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The Money and Divorce blog is brought to you by Intelligent Divorce, the new way to get fixed-fee specialist legal advice on splitting your money when you divorce.

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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13 February 2012

Divorce and divide the money by two? Not always

Mahie Abey
There is a commonly held view that divorce lawyers only ever need to divide by two to get to the answer for a financial settlement – isn’t that what always happens?

Sometimes it is true, but more often than not it is not.

The reason is that in any given situation there are a number of factors that need to be considered when dividing money on divorce. These factors are set out in Section 25 of the Matrimonial Causes Act 1973. Not all of the factors carry equal weight and there is a great deal of case law on how to apply them.

So if you are trying to divide your money on divorce without using lawyers, how do you get to the right answer? What follows is the law relating to dividing money post-divorce in a nutshell.

The first consideration is given to the needs of any children.

The next factor in the order of priority is the needs of the couple. (What are needs? I reckon they can be classed as income and housing.)

Most cases do not get beyond this point, as dividing the assets according to need normally uses them all up - in fact in many cases there aren’t enough assets to go around.

Because need trumps all other factors there is often no need to look any further. But if there are assets left once need is satisfied then the Court will look at the other Section 25 factors, such as the length of the marriage, the contributions made, where the money has come from and so on.

In addition there is the principle of sharing: the Court will try to share the assets when it can but again need will always take priority.

OK – that’s easy then. With my nutshell guide any couple can navigate their own way through the division of their money when they divorce.

Well, of course they can’t. The problem with the law is that these factors are all woolly, subjective and open to interpretation. And that is where the lawyers come in.

Most divorce lawyers will say that a lot of what they do is common sense. What they mean is that they interpret the factors above not actually using their common sense but their experience of how cases have been resolved in the past. Someone going through a divorce pays for that experience.

But – most people going through a divorce have the innate sense of what is right and wrong, what is fair and what isn’t that they learnt at their mother’s knee. They don’t always agree with each other but most couples are not deliberately trying to do the other down. They just cannot get their interpretation of what is the fair answer to fit with their partner’s interpretation. That is where Intelligent Divorce comes in. We give you that legal advice (from a specialist family law barrister at one of London’s leading chambers) to help you see what a judge might decide in your circumstances. The advice may not fit with what you think is right, or even what your ex-partner thinks is right, but it will be the view of an experienced family law barrister who sees cases like yours on a daily basis. With that, and your own common sense, I think the majority of divorcing couples will be able to sort out their own financial settlements.