors_info=&#8221;{}&#8221;][et_pb_column type=&#8221;4_4&#8243; _builder_version=&#8221;4.16&#8243; custom_padding=&#8221;|||&#8221; global_colors_info=&#8221;{}&#8221; custom_padding__hover=&#8221;|||&#8221;][et_pb_text _builder_version=&#8221;4.20.4&#8243; text_font_size=&#8221;16px&#8221; header_text_align=&#8221;justify&#8221; header_text_color=&#8221;#c5b2b1&#8243; header_2_text_align=&#8221;justify&#8221; header_2_text_color=&#8221;#c984a4&#8243; background_size=&#8221;initial&#8221; background_position=&#8221;top_left&#8221; background_repeat=&#8221;repeat&#8221; text_orientation=&#8221;justified&#8221; hover_enabled=&#8221;0&#8243; global_colors_info=&#8221;{}&#8221; sticky_enabled=&#8221;0&#8243;]<\/p>\n<h1>Financial needs in divorce: your questions answered<\/h1>\n<p>&nbsp;<\/p>\n<p>What happens with money when you divorce? It\u2019s one of the first questions people have, understandably. In <em>Financial needs in divorce: your questions answered,\u00a0<\/em>we take a look at this question in relation to the concept of &#8216;financial needs&#8217; and how it&#8217;s dealt with in the courts.<\/p>\n<p>&nbsp;<\/p>\n<p>The short answer to what happens with money when you divorce is: you take your assets &#8211; property, cash, investments, art, antiques, pensions, whatever else, and you split them. The starting point is a 50:50 split.<\/p>\n<p>&nbsp;<\/p>\n<p>But it\u2019s only a starting point and often a rough guide to what might happen. That\u2019s why you can\u2019t look at your parents\u2019 divorce or your sister\u2019s or best friend\u2019s to know what\u2019s going to happen to you. Yes, financial needs in divorce are not straightforward!<\/p>\n<p>&nbsp;<\/p>\n<p>The truth is: it depends on all the circumstances of your case.<\/p>\n<p>&nbsp;<\/p>\n<p>It depends on the s25 Factors, and the needs of you and the family. Section 25 basically looks at all the circumstances of the case. If the available wealth in the family doesn\u2019t exceed the needs of the family (which is true for most people), yours is a needs-based divorce. This includes the needs of your ex as well as you. Yes, financial needs in divorce are always about both of you.<\/p>\n<p>&nbsp;<\/p>\n<h2><span class=\"ez-toc-section\" id=\"what_are_the_s25_factors\"><\/span>What are the s25 Factors?<span class=\"ez-toc-section-end\"><\/span><\/h2>\n<p>&nbsp;<\/p>\n<p>The s25 factors are of crucial importance. Whether you sit down with your ex over coffee, whether you mediate, collaborate or arbitrate, the s25 factors will influence the decisions that a court will seal in a final order. The factors include:<\/p>\n<ul>\n<li>The welfare and needs of under 18s (including children that aren\u2019t your ex\u2019s by law, but that your ex assumed some responsibility for while you were together)<\/li>\n<li>The income of you and your ex, as well as future earning potential<\/li>\n<li>Financial needs of you and your ex, including the standard of living you are both accustomed to<\/li>\n<li>Your age and mental and physical health, including any disabilities<\/li>\n<li>The length of the marriage.<\/li>\n<\/ul>\n<p>&nbsp;<\/p>\n<p>You can read the <a href=\"http:\/\/www.legislation.gov.uk\/ukpga\/1973\/18\/section\/25\" target=\"_blank\" rel=\"noopener\">full list of s25 factors here.<\/a><\/p>\n<p>&nbsp;<\/p>\n<p>&nbsp;<\/p>\n<p>&nbsp;<\/p>\n<h2><span class=\"ez-toc-section\" id=\"do_courts_across_england_and_wales_rule_consistently\"><\/span>Do courts across England and Wales rule consistently?<span class=\"ez-toc-section-end\"><\/span><\/h2>\n<p>&nbsp;<\/p>\n<p>Attempts are continually being made to ensure that there is consistency of approach in courts across the country. This is challenging, however. Financial needs in divorce vary geographically. My experience as a divorce coach with clients both nationally and internationally is that often courts still take very differing views about how assets are distributed on divorce. London is seen as more generous to women (this has an international reputation), but then, it\u2019s more expensive! As a London resident myself now &#8211; I can attest that my living costs have significantly increased for this Yorkshire girl (yes, ouch)!