When it comes to dividing assets on divorce, a court needs to decide what is in the matrimonial pot. These assets include; the family home and other properties, savings and investments, business assets and pensions.
Some of the assets may have been acquired prior to the marriage or cohabitation and these are termed ‘pre-martial assets’. These are normally excluded from the matrimonial pot, unless there are insufficient martial assets to satisfy the needs of the parties, in particular the housing needs of children.
Some assets acquired during the marriage can be ring-fenced and not included in the matrimonial pot. These include inheritances, if they have been kept separate from matrimonial assets.
The starting point for the division of the assets is equality. However, the court has to consider the criteria set out in S.25 of the Matrimonial Causes Act 1925 to determine what is a fair division of the assets.
· Welfare of the children
· Income, earning capacity and property
· Financial needs
· Standard of living
· Ages of the parties and length of the marriage
· Conduct, if inequitable to disregard (e.g. dissipation of the family assets by gambling)
An example of the departure from equality is where the wife receives a larger share of the equity in the matrimonial home in order to buy a property for herself and the children. This would be on the basis that because of her limited borrowing capacity and a 50% share of the equity, she would not be able to fund the purchase of a property and therefore needs more capital to do so.
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