Husband and wife equal in eyes of law

Jul 1 2008 By Kim Fellowes, The Journal

MANY high profile cases, including the much publicised case of Sir Paul McCartney and Heather Mills have resulted in people asking exactly what can a husband and wife expect to receive by way of assets on divorce?

The first principle to be applied is that of fairness. Each case has to be considered on its individual merits and numerous factors taken into account.

One matter which surprises many is that in marriage, husband and wives are considered equal partners. As such, when this partnership ends, each is entitled to an equal share of the assets of the “partnership” unless there is a good reason to the contrary. Therefore, the wife and mother rearing the children may expect a fair share of the financial worth of the marriage, notwithstanding the fact that all or the majority of the financial assets have been accumulated through the husband’s efforts and achievements in his career.

Issues which require particular consideration by the family lawyer or court include:

:: Welfare of the children.

:: Financial needs of the parties – looking at income and future earning capacity.

:: Length of marriage.

:: Standard of living enjoyed by the family before the breakdown of the marriage.

:: Compensation – “redressing any significant prospective economic disparity between the parties arising from the way they conducted their marriage”. This can arise in a case where a spouse has given up a career to look after children and to support the other spouse in their career.

It is important to note the court does not treat all property in the same manner. A distinction can be made between assets which can effect a financial settlement depending upon the circumstances of the case.

The financial settlement finally awarded to a party often results from the efforts of the family lawyer in putting forward the relevant arguments that will apply to the circumstances of a particular case. As such, failure to employ a specialist family lawyer skilled at maximising the merits of their client’s case is a mistake few people can afford to make.

Kim Fellowes is a partner in the wealth management team at Dickinson Dees LLP