<\/p>\n<p>&nbsp;<\/p>\n<p>The main problem that self-represented people find is that there are no set rules. When we feel lost and uncertain, rules can make us feel safe, secure and in control. When there are no rules, it\u2019s terrifying. How long is a piece of string? Which side of the bed did the judge get out of? Will they see through my charming\/victim-playing husband? Shall we just toss a coin to see who gets the dog?<\/p>\n<p>&nbsp;<\/p>\n<h2><span class=\"ez-toc-section\" id=\"what_are_%e2%80%98financial_needs_in_divorce\"><\/span>What are \u2018financial needs\u2019 in divorce?<span class=\"ez-toc-section-end\"><\/span><\/h2>\n<p>&nbsp;<\/p>\n<p>Just as there are no rules, there\u2019s currently no definition of \u2018financial needs\u2019 in statute so if you\u2019ve been looking, you can stop now.<\/p>\n<p>&nbsp;<\/p>\n<p>It makes predicting court decisions difficult. Of course, it stands to reason that \u2018needs\u2019 will always be relative. The middle-aged wife of a wealthy man could live in a one bedroomed flat in the cheapest town in England, of course. But will she have to? No. Her needs may still run into a multi-million-pound divorce settlement. So the concept of needs isn\u2019t straight forward.<\/p>\n<p>&nbsp;<\/p>\n<p>The basic concept of \u2018needs\u2019 refers to the need for housing and the provision of income. Marriage often creates a \u2018relationship of dependency\u2019 through, for example, caring for children, homemaking and caring for ageing or ill relatives. These marriage-generated needs are taken into account.<\/p>\n<p>&nbsp;<\/p>\n<p>How \u2018needs\u2019 are interpreted is down to judicial discretion. The first consideration is to the welfare of children under the age of 18, but not above all other factors. So, whilst the children\u2019s welfare is important, it must be considered in light of all your circumstances.<\/p>\n<p>&nbsp;<\/p>\n<p>Many find the age 18 limit frustrating, and out of touch with modern family realities. More and more adult children remain financially dependent on their parents into their twenties and beyond. Yet, the law doesn\u2019t recognise the needs of these adult children. It can be a sad reality that adult children may find themselves in rented accommodation sooner than they had planned. Unless both parents agree to continue to provide at least one stable residence they are on their own.<\/p>\n<h2><span class=\"ez-toc-section\" id=\"i\"><\/span>\u00a0<span class=\"ez-toc-section-end\"><\/span><\/h2>\n<h2><span class=\"ez-toc-section\" id=\"how_is_%e2%80%98financial_need_in_divorce_assessed\"><\/span>How is &#8216;financial need&#8217; in divorce assessed?<span class=\"ez-toc-section-end\"><\/span><\/h2>\n<p>&nbsp;<\/p>\n<p>You can\u2019t have a share of what isn\u2019t there. You have to start with what there is. The first step always needs to be a full inventory of the assets <strong>and <\/strong>the liabilities held by you and your ex, both jointly and individually.<\/p>\n<p>&nbsp;<\/p>\n<p>It\u2019s why I always say (and often!) \u2018no negotiation without knowing your numbers\u2019. The starting question will always be:<\/p>\n<p>&nbsp;<\/p>\n<p>\u2018What are the financial resources available to meet both parties\u2019 needs?\u2019<\/p>\n<p>&nbsp;<\/p>\n<p>Once that is clear the resources will be split based on the need for housing and living costs taking into account all the circumstances of the case and the s25 factors.<\/p>\n<h2><span class=\"ez-toc-section\" id=\"i-2\"><\/span>\u00a0<span class=\"ez-toc-section-end\"><\/span><\/h2>\n<h2><span class=\"ez-toc-section\" id=\"what_does_case_law_tell_us\"><\/span>What does case law tell us?<span class=\"ez-toc-section-end\"><\/span><\/h2>\n<p>&nbsp;<\/p>\n<p>The leading cases are still <em>Miller v Miller and McFarlane v McFarlane <\/em>from 2006. \u00a0In these cases, the House of Lords looked at the issue of need, compensation, and sharing. The overriding objective of decisions is fairness.<\/p>\n<p>&nbsp;<\/p>\n<p>The starting point is a 50:50 split of assets. But what if this does not meet the \u2018needs\u2019 of one spouse? Then the decision moves in favour of the financially weaker party.