Certainty or fairness – how are assets divided during a divorce?

Certainty or fairness – how are assets divided during a divorce?

As Laura Brown quite rightly states in the New Law Journal article, Divorce: the great divide, when it comes to making financial settlements for families and protecting the best interests of children, one size does not fit all.

With couples marrying much later in life these days they often go into the marriage having acquired assets along the way, whether inherited or not, which they own in their sole name.

In these cases, arguments start to crop up as to how these assets should be divided between the couple during a divorce.

The law in this area is uncertain and can lead to costly legal cases as a result. This is because the courts retain a wide discretion as to how the law should be applied.

The great thing about this discretion is that it allows for flexibility and means that every case can be determined on its own facts – what’s suitable in case A won’t be appropriate in case B and so on.

Whilst I welcome the need for further guidance and clarity from the Law Commission, this really shouldn’t be at the expense of losing that discretion.

I don’t agree with the rigidity, for example, of having a cap of three years on financial support. What about the mother who has a baby or very young infant at the time of the divorce?

The mother’s ability to work full time is still going to be severely restricted as a result of her childcare commitments even when the child is three years old and might qualify for a free nursery place.

Ultimately, if it comes down to choosing between certainty and fairness then fairness must be placed as the higher priority every time.

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