Do I really need a family lawyer when I can find all the information I need on the internet?
The internet is a great source of information. There are some very good websites, such as http://www.resolution.org/; www.gov.uk; www.relate.org.uk and www.cafcass.gov.uk where information about what to do when you are separating finances or making arrangements for children following relationship breakdown can be found.
So what can you add as a family lawyer?
Here I am going to talk about resolving financial arrangements following the breakdown of a marriage or civil partnership. I should point out that there is no fixed formula when it comes to sorting out finances following the breakdown of a marriage or civil partnership. You might think that it’s a 50 / 50 split because ‘that’s what everyone says’.
Over recent years the Family Court has moved to what might be described as a default position of an equal division of assets, but it must be stressed this is a starting point or yardstick. A better description is the sharing principle. That said, what happens for example if one person owned a house or had inherited land or money before the marriage took place? Maybe one person inherits money after the couple has separated. What happens if there isn’t enough money to buy two houses if the family home is sold? Do you have to sell the family home and go into rented accommodation or can the sale of the house be delayed until say the children have all left school? What if one of you earns a bonus during the marriage or after the marriage ends? What if one of you doesn’t work because you have made a decision that one will stay at home whilst the other continues to work? What if your marriage is a short one? So many questions!
Take for example the short marriage. Recently in the case of Mr and Mrs Sharp the Court of Appeal was asked to consider whether it is inevitably the case the matrimonial assets should be shared between the parties on an equal basis. The facts were that Mr and Mrs Sharp were in their early 40s. they were both working and had a similar income; had no children; had lived together for 18 months and been married for four and a half years – a six year relationship in the eyes of the Court. During the marriage Mrs Sharp received discretionary annual bonuses that amounted to £10.5 million. Mr Sharp’s bonus in the period, by comparison, was trivial.
The Court of Appeal looked first at the eight matters set out in S25 of The Matrimonial Causes Act 1973, giving first consideration to the welfare of any children of the family under the age of 18. The Court is obliged to do this before reaching a decision. The Court also reviewed a great deal of case law relevant to the decision it was being asked to make. The outcome in this particular case was there would not be a 50/50 split of all the assets. Lord Justice MacFarlane said in the judgment ‘an automatic and blind application of a 50 / 50 split in every case can only be an impermissible judicial gloss on the statute (law), which expressly requires the Court to consider all the circumstances of the case’. Lord Justice MacFarlane does not consider there will be a 50/50 split in every case.
Take next a situation where one party earns significantly less than the other. Will the one who earns more have to pay maintenance to the other? If so, for how long and how much? No matter how much research you carry out on the internet, you will not find a definitive answer to those questions because the answers depend on how much money do you each need to live on; do you have any children; how old are they; how old are you; and so on.
So to answer the question do I really need to take advice from a family lawyer, my answer is ‘yes’. By consulting a family lawyer you can obtain advice on the particular circumstances of your situation. After all no two marriages are the same and so why should all financial settlements be the same? Even if you only consult a family lawyer once, at least in doing so you will obtain a clearer picture of what is likely to be a fair application of the sharing principle in your particular case.
But I’m not married to my partner – does that make any difference?
It makes a huge difference. Married couples and those in a civil partnership can rely on the Matrimonial Causes Act 1973. There is no such Act applicable to co-habiting couples and you should definitely speak to a family lawyer both before embarking on property ownership together and at the end of your relationship, but that’s a topic for another day ……