\u00a0Baroness Hale in <em>Miller, McFarlane <\/em>said:<\/p>\n<p><em>\u00a0\u201cGiving half the present assets to the breadwinner achieves a very different outcome from giving half the assets to the homemaker with children\u201d.<\/em><\/p>\n<p>&nbsp;<\/p>\n<p>If there is additional wealth, once the needs of both spouses (and children) are met, the rest of the assets should be shared. This is of course considered in the light of all the s25 factors so the age of parties, duration of marriage and contribution to that outstanding wealth will all be considered.<\/p>\n<h2><span class=\"ez-toc-section\" id=\"i-3\"><\/span>\u00a0<span class=\"ez-toc-section-end\"><\/span><\/h2>\n<h2><span class=\"ez-toc-section\" id=\"does_it_matter_whether_they_are_matrimonial_or_non-matrimonial_assets\"><\/span>Does it matter whether they are matrimonial or non-matrimonial assets?<span class=\"ez-toc-section-end\"><\/span><\/h2>\n<p>&nbsp;<\/p>\n<p>The duty is to disclose all assets within the marriage that one or both parties have a legal or beneficial interest in. This includes assets acquired prior to the marriage. Everything must be declared. It doesn\u2019t matter whether the asset is realisable now or not. All illiquid assets must be declared although of course, the courts will need to consider the nature of these assets when looking at asset distribution. Assets held in trust must also be declared.<\/p>\n<p>&nbsp;<\/p>\n<p>In recent years, parties have asked the courts to distinguish assets which have been gained during the course of the marriage &#8211; clear \u2018marital assets\u2019 and those which could be considered \u2018non-marital\u2019. This could include property acquired before marriage or trust assets, for example.\u00a0Unless there is a surplus of assets to needs (which is uncommon) the court will not make this distinction, because it would lead to unfairness when the overriding objective in such cases is to ensure that each party is housed and can afford to live.<\/p>\n<p>&nbsp;<\/p>\n<h2><span class=\"ez-toc-section\" id=\"what_if_assets_are_inherited\"><\/span>What if assets are inherited?<span class=\"ez-toc-section-end\"><\/span><\/h2>\n<p>&nbsp;<\/p>\n<p>As mentioned above, inherited assets must be disclosed. They are, at the very least, a resource to which the inheriting spouse has access. Depending on how that inheritance has been dealt with, it may be considered by the court as an asset that can be used to meet needs.<\/p>\n<p>&nbsp;<\/p>\n<h2><span class=\"ez-toc-section\" id=\"what_happens_when_assets_exceed_needs\"><\/span>What happens when assets exceed needs?<span class=\"ez-toc-section-end\"><\/span><\/h2>\n<p>&nbsp;<\/p>\n<p>When assets exceed needs the court has more discretion to consider the issue of matrimonial v non-matrimonial assets. Current case law tells us that in such cases, the principle of \u2018sharing\u2019 is more appropriate than simply reassigning the asset back to its original owner, but that each case should turn on its own facts and judicial discretion should be applied. This is where it\u2019s hard to find a consistency of approach!<\/p>\n<p>&nbsp;<\/p>\n<p>However, the longer the marriage, the less likely the court would be to refuse to share the asset. If you feel that you have a \u2018non-matrimonial\u2019 asset case you should seek specific legal advice.<\/p>\n<p>&nbsp;<\/p>\n<h2><span class=\"ez-toc-section\" id=\"what_if_theres_not_enough_to_go_around\"><\/span>What if there\u2019s not enough to go around?<span class=\"ez-toc-section-end\"><\/span><\/h2>\n<p>&nbsp;<\/p>\n<p>In many cases, there simply isn\u2019t enough in the pot for each spouse to live comfortably once the assets are split. The court then has the unenviable task of balancing the \u2018unfairness\u2019 between the parties &#8211; remember, in financial proceedings, the needs of the children do not trump everything.\u00a0All s25 factors are considered.<\/p>\n<p>&nbsp;<\/p>\n<h2><span class=\"ez-toc-section\" id=\"do_i_need_to_become_financially_self-sufficient\"><\/span>Do I need to become financially self-sufficient?