Divorce can be a stressful and upsetting time for many separating couples, especially when it’s a divorce with children involved. Most spouses live together in the family home, so when they divorce, often their first thought is about where they are going to live. This is because in most cases, the main asset in the marriage will be the family home.
When looking at how to arrange the finances following a divorce, the courts refer to a list of factors set out in section 25 of the Matrimonial Causes Act 1973. These factors must be considered when looking at what is a fair division of marital assets.
Where there are children involved, primary consideration is always given to the needs the children. The courts are concerned with how each spouse and the children can be housed. Naturally, you’ll want to do what is best for your children. This includes ensuring their care and wellbeing is at the forefront of your decisions as a divorce with children can be challenging.
Section 25 of the Matrimonial Causes Act 1973
When determining what is a fair financial settlement, the court will consider the following list of factors:
- The income, earning capacity, property and other financial resources which each of the parties to the marriage has, or is likely to have in the foreseeable future. (This includes 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 of the parties to the marriage 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 party to the marriage and the duration of the marriage
- Any physical or mental disability of either of the parties to the marriage
- The contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family (Including any contribution by looking after the home or caring for the family)
- The conduct of each of the parties, whatever the nature of the conduct and whether it occurred during the marriage or after the separation of the parties or (as the case may be), dissolution or annulment of the marriage, if that conduct is such that it would in the opinion of the court be inequitable to disregard it
- The value to each of the parties to the marriage of any benefit (for example, a pension) which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring
- In cases where there are young children, the Court’s first concern will always be the welfare of those young children and how their needs will be met. In reality, the decisive factor in the majority of cases is the reasonable needs of the parties and the children of the family.
If your divorce involves children
When making the important decision on how to arrange and divide any marital assets following separation, the courts are concerned with a number of different factors. However, the primary factor is the consideration of any children of the family.
The needs and welfare of the children are prioritised above all other factors when you have a divorce with children. This means that the court will ensure that the children have a stable and secure home. Often, one parent is considered to be the primary caregiver. Typically, they will be the one who is responsible for meeting the day-to-day needs of the children.
When making decisions on the family home, the court first considers whether or not it should be sold. Ultimately, the court will take into account whether there is sufficient money to retain the family home and also take into account what the child arrangements are.
If the matrimonial home will not be sold, the question of who gets the house may often depend on who has primary care of the children. The court often favour the parent who has the main care of the children. This is to make sure that the children face the least amount of disruption possible, and that they have a stable home.
However, this isn’t always the case. Overall, the court must look at whether it’s financially possible to retain the family home and split the other financial assets in a fair way between both parents.
Where do I start?
When you have a divorce with children, financial matters arising from divorce can appear complex at first. It’s therefore important to seek expert advice. Often, separated parents can come to an agreement on a financial settlement, whether this being mediation or through negotiation between solicitors. Typically, applying to court for financial remedy proceedings is a last resort.
Property Orders
The courts have the power to make various court orders in relation to property following a divorce. For example, the court can make an order permitting a parent to live in the family home with the children until a certain time, such as the youngest child turning 18 years old. Arrangements to sell the house and divide the proceeds in the future can also be provided for.
However, the court can also make an order for the sale of the house and for the net proceeds to be divided accordingly. Alternatively, the court can order for a property to be transferred into one person’s name, and the other person receives a lump sum.
To find out if any property orders are appropriate for your case, please contact us to seek expert advice.
Mortgages
If your family home has a mortgage secured against it, it is important to consider how the mortgage can be dealt with. For example, if one person is leaving the family home, they may not want to still be liable for the mortgage. Additionally, the spouse that is leaving must be able to afford to purchase or rent another property and be re-housed.
It’s important that the person remaining in the property considers whether they can afford to pay the mortgage payments on their own or not.
Maintenance payments
In some cases, one person may have to pay the other maintenance payments. When determining whether a person is entitled to maintenance, the court will consider the following factors:
- Length of marriage, including whether one spouse gave up work during the marriage
- Whether each party is working, including what each party’s financial needs and income potential is. For example, can both parties manage financially without spousal maintenance?
- The ages of each spouse and their earning capacity
- Who is looking after any children of the family
If the court grant a maintenance order, it can be set for a limited period of time, or until one of you dies or remarries. The court can also decide on child maintenance payments, but this is often arranged by the Child Maintenance Service.
You can contact our experienced family law solicitors for expert advice. Our solicitors can help you ensure that you and your children are looked after during and after any financial proceedings.
