Divorce 70 30 Asset Split

The leading case of “White v White” clarified how the court was to apply the statutory criteria contained in the Matrimonial Causes Act 1973 [the MCA].

In the first instance the court was to divide the family assets between the parties in accordance with the criteria set out in the MCA.  Then the court must take a step back from the exercise and apply what was termed the “yardstick of equality”.  In broad terms the court must ask itself the following question:

• Have the assets been divided equally between the parties?
• If not, then is it “fair” to each of them that one party receives a larger share of the family assets?

Over the years the courts have adopt a modified approach to the “White v White” doctrine. The courts sometimes now first divide the assets equally between the parties, referred to as the 50-50 starting point.

Then the court takes a step back and applies the statutory criteria contained in s25(s) of the MCA to see if either party would suffer an injustice if the family assets were divided on a 50-50 basis.

If the court when looking at the criteria set out in the MCA decides that one of the parties’ is unfairly prejudiced by equal division then the award will be adjusted accordingly.

The courts overriding objective when carrying out its discretionary duty is to ensure both parties are treated “fairly” when considering the criteria as set out in section 25(2) of the MCA.

Having set out above the courts approach and the overriding objective when dividing family assets between the parties on divorce, it just leaves me to add that it is always advisable to seek legal advice before trying to negotiate the division of the family assets yourself for three reasons:

• Firstly, emotions often run high on divorce and vulnerabilities can cloud the rational judgment on both sides of the negotiation;
• Secondly, very often when I am called in to draw up an agreement reached by a couple, several factors have not been addressed, or even considered, leaving the agreement unintentionally biased in favour of one or the other.   At this stage of the negotiation, it is very difficult for the lawyer to unpick an unfair agreement or for both parties to accept the legal advice.   This often leads to bad feeling and resentment whether the advice is followed or not; and
• Thirdly, there are many reasons why one party should receive more than a 50-50 division of the family assets, such as inheritance, stella contribution, compensation, pre-acquired or post-acquired assets, ongoing contribution to the family as primary carer of the children  and not to forget the “reasonable needs” of the parties so that trumps everything.

It is for the reasons above that I suspect many people feel it is easier to divide the assets on a 70-30 split as this saves the time and effort of negotiating the correct outcome, considering each other’s needs. Which is why we offer a “money-back guaranteed negotiation package” to look at the possible outcomes and construct a negotiation strategy with you to help you achieve a fair and considered outcome that will meet both parties’ needs.

Martin Fuller