<span class=\"ez-toc-section-end\"><\/span><\/h2>\n<p>&nbsp;<\/p>\n<p>Usually, yes. In most cases, the court will expect you to reach self-sufficiency. Gone are the days when most divorced women can look forward to a \u2018whole life\u2019 order, regardless of the relationship of dependency during the marriage. These days, women are expected to work toward financial independence. This will mean returning to work if they have been a stay at home mum (<a href=\"https:\/\/www.emmaheptonstall.com\/divorce-coaching\/why-your-days-as-a-stay-at-home-mum-may-be-numbered\/\">read more about that here<\/a>), increasing working hours, or retraining or upskilling to better-paid work. This is subject to the ages of the children and the other aspects of the s25 factors &#8211; capabilities, health, and financial resources.<\/p>\n<p>&nbsp;<\/p>\n<h2><span class=\"ez-toc-section\" id=\"what_about_compensation\"><\/span>What about compensation?<span class=\"ez-toc-section-end\"><\/span><\/h2>\n<p>&nbsp;<\/p>\n<p>The concept of compensation arose in the cases of <em>Miller v Miller, McFarlane v McFarlane. <\/em>This sought to address the situation where one spouse (often the wife), had given up a highly successful or lucrative career to stay at home to raise the family. Compensation was intended to reflect the lost opportunity to climb to the highest levels of financial renumeration. Even if she returns to work, she may have lost 10-20 years of career and is unlikely to match her ex\u2019s salary. Whilst she may receive an equal share of assets, she will no longer have access to a share of his earnings.<\/p>\n<p>&nbsp;<\/p>\n<p>To compensate, the court may award the compensated spouse a greater share of capital assets or spousal maintenance. Which sounds positive for many of my clients who find themselves in the position of needing to return to the workforce with diminished career prospects.<\/p>\n<p>&nbsp;<\/p>\n<p>Unfortunately, the issue of \u2018compensation\u2019 has not had an easy ride in case law. It is often decided that the equal division of capital assets (the starting point) is enough to \u2018compensate\u2019. And in many cases the career must already have been lucrative to successfully argue a \u2018compensation\u2019 point. Having the potential to rise high is not enough.<\/p>\n<p>&nbsp;<\/p>\n<h2><span class=\"ez-toc-section\" id=\"how_do_you_consider_your_own_financial_needs_in_divorce\"><\/span>How do you consider your own financial needs in divorce?<span class=\"ez-toc-section-end\"><\/span><\/h2>\n<p>&nbsp;<\/p>\n<p>This <a href=\"https:\/\/www.judiciary.uk\/wp-content\/uploads\/2016\/04\/fjc-sorting-out-financial-needs-april-16-final-revised-nov17.pdf\" target=\"_blank\" rel=\"noopener\">helpful guide from the judiciary<\/a> is a good starting point to work out your needs. \u00a0It sets out what the courts expect, and what you need to take into account. Don\u2019t forget to consider your values as you work through it\u00a0 \u2013 think about what matters to you. Case law and statute are all well and good. They cannot and should not be ignored. But they only go so far &#8211; remember, this is your life and your divorce.<\/p>\n<p>&nbsp;<\/p>\n<p>What do you want and \u2018need\u2019 for you? Often it\u2019s not just about the money. Money issues are often a cover for so much more about what matters to us, how we feel about what the future may or may not hold. The court won\u2019t help you sort out your emotional life, that\u2019s your job. But it doesn\u2019t mean you have to do it alone.<\/p>\n<p>&nbsp;<\/p>\n<p>When you work with me you get confidential support from the perspective of someone who knows the legal system, the financial disclosure requirements, AND who can support you emotionally as you navigate decision-making and paperwork.<\/p>\n<p>&nbsp;<\/p>\n<p>If you want to get your needs \u2013 financial and emotional \u2013 understood and sorted so you can stand strong in your divorce, I\u2019m happy to help. <a href=\"https:\/\/www.emmaheptonstall.com\/divorce-coaching\/contact\/\">Just book in a call<\/a>.<\/p>\n<p><a href=\"https:\/\/www.emmaheptonstall.com\/divorce-coaching\/about-me-emma-heptonstall\/\" target=\"_blank\" rel=\"noopener noreferrer\"><strong>Emma Heptonstall,<\/strong><\/a>\u00a0the Divorce Alchemist is author of the Amazon best selling book\u00a0<a href=\"https:\/\/www.amazon.co.uk\/How-Be-Lady-Who-Leaves\/dp\/1999631501\" target=\"_blank\" rel=\"noopener noreferrer\"><strong>How to be a Lady Who Leaves, the Ultimate Guide to Getting Divorce Ready<\/strong><\/a>. 