Equality in divorce proceedings - should breadwinners and homemakers be worried? - Family Law Partners

Equality in divorce proceedings – should breadwinners and homemakers be worried?

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There is a common belief that matrimonial assets are simply divided 50:50 when a couple divorce. Experienced divorce solicitors agree that it is easy to see why such an assumption is held by many given that the objective of the family court is achieve an outcome which is ‘fair’ to both parties.

But does fairness mean financial equality? Not necessarily. What it does mean is that the there must be no discrimination between the respective roles of the so-called breadwinner and homemaker. These roles are regarded as equal and the parties are entitled to equal treatment.

For most cases, particularly in long marriages, provided that the parties ‘needs’ are met then you would look at a broadly equal division in the first instance. If that does meet the parties’ needs, then that should be that (save insofar as there may be adjustments to ‘buy off’ maintenance claims and pensions and if not, the departure has to be justified).

However, there are a number of reasons why assets may not be divided equally after a long marriage, one of which is a ‘stellar contribution’. It will rarely apply. This is where one party has generated a vast fortune from his or her own unique skills and endeavours. For example a case in 2007 saw an extremely successful businessman had grown the couple’s assets from nil to £131m during their 30 year marriage. The court accepted that he had made a ‘stellar’ contribution to the family. In reality this was an unusual case with enormous assets. Most high-earning parties, despite arguing that they deserve extra credit having given blood sweat and tears to provide for their family, are very unlikely to be successful in arguing that they should retain more than 50%.

A more common example would be where one party owned an asset before the marriage and that asset had always remained separate to the family finances or an inheritance which again has been regarded as solely owned and kept separate. In these circumstances, there is an argument that the person with the asset would seek to retain more than 50% of it providing the other party’s needs have been met elsewhere. The departure from equality is justified given the historical context of the asset.

Where there has been a short marriage the court will consider whether the assets were built up before or during the marriage. Assets during the marriage and the family home are likely to be divided equally. Assets acquired before the marriage may be ring-fenced and not subject to the same equal division.

First and foremost, the court will always look to meet the needs of each party. If these needs can be met from the assets and there is then a surplus, the court may go on to consider dividing the remaining assets taking into account where they came from. The financial contributions made by each party are one of the factors taken into account by the court under Section 25 of the Matrimonial Causes Act 1973. In practical terms this is only likely to be relevant in cases where the assets are substantial.

To summarise, in all cases the roles of homemaker and breadwinner will be seen as equal. Only ‘stellar’ contributions are likely to be relevant to very big money cases. “I’ve earned all the money” or “I’ve been a homemaker and looked after the children” are comments which can benchmark expectations or concerns. Absent a unique case and needs being met, it will not matter.

Arguing that you are entitled to a larger share of the assets because you have been working and paying for everything throughout the marriage while your spouse has stayed at home will get you nowhere. Being concerned your spouse has earned all the money should be one less thing to worry about.

One of the impacts of one person having been the homemaker/stay at home parent is the impact on their ability to earn a living going forward. Section 25 requires “the income, earning capacity, property and other financial resources which each spouse has or is likely to have in the foreseeable future including, in the case of earning capacity, any increase in that capacity which it would be, in the opinion of the Court, reasonable to expect a person to take steps to acquire”.

This issue requires careful consideration and a degree of pragmatism and realism. Expecting the stay at home spouse in their mid-fifites to “clean toilets” where the other party has a good career will elicit a robust response from many judges, so beware how you put your case. In short, there is no substitute for expert advice. Family law experts will help you understand the facts associated with your own personal circumstances, avoiding time and money being wasted on arguments that will not stand up in court.

For more information please see our free factsheet on divorce and our approach to resolving financial issues here: https://www.familylawpartners.co.uk/what-we-do/financial-issues

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