Posted by Jonathan Madge on 1st June 2015
Last updated 16th July 2015

Q. I am in my early forties with children aged 14 and 5.  Since the children are staying with me, doesn’t my spouse have a duty to house me?

Not exactly.  Where you have children from the marriage aged under 18, the court’s first consideration is the reasonable needs of those children. In practice, this means that firstly the court is likely to try to find a way to ensure the children have a home of a reasonable size, amenities and location (taking into account the location of the schools and work) and that the parent with care can reasonably afford to finance that home. However, the court will try to balance the assets overall – so that if the children will be staying overnight with the other parent, they should also be able to afford an appropriate home.

If the parent with care of the children cannot take on the mortgage, but a cheaper home will provide reasonable accommodation, occasionally a solution is found in which they move to enable the other parent at least to be able to afford to take on a new mortgage for his or her new home. If the parent with care successfully argues that they don’t want to move, and the other parent is tied to the original mortgage for many years, that other parent has a stronger case for being entitled to a share of the equity at a later point. This may mean a forced sale of the home when the first of a number of given events takes place, the latest being usually when the youngest child reaches eighteen or finishes full-time secondary education.

 Q. So the assets aren’t just divided 50/50 then?

No. Beyond the first consideration of the children’s needs, there is a list of other factors the court will take into account when working out a fair division of property, other assets and savings, pensions, and income. As well as assets and income that already exist, the court can take into account future earning capacities of both parents.

Q. Does that mean someone who has stayed at home for many years to bring up the children may still be expected to go out to work after the divorce?

This depends on the available assets and income, age and ability to do paid work. If a wife, for example, hasn’t done paid work for many years, the court may expect her to do what she can to find a job. However, the court would also look for a way to ensure she is not left stranded, perhaps by awarding maintenance for a specified period of time to give her the chance to find work. If, after this period she can show she has made reasonable efforts to earn a living but has not been successful, she could bring the case back to court for an extension of maintenance – although the cost of this could be high and the outcome uncertain. It is the same scenario if the husband stayed home to bring up the children.

Q. I know my husband is going to get a substantial inheritance and his parents are in their eighties.  Both my parents died during the marriage and we spent the money.  Is future inheritance taken into account after a long marriage?

Often this is not the case. A court would need to be satisfied that the future inheritance was likely to be received quite soon for it to be considered a ‘relevant’ asset in the divorce.  This may seem quite harsh for the person who has already received their inheritance,

Q. So the overall outcome in divorce is often not clear-cut? 

That’s right. The Court takes into account a range of factors to achieve what it regards as fair. As experienced family lawyers, The Family Law Company can advise you on how a court would be likely to balance these factors, so a binding financial agreement can be negotiated, and the need for protracted and expensive proceedings can be averted.

Where separating couples want to work cooperatively together to find their own financial outcome, we also offer Collaborative Law and mediation services.

Need some advice? Get in touch today

Jonathan Madge is a Solicitor at The Family Law Company. He specialises in complex divorce and finance cases and is also a practising Collaborative Lawyer. He has considerable experience of taking cases to court if necessary and in most cases without the need for a final hearing.

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