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\u00a0<a href=\"https:\/\/www.emmaheptonstall.com\/divorce-coaching\/\" target=\"_blank\" rel=\"noopener noreferrer\"><strong>www.emmaheptonstall.com<\/strong><\/a><\/p>\n<p>[\/et_pb_text][\/et_pb_column][\/et_pb_row][\/et_pb_section]<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Financial needs in divorce: your questions answered &nbsp; What happens with money when you divorce? It\u2019s one of the first questions people have, understandably. In Financial needs in divorce: your questions answered,\u00a0we take a look at this question in relation to the concept of &#8216;financial needs&#8217; and how it&#8217;s dealt with in the courts. &nbsp; [&hellip;]<\/p>\n","protected":false},"author":3,"featured_media":15810,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_et_pb_use_builder":"on","_et_pb_old_content":"<h1>Financial needs in divorce: your questions answered<\/h1><p>\u00a0<\/p><p>What happens with money when you divorce? It\u2019s one of the first questions people have, understandably. In <em>Financial needs in divorce: your questions answered,\u00a0<\/em>we take a look at this question in relation to the concept of 'financial needs' and how it's dealt with in the courts.<\/p><p>\u00a0<\/p><p>The short answer to what happens with money when you divorce is: you take your assets - property, cash, investments, art, antiques, pensions, whatever else, and you split them. The starting point is a 50:50 split.<\/p><p>\u00a0<\/p><p>But it\u2019s only a starting point and often a rough guide to what might happen. That\u2019s why you can\u2019t look at your parents\u2019 divorce or your sister\u2019s or best friend\u2019s to know what\u2019s going to happen to you. Yes, financial needs in divorce are not straightforward!<\/p><p>\u00a0<\/p><p>The truth is: it depends on all the circumstances of your case.<\/p><p>\u00a0<\/p><p>It depends on the s25 Factors, and the needs of you and the family. Section 25 basically looks at all the circumstances of the case. If the available wealth in the family doesn\u2019t exceed the needs of the family (which is true for most people), yours is a needs-based divorce. This includes the needs of your ex as well as you. Yes, financial needs in divorce are always about both of you.<\/p><p>\u00a0<\/p><h2>What are the s25 Factors?<\/h2><p>\u00a0<\/p><p>The s25 factors are of crucial importance. Whether you sit down with your ex over coffee, whether you mediate, collaborate or arbitrate, the s25 factors will influence the decisions that a court will seal in a final order. The factors include:<\/p><ul><li>The welfare and needs of under 18s (including children that aren\u2019t your ex\u2019s by law, but that your ex assumed some responsibility for while you were together)<\/li><li>The income of you and your ex, as well as future earning potential<\/li><li>Financial needs of you and your ex, including the standard of living you are both accustomed to<\/li><li>Your age and mental and physical health, including any disabilities<\/li><li>The length of the marriage.<\/li><\/ul><p>\u00a0<\/p><p>You can read the <a href=\"http:\/\/www.legislation.gov.uk\/ukpga\/1973\/18\/section\/25\">full list of s25 factors here.<\/a><\/p><p>\u00a0<\/p><p>\u00a0<\/p><p>\u00a0<\/p><h2>Do courts across England and Wales rule consistently?<\/h2><p>\u00a0<\/p><p>Attempts are continually being made to ensure that there is consistency of approach in courts across the country. This is challenging, however. Financial needs in divorce vary geographically. My experience as a divorce coach with clients both nationally and internationally is that often courts still take very differing views about how assets are distributed on divorce. London is seen as more generous to women (this has an international reputation), but then, it\u2019s more expensive! As a London resident myself now - I can attest that my living costs have significantly increased for this Yorkshire girl (yes, ouch)!