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Who gets what in divorce cases?

08 January 2007

Once you’ve got over the initial shock of getting divorced, you need to find out what you can salvage from the relationship, says legal editor, Maureen Mullally.

The court considers…
The end result


When the court considers the finances of a divorcing couple, the judge has the power to decide how money and property should be divided. 
All your assets are taken into account – it doesn’t matter whether the home you live in ‘belongs’ to one of you and it doesn’t matter if one of you has built up a substantial pension fund, savings or investments. Everything from jewellery, stocks and shares, cars, caravans, boats and motorcycles are valued as joint assets. So, even if you’re worth more on paper, you may have to give up some assets to arrive at what the court will consider fair in all the circumstances of the case.

The court considers…

When decided who gets what, the court has to consider how long the marriage lasted, whether children are involved and the respective earning capacities of the husband and wife, your state of health and your likely future needs (if you will be looking after the kids, for example).
Common delusions include that, even if the man has paid for the house, that the wife has no claim on it and again, that one half can’t claim a chuck of the other’s pension. Both can and do happen and nowadays its increasingly high-flying career women that lose out in a divorce.
Some people believe that the person who caused the breakdown (by having an affair, for example) will have a lesser claim on assets, but the court often refuses to take behaviour into account, except in very exceptional cases.
If you have stayed at home to care for the children so that your other half can continue their career, then that contribution to the family will be taken into account when it comes to deciding what is fair. But remember, if you cohabit, without getting married you can only make a claim against your ex based on property ownership - staying home and bringing up the kids doesn't entitle you to anything at all (yet).

The end result
Any lawyer who could predict the financial outcome of a divorce would be a millionaire. Most people find that the predicted result differs from solicitor to solicitor as each have their own opinion. Remember s- even judges are human beings and it’s unlikely that two judges will come to the same conclusion with presented with the same financial facts.
What all this boils down to is the facts that you should think hard about trying to negotiate a financial settlement with the help of a professionally qualified family mediator. 
Mediation has huge advantages over battling things out in court. Firstly, it is considerably cheaper than employing solicitors. Even more critically, if you manage to reach an agreement, it will be because the terms of that agreement are something that both of you can live with. No one ever gets exactly what they want in court so, if you do go down that route, it’s a possibility that neither party will be pleased with the outcome.
Mediation can also help to reduce bitterness and acrimony between divorcing spouses whereas solicitors can add to the tension by writing tactless letters (each of which costs you money).
Even if mediation doesn’t help you achieve your end goal, most of the work that solicitors will charge you to do will have been covered, which will help keep costs down.

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For more divorce help read articles in our finance section.
For more divorce help read articles in our property section.

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