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  • Tracey O' Dwyer

50/50 is fair, right?

The following are common comments that I hear from prospective clients:

  • We get half each, don't we?

  • As I've got children, I'll get 60/65/70%, right?

Neither is a one size fits all outcome. Each case turns on its own facts, and 50/50 is just a starting point. It is often NOT the end point.

Matrimonial law states that the outcome must be fair in all the circumstances, and there could be a number of reasons why equal sharing would not produce a fair outcome. These include:

  • One person might have contributed a material amount from sources external to the marriage - eg. inheritance, gifts from family or assets owned pre-relationship; and/or

  • a 50/50 split might leave one party unable to house, and especially if they have children living with them, their needs might justify a departure from equality.

By way of example, if you had, say, a husband earning £60,000 a year, and a wife earning £10,000, perhaps because her work is based on hours that work around the children, then a 50/50 split of the family home might produce a very unfair outcome. The husband might have a healthy mortgage capacity, and the wife might have no mortgage capacity at this time. As such a 50/50 split in this scenario could result in the wife unable to house herself and the children, leaving her to rent, while the husband goes off and buys somewhere.

One exercise that is often undertaken in any disclosure framework, whether it is voluntary or through the courts, is the parties are asked to go off and obtain evidence of mortgage capacity and details of properties that would be suitable for them each to live in. This exercise helps to "road test" what sort of split would enable both parties' needs to be met, if possible. There is not a fixed percentage of what this might be, but rather a balancing of needs. It is not automatic that the person with whom the children mostly reside will get more, but it may be that they need more, based on their circumstances, in order to meet needs.

Sometimes a person might not have children, but might earn a lot less than the other spouse; again, they might have an argument for a greater share. Sometimes a person might not get credit for contributions from sources external to the marriage, and this is something to be looked at carefully.

Meeting "needs" is just one of the criteria that matrimonial law must consider, and it is a compelling and weighty factor. However, there are other factors that may be relevant too.

Matrimonial law gives Judges who decide cases significant discretion as to how generously they interpret needs, and how much weight they apply to the various statutory criteria. Often a case has a number of elements, and all of those elements must fit together, which can include property, capital, pensions, liabilities, income and so on. I often tell clients that if you give a case to five different Judges you may well end up with five different outcomes - all within the range of fairness but potentially interpreting needs and other factors differently. Ideally you will not have a Judge decide the outcome in your case, and you will reach an agreement by consent, but do take qualified advice as to what the range of fairness might look like in the circumstances of your case.

If you would like to discuss any of this, please do get in touch here.


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