<\/p><p>\u00a0<\/p><p>The main problem that self-represented people find is that there are no set rules. When we feel lost and uncertain, rules can make us feel safe, secure and in control. When there are no rules, it\u2019s terrifying. How long is a piece of string? Which side of the bed did the judge get out of? Will they see through my charming\/victim-playing husband? Shall we just toss a coin to see who gets the dog?<\/p><p>\u00a0<\/p><h2>What are \u2018financial needs\u2019 in divorce?<\/h2><p>Just as there are no rules, there\u2019s currently no definition of \u2018financial needs\u2019 in statute so if you\u2019ve been looking, you can stop now.<\/p><p>\u00a0<\/p><p>It makes predicting court decisions difficult. Of course, it stands to reason that \u2018needs\u2019 will always be relative. The middle-aged wife of a wealthy man could live in a one bedroomed flat in the cheapest town in England, of course. But will she have to? No. Her needs may still run into a multi-million-pound divorce settlement. So the concept of needs isn\u2019t straight forward.<\/p><p>\u00a0<\/p><p>The basic concept of \u2018needs\u2019 refers to the need for housing and the provision of income. Marriage often creates a \u2018relationship of dependency\u2019 through, for example, caring for children, homemaking and caring for ageing or ill relatives. These marriage-generated needs are taken into account.<\/p><p>\u00a0<\/p><p>How \u2018needs\u2019 are interpreted is down to judicial discretion. The first consideration is to the welfare of children under the age of 18, but not above all other factors. So, whilst the children\u2019s welfare is important, it must be considered in light of all your circumstances.<\/p><p>\u00a0<\/p><p>Many find the age 18 limit frustrating, and out of touch with modern family realities. More and more adult children remain financially dependent on their parents into their twenties and beyond. Yet, the law doesn\u2019t recognise the needs of these adult children. It can be a sad reality that adult children may find themselves in rented accommodation sooner than they had planned. Unless both parents agree to continue to provide at least one stable residence they are on their own.<\/p><h2>How is 'need' assessed?<\/h2><p>You can\u2019t have a share of what isn\u2019t there. You have to start with what there is. The first step always needs to be a full inventory of the assets <strong>and <\/strong>the liabilities held by you and your ex, both jointly and individually.<\/p><p>\u00a0<\/p><p>It\u2019s why I always say (and often!) \u2018no negotiation without knowing your numbers\u2019. The starting question will always be:<\/p><p>\u00a0<\/p><p>\u2018What are the financial resources available to meet both parties\u2019 needs?\u2019<\/p><p>\u00a0<\/p><p>Once that is clear the resources will be split based on the need for housing and living costs taking into account all the circumstances of the case and the s25 factors.<\/p><h2>What does case law tell us?<\/h2><p>The leading cases are still <em>Miller v Miller and McFarlane v McFarlane <\/em>from 2006. \u00a0In these cases, the House of Lords looked at the issue of need, compensation, and sharing. The overriding objective of decisions is fairness.<\/p><p>\u00a0<\/p><p>The starting point is a 50:50 split of assets. But what if this does not meet the \u2018needs\u2019 of one spouse? Then the decision moves in favour of the financially weaker party.\u00a0Baroness Hale in <em>Miller, McFarlane <\/em>said:<\/p><p><em>\u00a0\u201cGiving half the present assets to the breadwinner achieves a very different outcome from giving half the assets to the homemaker with children\u201d.<\/em><\/p><p>\u00a0<\/p><p>If there is additional wealth, once the needs of both spouses (and children) are met, the rest of the assets should be shared. This is of course considered in the light of all the s25 factors so the age of parties, duration of marriage and contribution to that outstanding wealth will all be considered.<\/p><h2>Does it matter whether they are matrimonial or non-matrimonial assets?<\/h2><p>The duty is to disclose all assets within the marriage that one or both parties have a legal or beneficial interest in. This includes assets acquired prior to the marriage. Everything must be declared. It doesn\u2019t matter whether the asset is realisable now or not. All illiquid assets must be declared although of course, the courts will need to consider the nature of these assets when looking at asset distribution. Assets held in trust must also be declared.