Sorting out finances on divorce can be very frustrating. How should assets be divided?
The law on sorting out divorce finances is flexible not formulaic
If you have children, the level of child maintenance that should be paid is based on a formula. You simply need to go on a government website, enter relevant details and a calculation will be made for how much is due.
There is nothing like that for divorcing couples dividing their assets.
Instead of applying a mathematical formula, a judge must ask themselves “what is fair considering all the circumstances of this case?” This gives the court a very wide discretion.
Case law provides guidance and principles to be applied, but the law is deliberately flexible. Everyone’s circumstances are different, so what is fair in one case may not be fair in another. If a rigid formula were applied regardless of the particular circumstances of the case then there is the risk of real injustice.
Nevertheless, there is a balancing act between giving judges the freedom to make orders that they consider fair in whatever case they have before them, with the benefits of predictable outcomes. If the law were more predictable then there would be less room for arguments and more cases would settle out of court, minimising stress and legal costs for everyone.
The new Financial Remedies Courts will make outcomes more predictable
The President of the Family Division has recently announced some changes that are designed, in part, to make dealing with finances on divorce more predictable.
He has announced the roll out of a national system of specialist Financial Remedies Courts. Instead of divorce finances being dealt with by judges who deal with a wide range of other areas of the law, in the future cases will be dealt with by specialist judges in centres around the country. These judges will be better trained, communicate better between themselves and be able to build more experience in this particular area of law. This should result in greater consistency between judges.
The President also promises that these specialist judges will report more judgments in “small and medium cases”. At present, most published judgments involve extremely wealthy individuals living lifestyles that most can only dream of. As a consequence, they often offer little guidance to separating couples on what a judge would order in more ordinary cases. The President of the Family Division hopes that reporting more run-of-the-mill cases will “result in increased predictability of outcome, which in turn should lead to a higher rate of settlement”.
What these changes mean for you
These developments must be welcomed by those who would prefer greater predictability, without sacrificing the flexibility of our current law.
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