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Our blog provides illustrated practical guides for those going through the divorce process, plus news on divorce, money and family breakdown.

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6 September 2011

Six judges, six answers

Mahie Abey
Whenever a client comes to me one of the most important things I have to tell them is about our discretionary system for making a financial award in a divorce. What this means is that Judges have a great deal of flexibility in deciding the outcome, which will depend on the circumstances. There is no single right answer but a range of possible outcomes, with numerous factors taken into account and which may carry different weight.

As a result, if the couple went to six different Judges they would get six different answers. Hopefully the good Judges will give an answer in the middle of the range, the less good at the edges of the range and the downright poor ones (of which there are some) outside the range entirely. Only experience can tell where the range lies.

I explain that everything they have, their ex-partner has or they have jointly is put into one pot. It does not matter who owns it. How that pot is divided will depend on a number of factors including where the assets come from.

I show them Section 25 of the Matrimonial Causes Act 1973 and ask them to read it (you can read the section online at legislation.gov.uk). I explain that divorce lawyers are lucky because there is only one section of that statute that deals with how money on divorce is divided, though what the words mean can only be understood properly by looking at the cases that have been decided since the law came into force. (This is because particular cases have interpreted the meaning of this section of law, and Judges take account of these interpretations too – “case law”.)

I then explain that the Court looks at all the circumstances. However not all the factors set out in Section 25 are equally important or as a judge would say, “carry equal weight”. The first consideration is the needs of any children of the family who are minors. The children's needs could include, among other things, somewhere to live, access to settled suitable schooling and income to feed and clothe them.

The Court then looks at the needs of the parties. Most cases do not get beyond this stage as there will not be enough money to justify thinking about any other considerations. However I then explain that if there is something left after needs have been satisfied, the Court will look at all the other factors.

In long marriage cases (no definition is provided although 15 years is a long marriage but 10 years not so and in between a grey area) the Court’s starting point is equality of division of capital although that too will be trumped by the needs of the couple.