<\/p><p>\u00a0<\/p><p>In recent years, parties have asked the courts to distinguish assets which have been gained during the course of the marriage - clear \u2018marital assets\u2019 and those which could be considered \u2018non-marital\u2019. This could include property acquired before marriage or trust assets, for example.\u00a0Unless there is a surplus of assets to needs (which is uncommon) the court will not make this distinction, because it would lead to unfairness when the overriding objective in such cases is to ensure that each party is housed and can afford to live.<\/p><p>\u00a0<\/p><h2>What if assets are inherited?<\/h2><p>\u00a0<\/p><p>As mentioned above, inherited assets must be disclosed. They are, at the very least, a resource to which the inheriting spouse has access. Depending on how that inheritance has been dealt with, it may be considered by the court as an asset that can be used to meet needs.<\/p><p>\u00a0<\/p><h2>What happens when assets exceed needs?<\/h2><p>\u00a0<\/p><p>When assets exceed needs the court has more discretion to consider the issue of matrimonial v non-matrimonial assets. Current case law tells us that in such cases, the principle of \u2018sharing\u2019 is more appropriate than simply reassigning the asset back to its original owner, but that each case should turn on its own facts and judicial discretion should be applied. This is where it\u2019s hard to find a consistency of approach!<\/p><p>\u00a0<\/p><p>However, the longer the marriage, the less likely the court would be to refuse to share the asset. If you feel that you have a \u2018non-matrimonial\u2019 asset case you should seek specific legal advice.<\/p><p>\u00a0<\/p><p>.<\/p><h2>What if there\u2019s not enough to go around?<\/h2><p>In many cases, there simply isn\u2019t enough in the pot for each spouse to live comfortably once the assets are split. The court then has the unenviable task of balancing the \u2018unfairness\u2019 between the parties - remember, in financial proceedings, the needs of the children do not trump everything.\u00a0All s25 factors are considered.<\/p><p>\u00a0<\/p><h2>Do I need to become financially self-sufficient?<\/h2><p>\u00a0<\/p><p>Usually, yes. In most cases, the court will expect you to reach self-sufficiency. Gone are the days when most divorced women can look forward to a \u2018whole life\u2019 order, regardless of the relationship of dependency during the marriage. These days, women are expected to work toward financial independence. This will mean returning to work if they have been a stay at home mum (<a href=\"https:\/\/www.emmaheptonstall.com\/divorce-coaching\/why-your-days-as-a-stay-at-home-mum-may-be-numbered\/\">read more about that here<\/a>), increasing working hours, or retraining or upskilling to better-paid work. This is subject to the ages of the children and the other aspects of the s25 factors - capabilities, health, and financial resources.<\/p><p>\u00a0<\/p><h2>What about compensation?<\/h2><p>\u00a0<\/p><p>The concept of compensation arose in the cases of <em>Miller v Miller, McFarlane v McFarlane. <\/em>This sought to address the situation where one spouse (often the wife), had given up a highly successful or lucrative career to stay at home to raise the family. Compensation was intended to reflect the lost opportunity to climb to the highest levels of financial renumeration. Even if she returns to work, she may have lost 10-20 years of career and is unlikely to match her ex\u2019s salary. Whilst she may receive an equal share of assets, she will no longer have access to a share of his earnings.<\/p><p>\u00a0<\/p><p>To compensate, the court may award the compensated spouse a greater share of capital assets or spousal maintenance. Which sounds positive for many of my clients who find themselves in the position of needing to return to the workforce with diminished career prospects.<\/p><p>\u00a0<\/p><p>Unfortunately, the issue of \u2018compensation\u2019 has not had an easy ride in case law. It is often decided that the equal division of capital assets (the starting point) is enough to \u2018compensate\u2019. And in many cases the career must already have been lucrative to successfully argue a \u2018compensation\u2019 point. Having the potential to rise high is not enough.