The court’s approach when considering divorce settlements

What factors does the court taken into account when dealing with the financial aspects of divorce and what approach does it take?

The court has to consider all the circumstances of each case, which gives the court a wide discretion. As each marriage is different, each case is different.

It is the court’s duty however to give first consideration to the welfare of any minor children of the family under 18.  In addition, the court shall in particular have regard to the following matters :-

  • The income, earning capacity, property and other financial resources which each party to the marriage 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 in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire
  • The financial needs, obligations and responsibilities which each party has or is likely to have in the foreseeable future
  • The standard of living enjoyed by the family before the breakdown of the marriage
  • The age of each of the parties and the length of the marriage
  • Any physical or mental disability of either of the parties
  • The contributions which each party has made or is likely in the future to make to the welfare of the family, including a contribution by looking after the home and children
  • The conduct of each of the parties, if that conduct is such that it would be inequitable to disregard it.  [Case law has determined that conduct will only be taken into account in exceptional cases and where it has been obvious and gross.]
  • The value to each of the parties of any benefit which by reason of the divorce they will lose [i.e. a pension]

The court’s objective is to reach a just result and justice is achieved when the result is fair between the parties. Recent case law has held that each party is entitled to an equal share of the assets of the marriage partnership, unless there is good reason to the contrary. Reasons where the court departs from an equal division can arise as a consequence of giving first consideration to the welfare of children and also where it is necessary to meet a parties needs.

Other reasons to depart from an equal division of the assets might include where assets were inherited, or acquired prior to the marriage; but this will depend on all the circumstances of the case and the needs of the parties.