It’s not fair: financial settlements when you divorce

As family lawyers, people often remark to us that they were “taken to the cleaners” when they got divorced. We are always intrigued by what this means.  All financial settlement orders are made by a judge, following a court hearing, or by agreement between the parties which then needs to be checked for fairness and approved by the court.

The court is never a rubber stamp, and if a proposal is considered unfair, a judge will refuse to approve it.

What is at stake is each judge’s view of fairness versus each party’s sense of this word. The Court of Appeal famously said that fairness is much like beauty: it’s in the eye of the beholder.

You will always want a court order: its binding, can be enforced and provides a high degree of certainty as to what should happen in the future. A court order enables the parties to move on knowing what the obligations are and what each will receive by way of settlement.

What does fairness mean in practice? First, it means allocating the assets of the parties in a way that meets their needs, regardless of whether the assets were marital or not. Second, following needs, unless there is a good reason, the marital assets should be shared equally.

Simple? Not really, as in practice the law enables a wide range of factors to be considered and each case is therefore judged on its own facts. Generally, however, the needs of children aged under 18 will take priority, and the party in the weaker position will likely receive a greater share; they have less, so they need more.

Most cases turn on managing where each party will live, how much they will have to live on and their pension claims. If there is a surplus after that, it should be shared equally.

Our sense of being “taken to the cleaners” is the difference between individual expectations and how the law considers a claim should be settled. Sometimes tough decisions must be taken, and it is often the case that in the short term each party must lower their sights and take a realistic view.

A court rarely takes the behaviour of people into account, and the reasons the marriage came to an end will be significant to you, but not to a judge. Forewarned is forearmed, so rather than rely on the friend who was taken to the cleaners, better to get advice at an early stage to enable you to evaluate your options.

If you wish to discuss this with one of the team, please get in touch.

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