<\/p><p>\u00a0<\/p><h2>How do you consider your own financial needs in divorce?<\/h2><p>\u00a0<\/p><p>This <a href=\"https:\/\/www.judiciary.uk\/wp-content\/uploads\/2016\/04\/fjc-sorting-out-financial-needs-april-16-final-revised-nov17.pdf\">helpful guide from the judiciary<\/a> is a good starting point to work out your needs. \u00a0It sets out what the courts expect, and what you need to take into account. Don\u2019t forget to consider your values as you work through it\u00a0 \u2013 think about what matters to you. Case law and statute are all well and good. They cannot and should not be ignored. But they only go so far - remember, this is your life and your divorce.<\/p><p>\u00a0<\/p><p>What do you want and \u2018need\u2019 for you? Often it\u2019s not just about the money. Money issues are often a cover for so much more about what matters to us, how we feel about what the future may or may not hold. The court won\u2019t help you sort out your emotional life, that\u2019s your job. But it doesn\u2019t mean you have to do it alone.<\/p><p>\u00a0<\/p><p>When you work with me you get confidential support from the perspective of someone who knows the legal system, the financial disclosure requirements, AND who can support you emotionally as you navigate decision-making and paperwork.<\/p><p>\u00a0<\/p><p>If you want to get your needs \u2013 financial and emotional \u2013 understood and sorted so you can stand strong in your divorce, I\u2019m happy to help. <a href=\"https:\/\/www.emmaheptonstall.com\/divorce-coaching\/contact\">Just book in a call<\/a>.<\/p><p><a href=\"https:\/\/www.emmaheptonstall.com\/divorce-coaching\/about-me-emma-heptonstall\/\" target=\"_blank\" rel=\"noopener noreferrer\"><strong>Emma Heptonstall,<\/strong><\/a>\u00a0the Divorce Alchemist is author of the Amazon best selling book\u00a0<a href=\"https:\/\/www.amazon.co.uk\/How-Be-Lady-Who-Leaves\/dp\/1999631501\" target=\"_blank\" rel=\"noopener noreferrer\"><strong>How to be a Lady Who Leaves, the Ultimate Guide to Getting Divorce Ready<\/strong><\/a>. 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\u00a0<a href=\"https:\/\/www.emmaheptonstall.com\/divorce-coaching\/\" target=\"_blank\" rel=\"noopener noreferrer\"><strong>www.emmaheptonstall.com<\/strong><\/a><\/p>","_et_gb_content_width":"","_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_feature_clip_id":0,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_post_was_ever_published":false},"categories":[59,20],"tags":[],"class_list":["post-15809","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-divorce-finances","category-divorce-coaching"],"jetpack_shortlink":"https:\/\/wp.me\/p6aDhr-46Z","jetpack_sharing_enabled":true,"jetpack_featured_media_url":"https:\/\/i0.wp.com\/www.emmaheptonstall.com\/wp-content\/uploads\/2020\/03\/Copy-of-Copy-of-EH_BlogImage-20.png?fit=1000%2C516&ssl=1","_links":{"self":[{"href":"https:\/\/www.emmaheptonstall.com\/divorce-coaching\/wp-json\/wp\/v2\/posts\/15809","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.emmaheptonstall.com\/divorce-coaching\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.emmaheptonstall.com\/divorce-coaching\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.emmaheptonstall.com\/divorce-coaching\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/www.emmaheptonstall.com\/divorce-coaching\/wp-json\/wp\/v2\/comments?post=15809"}],"version-history":[{"count":0,"href":"https:\/\/www.emmaheptonstall.com\/divorce-coaching\/wp-json\/wp\/v2\/posts\/15809\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.emmaheptonstall.com\/divorce-coaching\/wp-json\/wp\/v2\/media\/15810"}],"wp:attachment":[{"href":"https:\/\/www.emmaheptonstall.com\/divorce-coaching\/wp-json\/wp\/v2\/media?parent=15809"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.emmaheptonstall.com\/divorce-coaching\/wp-json\/wp\/v2\/categories?post=15809"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.emmaheptonstall.com\/divorce-coaching\/wp-json\/wp\/v2\/tags?post=15809"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}